Act II of 2012 (‘the Act’) addresses the rights of disabled persons under Maltese law aiming to ameliorate existing laws combating discrimination on the grounds of disability in Malta and to implement the UN Convention on the Rights of Persons with Disability.
The Act, which came into force on the 30th of March, 2012 introduces minor but significant amendments, structured to address certain legal shortcomings and to improve the current system of protection from discrimination for persons suffering from a disability in relation to employment, social protection, social advantages, accessibility to goods and services and housing.
The umbrella term “mental disability” will replace the archaic references in the law to persons with “unsound mind”, “imbeciles”, “lunatics” and “idiots”. The usage of one common term will also place all persons having such different mental disabilities on an equal footing.
The amendments criminalise the harassment of disabled persons, broadly defining “harassment” as the subjection of any person to any unwelcome act, including written and spoken words, reasonably regarded as offensive and/or degrading. The perpetrator of such harassment, shall on conviction, be liable to a maximum penalty of a fine (multa) not exceeding €2,500 or to a term of imprisonment not exceeding 6 months.
A person shall be considered as discriminating against a disabled person if he/she subjects such person to neutral treatment, by failing to cater for his/her disability, if such neutral treatment places the disabled person at a disadvantage. A person is also considered to be discriminating against a disabled person if he/she fails to effectively publicise facilities provided by him/her for such persons. In particular, a person is required to provide access for disabled persons. The amendments replace the current wording of the law ‘premises’ with the wider term ‘property’ which covers indoors, outdoors and public places.
The amendments require employers to provide reasonable accommodation at work, to disabled employees. Reasonable accommodation is defined as accommodation which does not impose a “disproportionate or unjustifiable burden”, which serves to ensure the enjoyment of human rights and fundamental freedoms on an equal basis with others.
The amendments also make changes to the composition of the National Commission Persons with Disability, by increasing representation of persons with disability and representation of Voluntary Organisations working in this sphere, on the Commission. The amendments broaden the powers of the Commission to include the taking of any appropriate administrative and/or judicial action to eliminate discrimination, and to raise awareness and foster respect, and to promote and monitor the United Nations Convention on the Rights of Persons with Disability and any of its Optional Protocols as ratified by Malta.
Finally, by virtue of these amendments, it is now possible for any person with a legitimate interest to institute court action in the First Hall of the Civil Court against perpetrators of discrimination. It is also possible to include, a claim for damages which, in the case of moral damages is capped at €2,500, with the burden of proof being placed on the accused.
Dr. M. Clara Borg
Dr. Rochelle Magri