COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF MALTA
The Committee on the Elimination of Racial Discrimination has concluded consideration of the fifteenth through twentieth reports of Malta on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
The report of Malta was presented by Victor Camilleri, Permanent Representative of the Permanent Mission of Malta to the United Nations Office at Geneva. Mr. Camilleri said the Maltese authorities had undertaken numerous initiatives with a view to fighting racism and xenophobia, as well as with a view to further promoting equal opportunities for all. Any law deemed to be discriminatory in any way could be challenged with reference to the Constitution. In Malta, the National Commission for the Promotion of Equality was responsible for safeguarding equal treatment of persons in the access to and supply of goods and services and to safeguard against discrimination. The Commission was empowered to investigate complaints lodged by the general public or by other entities and to initiate ex officio investigations. It conducted training for public entities, private companies and others. Malta’s migration legislation applied to non-citizens in a uniform manner, irrespective of racial considerations. Malta had experienced a substantial influx of irregular immigrants since 2002, which entailed significant challenges for the country.
In preliminary concluding observations, Waliakoye Saidou, the Committee Expert who served as the country Rapporteur for the report of Malta, said Malta had made significant progress in implementing its legislative framework and wider policy to prevent discrimination throughout the country. Mr. Saidou hoped the delegation would take the recommendations of the Committee to heart in implementing anti-discrimination measures in Malta.
During the interactive dialogue, Committee Experts raised a number of questions and asked for further information on subjects related to, among others, the measures taken by Malta with respect to irregular migrants, the social and economic conditions of migrants, the response by Malta and other states to migration due to the so-called Arab spring, complaints and prosecutions for racial discrimination, the situation of women and women migrants, migration’s impact on culture and society, extremism, the Durban Declaration and Programme of Action, and the provision to combat discrimination on the internet.
The delegation of Malta was composed of representatives of the Permanent Mission of Malta to the United Nations Office in Geneva, the Ministry of Justice and Home Affairs, the Attorney General’s Office, the Minster’s Secretariat and the Ministry of Education, Employment and the Family.
The Committee will present its written observations and recommendations on the fifteenth through twentieth periodic reports of Malta, which were presented in one document, at the end of its session, which concludes on 2 September.
The next public meeting of the Committee on the Convention on the Elimination of Racial Discrimination will be this afternoon at 3 p.m. when it will conduct an informal meeting with States parties.
Report of Malta
The fifteenth through twentieth periodic reports of Malta, submitted as one document (CERD/C/MLT/15-20), say racial discrimination is prohibited by the Constitution, the European Convention on Human Rights as well as other international conventions to which Malta has adhered. The Criminal Code was amended in 2002 and again in 2009 to include provisions making incitement to racial violence or hatred an offence. Malta has consistently continued to condemn racial discrimination and particularly the practice of apartheid. The Employment and Industrial Relations Act (Chapter 452), the primary legislation on Maltese Labour Law, defines “discriminatory treatment” as any distinction, exclusion or restriction which is not justifiable in a democratic society including discrimination made on the basis of amongst others colour and religious conviction. Moreover, in regard to employees already in the employment of the employer, it shall not be lawful for any person to subject any such employees or any class of employees to discriminatory treatment in regard to conditions of employment. Harassment is a form of discriminatory treatment. Victims may make a complaint that he/she has been discriminated against at the Department of Industrial and Employment Relations. The Department investigates the case and is empowered to initiate criminal proceedings against the alleged perpetrator.
The Office of the Ombudsman reports that there have not been any significant complaints on racial discrimination involving Government or Government entities. The National Commission for the Promotion of Equality (NCPE) reported that its Commissioner was asked to investigate the occurrence of racial harassment in the provision of housing. The Commissioner concluded that the information collected did indicate the use of pejorative language in relation to the complainant’s ethnicity and that the use of this language created a degree of hostility that amounts to racial harassment. The policies of the Ministry for Education, Employment and the Family Ministry, and the services emanating thereof, are formulated and offered on a non-discriminatory basis. The National Minimum Curriculum (1999) principles 2 and 8 on “Respect for Diversity” and “An Inclusive Education” promote education in value orientations with the aim to fostering tolerance, understanding, and respect among peoples, groups and individual persons. Scholarships offered by the Ministry are open to all, irrespective of race, colour, or national or ethnic origin. There is, as yet, no specific provision in Maltese legislation which caters exclusively for the protection of the right to equal participation in cultural activities. The National Cultural Policy, expected to be finalized by the end of 2010, will enshrine the role of an inclusive culture across the whole range of cultural and social activities, including the participation and cultural enablement of disadvantaged or vulnerable groups.
As indicated by the statistics pertaining to the Office of the Refugee Commissioner, Malta has a consistently high asylum recognition rate hovering over 50 per cent, and which even reached 65 per cent in 2009. This is due to the nature of the migratory influx towards Malta, which includes a very substantial proportion of immigrants from unstable regions in the Horn of Africa, in particular Somalia. Whereas Malta has fully complied with its obligations towards asylum-seekers and beneficiaries of international protection, this entails significant challenges for the country, particularly from an integration and labour market point of view. In view of this, Malta has called for the resettlement of beneficiaries of international protection to other European Union Member States and other countries. Extensive reforms were also made in the asylum sector. The geographical reservation to the 1951 Geneva Convention was withdrawn in 2001, and an Office of the Refugee Commissioner became fully operational in 2002. The Refugees Act is now fully compliant with the provisions of the Geneva Convention and Protocol, as well as with the pertinent European Union Directives.
Presentation of the Report
VICTOR CAMILLERI, Permanent Representative of the Permanent Mission of Malta to the United Nations Office at Geneva, said since Malta’s last presentation to the Committee, the Maltese authorities had undertaken numerous initiatives with a view to fighting racism and xenophobia, as well as with a view to further promoting equal opportunities for all. The initiatives covered legislative reforms as well as development in sectors such as awareness-rising campaigns, the creation of networks and the provision of training. Racial discrimination was prohibited by the Constitution, the European Convention of Human rights and other conventions to which Malta adhered. As far as the internet was concerned, Malta’s legislative framework was in full compliance with the requirements of the Convention on the Elimination on the Racial Discrimination. The concept of aggravation of an offence when motivated by xenophobia was introduced in 2009 by way of amendments. Punishment was increased by one degree if the perpetrator was a public officer. In response to the recommendations of the Committee, Malta was considering the possibility of a wider dissemination of the periodic report. There was no racial discrimination in access to tribunals and courts. In recognition of the advantage of restorative justice principles in criminal matters and drawing on its wide use in many countries across the world, the Government was enacting the Restorative Justice Act.
Any law deemed to be in any way discriminatory could be challenged with reference to the Constitution. The General Election Act, several articles of the Constitution, the Marriage Act, the European Convention on Human Rights and the Civil Code, among others were the current legislative provisions in Malta ensuring non-discrimination. The 2007 Equal Treatment of Persons Order stipulated that no person, establishment or entity, whether in the private or public sector, including public bodies, shall discriminate against any other person. Malta was also party to the European Convention on Social and Medical Assistance and as such it undertook to ensure that citizens of state signatories who were lawfully present in its territory and who were without sufficient resources were entitled to the same social and medical assistance as its own nationals. Besides social assistance, the same person was entitled to multiple social benefits such as allowances for children, disabled children and housing, sickness assistance and other benefits. The Maltese public health care system combined the principles of equity and solidarity together with universal coverage. The Government enacted policies through the Housing Authority in conformity with Equal Treatment of Persons Order, which were non-discriminatory. Persons not living in decent accommodation could apply for alternative accommodation in the form of social housing. Malta provided free compulsory education and ensured that all children, whether of citizens or regular or irregular migrants, had access to education with a view to fulfilling every child’s right to education. Malta actively participated in and still ran several awareness-raising campaigns aimed at students intended to foster greater understanding and inclusion.
In Malta, the National Commission for the Promotion of Equality was responsible for safeguarding equal treatment of persons in the access to and supply of goods and services and to safeguard against discrimination. The Commission was empowered to investigate complaints lodged by the general public or by other entities and to initiate ex officio investigations. It assisted individuals who felt discriminated against on the grounds of race or ethnic origin in the access to or supply of goods and services. It was responsible for raising awareness and disseminated information related to equal treatment on the ground of race or origin. It conducted training for public entities, private companies and others. It conducted the Voice for All project with the aim of empowering participants to challenge the learning and thinking process which gave rise to discrimination. It initiated Mosaic – One Diversity, which was created with the aim of raising awareness on the six grounds of discrimination and addressing fears and misconceptions that led to discrimination. A recent project, Strengthening Equality beyond Legislation, sought to enhance the principle of equal treatment, including the compilation of A National Action Plan on Race and Xenophobia, a pilot study and other activities. Among the Commission’s publications was a manual “Racial and Ethnic Origin Equality Manual”, which served as a toolkit for employers, human resource mangers and providers of goods and services.
Malta’s migration legislation applied to non-citizens in a uniform manner, irrespective of racial considerations. Malta withdrew its geographical reservation to the 1951 Geneva Convention and the Protocol of 1967. The Office of the Refugee Commissioner, Malta’s asylum determination authority, became fully operational in 2002. Asylum applicants were entitled to remain in Malta until a final decision on their application was made. The detention of prohibited immigrants was limited to a maximum of 18 months. Persons who entered the country irregularly and who applied for asylum were subject to a maximum period of detention of 12 months. Malta had experienced a substantial influx of irregular immigrants since 2002. The United Nations High Commissioner for Refugees classified Malta as first in terms of asylum applications per capita in 2008. Malta had fully complied with its obligations to asylum seekers. However, this entailed significant challenges for the country, particularly from the integration point of view. This was due, in particular to Malta’s limited labour market, which was susceptible to saturation. Malta had called for the resettlement of beneficiaries of international protection to other European Union Member States and other countries. A number of countries had responded to this call for assistance.
Pursuant to incidents in 2005, which gave rise to the Depasquale report, the Maltese authorities reviewed the structures related to the management of detention facilities in Malta. Later the same year, the Detention Service was established. The Depasquale report concluded that the protests were instigated by people outside the centres. Protests were neither peaceful nor legitimate. Immediate action was taken with respect to the proposal to transfer those persons involved in the riot to a different and independent block. The Detention Service had embarked on tailor made, yearly training programme. The recommendation to allow the media into the Detention Centres was also adopted. Incidents in 2008 were sparked by migrants who requested expeditious repatriation to their country of origin; migrants sparked protests because they found the process too lengthy. Pursuant to this incident, the Maltese authorities continued upgrading and undertaking the necessary reforms within the Centres. Regrettably, a riot at Safi Detention Centre broke out on Tuesday, 16 August. Subsequently, 22 migrants were arraigned in court. The riot broke out after migrants concerned were informed that their request for protection was turned down.
Questions Raised by the Rapporteur and Experts
WALIAKOYE SAIDOU, Committee Expert serving as country Rapporteur for Malta, said Malta was an archipelago of eight islands in the Mediterranean, south of Italy and north of Libya. Malta became independent in 1964 and was a member of the European Union. It was one of the closest points to the Tunisian and Libyan coasts. It was a crossroads for boats of migrants seeking refuge in Europe from Libya and Tunisia. Malta faced a constant flow of irregular migrants which threatened the material and physical viability of the island. This had led to racial discrimination in the areas of housing, employment and the rights of asylum seekers. Arabs or those who appeared to be Arab faced the most discrimination. Muslims were subject to racism and mistrust as well. More information on the nationality of the Muslims and Arabs who faced discrimination in access to leisure was required. What was impact of the financial crisis on the social and financial conditions of irregular migrants? What measures was the government taking to combat the extremism and racism that had emerged recently? Mr. Saidou asked if Malta had a comprehensive policy and plan of action for combating racial discrimination. The Maltese authorities had adopted a number of measures to combat discrimination and promote inequality. The Committee welcomed the reversal of the burden of proof in civil cases related to discrimination; however, Mr. Saidou noted there was not a national human rights institution in accordance with the Paris Principles in Malta.
The Committee had noted that amendments to the Penal Code passed in 2009 stipulated that legal persons could be held liable for crimes connected to racial discrimination and could be subject to fines and other punishment. These provisions were healthy, but more information on their effectiveness was required. More information pertaining to the punishment for racial discrimination governing political officials, actions taken following the Depasquale report, and in the Safi Detention centre was also requested. Racial discrimination was prohibited by the constitution but these provisions did not extend to relationships between private persons. The civil code did not apply discrimination in the areas of housing, access to places of leisure and other areas. Following a visit by the Working Group on Arbitrary Detention, it appeared that certain categories of persons were not provided with procedural guarantees. What had the State Party done to facilitate the hearing of judicial complaints? How had those who were guilty of misdemeanors prosecuted and the victims compensated?
With regard to the safety of persons, Committee Members noted that officials in the detention centers had become more and more violent. More information about these security agents was requested. During the Universal Periodic Review, the Committee on the Rights of the Child was concerned about racial comments by officials about the children of irregular migrants. What was being done to prevent stereotyping? Were judicial appeals available for irregular migrants that did not speak Maltese or English? Restrictions applied to marriages: when one person was already married another marriage was null and void. What happened in the case of polygamous Muslims? Also, Mr. Saido asked if migrants could create their own associations. More information was required about education provided to migrants, including the language of instruction. More information about the national cultural policy was also needed by the Committee. The delegation had not provided information on complaints, appeals and other cases related to discrimination. It needed to shed more light on victims of discrimination and actions in the courts related thereto.
Committee Members asked about the dearth in the number of cases related to racial discrimination. Also, questions with respect to the role of the Ombudsman were raised, particularly with regard to its consideration of legal cases. What kind of complaints could the Ombudsman hear? Also, there was no information about the status of the Convention in the domestic law of Malta. What success had been had in implementing the provision against discrimination on the internet? Malta and Luxembourg were ranked last in Europe for the position of women in the corporate sector. Were opportunities for migrants similarly limited? How much were migrants involved in public life and the private sector? It was difficult to see how migrant women were affected by discrimination. Many changes in legislation had been cited in the report, but more evidence about the effectiveness of these measures should be provided. Training and education were outlined in the report, but what were the outcomes of these activities?
Regarding the situation of migrants, asylum seekers and refugees, Malta faced a difficult situation due to its geographic location. The Universal Periodic Review report contained recommendations for Malta to mount emergency operations for makeshift or damaged boats at sea. The delegation should explain more specifically how the government could manage this very difficult situation. Given the influx of migrants from Africa, there was a question of whether there had been a profound cultural transformation. Such changes could face resistance, although they could ultimately benefit society. How had national policy changed to confront these elements? Following the so-called Arab Spring, had the European Union contributed specific support? The flow of migration was likely to continue because of people fleeing war as well as for economic reasons. What specific measures had been taken in Malta in response to the Arab Spring? What evolutions had taken place in hardening the laws on migration?
Response by the Delegation
The delegation said Malta was encouraged about what was happening in its neighbourhood. It had been active in supporting its southern neighbours to pursue democracy and development. Malta did not have a history of racial discrimination. The issue had hit Maltese society recently with the increase in immigration. Committee Members had made encouraging comments about the recent legislation adopted, but questions as to its effectiveness had been raised. The fact was that this legislation was in the process of being applied because discrimination was a new issue, and thus there were not many cases because the issue was new to Malta; this it made it difficult to respond to many of the Committee’s questions.
The delegation went on to say that the phenomenon of migration had started in 2002. There were 1,600 migrants in 2002 and the rate had stayed more or less steady since then. Following the outbreak of conflict in Libya, migration grew. There was a difference in the recent migrants in that these migrants had been established in Libya for some time, although they were mostly not of Libyan origin. So far, there had been 1,500 migrants in 2011. Malta had a population of less than half a million and so this posed several challenges. Around 50 per cent of migrants received international protection. Many migrants obtained protection and thus were entitled to stay, work and live in Malta. This posed a problem in terms of the labour market, as the total labour market amounted to about 150,000 jobs. The migrants were low-skilled and thus competed for many of the same jobs. Training and education was provided to remedy this situation as were resettlement services. Migrants had been relocated to the United States and Europe; however, more migrants had arrived than were resettled.
The delegation said that in reference to the detention policy, irregular migrants were detained for a maximum of 18 months, which was reduced to 12 months for asylum seekers. Most people needing international protection were released within 6 months. Malta had invested significantly in the migration system. Detention requirements did not apply to vulnerable migrants, including children. Such individuals were only detained until medical clearance was obtained. Minors were released once it was certain they were, in fact, minors. Malta also maintained a resettlement policy. Many migrants were resettled in the United States and the European Union. The majority of migrants requested asylum and international assistance, and cases were heard by the Refugees Appeals Board. Free legal aid was available at the appeals stage. Amendments to the Refugee Act had, in fact, facilitated the incorporation of European Union directives, introducing the concepts of subsidiary protection and subsequent application. These amendments had made the process more favourable for migrants. The Office of the Refugee Commissioner had embarked on a project, with cooperation with the European Union, to help and inform asylum seekers about the process. The issue of women interpreters for women asylum seekers had been raised by Committee Members. Regrettably, the resources available for interpreters were limited and thus Malta could not guarantee same-sex interpreters. Malta had adopted many of the recommendations of the Depasquale report, including the establishment of an administration focused on the management of the detention centres. The riot at Safi Detention Centre in August was sparked by notifications to migrants that they would not receive international protection. Authorities exercised minimum force. Only one migrant had to be hospitalized, while several police officers had required medical care.
Another member of the delegation said legislation had increased coverage of anti-discrimination on many grounds. However, for a legal process to start, the injured party had to issue complaint. This could not be initiated ex officio by the police. In order for the court to hear a case, a complaint from the injured party was required. The complainant had to give instructions to the police for the complaint to be made. The number of complaints put forward indicated the presence of legal awareness. However, not many complaints advanced beyond this stage. Oftentimes, parties decided not to continue on as the dispute was remedied amicably. Malta was predisposed to tolerance. A lack of complaints could be a negative, but the delegation encouraged the Committee to see it as positive, as an indication of tolerance. Sentencing for the few cases tried had been successful in deterring discriminatory language and acts. Legal awareness was there and complaints were made, but were not pursued to their ultimate end. Legal aid was provided at the appeals stage in Malta. Legal aid was provided across the board throughout legal processes. However, it was provided principally when an individual was accused of an offense, at which point legal aid was standard. Victims were also eligible for legal aid. Appeals in migration procedures were decided and made on points of law, not points of fact. Marriage contracts could be entered into through civil or religious proceedings. If the individuals were engaged in a marriage contract in Malta or anywhere else, they would not be allowed to enter into a new marriage in Malta. However, if more than one marriage contract had been recognized elsewhere, this did not a pose a problem. It was a question of marrying in Malta.
The Ministry of Education, Employment and the Family dealt with an extensive number of areas which were relevant to the implementation of the Convention. The project “Strengthening Equality beyond Legislation” outlined an action plan to combat racial discrimination with key stakeholders. Regarding discrimination in housing, like Maltese nationals, refugees were entitled to apply to the Housing Authority for alternative accommodation, provided they had been residing in Malta for 12 months and had limited income and assets. Non-citizens also sometimes benefited from rental subsidies. Cases in which persons were denied the possibility to rent private accommodation due to their race or ethnic origin were duly investigated by the Commission and could constitute grounds for a claim for compensation and was treated as an offence punishable by fine and/or imprisonment.
With respect to discrimination in employment, Malta’s Department of Industrial and Employment Relations had a long history of protecting working conditions. The Department also acted to combat discrimination in employment, including on the basis of race. The Department had the power to investigate complaints and had an industrial tribunal to grant compensation. The Employment and Training Corporation also had an enforcement unit which addressed abusive employment practices. It successfully identified and intercepted a number of instances in which persons from diverse racial backgrounds were being exploited. Malta’s registered female employment rate was low, but this rate had increased considerably in the last ten years. The Government had a positive discrimination policy in favour of female representation on government committees and boards.
Concerning access to education, the Government placed high importance on the integration of migrants by means of education. Special attention was paid to catering to specific language needs. Equal treatment with nationals in education was guaranteed for all up to the compulsory education age. Refugees were equally entitled to equal treatment beyond secondary education, up to the level of tertiary education. Schools had undertaken extensive efforts to enhance intercultural dialogue and understanding. This was done strategically with a view to creating an effective multicultural learning environment.
The remit of the National Commission for the Promotion of Equality in terms of racial discrimination was to provide for a mechanism of investigation of complaints where racial discrimination was alleged to have taken place. This was a free service provided to all persons. The National Commission for the Promotion of Equality was also enabled to ensure racial equality was safeguarded and achieved on a grassroots level. The National Commission for the Promotion of Equality was able to proceed on behalf of victims of racial discrimination, but was not able to do so without the victim’s consent. It worked closely with civil society, by means of training provisions and awareness-raising, which had targeted a wide range of stakeholders. The Broadcasting Authority monitored radio and television and the Police could take actions with respect to racist hate speech. The National Commission for the Promotion of Equality was entrusted with ensuring access to social security benefits. Although not accredited as a national human rights institution, the NCPE was in conformity with a number of Paris Principles. The Government was currently studying the possibility of taking measures conducive to the creation of a national human rights institution in accordance with the Paris Principles. The Ombudsman’s remit was limited to investigation of complaints of racial discrimination involving the Government and Government entities; it did not have the same authority over the private sector. The Maltese Government preferred to incorporate the Convention into various applicable parts of domestic law in such a way as they became an integral part of the Maltese legal order.
Further Questions Posed by Experts
The very low number of complaints regarding racial discrimination was not necessarily a positive indicator. However, since Malta had adopted rich and extensive legislation to combat racial discrimination, further efforts should focus on the provision of information to victims about judiciary measures. Malta should also work to raise the awareness of the police about racial discrimination and legal procedures available. Committee Members also asked about the situation of children and their parents in detention centers. Also, what was the impact of the influx of migrants on Maltese society? Was there a need for an overall integration policy to pull the many elements associated with migration together? Committee Members inquired about the role of voluntary organizations and wider civil society in providing support to migrants.
Response by Delegation
The delegation was conscious that, regarding the number of complaints and legal procedures, more information was needed and they took to heart the suggestions made. The statistics were not representative of complaints, but rather the number of complaints that had been taken forward. Once families were released from detention centers, they were placed in the open centers. There were branches in the open centers dedicated to families and single women with children. Open centers were provided to migrants without the ability to rent property or access other accommodation. Residents could leave whenever they wanted. Malta tried as much as possible to house families separately from single males. Children were not detained for any length of time. They were detained just until they passed medical clearance.
Concerning the impact of immigration on Maltese society, the delegation said Malta was a tolerant and open society and had always been so, in terms of its relationship with its neighbours. In terms of the broader culture, Malta was becoming more and more conscious of the legislation related to these issues. Also, there was heightened awareness that legislation would be translated into specific, practical measures. Maltese people were very conscious of the arrivals because of the small size of Malta, in terms of land surface and population. There was a tremendous amount of awareness and readiness to help. Of course, there were extremists, but many organizations had emerged to provide help to recent arrivals. Malta was being affected also in terms of its perspective of international relations and burden-sharing with European partners. 2011 was the year of voluntary organizations and Malta was conducting significant activities to support and encourage the expansion of voluntary organizations. There had traditionally been a very strong relationship between non-governmental organizations and the government in areas such as education.
Preliminary Concluding Observations
In preliminary concluding observations, WALIAKOYE SAIDOU, the Committee Expert who served as the country Rapporteur for the report of Malta, said Malta had made significant progress in implementing its legislative framework and wider policy to prevent discrimination throughout the country. The Committee would provide final observations and recommendations in a final report issued at the end of its session. The Committee invited the delegation to disseminate the findings widely to promote human rights throughout Malta and prevent discrimination. Mr. Saidou hoped the delegation would take the recommendations of the Committee to heart in implementing an anti-discrimination framework in Malta.
VICTOR CAMILLERI, Permanent Representative of the Permanent Mission of Malta to the United Nations Office at Geneva, said the delegation was encouraged by the serious work done by the Committee on the Convention on the Elimination of Racial Discrimination; it was how international convention proceedings should work. The question and answer session had been a positive experience. The Ambassador believed that the delegation had learned much from the session and would take home many suggestions for improving anti-discrimination efforts in Malta.
For use of the information media; not an official record
CERD11/034E