Church-State agreement review ‘a matter of human rights’ – MP

The government's commitment to revisit the 1992 Church-State agreement is driven by a concern with fundamental human rights as much as by a desire to update our laws and bring them in line with present-day reality, according to divorce campaigner and family lawyer Dr Deborah Schembri.

This may account for the top priority accorded this particular issue by Prime Minister Joseph Muscat. The PM said that his government was "adamant on a clear separation of Church and State" in comments after the inaugural mass for Pope Francis I on 19 March, barely 10 days after Labour won the election.

The bilateral agreement itself was brokered by Prime Minister Eddie Fenech Adami in 1992 and marks one of a number of similar agreements reached between the two states over the years.

Controversially, the 1992 treaty gives automatic precedence to the Ecclesiastical Tribunal (answerable to Canon Law and not to the laws of Malta) in cases where annulment suits are filed before both Church and State courts.

Deborah Schembri, now a Labour MP, admits that the advent of divorce in 2011 has changed the legal landscape governing dissolution of marriage.

But she warns against complacency, on the grounds that even though divorce now provides an alternative to annulment as a means to end a legal marriage, the precedence of the Church tribunal can still create legal headaches for the parties involved.

"One possible effect of the introduction of divorce is that the number of cases filed before the Church tribunal may drop in future," she told MaltaToday. "With the situation as it stood before, annulment was one of only two available options. For this reason there used to be instances in which couples would try to get an annulment, even though they wouldn't meet any of the prerequisites. It was a case of trying their luck."

But other problems caused by the 1992 agreement are expected to remain in place, unaffected by the addition of a third option alongside annulment and legal separation.

"As a family lawyer I get to see a lot of cases in which one partner in the separating couple will deliberately initiate Ecclesiastical Tribunal proceedings out of spite, in order to prolong proceedings as much as possible."

Divorce on its own does not impact this scenario, she added.

But the underlying urgency for the proposed reform involves concerns of a very different nature. Schembri argues that the agreement ideally ought to be abrogated in its entirety, because it entails an ongoing human rights violation.

"The problem is that the procedure used in the Ecclesiastical Tribunal is completely different from that of the State courts. One of the issues is the right to a fair trial, which is not always compatible with how the Church tribunal operates."

Among the chief examples is that the right to a lawyer of one's choice is severely curtailed by the procedures used in Church tribunals.

Schembri was herself briefly denied the ability to represent clients before the Ecclesiastical Tribunal in 2011, ostensibly because of her pro-divorce views.

"The right to choose one's lawyer is an integral part of the right to a fair trial. But in the setup of the Church tribunal, it is possible - in fact it happens regularly - for a lawyer to be denied the right to represent clients if the Church objects."

Other similar complaints include the ability to cross-examine a witness, which is not always possible in the ecclesiastical court.

But while there is broad consensus that the 1992 agreement needs revision, not everyone views the human rights concerns as a top priority.

Prof. Ian Refalo, a Constitutional expert, agrees that the ability to block a lawyer from practising in a particular court may have implications for human rights - but argues that the same consideration applies generally to all courts everywhere.

"The right to a lawyer of one's choice is a human rights concern, but it is not just an issue in the Church tribunal. Similar problems arise also in the criminal court, where the same right is arguably much more important."

Refalo adds that all courts draw up their own regulations to determine which lawyers may practise at the bar.

"If, in a criminal case, a defendant wants to make use of a British, French or American lawyer who doesn't meet the requirements of the local courts, that defendant will be denied his right to a lawyer of his choice."

As for the Church-State agreement, Refalo admits that the difference in approach between the two institutions may be problematic. However, he argues that in rare cases, the difference in procedure can also work to the advantage of a separating couple.

"At the end of the day a tribunal - be it a Church or a State tribunal - tries to establish the truth of any given case. Different tribunals may use different procedures, and the Church procedures are more Inquisitorial in nature, not in any medieval sense, but in the sense that the Church views 'the truth' from an absolutist perspective."

In practice the difference is that while a civil court verdict tends to be final and irreversible in nature, the decision of a Church tribunal can in some cases be overturned.

"If the ecclesiastical court decides that there are no grounds for annulment in a particular case, but then fresh evidence emerges that may affect that verdict, the procedure for annulment can be restarted in the Church tribunal."

This option is not available to civil courts, wherein new evidence cannot influence a case in which an annulment has already been given (although it can reignite proceedings in cases where the annulment was refused).

Efforts to reach anti-divorce campaigners Dr Robert Tufigno, Arthur Galea Salomone (director of the Cana Movement) and Mgr Arthur Said Pullicino (an Ecclesiastical Tribunal judge) for their comments proved futile all week.