Judge Zammit McKeon is right. As the Ombudsman said in his 2026 press release, Malta has been bound by Protocol No. 12 for years, yet people still cannot rely on it before Maltese courts. In principle, that creates a gap in protection — rights should be enforceable at home, not only in Strasbourg.
But at the policy level, governments may see things rather differently. Three strands of scholarship help explain this hesitation.
First, there is the sheer breadth of the obligation. As Nicholas Grief explains in Non-discrimination under the European Convention on Human Rights: a critique of the U.K. Government’s refusal to sign and ratify Protocol 12 (European Law Review, 2002), Protocol No. 12 introduces a general prohibition of discrimination, no longer tied to specific Convention rights. This is not a minor extension but a significant expansion. In concrete terms, it means that everyday decisions—such as setting residency requirements for social housing, limiting student grants to nationals, or prioritising certain groups in public healthcare systems—could all be open to challenge. What would ordinarily be seen as routine administrative line-drawing may instead be framed as discrimination.
Second, there is the concern about judicial involvement in policy choices. Samantha Besson, in Evolutions in Non-Discrimination Law within the ECHR and the ESC Systems (American Journal of Comparative Law, 2012), shows how equality law has developed into a more substantive and far-reaching standard. From a governmental perspective, this raises institutional sensitivities. Courts may be asked to assess decisions such as how welfare benefits are allocated, which schools receive additional funding, or whether certain categories of migrants can access public services. These are not purely legal questions; they reflect political priorities and resource constraints. The concern is therefore less about equality itself, and more about who ultimately evaluates these choices.
Third, there is the issue of uncertainty. Tuomas Ojanen, in Equality and Non-discrimination in Human Rights Treaties and Nordic Constitutions (Scandinavian Studies in Law, 2022), notes the broader shift toward free-standing equality guarantees in human rights law. However, once equality operates independently, its boundaries can be difficult to predict. Governments routinely rely on categories—such as age, income, residence, or contribution history—to organise public systems. For example, rules limiting certain benefits to long-term residents, or granting tax advantages to particular family structures, may be administratively justified. Yet under a broad equality clause, such distinctions might later be challenged as unjustified discrimination. The difficulty lies in anticipating where courts will draw the line.
Taken together, these points suggest that governmental hesitation is best understood as a reflection of practical and institutional concerns about how far a free-standing equality guarantee may extend into everyday governance. This is not to suggest that the Ombudsman’s position is misplaced—on the contrary, it highlights an important constitutional ideal—but rather to recognise that, at the level of policy, that ideal may generate real tensions in implementation.
