Fastest route to national human rights body is Ombudsman, says Zammit McKeon

Malta’s Ombudsman has pitched the parliamentary institution as the rightful holder of an institution that would promote, monitor and enforce human rights as the island remains one of the EU’s sole four countries without a national human rights institution.

As things stand, the closest such institution in Malta so far is the National Commission for the Promotion of Equality (NCPE).

But in his annual report for 2023, Ombudsman Joseph Zammit McKeon, a former judge, reaffirmed his office’s call for its current remit to include a broader human rights mandate.

“This proposal aligns with the practices of many European countries where ombudsman institutions also function as NHRIs. The Ombudsman Act 1995 already empowers the office to investigate complaints about unjust, oppressive, or improperly discriminatory acts or omissions, laying a solid foundation for such an expansion,” Judge emeritus Zammit McKeon said.

In 2013, the Office of the Ombudsman proposed the setting up of a national human rights institution that would ensure the observance of fundamental human rights, acting as a central point for coordinating the human rights-related activities of various national institutions and authorities, both public and private.

In 2015, the government issued a White Paper – ‘Towards the Establishment of the Human Rights and Equality Commission’ – with the Ombudsman declaring that existing structures should not be weakened or demotivated. “The effectiveness of the proposed Human Rights and Equality Commission (HREC) depended on its integration and complementarity with existing institutions within Malta’s legal order,” Zammit McKeon said, reflecting on the White Paper.

But the placing of the draft Equality Act on the legislative backburner, after suffering a backlash from the Maltese Catholic archdiocese, Catholic faith-schools, and other conservative voices, has so far slowed down the creation of the human rights institution.

The Equality Act would have created a quasi-judicial body by way of an Equality Commission, to rule over private and public institutions that discriminate between citizens in employment or access to goods and services.

In his report, Zammit McKeon cautioned against the use of such bodies that could create contrasting decisions with other courts. “[We] need to debate and determine whether the suggested model met Malta’s needs, considering its democratic development level, general human rights observance, and the quality and efficacy of its judicial and quasi-judicial authorities.”

After the dissolution of parliament in 2022, both the Equality Bill and the Human Rights and Equality Commission Bill lapsed and since then, the two bills have not been reproposed.

National Human Rights Institutions (NHRIs) in the EU are all tailored according to each member state’s diverse legal and political landscapes.

Zammit McKeon said that due to the lack of tangible progress over the past two years, he was once again proposing integrating the functions of an NHRI within his office’s structure.

A proposal was sent to the Prime Minister in November 2023. The Office of the Ombudsman also formally applied for Associate Membership of the European Network of National Human Rights Institutions (ENNHRI).

“The proposal to recognise the Ombudsman institution in Malta as the National Human Rights Institution (NHRI) presents several significant advantages… the Ombudsman Act 1995 already lays a strong foundation for the institution to function as an NHRI,” Zammit McKeon said.

The Ombudsman said Malta’s NHRI would capitalise on the established operational framework within the Ombudsman’s office. “This means there is an existing infrastructure, experienced personnel, and established procedures for handling complaints and promoting human rights. This continuity ensures stability and can enhance public trust and credibility.”

This would in turn avoid the duplication of resources and administrative structures in setting up a new NHRI from scratch.

“Leveraging the existing institution allows for more rapid implementation of NHRI functions. It ensures continuity in handling ongoing human rights issues and complaints, providing uninterrupted service to the public,” Zammit McKeon said.

Additionally, the Ombudsman is already known to the Maltese public, and can readily assume the NHRI role, making it easier for citizens to understand and access their human rights protections. “This familiarity can lead to increased engagement and trust in the institution’s role in safeguarding human rights,” he said.

“Designating the Office of the Ombudsman as the National NHRI in Malta presents a practical, resource-efficient, and effective approach to strengthening the country’s commitment to human rights. It leverages existing structures and expertise while aligning with international standards, positioning Malta to address the evolving human rights landscape better domestically and internationally.”