Gay rights, PN style: a gimmick to end all gimmicks

...but only a step, a token gesture that in and of itself will have little practical impact on Malta's gay and lesbian community. Without legislation to back it up, the proposed Constitutional amendment is a mere gimmick, an attention-grabbing and publicity stunt, a trick that a government indifferent to gay and lesbian rights is playing on the island's community.

Proposal 99 of the electoral programme foreshadows a Constitutional amendment that purports to have the goal of protecting citizens from discrimination on the ground of sexual orientation by ensuring that any law or administrative practice that 'permits' such discrimination may be declared null.

Most likely, a Nationalist Party government will seek to amend Sections 32 (Fundamental Rights and Freedoms of the Individual) and 45 (Protection from Discrimination on the ground of Race etc) of the Constitution of Malta. Of course, passage of the Constitutional amendment would require the support of a Labour Opposition. No one seriously expects the Nationalist Party to shoulder full responsibility when it comes to gay and lesbian rights! Or to make the road to gay and lesbian rights less complicated by introducing legislation!

Section 32 of the Constitution

Section 32 currently provides that every person in Malta is entitled to fundamental rights and freedoms whatever his (not her) race, place of origin, political opinions, colour, creed or sex. These fundamental rights and freedoms relate to (a) life, liberty, security of the person, the enjoyment of property and the protection of the law; (b) freedom of conscience, of expression and of peaceful assembly and association; and (c) respect for his private and family life.

Nonetheless, these fundamental rights and freedoms are subject to two important qualifications: the rights and freedoms of others and the public interest. And in a country that pretends to be Christian (however farcical that description may be), with a Prime Minister who only recently voted against the introduction of divorce in Malta, one can imagine numerous scenarios where these alleged fundamental rights and freedoms may be deemed to impact adversely on the rights and freedoms of others or, maybe, even against the public interest, however that interest is defined and by whom! Should such fundamental rights and freedoms be subject to the rights and freedom of others and to the public interest? And how is such conflict - real or imagined - to be resolved?

Section 45 of the Constitution

Subsection 45 (1) provides that no law shall make any provision that is discriminatory either of itself or in its effect. The term 'discrimination' is defined in sub-section 45 (3). Discrimination means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

To start off with, why have a cumbersome definition of discrimination? Is it the case that discrimination simply refers to (a) treatment or (b) consideration of, or (c) making a distinction in favour of or against a person based on his or her class or category rather than on individual merit?

Section 45, however, contains some significant exclusions. It does not apply to any law in so far as that law makes provision (a) for the appropriation of public revenues or other public funds; or (b) with respect to persons who are not citizens of Malta; or (c) with respect to adoption, marriage, dissolution of marriage, burial, devolution of property on death or any matters of personal law not earlier specified in the Constitution; or (d) whereby persons of any such description... may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description and to any other provision of this Constitution, is reasonably justifiable in a democratic society; or (e) for authorising the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists during that period of public emergency. And what is justifiable in a democratic society, may I ask? And how do gay men and lesbians impact on public emergencies? Pathetic!

Types of discrimination not protected

The Constitutional amendment purports to protect persons from discrimination on the basis of their sexual orientation. It does not protect - explicitly, at least - persons from discrimination on perceived sexual orientation (where a person is believed to be gay but is not) or personal association, the basis of their status (e.g., persons in a partnership or in a civil union) or unwelcome sexual behaviour. Significantly, it does not protect persons who are intersex or transsexual.

Direct and indirect discrimination not defined and explained

Any government serious about eliminating discrimination on the basis of sexual orientation has a duty to provide a simple and straightforward definition of 'discrimination'. Put simply, it must be in plain Maltese or plain English. A Constitutional amendment must also explain and set out what amounts to direct and indirect discrimination.

Confusion over what areas that may be covered

The Constitutional amendment only refers to laws and administrative practice. What about government policy?

The Constitutional amendment fails to specify what areas are covered. Does it cover all employment, the provision of all goods and services, the right to join all trade unions, access to all places and facilities, and all land, housing and other accommodation? Does it proscribe discrimination by the private sector? Can the owner of a guest house discriminate against a person on the basis of his or her sexual orientation or his or her same-sex relationship?

Are complaints to be made in writing? To whom? Is a complaint procedure to be set up? Are conciliation and arbitration procedures to be introduced? How is the government to monitor the enforcement of this amendment? Is it to be introduced into parliament and then put out of one's mind? Are complainants to be driven to seek redress before the courts and only before the courts? What impact will that have on those who do not have the funds to pursue expensive litigation?

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This is a no brainer. Governments that are truly committed to a policy of non-discrimination must do more than just amend Constitutions. They must be pro-active. They must educate the public and do so continuously.

Introducing a Constitutional amendment and failing to back it up with legislation is to do a Pontius Pilate. There are already precedents in Maltese law: the Equal Opportunities (Persons with Disability) Act 2000 (Chapter 413 of Malta's Constitution) and the Equality for Men and Women Act 2003 (Chapter 456 of Malta's Constitution). Both pieces of legislation already provide a format... for a government that is serious about eliminating discrimination on the basis of sexual orientation.

The plain fact is that the Nationalist Party government has a history of antagonism towards gay men and lesbians unless, of course, they happen to be closeted and favoured sons and daughters of the party. Only a fool would take the promise of a Constitutional amendment as a serious attempt to deal with the problem of discrimination on the basis of sexual orientation.  It is a half-hearted measure that has been forced on the party by electoral considerations. Nothing else!

Joseph Carmel Chetcuti is a barrister and solicitor in the Supreme Court of Victoria, and the High Court of Australia.