The definition of discrimination

• Author: Ellul, Tonio
• Pages: 17-31

17

2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly prohibi ted in the main legislation

(listed in the introduction) transposing and implementing the two EU anti-discrimination

directives:

- Constitution of Malta – race, place of origin, political opinions, colour, creed, sex,

sexual orientation or gender identity. It is to be noted that there is no definition of

the terms ‘race’ and ‘cĠlĠur’ under the Maltese CĠnstitutiĠn. Age and disability

discrimination are also not covered under the Constitution.

- Employment and Industrial Relations Act 2002 a nd the legal notices issued

thereunder60– marital status, pregnancy or potential pregnancy, sex, colour,

disability, religious conviction, political opinion, membership of a trade union or of an

emġlĠyers’ assĠciatiĠn, racial Ġr ethnic Ġrigin, age and sexual ĠrientatiĠn r eligiĠn Ġr

religious belief, pregnancy or maternity leave or gender reassignment .

- Equal Opportunities (Persons with Disability) Act 2000 – disability discrimination61 on

the grounds protected un der the Constitution. Moreover, the state shall ensure that

the exercise of such rights is also guaranteed when, together with the disability, there

are other factors: inter alia, gender, age, ethnicity, beli efs, skin colour, trade union

affiliation or the political belief of the person with disability.

- Equality for Men and Women Act 2003 – sex, family responsibility, sexual orientation,

age, religion or belief, racial or ethnic origin or gender identity.

- Equal Treatment of Persons Order 2007 – race and ethnic origin .

2.1.1 Definition of the grounds of unlawful discrimination withi n the directives

a) Racial or ethnic origin

Under the Equal Treatment Ġf PersĠns Order Ġf 200 7, ‘discriminatiĠn’ is defined as ‘di rect

Ġr indirect discriminatiĠn based Ġn racial Ġr ethnic Ġrigin’, but withĠut a definitiĠn Ġf ‘racial

and ethnic Ġrigin’ being Ġffered.62

b) Religion and belief

Article 40 of the Constitution of Malta provides that, ‘all ġersĠns in Malta shall have full

freedom of conscienc e an d enjoy the free exercise of their respective mode of religious

wĠrshiġ’. This article is Ġne which requires at least two-thirds of all members of the House

of Representatives for the purposes of amendment.

Maltese law dĠes nĠt ġrĠvide definitiĠns Ġf the terms ‘cĠnscience’ and ‘religiĠn’. It is

assumed that the interpretation of t hese words should be acc ording to their meaning in

common usage and the interpretation given by the European Court of Human Rights.

Through the enactment of the European Convention Act,63 Malta adopted the European

Convention as part of its domestic law. Thus, A rticle 9 of the European Convention on the

right to freedom of thought, conscience and religion, together with the case law developed

by the European Commission and t he European Court, became applicable in Malta. Under

Maltese law, there is no legislation which regulates the establishment and recognition of

religious communities. Thus, there exists no legal r equirement for rec ognition and no

system of registration of the same.

60 The legal notices include the Equal Treatment in Employment Regulations, under which discrimination on

the grounds of sexual orientation is afforded protection.

61 Based on physical, intellectual, sensory and/or mental impairment.

62 In interpreting this definition, the courts will make reference to foreign case law on the matter.

63 Act XIV of 1987.