Knocking on heaven’s door…

As The Beatles once famously sang: "it was 20 years ago today" that a pivotal agreement was signed by Prime Minister Eddie Fenech Adami, Foreign Minister Guido de Marco and a representative of the Holy See.

The same agreement was reported on TVM news that night to the tune of 'Here Comes The Bride', and has since featured prominently in arguments both for and against the introduction of divorce ahead of a bitterly divisive referendum in May 2011.

Tomorrow, the same agreement will be the subject of a private colloquy between Prime Minister Joseph Muscat and Pope Francis I at the Vatican: following a 'note verbale' sent by the incoming Labour government to the Holy See on 10 April.

Everything therefore seems to be in place for an overhaul of a concordat which has been contentiously debated for 20 years... though it remains to be seen how negotiations will proceed, and what demands or conditions (if any) will be placed on the negotiating table by the Holy See during the ensuing talks.

Either way, the process that will commence tomorrow is likely to draw to a close an often highly contentious chapter in Maltese history: a chapter that takes us all the way back to the historic Church-State clashes of the 1960s, and the battle for Church schools two decades later.

Why the concordat has to change

The 1993 Church-State agreement - which was actually brokered the preceding year - is not the only bilateral agreement of its kind: nor is it even the most controversial, when viewed alongside other agreements that (for instance) make the government of Malta financially responsible for the administration of private schools owned by the Catholic Church.

But in a sense, it is the most emblematic of the many areas in which the separation between Church and State remains somewhat blurred in 21st century Malta. And because its effects are felt in a very direct way by separating couples - with repercussions that therefore touch virtually every single extended family in Malta and Gozo - it remains arguably the most publicised and divisive of the many agreements brokered between the two States over the years.

But what makes this particular agreement more controversial than others is the fact that it cedes partial jurisdiction over Malta's Marriage Act to the Holy See - which is technically a foreign country, according to the terms of the 1927 Lateran Treaty (which Malta, unlike many other countries, officially recognises).

In practice, the upshot is that annulment proceedings initiated in the Ecclesistical Tribunal take automatic precedence over similar proceedings commenced in the Family Court. This in turn gives way to numerous problems: legal proceedings are often dramatically lengthened as a result; and given that it is in the nature of such proceedings to be bitterly contested by both sides, often one of the two separating partners would resort to the Church tribunal as a deliberate ploy to frustrate and exasperate the other party.

And this is just the beginning: Malta's tribunals - including the Family Court - are of course subject to Maltese law.

The Ecclesiastical Tribunal, on the other hand, is answerable to Canon Law: and the two jurisdictions differ considerably in a number of very fundamental areas. One of these concerns the Universal Charter of Human Rights: which are entrenched in the Maltese constitution, and therefore underpins all proceedings in all local tribunals.

Not so the Church marriage tribunal, however: which has on occasion blatantly disregarded such fundamental human rights as the right to be represented by a lawyer of one's choice. On at least two occasions, practising family lawyers were denied the prerogative to represent clients before this tribunal. One of these 'interdicted' lawyers was Dr Emmanuel Bezzina: an outspoken critic of the Church (who has been invited to attend the talks, along with the press, at the Vatican). Another was Deborah Schembri: the public face of the 'Yes' campaign in the 2011 referendum to introduce divorce.

 'Time is up'

Perhaps unsurprisingly, Schembri was among the first to call for the abrogation of the 1993 agreement, after the referendum was won by a convincing 53.6%.

In a radio interview shortly after the referendum, Schembri said that during the hearing of an annulment cases, "the Ecclesiastic Tribunal functions like a civil court, because its decisions have civil consequences that are recognised by the State".

She complained about how the concordat gives the Church Tribunal's decision on a marriage annulment precedence over civil courts, which have no choice but to accept that decision.

"It is the State's duty to safeguard our human rights, not the Church's," Schembri said, adding that the concordat did not oblige the Church to recognise any of the civil courts' decisions, calling the concordat "lopsided".

"Those whose rights have been breached in this way can institute cases against the State for not safeguarding their basic rights," Schembri said. "The concordat granted the Church excessive power over the State which it should never have had. I think the time for the concordat is up, and it is up to the State to see to it that it ends," Schembri said.

Almost immediately after the March 9 election, newly-elected Prime Minister Joseph Muscat took the opportunity of the inaugural pontifical mass for Pope Francis I to hint at an imminent reform of the same agreement.

Without specifically referring to the concordat, Muscat said that "we must ensure that our marriage law is supreme to that of any other law, and not subordinate".

The subsequent note verbale marked one of his first decisions as Prime Minister.

Defending the status quo

Naturally, the only surviving author of the original agreement - President Emeritus Eddie Fenech Adami - disagrees: arguing that his brainchild was a "historic agreement" which "worked".

One can agree or disagree with the second part of that statement; but there can be little doubt that Fenech Adami was correct on the historicity of the document itself.

In fact, the entire agreement was premised by the need, post-1987, to rebuild strained relations between the two States. It was only a few years earlier that the government of Malta had indirectly tried to 'nationalise' Church schools - or at least, to prevent them from charging money for tuition, in a transparent bid to render them unprofitable.

In a sense, the Church Schools debacle of 1984 was the last echo of an earlier (and much more traumatic) clash between the Malta Labour Party and the ecclesiastical authorities: a clash which had resulted in the excommunication of MLP leader Dom Mintoff and the party executive... and also in the withholding of sacraments to Labour sympathisers, in an age when such measures were still deemed 'drastic'. 

Distant though this conflagration may appear, Muscat is clearly very conscious of the need to avoid a repetition of history at all costs. Even as he voiced his intention to repeal the 1993 agreement, the Socialist prime minister went out of his way to give reassurances to the Vatican that other sensitive areas concerning relations between the two entities will remain untouched.

Of these, the most contentious remains Article 2 of the Maltese Constitution - significantly written when the excommunication of the Labour executive was still in force - which cedes blanket authority to the Church to 'teach what is right and what is wrong', and more specifically binds the government to provide Catholic education is State schools.

But by preemptively ruling out a discussion on this particular aspect of Maltese law, the Prime Minister may well have strengthened the Vatican's hand ahead of negotiations to roll back the '93 agreement. It remains to be seen if a proposed repeal of this treaty will come accompanied by further concessions to the Vatican over other aspects of Maltese law.