Church and State to commence separation procedures?

“When sorrows come, they come not single spies but in battalions”. And no sooner have the fanfares of the divorce lobby faded into the distance, than the Catholic Church – still licking its wounds after its tenacious No campaign was roundly defeated at the polls last Saturday – now finds itself beset by detractors from all angles.

Let us leave aside the less than joyful (and certainly not triumphant) faithful, who now round on targets such as Pro-Vicar Mgr Anton Gouder and Gozo Bishop Mario Grech, whom they blame for alienating moderate Catholics with their ‘hell hath no fury’ brand of campaigning… and leave aside also the media, which the Church in turn blames for fostering a culture of secularism and disobedience among the public at large.

No: the really incisive attacks have come from different and occasionally surprising quarters; and in such form as to potentially to destabilise the Church’s millennial hold over many of the country’s legal institutions.

Within days of the referendum result, the Chamber of Advocates wrote to Judicial Vicar Mgr Arthur Said Pullicino, requesting an urgent meeting to discuss the issue of lawyers who are suspended from the Ecclesiastical Marriage Tribunal.

Ostensibly the request comes after a number of high-profile ‘dismissals’ from the Tribunal: starting with Yes campaigner Dr Deborah Schembri at the height of the campaign, and followed by Labour MP Owen Bonnici and deputy leader Anglu Farrugia (though the Curia denies they have in fact been suspended).

Either way, the reference is to a striking anomaly in Maltese law, whereby the Church’s internal tribunal – answerable to Canon Law, and not to national legislation at all – has since 1995 been empowered by a Church-state concordat to override its civil equivalent under certain circumstances.

Pointing out that this same Ecclesiastical Tribunal “has civil effects”, the Chamber observed in its letter to Said Pullicino that such blanket bans targeting individual lawyers may violate the fundamental human right of their clients to “a lawyer of one’s choice”.

The Chamber’s timing couldn’t have been more significant. This is, after all, not a recent situation; lone voices like Dr Emmy Bezzina have been criticising the concordat, and the legally dubious privileges it bestows on the Church Tribunal, for all of the 16 years since it came into force.

But while Bezzina’s colourful personality may have militated against his arguments being taken too seriously at the time, the Chamber of Advocates is another animal altogether. For years dominated by mainstream lawyers who tended – though this is naturally a generalisation – to veer towards the conservative side of the establishment, its sudden questioning of the tribunal’s privileges signifies a palpable shift in the balance of power.

Like predators circling their wounded prey, lawyers who previously accepted the status quo without question have clearly sensed that the time is now ripe to do what they should have really done 16 years ago, and challenge the legality of this uncomfortable status quo.

Nor is the Chamber the only entity to climb onto the budding secularist bandwagon. This week – again, once the referendum result made secularism a politically ‘safe’ position – Labour deputy leader Anglu Farrugia openly questioned the legal validity of the entire concordat in Parliament.

This is again highly significant, for two reasons. One, Dr Farrugia is himself one of the lawyers at the heart of the selfsame ‘unfair dismissal’ issue; and rather than fight the issue in court, he has chosen to bring it up in the House of Representatives (where such legal issues are actually decided in the first place).

Two, Farrugia’s parliamentary intervention was not aimed exclusively at the part of the concordat dealing with the marriage tribunal. Farrugia described the entire concordat – which covers a host of other areas, including State subsidy on Church schools, and the transfer of Church property to the state – as ‘outdated’.

More ominously still for the Church, Farrugia gave an interpretation of the divorce referendum result which will no doubt resonate with many of the 122, 528 ‘sinners’ who voted Yes on Saturday. He claimed that the electorate had decided “that canonical matters had to remain distinct from the state” – thereby hinting at an imminent move to disentangle the knots that keep some of the State’s power-nodes firmly tied to the Church’s apron strings.

For all this, the elephant in the room remains resolutely ignored. While the 1995 concordat has now been clearly singled out for some form of challenge (be it legal or political) in the near future, the Constitutional proviso from which all Malta’s establishmentarianism originally flows remains untouched… except on Internet social networks, where polls on sites such as Facebook have already floated the question: “Should Malta repeal the Constitutional reference to Catholicism as state religion?”

At the heart of the matter is Article Two, which states that: (1) The religion of Malta is the Roman Catholic Apostolic Religion; (2) The authorities of the Roman Catholic Apostolic Church have the duty and the right to teach which principles are right and which are wrong; (3) Religious teaching of the Roman Catholic Apostolic Faith shall be provided in all State schools as part of compulsory education.”

Contrary to widespread perception, only the second of these three provisos is ‘entrenched’ – i.e., requires a two thirds majority to repeal. The first and the third may be overturned by a simple majority in the House.

From this vantage point, the vehemence with which the same Church fought against divorce legislation can suddenly be seen in its full perspective. Judge Philip Sciberras only revealed half the story when he claimed, in mid-campaign, that the Church ‘stood to lose financially’ from the introduction of divorce.

We xcan now appreciate that the Church stood to lose a good deal more: including its traditionally privileged status as the nation’s ‘untouchable’ moral torchbearer

With 53% voting Yes to divorce, and a further 28% defying the Bishops’ direct exhortation to participate in last Saturday’s referendum, the old notion of the Curia as “kingmaker” of Maltese politics has finally been lain to rest. And all the privileges that had previously been built on this selfsame foundation are now more vulnerable than ever before.

Whether the secular momentum will be enough to unseat the Church from its Constitutionally anointed throne remains to be seen. But with a fresh wind now filling the sails of ‘progressive’ movements – some of which have already started to challenge a few of the Church’s previously unassailable privileges – we may well be witnessing the first rumblings of a lasting earthquake of change.