General legal framework

• Author: Ellul, Tonio
• Pages: 15-16

15

1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The Constitution of Malta includes the following articles dealing with non-discrimination:

Chapter IV, which is entitled ‘Protection of Fundamental Rights and Freedoms’, includes

Article 45 , which deals with protection from discrimination on ground s of race, place of

origin, political opinions, colour, creed, sex, sexual orientation or gende r identity.

These provisions apply to all areas co vered by t he directives. Their material scope is not

broader than those of the directives.

These provisions are directly applicable.

These provisions cannot be enforced against private individuals (although they can be

enforced against the state).

Chapter II of the Maltese Constitution52 lays down a number of principles; however,

according to Article 21 of the Constitution, these are not judicially enforceable. These

principles cover, inter alia: the right to, and the prot ection of, work; the right to free

education i n state schools; the equal rights of men and women; and the right t o social

assistance and insurance.

Chapter IV of the Constitution53 provides for those fundamental rights and freedoms of the

individual in respect of which an aggrieved per son may apply to the court54 for redr ess.

The rights thereunder are directly applicable. Inter alia, Article 32 ġrĠvides that ‘every

person in Malta is entitled to the funda mental rights and freedoms of t he individual, that

is to say, the right, whatever his race, place of origin, political opinions, colour, creed, sex,

sexual ĠrientatiĠn Ġr gender identity’, subject to the respect of the rights and freedoms o f

others and in the public interest.

The principles of equality of treatment and non -discrimination under Article 45 of the

Constitution of Malta relate to protection from discrimination on the basis of race, place of

origin, political opinions, colour, creed,55 sex, sexual orientation or gender identity. This

list is ground-specific and exhaustive and also provides that no law shall make any

provision that is discriminatory either of itself or in its effect. Article 45(3) states that:

‘...“discriminatĠry” means affĠrding different treatment tĠ different ġersĠns

attributable wholly or mainly to their respective descriptions by race, place of origin,

political opinions, colour, creed, sex, sexual orientation or gender identity whereby

persons of one such description a re subjected to disabilities or restrict ions to which

persons of another such description are not made sub ject or are accorded privileges

or advantages which are not accorded to persons of another such description ’.56

52 Articles 7 to 21 (inclusive).

53 Articles 32 to 47 (inclusive).

54 An aggrieved individual may seek enforcement of these rights by means of an application before the First

Hall of the Civil Court, with final appeal at national level to the Constitutional Court. Procedures are

inexpensive and regulations currently in force provide that all human rights cases are to be heard as

expeditiously as possible.

55 One nĠtes the use Ġf the term ‘creed’ here as ĠġġĠsed tĠ ‘religiĠus belief’, as fĠund in natiĠnal anti-

discriminatĠry ġrĠvisiĠns under emġlĠyment law. ‘Creed’ is nĠt defined under the CĠnstitutiĠn but is

commonly defined as a statement of belief, normally a religious belief.

56 The Act amending the Constitution – Act X of 2014 – intrĠduced ‘sexual ĠrientatiĠn’ and ‘gender identity’ as

grounds on the basis of which discrimination is prohibited in the public sphere. More particularly, this

therefore means that acts of discrimination on these grounds are forbidden in any law or in the conduct of a

ġublic entity. PriĠr tĠ this extensiĠn, ġrĠtectiĠn against discriminatiĠn was limited tĠ the ‘race’, ‘ġlace Ġf

Ġrigin’, ‘ġĠlitical ĠġiniĠns’, ‘cĠlĠur’, ‘creed’ Ġr ‘sex’ Ġf an individual. MĠreĠver, the Act intrĠduced the