[ANALYSIS] Giving back to Caesar what was ‘borrowed’ by God…

In a meeting with Pope Francis I last Monday, Prime Minister Joseph Muscat signalled his intention to revise a 1993 Church-State agreement which had (among other effects) made the civil courts technically subservient to the Ecclesiastical Marriage Tribunal.

With this agreement in place, the civil courts were (and to date still are) obliged to enquire whether any annulment proceedings had been initiated in the Church tribunal. If so, proceedings before civil annulment would automatically have to be postponed for the entire duration of the case before the ecclesiastical tribunal: a process which has been known to take up to 11 years.

In practice, this meant that one partner in a separating couple could use the juridical precedence of the ecclesiastical tribunal to delay and disrupt proceedings. And as the ecclesiastical tribunal is subject to Canon (as opposed to State) Law, the court proceedings themselves were often criticised for falling short of the minimum standards required of judicial process by the norms of democracy.

The criteria for admission of evidence, for instance, differ greatly between the two courts; and unlike civil proceedings, individual parties do not have automatic access to all the evidence (or even a list of witnesses) that can be used against them.

Arguably the most serious flaw in the above system was that it empowered the Church tribunal to object to specific lawyers practising before the court - a practice that flies directly in the face of the Human Rights Charter, which lists 'access to a lawyer of one's choice' as a fundamental human right.

Matters reached a head when Deborah Schembri, the public face of the pro-divorce lobby ahead of the 2011 referendum, was denied the ability to represent clients before the marriage tribunal because of her pro-divorce views.

This was not the first case of its kind, but it was arguably the most widely publicised. As a result, the previously inconspicuous blurring of the distinction between Church and State was suddenly made manifest to one and all.

Reacting to the subsequent referendum result - a 53% majority for the Yes vote - a triumphant Deborah Schembri declared that it was now "time up" for the concordat; and this, in a nutshell, was the backdrop against which last Monday's papal visit unfolded. But while Prime Minister Joseph Muscat has clearly made the revision of this contentious agreement a priority for his fledgling government, he has also made it clear that he intends to only revise - and not to abrogate - the treaty.

Meanwhile, nobody seems to know exactly how this same treaty will be altered. Asked this question point blank upon emerging from his colloquy with the pope, Muscat limited himself only to proposing a 'joint commission', to include members of both the Church and government hierarchies, to look into "different ways the agreement can be altered" - without, he added, significantly altering the excellent relations between Malta and the Vatican.

But is this really possible in practice? Deborah Schembri (now a government MP) seems to think so.

"The Concordat speaks both of what happens at time of marriage - and thus about recognition of Church marriages as civil marriages - and also of what happens when and if such marriages are declared null, which is where the real problem lies," she told MaltaToday. "It can be revised in a positive way, in keeping with the spirit of mutual respect between Church and State, while recognising that Church and State are separate entities. I would be happy with that. When I said that 'its time is up', I was talking about the more prominent and problematic aspect of the Concordat, which gave the Church tribunal supremacy over the civil court. I am confident that the matter will be settled in the best interest of our people..."

Not everyone shares her optimism, however. Emmy Bezzina, another family lawyer who was likewise 'blacklisted' by the Church, argues that there is simply no need for any agreement with the Vatican at all.

"The real reasons for the agreement go back to historical political issues that no longer make sense in today's world," he said, pointing towards the introduction of divorce, as well as a proposal to regulate same-sex unions by the end of this year as evidence.

"Ultimately this all boils down to a secret agreement between [former prime minister] Eddie Fenech Adami, [former foreign minister] Guido de Marco and Cardinal Celato representing the Church. The idea was to turn the clock back to a time before the 1975 Marriage Act, when the Church was still in full control of all aspects of marriage."

Other issues, however, got in the way - not least, Malta's bid to join the EU - and according to Bezzina this made it impossible to cede full autonomy to the Church.

"The 1993 agreement was therefore a compromise. That is the only way to make sense of what is otherwise an illogical agreement that humiliates Malta's justice system. There is no doubt in my mind about this, and it has never been denied."

Nonetheless, the agreement does have its defenders. One of them is Mgr Arthur Said Pullicino, the judicial vicar at the helm of the ecclesiastical tribunal (who also helped broker the original agreement).

Said Pullicino rejects arguments that the treat needs revisiting, still less that it should be abrogated.

"I absolutely disagree that there is any need to revise the agreement," he said yesterday. "In my opinion it should be kept as it is. It is a good agreement that has benefited Maltese Catholics."

Efforts to reach former prime minister Eddie Fenech Adami, the only surviving Maltese signatory to the concordat, proved futile.