Rationale behind different age requirements to enter casinos in Malta and their compatibility with Article 45 of the Maltese Constitution

Abstract

Article 26(1) of the Gaming Act sets different minimum age requirements to enter casinos for Maltese citizens and foreigners. While Maltese citizens must be 25 years of age to enter casinos in Malta, foreigners need only be 18 years old. This study will examine whether such an article is incompatible with Article 45 of the Constitution of Malta, which prohibits any law which affects a section of people with less favourable treatment on the basis of their race, colour or place of origin. Apart from Article 45 of the Constitution, Article 26 of the Gaming Act must also be compatible with Article 14 of the ECHR since it is also part of Maltese law and under the Convention, one has a right to be heard before the ECtHR after exhausting all local remedies. Although different treatment does not always constitute discrimination, both Article 14 and Article 45 set out requirements that must be present in a case for different treatment to be deemed as discriminatory. Individuals who are less favourably treated must be in a comparable situation with other individuals who are more favourably treated. In the case of Article 26(1) of the Gaming Act Maltese citizens are in a comparable situation with permanent residents in Malta who are not citizens of Malta willing to enter a casino. While both groups of people are living permanently in Malta and thus affecting Maltese society, they are treated differently regarding the accessibility into casinos in Malta and such different treatment is based on prohibited grounds which constitute discrimination, i.e. place of origin and nationality. Different treatment may be justified if it pursues reasonable and objective legitimate aims with due proportionality. Thus the rationale behind Article 26 was key to the investigation to see whether it justifies the different treatment. Inconsistencies within Maltese legislations create doubts about the genuine rationale behind Article 26 which may result in the different treatment as not being justified.