Of rights and referenda | Cyrus Engerer

With hindsight, the divorce referendum of 2011 can be seen to have had more effects on the country than the mere introduction of divorce alone. In a sense it also served to delineate the precise limits of the power enjoyed by incumbent governments... as well as the previously unassailable influence of the island's more conservative social forces (including, but not limited to, the Catholic Church).

On one level, the referendum experience as a whole also demonstrated to the general public that there are ways and means of circumventing government policy and/or forcing a government to legislate against its will. As for the result, this also exploded the ancient perception of Malta as a country that always obeys its religious and spiritual leaders, at least on perceived matters of principle.

The net result is that today, two years later, Malta is now poised to introduce other civil rights that were previously considered almost unthinkable, not least, a bill to regulate civil unions, which would de facto give same-sex couples a status that is comparable to marriage.

Ironically, however, the same divorce referendum is now also being invoked as the model to follow for those who oppose such rights, and would seek to deny them to others. This week, Imam Mohammed El Sadi, spiritual leader of Malta's Muslim community, surprised many by calling for this issue to be decided by referendum, too.

I meet Cyrus Engerer - gay rights activist and outspoken campaigner for full marriage equality - at his Birkirkara office just a couple of days after the Imam's proposal has caused a stir in the media and on social networks. My first question therefore practically asks itself. What is Cyrus Engerer's reaction to the Imam's proposal? And more specifically, what does he make of the Imam's argument that the government does not have a specific mandate to introduce this law, as the election was contested on a wide variety of other issues?

"Let me start off by saying that I could never agree to a referendum on minority rights. It would be a very dangerous precedent: just imagine if someone were to propose holding a referendum on Islam. How would the Imam react?"

Engerer is quick to add that the Imam would be perfectly justified in objecting under those circumstances. "Muslims are a minority; it would be unfair to subject their rights to a referendum."

The same concept can be extended beyond minorities, too. "Civil rights should not be decided by referendum, regardless of whether they are minority rights or not. I disagreed with the idea to hold a referendum on divorce for the same reason..."

Engerer also refutes the view that the present government lacks a mandate to enact this bill.

"I respect the Imam's opinion, but I think the issue was closed with the election. Government does have a mandate: it made its proposal very clear, it was in the manifesto, it was discussed in detail throughout the campaign. People knew what they were voting for..."

He adds that the civil unions bill actually represents only a small part of this same mandate. "After 25 years of a conservative government, there was a big shift towards civil rights. We saw this repeatedly throughout the campaign..."

Engerer argues that Labour's entire progressive agenda was in fact a response to a stimulus provided by the electorate itself - as evidenced by the result of the divorce referendum. "So no, I can't agree that the government doesn't have a mandate for this law."

Nonetheless Engerer stands by his view that the Imam is fully within his rights to propose a referendum: "I think it is good for citizens to make use of the democratic tools at their disposal. This is in line with the spirit of the EU treaties, which encourage participation in the democratic process."

Interestingly enough it is not just the Imam who has evidently been inspired by the success of the Yes campaign in 2011. This very week, something called a 'Coalition Against Spring Hunting' came forward, likewise proposing a national referendum (no prizes for guessing the subject). Again, the underlying implication is that referenda have come to represent a last resort to force one's government to do what it would probably never find the courage to do of its own accord. And in the case of hunting, successive administrations have always pandered to the will of a minority, while studiously ignoring a much larger majority (as high as 60%, according to our surveys) that is against hunting in spring.

It is admittedly not Cyrus Engerer's area of expertise, but the same principle applies here too... and in any case, spring hunting will most likely be an issue in the forthcoming MEP election campaign. Would he back a spring hunting referendum?

"I am not a hunter myself; in fact I can't even imagine myself ever shooting a bird. But I still believe Maltese hunters should be given the same rights as other European hunters. Joseph Muscat was very clear on this issue during the campaign. The government has a mandate to retain a derogation on spring hunting."

Perhaps, but it remains a fact that this government (like all previous ones) chose to only represent the hunters' demands at EU level, ignoring all other concerns. What choice does this leave those among us who disagree with spring hunting?

Engerer however responds by arguing that Malta's position on hunting is not significantly different from that of any other EU Member State. "Malta negotiated two derogations on hunting. The United Kingdom has over 1,800 derogations. It's not like our situation is in any way unique..."

Yes, but that doesn't answer the question of why such a large majority should be ignored. Once again, Engerer points towards the danger of submitting such matters to a popular vote in the first place; and in so doing, he also raises an issue I was going to come to anyway. Immigration.

"Having a very large majority is not in itself an argument. A very large majority - possibly around 90% - would vote 'yes' in a referendum on pushbacks, for instance. So should government hold a referendum on pushbacks?"

I concede it's a fair point, but the two issues are not exactly interchangeable. The European court has ruled that pushbacks are illegal. So even if 90% did vote 'yes' in a referendum - and incidentally that figure remains to be verified - government would still face legal consequences if it adopted that policy.

Engerer agrees, but argues that the point still stands. "Should government honour every wish of the majority? I would say that government also has an obligation to respect the rules and regulations. A former government negotiated derogations from the Birds Directive - as the EU rules permit governments to do - and there was a European court ruling which made it clear that spring hunting is permissible. This administration is only honouring the derogations within the accepted rules and regulations, as it had committed itself to do before the election. Do I agree?" Here he pauses briefly. "To tell you the truth, I'm not that interested. What I do believe, however - and this is also in the spirit of the Birds Directive - is that hunting has to be sustainable. Certainly I am against illegal, unsustainable hunting. But I don't think spring hunting is unsustainable, and I don't believe we should remove the derogations, no..."

We agree to move on to topics of greater relevance to Engerer's own political platform, which ultimately concerns equality and rights. He himself brought up the issue of immigration, and in particular the recent furore over an apparent plan to deport some 40 Somali asylum seekers back to Libya without processing their asylum applications.

What happened next was that the European Court of Human Rights issued 'interim measures' which stopped government in its tracks. It remains a moot point whether government would, in fact, have deported those asylum seekers. But I put it to Engerer that the tone adopted by Prime Minister Joseph Muscat has arguably fanned the flames of xenophobic sentiments that were up to that point rather dormant. Does he agree with this interpretation?

He shakes his head. "First of all there were no pushbacks. The only time Malta resorted to pushbacks was in 2002, under the Eddie Fenech Adami administration. Joseph Muscat said that he would consider all options, but at no point was there ever any decision taken to deport anybody."

Ironically, Engerer also suggests that the EU is itself guilty of pushbacks all the time: "Whenever a migrant leaves Malta with no documents and lands in another EU country, he will be pushed back here," he says with reference to the notorious Dublin II Treaty, which accords responsibility for migrants to the 'first point of entry to the EU'.

I counter that this stretches the definition of 'pushback' somewhat, but Engerer has meanwhile developed the argument further. "Besides, pushing back those migrants was not the government's intention. The Home Affairs Minister made this clear when he recently met NGOs. Malta was not going to break international law..."

Let us for argument's sake accept this at face value: it doesn't change the fact that the government appears to be pandering to an increasingly vocal racist segment of the population. In parliament, the prime minister himself used alarmist terms to describe the phenomenon of immigration, with little apparent heed as to how his words could be used to justify or cement hostile attitudes towards vulnerable people.

Bearing in mind that this country has already witnessed serious acts of violence perpetrated on evidently xenophobic grounds (I refer specifically to the 2005 attacks on JRS personnel, as well as individual journalists who wrote about immigration), wasn't this an irresponsible line to pursue? (Note: Engerer himself seemed to be concerned at the time, judging by one of his own Facebook status updates.)

"It is true that I was concerned that there could be a rise in racism. And incidentally I fully condemn the attacks you refer to. But at the same time my concern diminished when I heard Joseph Muscat speaking out against racism in no uncertain terms."

Engerer alludes to the scheduled protest that was meant to take place this morning. At the time of the interview it had not yet been cancelled - but Joseph Muscat had made it very clear that he disapproved of the initiative.

He also tells me that the government is taking pro-active initiatives to counter racism as we speak (something the former administration never did). "Evarist Bartolo and Helena Dalli [Education and Civil Liberties Ministers, respectively] are in the process of drawing up proposals for an anti-racism strategy, with Joseph Muscat's approval."

This is all well and good, but there is another dimension to this issue. What is Joseph Muscat's actual strategy on immigration? Anyone can 'stamp his feet' (as the prime minister himself described his own actions). Actually getting results for stamping one's feet is, however, another matter altogether...

Predictably, Engerer fully supports his government's line on the international stage too. "The prime minister's actions were necessary, and there have been positive consequences. The EU woke up and listened..."

Did it? That is news to me. Last I looked Cecilia Malstrom merely confirmed that mandatory burden sharing (which is the government's declared objective) was not on the cards. How is this in any way different from what the previous administration 'got' from the EU over the past 10 years?

"It is different, because the prime minister has made it clear that Malta's interests will come first. We needed to have a stronger voice, and that's what Muscat brought to the table."

The EU's reaction was likewise different, or so Engerer insists. "The difference is ultimately this: the PN was in favour of EU membership only as a destination. But once we joined... that was it. The objective was achieved. Joseph Muscat, on the other hand, wants to use EU membership to our advantage. And besides, this was also in the electoral manifesto... He promised to talk tough on immigration, and that's what he's doing."

Yes, but where are the results? And besides, how can the government justify calling Malta's immigration phenomenon an 'emergency', when the figures are no more alarming than in any European country?

Recent statistics revealed that Malta's rate of asylum application stood at 4.9 per 1,000 citizens for 2011. Sweden's rate for the same year was almost the same - 4.7 per 1,000 citizens - yet you don't hear Sweden's prime minister 'stamping his feet'.

But Engerer rejects the comparison. "What those figures don't take into account is the population density. Malta is the second most densely populated country in the world after Singapore, and by far the most densely populated EU Member State. This has to be factored into the equation."

All the same, he does acknowledge that the government's approach must be results-driven. "You need to give more time," he adds. "Government has only been in place for just over five months. What I would like to see - and we are working on this at council of ministers level - are amendments to Dublin II. But this doesn't only depend on Joseph Muscat."

Engerer here turns his guns onto one of his future rivals for the European Parliament. "If you ask me, if anyone acted against the national interest it was [PN MEP] David Casa, when he circulated a petition urging the parliament to condemn his own country. That, to me, is shocking. I can't understand how Roberta Metsola signed it. Perhaps she was pressured to by the party..."

On the subject of other MEPs, actual or potential, Engerer will be one of an as-yet-undisclosed number of candidates in next year's EP election: a democratic exercise which traditionally does not engender the same level of enthusiasm as general elections. One possible reason for this is a perception that the EP is actually a rather toothless institution at the end of the day - and that, in any case, what little filters down from the EP to the level of the ordinary citizen often tends to be far removed from everyday concerns. What would Cyrus Engerer tell someone who had no intention of voting next year?

"I would argue, as I did with referenda, that we should never waste any opportunity to use the tools of democracy."

Interestingly enough, he adds that the democratic deficit of the EP was in fact the main subject of his own BA dissertation. "The thing to bear in mind about this issue is that the European Union is a work in progress. We have seen the powers of the European Parliament evolve over time: in 1979, when the first EP election was held, the powers enjoyed by the parliament were nothing like what they are today. And the EP is still evolving: next year's election will be first one in which voters not only directly elect representatives to the EP - but indirectly they also elect the president of the Commission, too."

This, he explains, is an offshoot of the Lisbon Treaty: political blocs contesting the election (namely, the PES, the ALDE, the PPE and the Greens) will nominate their own candidates for the Commission presidency, and so the outcome of the election will have a direct bearing on this all-important choice.

"So what would I tell voters? I would recommend that they judge MEPs over the full five years of their term... and then, choose parties and individuals who are ready and willing to take action in favour of Malta - and not against their own country's interests."