Equal­ity and free­dom – truly for all – Claudette But­tigieg

Malta Independent - - Front Page -

How can a law that prom­ises equal­ity for ev­ery­one, at no cost to any­one, worry many peo­ple from a wide spec­trum of so­ci­ety? Easy: draft a law that is silent in terms of what will hap­pen to some ba­sic rights; refuse to ad­dress the con­cerns of the var­i­ous pro­fes­sional as­so­ci­a­tions and in­sti­tu­tions and; in­stead of treat­ing them with re­spect, say that they are a priv­i­leged few (when they are any­thing but), which de­ter­mined to keep ev­ery­one else down.

Then you get the Equal­ity Bill tabled in July, and the at­ti­tude of Rosianne Cu­ta­jar, the ju­nior min­is­ter.

Some amend­ments have been pro­posed by the Gov­ern­ment. But, to date, they have not been cir­cu­lated among the stake­hold­ers.

The wor­ries fo­cus on four stick­ing points. They look as though they re­volve around de­tail, but each is also about a ma­jor demo­cratic is­sue.

‘Su­pe­ri­or­ity’

Clause 32(3) of the Bill states that if there is a con­flict be­tween the Equal­ity law and any other law, other than the Con­sti­tu­tion, then the Equal­ity law trumps ev­ery­thing.

Why have the Op­po­si­tion and oth­ers ob­jected to this clause? Briefly, be­cause it can be used to by­pass Par­lia­ment.

In a democ­racy, vot­ers elect the peo­ple who pass the laws. But, as writ­ten, the Equal­ity law could see laws ef­fec­tively rewrit­ten or over­turned by peo­ple who are not elected.

Lob­by­ists and ad­ju­di­cat­ing bod­ies will be­gin to read rights into the Equal­ity bill that are not ex­plic­itly men­tioned, but which they will say are im­plied.

In the lat­est amend­ments, Gov­ern­ment added that the Equal­ity law will not be su­pe­rior to the Euro­pean Con­ven­tion on Hu­man Rights, ei­ther. A good step.

But it does mean that the Equal­ity law will be su­pe­rior to the Crim­i­nal Code. Why?

And why will it be su­pe­rior to the Em­bryo Pro­tec­tion Act? What kind of fun­da­men­tal rights for em­bryo pro­tec­tion are we recog­nis­ing if they can, in prin­ci­ple, be over­turned — not by vot­ers, or Par­lia­ment on their be­half, but by peo­ple who are un­elected?

This is not just a ques­tion about one is­sue. It is a ques­tion about democ­racy it­self.

‘Ethos’

Clause 6 of the Bill fo­cuses on the ex­cep­tions, where this law will not ap­ply. In most cases, peo­ple must be treated equally. But some­times the spirit (‘ethos’) of an in­sti­tu­tion calls for ex­cep­tions. When re­cruit­ing, for ex­am­ple, the army and po­lice can dis­crim­i­nate ac­cord­ing to height, weight and even dis­abil­ity.

Such cases are clear. Oth­ers re­quire de­bate. For ex­am­ple, the ethos of schools with a spe­cial char­ac­ter, like Church schools, or schools fo­cus­ing on sport or the per­form­ing arts.

If the gov­ern­ment can im­pose an ‘ethos’ on such schools, aren’t we say­ing a fu­ture gov­ern­ment can prac­ti­cally take them over in all but name?

The ques­tion, there­fore, is: How are we go­ing to re­spect ‘ethos’ with­out al­low­ing it to be used as a pre­text to dis­crim­i­nate against in­di­vid­u­als, not be­cause they do not fol­low the ethos of that in­sti­tu­tion but be­cause of other char­ac­ter­is­tics?

‘Ethos’ should not be used to dis­crim­i­nate against mi­nori­ties or in­di­vid­u­als. As leg­is­la­tors, we must guar­an­tee the ethos while pro­tect­ing against dis­crim­i­na­tion.

At the mo­ment, how­ever, par­lia­men­tary dis­cus­sion on this point is sus­pended.

‘Con­sci­en­tious Ob­jec­tion’

The draft law does not in­clude any ref­er­ence to con­sci­en­tious ob­jec­tion, nor do the amend­ments pro­posed by the Gov­ern­ment.

Yet con­sci­en­tious ob­jec­tion is a fun­da­men­tal right. It pro­tects in­di­vid­u­als from vi­o­lat­ing their con­science.

This is­sue is of se­ri­ous con­cern to doc­tors, nurses, and phar­ma­cists. They’ve pro­posed amend­ments. One con­cern is that since the Equal­ity Bill is su­pe­rior to the crim­i­nal code, they may end up obliged to han­dle pro­ce­dures, such as abor­tion or sur­ro­gacy, which are cur­rently il­le­gal, un­der the pre­text of equal­ity.

The doc­tors have been con­struc­tive. They have sug­gested that Gov­ern­ment should pro­vide a di­rec­tory of those doc­tors who of­fer ser­vices which may not be of­fered by all doc­tors. Hor­mone re­place­ment for trans­gen­der per­sons (es­pe­cially chil­dren) is a case in point.

This idea of a di­rec­tory was re­cently put for­ward by LGBTIQ+ Gozo. It is a good idea. It of­fers choice with­out cre­at­ing em­bar­rass­ment, ei­ther for those who are not com­fort­able of­fer­ing cer­tain ser­vices or for those need­ing such ser­vices.

Of course con­sci­en­tious ob­jec­tion should not be abused. It should not be used to refuse to bake a wed­ding cake for a gay couple.

And it cer­tainly does not cover the scan­dalous case that came to my at­ten­tion re­cently, when a pa­tient, al­ready ly­ing on the bed of an op­er­at­ing theatre, was re­fused the op­er­a­tion be­cause the sur­geon read that the pa­tient was HIV pos­i­tive (some­thing that had been clearly listed in the pre­op­er­a­tion file).

‘Re­li­gious Free­dom’

The no­tion of re­li­gious free­dom is to­tally ab­sent from the Bill. There is a grow­ing con­cern that a clear guar­an­tee of re­li­gious free­dom is needed.

It is a fun­da­men­tal Euro­pean free­dom, granted by sec­u­lar free so­ci­eties, and a ba­sic re­quire­ment in Euro­pean leg­is­la­tion. Its ex­clu­sion may be in­ter­preted as in­tent to un­der­mine this right.

Let us be clear. This is not a zero-sum game be­tween, say, Church schools and LGBTIQ+ NGOs. I am in touch with many stake­hold­ers and what I wrote here re­flects their gen­eral po­si­tion.

To sum up, the Equal­ity Bill de­serves more di­a­logue and open­mind­ed­ness from ev­ery­one. We should all cham­pion equal­ity, but un­less the Bill is han­dled with sen­si­tiv­ity and at­ten­tion to de­tail, we will not be able to guar­an­tee equal­ity and free­dom for all.

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