'Malta stands out' | Nils Muižnieks

Commissioner Muižnieks: in your press release, you mention that your “long-planned visit took place in the direct aftermath of the assassination of the Maltese investigative journalist Daphne Caruana Galizia.” As you are aware, that assassination also sparked a local (and international) discussion on the state of the rule of law in Malta. Insofar as it touches on your human rights remit... what, on the basis of your own local observations and discussions, is the state of health of Malta’s legal infrastructure? Do you share the view, echoed in the international press, that there are serious structural and institutional deficiencies?

There are rule of law aspects to it: for example, to what extent do you have an independent investigation going on? I was told that not only are the Maltese investigative authorities dealing with this, but you also have Scotland Yard, Europol, the FBI, the Dutch and so on, to dispel any doubts that the authorities were  not taking this seriously. That was reassuring. But when I asked journalists and media experts whether this was an exceptional case, and whether journalists were afraid to do their job... most media outlets told me they were afraid 10 years ago, when rightwing extremists would threaten them when they wrote about migration. Now, they’re more afraid of lawsuits. They’re not afraid of being killed: they’re afraid of being sued, especially in foreign jurisdictions, if they touch upon sensitive business topics. 

 

In a sense, those concerns are related to the Caruana Galizia murder. Pilatus Bank, for instance, sued Maltese journalists in the USA on the basis of allegations raised on Daphne’s blog. Also, Daphne herself was targeted by garnishee orders: a threat also levelled at this newspaper for earlier, unrelated investigative stories...

This raises the issue of defamation.  After this murder, I decided to look at what was being said about the media situation before. There were only two things that really stood out: one, that you have political parties that own media, which is quite unusual in the broader European context.  However, I was told by media experts that they keep tabs on each other, and it’s only to maintain their core constituencies. They’re not encroaching on other areas. But the other thing that stood out was defamation. You have a very high number of defamation cases, for such a small country. I met certain journalists who had 50,60,70 cases against them...

 

Daphne Caruana Galizia had 42 pending at the time of her death...

... that’s a huge number. And when I heard that in the draft media law there is a maximum penalty of 20,000 euros for civil libel, I thought that was very high. I urged the authorities to rethink that, and bring it down. They seemed to be receptive to that. One good thing that can come of this, despite the tragedy of the event, is that now everyone’s looking very closely at the new media law. Hopefully, you’ll come up with a world-class media law as a result of this tragedy. I also hope that this may lead to a discussion on professional solidarity. When I gathered together editors from newspapers, they clearly did not get along very well. But they all have interests in common: you all want to be safe from physical threats, you all need access to information to do your job well, you all don’t want to be subject to huge defamation charges or garnishee orders, and so on... you have things in common, regardless of your very different perspectives. So I’m hoping this discussion will continue and deepen.

Media law: Despite the tragedy of the event, now everyone’s looking very closely at the new media law. Hopefully, you’ll come up with a world-class media law as a result of this tragedy

 

Though overshadowed by the ongoing criminal investigation, this visit was primarily concerned with human rights relating to migration and integration. In particular, you pointed out that: “Integration should not be optional; every migrant should have the possibility to benefit from this strategy.” You also encouraged the authorities to ‘facilitate access to citizenship to long-term residents’. Both those statements imply that the opposite is actually happening. Is that your view? 

In order to integrate, in order for the individual to make any investment necessary to fully participate in a society, there are a number of preconditions. One, for instance, is that you have your family. I talked quite a bit about family reunification, and the prohibition for beneficiaries of humanitarian protection to benefit from family reunification. Syrians who come here, for example. Most of them have the status; clearly they are going to stay for a long time.  But they’re not allowed to bring their children or their spouses over. How do you expect them to integrate? That’s the very beginning. Next is to get a job and an education. But in the long-term, citizenship. You have very long waiting periods: 18 years just to be eligible to apply for citizenship. It’s incredibly long.

I don’t understand the justification for such a long period of time. I understand that it’s quite an un-transparent procedure: a purely discretionary decision taken by government, with no reasons given if you’re refused. I find that... strange. 

 

Government would argue that, as a sovereign State, Malta is entitled to formulate its own citizenship policies... 

Of course, it’s a government’s prerogative how to give out citizenship, but I think it’s in the interest of predictability and certainty for applicants – but also in the interest of integration – that the time-frames should be reconsidered, and more transparency should be injected into the process. So if someone does fulfil all the requirements: if they speak Maltese and English, have a job; a good reputation, no criminal record... and they’re not going to go anywhere... why not recognise that, and give the person full status?

 

What about the ones who do not meet those requirements? Malta has a high rate of refugee status recognition: but like all other systems there are those who do not pass. When you said that ‘every migrant’ should have the possibility to benefit from this strategy... were you also referring to failed asylum seekers?

I’m aware there was an issue with the THPn [Temporary Humanitarian Protection new]... I loved discussions about how this was being rethought: how they don’t want to make it automatic, but they want to provide some sort of pathway to regularisation for people who cannot be returned; who co-operate in good faith... and I welcome that. 

Clearly there is a growing number of people who are failed asylum seekers; who do not need international protection; but who cannot be returned for one reason or another. I think it’s in the country’s interest to know about them; to let them have a legal existence here, to work legally, to receive benefits and not to live on the fringes of society.

  

Despite the visit’s focus on migration issues, the media attention has so far centred on your claims – controversial, locally – that Malta should begin ‘a public debate on abortion and the infringements of women’s human rights resulting from its prohibition.’. You also said: “I note that abortion remains a taboo issue not debated publicly” and that “every individual or organisation should have the possibility to speak up in support of women’s rights without fearing stigma or negative repercussions”. Could you be more specific on the infringements arising from Malta’s abortion policy? And how seriously do you do view these on a human rights level?

Malta stands out. Four fifths of all Council of Europe member states provide abortion on demand. It is only Andorra and Malta where there is absolute prohibition on abortion. It doesn’t mean abortions don’t happen; it just means they happen illegally or underground, or when women go abroad. In Andorra, which is very close to the Spanish and French borders, they go abroad.  I am told they do here as well. So prohibition doesn’t address the issue at its root: the demand for abortion. It just makes it less safe and more expensive. It makes it unequal: only women who can afford to go abroad, or who have travel documents, can access safe abortions overseas

 

All the same, pro-life campaigners (here and elsewhere) always argue that abortion ‘is not a human right’. In fact, it is not listed explicitly in the Universal Charter. This raises questions about whether the issue actually falls within the remit of the Council of Europe’s Human Rights Commission.  Do you consider Malta’s restrictive abortion laws to be a human rights issue?

It is human rights issue: it affects a whole range of women’s rights. It affects their right to health; it affects their right to bodily integrity; their right to private life; it affects their right to be free of ill-treatment... because very often, women who are confronted with such restrictive regimes and policies are ill-treated: by doctors, among others.

It affects a whole range of women’s rights, and I find it of concern that the impact of this restrictive policy on women’s rights is not even being discussed. 

Abortion: I think it’s disturbing, that in a developed democracy, you cannot have a democratic debate on a policy that affects the human rights of so many women.... especially when your policy really sticks out, in the broader context

 

This raises another question I once asked Rebecca Gomperts, the pro-choice campaigner who runs ‘Women on Waves’. There is today more discussion on the issue than at the time: but then as now, there are no women’s organisations which openly campaign for on-demand abortion in Malta. So why so much international emphasis on abortion, when Maltese women – through their NGOs – do not prioritise it as an issue at all?

I actually heard from many women that they’re afraid to raise this issue; because they’re afraid of being stigmatised as ‘baby-killers’, for instance. Or some women’s organisations which say they don’t have a stand... basically because it comes down to funding.

They would lose their funding. I think it’s disturbing, that in a developed democracy, you cannot have a democratic debate on a policy that affects the human rights of so many women.... especially when your policy really sticks out, in the broader context.