Religion has no place in the Constitution

This week Joseph Muscat - you may have heard of him, he's the Prime Minister - set the ball rolling for a revision of the 1993 concordat with the Vatican, engineered by Eddie Fenech Adami to give precedence over the Family Court to the Ecclesiastic Tribunal in separation/annulment cases.

Like many others who have argued that this concordat represents a direct (and completely unsound) concession of Malta's sovereignty to a foreign State - for such the Vatican claims to be, thanks to the Lateran Treaty of 1929 - I welcome the fact that the incoming administration has clearly prioritised this issue.

But at the same time a revision or even abrogation of the '93 concordat, on its own, will do little to address a much deeper underlying legal quandary which makes Maltese law subservient to Canon Law on a whole host of other matters, too. In fact, it is debatable whether that concordat still holds any sway at all.

In case Muscat hasn't noticed, the legal landscape governing separation and annulment has already changed beyond recognition since the introduction of divorce in 2011. Unlike before, there is now a whole new option for the termination of a marriage. And while it still involves legal separation - which in turn means that cases can still be unduly prolonged if one of the separating partners decides to file a case in the Ecclesiatical Tribunal... in practice it more or less squares out in the end, because the divorce law still requires a lapse of four years since the breakdown of the marriage.

In any case, now that the Church has lost its battle to retain supreme legal jurisdiction over marriage in Malta, it may not even be particularly interested in retaining a concordat which has already lost so much of its original impact and significance.

And this also means that repealing (or revising) the same concordat is actually a very easy step for any incoming government to take. Everything is already in place for its removal; all that remains is a handshake (or a 'diamond ring-smooch', which still seems to be the preferred option in the Vatican these days) and hey presto! It's all done and dusted.

 And this brings me to the real problem with Joseph Muscat's entire approach to Constitutional reform.

The '93 concordat is actually only a tiny symptom of a much larger distortion of Malta's underlying legal framework. Other areas where State jurisdiction has been annexed by the Church may prove considerably harder to address; and in fact Joseph Muscat has already declared he has absolutely no intention of addressing them.

Not only has he stopped short of committing himself to abrogating (or at least revisiting) Article 2 of the Constitution - but he has even gone on record defending that proviso tooth and nail: "I will be advocating [retaining Catholicism as the State religion] myself in the national convention on the Maltese Constitution, because the religion has contributed towards our historical and cultural heritage."

Ouch. OK, let me try and put this as painlessly possible. That, Dr Muscat, is your opinion... to which you are more than welcome, so long as you don't try shovelling it down the rest of our throats (that's what Gonzi used to do and you used to criticise him for doing. Remember?). In any case, the Constitution does not exist merely to legitimise your own private opinions and translate them into law. This because it is not 'your' Constitution at all; and the principles it reflects are not subservient to your own private fantasies and superstitions.

The Constitution is a legal document which serves a legal purpose... and Muscat's private version of Catholicism does not fit anywhere in that purpose, which by the way is to provide an underpinning for legislation affecting ALL citizens... including non-Catholic ones like myself and others.

Even without this consideration, the logical sequence of Muscat's observation is sort of slightly screwy, to say the least. The Prime Minister is effectively arguing that any foreign country which has 'influenced' Malta's "historical and cultural heritage" should be given some kind of privileged status in Malta's Constitution... if not the ability to override national legislation at will (which is effectively what Article 2 purports to do).

By that reasoning, what privileges should the new Constitution award to the United Kingdom? It was after all thanks to Britain that Malta was not simply absorbed into the fabric of Fascist Italy in the 1920s. And it was thanks to Malta-based British submarines in WW2 that Erwin Rommel's supply-lines were disrupted in North Africa... without which it would have been highly unlikely (though admittedly not impossible) for Montgomery to end the North African campaign at El Alamein... making the 1943 liberation of Italy through Sicily (via Malta) possible in the first place.

Apply Muscat's logic to this scenario, and because Britain has clearly contributed so much to our cultural identity and heritage - starting with the language I am writing this article in, and continuing with the entire legal system now under discussion (for well over 40 years, Maltese Constitutions were actually drawn up in Whitehall, and imposed on us by a British governor), and the only rational conclusion would be to simple cede our entire sovereignty to the United Kingdom, and stop calling ourselves an independent state at all.

I think most normal people would agree that the above suggestion is absurd. So why do people find it so difficult to see the absurdity in Muscat's identical argument, that another foreign State - the Vatican- should draw up our national moral code directly from Rome, and impose it locally through a Vatican-appointed Bishop... just because it contributed to our heritage in the past?

Interestingly enough this sort of historically unsound non-sequitur is typical of past Labour governments, too. In 1997 Alfred Sant was ready and willing to cede national sovereignty over Fort St Angelo to the Knights of Malta (or whichever of around a dozen non-military and non-monastic orders now claim that title)... all because of historical ties that were dissolved in 1800 or thereabouts.

I shudder to think what would happen if we applied that reasoning across the board. The United States would have to be returned to its rightful owners, the native Americans... and so on and so forth and so fifth.

 But the real problem with Muscat's pick-and-choose approach to Constitutional reform is another. Muscat had already declared his intention to launch a forum for Constitutional reform under the auspices of the President of the Republic. In fact the forum is under way as I write - there have been two meetings already, and a third is scheduled for later this month.

Now we get to find out that the 'Second Republic' is to be achieved uniquely on Muscat's own terms. It is as though the Prime Minister wants to draw up a set of demarcation lines, defining which parts of the Constitution can be amended and which should be left as they are: not based on any legal argument, but merely on his own personal opinion regarding religious beliefs which may or may not be shared by the rest of the country.

Sorry, but it doesn't and cannot work that way. If we are going to discuss changing the Constitution at all - especially to such a degree that it will effectively be a 'new' Constitution to usher in a 'new Republic' - we cannot preface the entire reform by declaring a priori that 'this section' or 'that section' is simply beyond discussion.

I for one - and there are hundreds who think likewise - fully intend to extend this discussion also to Article 2: which is actually far more consequential a legal anomaly than the '93 concordat could ever hope to be.

 The problem with Article 2 is that it completely defies another section of the same Constitution: the one that guarantees equal status to all creeds (i.e., the Universal Charter of Human Rights, which was entrenched in 1987). In what is effectively an adaptation of Orwell's classic line regarding some animals being 'more equal than others', our Constitution guarantees 'equality of religion', while simultaneously singling out one particular religion for special Constitutional status - which in factual terms also translates into harsher penalties for blasphemy against Catholicism than any other 'sect' (among other glaring examples of non-equality among religions).

This would be absurd even if the privileged status were purely nominal and without consequence. But it isn't: Article 2 also empowers the Church to dictate the terms upon which other laws are drawn up... and in 2011 an entire argument was built around the concept that we shouldn't even be permitted to hold a referendum on divorce, because divorce is 'unchristian' and therefore 'illegal' according to the Constitution.

I myself take only limited comfort in the fact that this argument was spectacularly trounced on that occasion. As long as Article 2 remains in place, the idea that non-Christian ways of thinking are somehow 'unconstitutional' will continue to enjoy relevance and currency. And now that the Prime Minister has strengthened that notion with his own quite frankly illogical statement, above... well, who knows what ridiculous arguments may be brought forward on the same basis tomorrow? 

Even without this spot of bother, Malta's Constitution has simply no business to be telling us what our religion is or should be. That is the sort of thing one expects - and regularly gets - in predominantly Muslim countries: Libya's post-Gaddafi constitution makes the country an Islamic State; the same is now true for Egypt and Iraq (both of which were secular in a not-so distant past).

Our Article 2 is actually worse than its equivalent in those countries, because it also gives blanket legal standing to matters which are not even contemplated anywhere within the parameters of the law.

Article 2.2 goes as far as to saddle the Church with "the right and duty to teach what is right and what is wrong" - making ours arguably the only Constitution in the world with the power to impose responsibilities and obligations onto private entities which are not part of the fabric of the State at all.

The absurdity of this proviso (pointed out, among others, by former ECHR judge Giovanni Bonello) would be instantly visible to everyone and his dog, just by substituting 'the Church' with any other private institution of any kind. Can you imagine the Constitution imposing a 'duty' onto, say, the YMCA or the National Philatelic Society? The very idea is laughable, and it should be just as laughable when applied to the Vatican in Rome.

But underlying the purely legal anomaly is a purely factual concern. The Catholic Church does not have a monopoly on the truth - it only appears that way to some people because our country's history has been stunted for millennia by the lack of variety in religious and non-religious thinking.

In the rest of the word - and in Malta too, though you rarely hear of them - there are tens of thousands of other religions (many of them rival denominations of Christianity), and oh look: every single one of them also claims to have a monopoly on the truth.

So what, exactly, gives the Constitution of Malta - a flawed and badly written legal document to begin with, whose many mistakes and oversights have cost us very dearly in the past (1981 springs to mind, and to date the anomaly has never been properly rectified) - the right to unilaterally decide which of these tens of thousands of religions is right while all the others are wrong?

Personally, as a non-Catholic Maltese citizen, I have never been comfortable with a Constitution that was designed specifically to make people like myself feel like aliens in our own country. So if Joseph Muscat thinks he can so easily get away with imposing his own religious beliefs onto myself and others by purely legal means... I can assure him he has another guess coming.