SMART Goals To Strengthen Access to Justice for Improved Human Rights Protection

The Strengthening Access to Justice for Improved Human Rights Protection project aims to improve access to Justice where fundamental human rights issues arise, with a particular emphasis on vulnerable or marginalised groups. However how does one turn seemingly intangible aims into practical goals that can be achieved? What is it really that we want to achieve? How is the rule of law linked to the enjoyment of rights for individuals?

video by kellymlacy from Pexels

In over 10 years of working with marginalised groups, we have repeatedly identified institutional obstacles, or obstacles inbuilt in the Maltese system, that hinder individuals from effective human rights protection and redress. These obstacles have also been identified by several national and international reports including those by the Venice Commission, the European Parliament, the European Commission and in the Vanni Bonello report on Malta’s justice system. Some key problems stem from institutional or structural issues within the Maltese legal and governance system itself and we wished to find a practical way advocating for change by tackling the key obstacles.

Formulation of SMART (Specific, Measurable, Achievable, Relevant & Timebound) recommendations

In order not to duplicate previously published research and reports, we carried out a thorough literature review of all relevant reports. Through the process of the literature review, we extracted all the relevant recommendations that were contained in these documents. These recommendations were then prioritised and developed into SMART recommendations by following this basic process:

The SMART Objectives

The objectives extracted through the literature review and SMART process, can be roughly categorised in the following manner: Equality Legislation, Independence of the Judiciary, Independence of Specialised Tribunals, Strengthening Protection for All, Governance and Transparency, Corruption and Financial Crime, Legal Aid, and International Instruments. These were gathered in one hefty list, and have formed the basis of our advocacy with national and international stakeholders.

Of course, we also recognise the limitations and risks of using fixed goals in a dynamic and uncertain environment that is law making and governance in modern times. Whilst it easy to set specific and measurable goals in stable and predictable environments, it is not so easy when the landscape is unpredictable and can shift due to global or national events, such as the COVID-19 pandemic or elections. Furthermore, some of the identified objectives can be achieved within a short-period of time, whilst others might need a more long-term approach.

Below are the SMART objectives that we have developed withing the ambit of the Strengthening Access to Justice for Improved Human Rights Protection project :

What is the specific aim?How will it be measured?What do we want to achieve?
Approval of Act on Equality without any opt outs on anti-discrimination legislation based on belief.Passing of Equality ActAll-inclusive protection for protected characteristics.
   
Approval of Act on the Human Rights and Equality Commission in accordance with the Paris Principles. Passing of Act on the Human Rights and Equality CommissionIndependent and effective decision-making.
   
Approval of Act on the Human Rights and Equality Commission with effective, independent and impartial remedies. Passing of Act on the Human Rights and Equality CommissionIndependent and effective remedy to challenge decisions.
What is the specific aim?How will it be measured?What do we want to achieve?
Strengthen appointment system by making shortlisted candidates public before appointment.Amendment to ConstitutionTransparency in appointment process.
   
Ensure an anti-deadlock mechanism in the appointment of the Chief Justice.Amendment to ConstitutionEnsure the filling of the role.
   
Depoliticise the appointment of the Chief Justice by involving the judiciary in the appointment.Amendment to ConstitutionDepoliticisation of process.
   
Depoliticise the appointment of the Chief Justice by requiring that appointment be made from among senior judges.Amendment to ConstitutionDepoliticisation of process.
What is the specific aim?How will it be measured?What do we want to achieve?
Change the composition of the International Protection Appeals Tribunal.Amendment to IP Act; Amendment to COCP; or New Act.Independent and effective remedy to challenge decisions.
   
Change the composition of the Immigration Appeals Board.Amendment to Immigration Act; Amendment to COCP; or New Act.Independent and effective remedy to challenge decisions.
What is the specific aim?
How will it be measured?What do we want to achieve?
Ensure the Erga Omnes effect of constitutional court judgements.Amendment to ConstitutionAmendment to Constitution
   
Oblige Parliament to act on decisions of the Constitutional Court finding a legal provision unconstitutional by repealing or amending withing a limited time-frame.Amendment to ConstitutionEnsure a homogenous application of HR legislation/decisions.
   
Strengthen the appointment and removal of the Attorney General away from Prime Minister.Amendment to ConstitutionAppointment of independent prosecutor according to set critieria. 
   
Ensure an anti-deadlock mechanism in the appointment of the Ombudsman.Amendment to ConstitutionEnsure the filling of the role.
   
Transfer all prosecution, including for summary offences, to the Attorney General.Amendments to Criminal CodeEnsure the complete separation from the investigative and prosecutorial functions.
   
Transferring the function currently fulfilled by magisterial inquiries to the Attorney General.Amendments to Criminal CodeEnsure the complete separation from the investigative and prosecutorial functions.
   
Strengthen the independence of the Commissioner for Children.Amendments to the Commissioner for Children ActEffective and independent voice for children.
   
Ensure access to safe and legal abortion services.Amendments to Criminal CodeDecriminalisation of abortion as healthcare.
   
Remove the blanket ban on marriages for asylum-seekers and undocumented migrants.Amendment to Marriage Registry PolicyAllow asylum-seekers to enjoy the right to a private & family life.
   
   
Amend the Juvenile Court Act to include all children under the age of 18.Amendment to Juvenile Court ActIntroduction of legal safeguards for all children.
   
Ensure protection of LGBTIQ Refugees from “safe countries”.Amendment to IPActRemoval of those countries that criminalise LBGTIQ+ from safe country list.
   
Allow for the reflection of correct gender and name to all non-Maltese residents.Amendment to GIGESC Amendment to policyProvide non-Maltese transgender community the same rights.
What is the specific aim?How will it be measured?What do we want to achieve?
Ensure the publicity of public inquiries commissioned by the authorities.Amendment to the Inquiries ActIncreased transparency and access to information for the public.
   
Amend the FOI Act to reduce the instances where a public authority may refuse to provide the requested information.Amendment to the Freedom of Information ActIncreased transparency and access to information for the public.
   
Increase consultation of civil society in legislative and policy making processes.Amendment to Standing Orders of the House of Representatives. Amendments to specific acts to allow for a period of consultation. Ensured compliance with Directive 6 relating to public consultations issued by the Principal Permanent Secretary. Implementation of Strategic Plan for the Digital Transformation of the Public Administration 2019 – 2021. Increased transparency and public participation.
What is the specific aim?How will it be measured?What do we want to achieve?
Introduce crimes relating to “associazione di stampo mafiosa”.Amendments to Criminal CodePrevention of crimes relating to corruption, financial crimes and abuse of public office.
   
Introduce crimes relating to abuse of public office.Amendments to Criminal CodePrevention of crimes relating to corruption, financial crimes and abuse of public office.
   
Introduce crimes relating to obstruction of justice.Amendments to Criminal CodePrevention of crimes relating to corruption, financial crimes and abuse of public office.
Introduce legislation to combat unexplained wealth.New laws on unexplained wealth ordersPrevention of crimes relating to corruption, financial crimes and abuse of public office.
What is the specific aim?How will it be measured?What do we want to achieve?
Increase the income threshold to mean average wage.Amendment to the COCPIndividuals who do not have sufficient financial means have access to free legal advice.
   
Expand the merit test to include legal advice which extends beyond probabilis causa litigandi.Amendment to the COCP Amendment to Legal Aid  Agency(Procedures) OrderIndividuals who do not have sufficient financial means have access to free pre-litigation legal advice.
   
Establish specialised lists of legal aid lawyers to cater for the different needs of the client (gender, subject)Amendment to the COCP Amendment to Legal Aid  Agency(Procedures) OrderIndividuals who do not have sufficient financial means have access to expert lawyers with due consideration to their situation.
What is the specific aim?How will it be measured?What do we want to achieve?
Ratify the Optional Protocols to CESCR and CRC.Acceptance of Optional Protocols to CEDAW, CESCR and CRCEnsure that individuals have access to further remedies for breaches of rights.
   
Remove Malta’s reservations to CEDAW.Removal of reservationsEnsure that women in Malta have access to rights ensured by CEDAW.
   
Establish an effective Statelessness Determination Procedure.Amendments to IPAct; or Introduction of new legislationPersons in Malta who are stateless are granted adequate protection and rights.

In the past months we have focused on advocating to raise awareness, and to change or amend existing legislation on many of the above objectives. Of course, it goes to say that without proper space for dialogue with government stakeholders and public consultation during decision-making processes it would be extremely hard to achieve all that we believe needs to be done. We are looking forward to continuing this work in the coming months.

For more information on the project contact Project Leader Neil Falzon, Project Expert Carla Camilleri or Project Manager Katarzyna DeWilde.


About the funder:

The EEA Grants represent the contribution of Iceland, Liechtenstein and Norway towards a green, competitive and inclusive Europe. There are two overall objectives: reduction of economic and social disparities in Europe, and to strengthen bilateral relations between the donor countries and 15 EU countries in Central and Southern Europe and the Baltics.
The three donor countries cooperate closely with the EU through the Agreement on the European Economic Area (EEA). The donors have provided €3.3 billion through consecutive grant schemes between 1994 and 2014. For the period 2014-2021, the EEA Grants amount to €1.55 billion. The priorities for this period are:

(i) Innovation, Research, Education and Competitiveness; (ii) Social Inclusion, Youth Employment and Poverty Reduction; (iii) Environment, Energy, Climate Change and Low Carbon Economy; (iv) Culture, Civil Society, Good Governance and Fundamental Rights and (iv) Justice and Home Affairs.

The EEA Grants are jointly financed by Iceland, Liechtenstein and Norway, whose contributions are based on their GDP. Eligibility for the Grants mirror the criteria set for the EU Cohesion Fund aimed at member countries where the Gross National Income (GNI) per inhabitant is less than 90% of the EU average.