Tuesday, 1 December 2009

MaltaToday: When it’s OK to vilify gay men and lesbians

29.11.9 by Joseph Carmel Chetcuti

Broadly speaking, anti-vilification legislation creates civil offences and is designed to prohibit public acts of vilification, verbal abuse and hatred on a range of grounds including race, religion, politics and sexual orientation. Criminal proscriptions often require the perpetrator to have threatened or incited others to threaten physical harm to a person or their property.
Anti-vilification legislation usually carries a number of exemptions. Exempted conduct may include the fair reporting of a public act of vilification, communications which attract absolute privilege such as proceedings in a parliament, and acts done reasonably and in good faith for academic, artistic, scientific or research purposes, or any other purpose in the public interest, including discussion about any matter or act. Hence, a claim by Bishop Emeritus John Shelby Spong that St Paul was homosexual or an assertion by the late Yale University professor John Boswell that Saints Serge and Bacchus were “a gay couple” is unlikely to be deemed an act of vilification.
More often than not, the primary (but not sole) impetus for the introduction of anti-vilification legislation is the protection of vulnerable minority groups, but also members of a majority (although some writers doubt the significance of these provisions, given that such majorities often have the back up of society, if not governmental and non-governmental instrumentalities).
By contrast, anti-vilification measures found in Sections 163-165 of Malta’s Criminal Code seek, first, to consolidate what is termed the Roman Catholic religion as the dominant church and only religion in Malta, and, secondly, to ridicule other creeds by designating them as cults but not all cults, mind you, only those that are “tolerated by law”. I say the only religion because in Section 163 of the Code all other religions are summarily dismissed as ‘cults’ (intended to hurt and belittle persons with religious beliefs and practices other than those of the Roman Catholic Apostolic religion). Where protection extends to “other religions”, as in Section 165 of the Code, that protection is limited to the safeguarding of the conduct of religious services.
More disturbingly is the use of the phrase “tolerated by law”. Persons of other religious belief want more than be tolerated by law. They want to be fully accepted by the law and to be treated equally before the law. That persons found guilty of vilifying the Roman Catholic religion attract a higher term of imprisonment than those that vilify cults is one example of how Maltese law plainly discriminates against persons on account of their religious beliefs and practices.
And who the hell does the Maltese government think it is to ‘tolerate’ cults when the Universal Declaration of Human Rights, in Article 18, sets out that everyone has the right to freedom of thought, conscience and religion which right includes freedom to change one’s religion or belief, and freedom, either alone or in community with others and in public or private, to manifest one’s religion or belief in teaching, practice, worship and observance.

Elements of offence
The elements of the offence in section 163 of the Criminal Code can be summarised as follows: a person vilifies the Roman Catholic Apostolic Religion, including its ministers or anything which forms the object of or is consecrated to or is necessarily destined for Roman Catholic worship, when he or she does so in public, by words, gestures, written matter, whether printed or not, or pictures.
Section 163 appears to go well beyond what is reasonable and normally contemplated by anti-vilification laws. It covers not only the vilification of individuals (Roman Catholics) but also their religion and their Church. It probably also encompasses the vilification of, say, a minister of the Roman Catholic religion even when the act of vilification has no link with the minister’s religious beliefs and practices. What if a person vilifies a priest whose private life is an affront to what the Roman Catholic religion teaches? Say a paedophile priest? Do not these provisions in the Criminal Code promote the cover up of sexual offences by priests? And what is to be understood by the word ‘public’, particularly in a country with as high a population density as is Malta?
Section 164 of the Criminal Code is concerned with ‘other cults’: “Whosoever commits any of the acts referred to in the last preceding article against any cult tolerated by law, shall, on conviction, be liable to imprisonment for a term from one to three months.”
I wonder what procedure is in place for the government of Malta to tolerate other cults and which cults have been tolerated! Malta’s Constitution was withdrawn in 1933 as Fascist Italy increased its influence over the island when Malta reverted to a Crown Colony status. It appears that these anti-vilification measures were introduced by the Maltese parliament in the same year probably to consolidate not only the Roman Catholic faith, but also fascism, with whom this Roman Catholic faith was believed to have had an alliance.
Do such provisions, I wonder, comply with not only international human rights jurisprudence but Malta’s own Constitution? What about the rights to freedom of opinion and expression that are enshrined in the Universal Declaration of Human Rights? What about exempting acts done reasonably and in good faith for academic, artistic, scientific or research purposes, or any other purpose in the public interest, including discussion about any matter or act?

Malta, today
Sections 163-165 of the Code showcase Malta as a closed society, one that gazes down its own navel. The Maltese have grown tired of legislation that does not reflect the world they live in and of politicians who are too lazy to update the many laws that predate the Second World War let alone the establishment of the United Nations (1945) and Malta entry into the European Union.
The recent spate of charges against persons purportedly vilifying the Roman Catholic religion remind us that these provisions are anything but a dead letter of the law. Imagine dressing up as a priest, a bishop, an archbishop or even a pope, finding yourself being hurled before a court of law and walking away with a criminal record! What these provisions show is that what’s good for the goose is good for the gander. The Maltese parliament has a duty to include identical provisions that protect not only gay men and lesbians but also the gay and lesbian movement from vilification. The width and breath of such legislation should mirror that which protects the Roman Catholic religion from vilification. Nothing less.
In the past, the Church called on the government and expected it to enforce its beliefs and practices on Maltese (even under the threat of interdict). The ‘I scratch your back, you scratch mine’ attitude is slowly crumbling. No future government can afford to embark on a band-aid review to the law. What is required is a revision of all laws in their entirety, including the write up of another Constitution for Malta, one that genuinely protects the rights of all Maltese, irrespective of their gender, their politics, their religion, their marital status and their sexual orientation (to mention but a few). Such a Constitution should make no reference to any God or any religion because we all know that theists take unfair advantage of such provisions. It should be truly secular Constitution! A true masterpiece!

Joseph Carmel Chetcuti is the author of Il-Ktieb Roza: Dnub, Dizordni u Delitt (1997) and Queer Mediterranean Memories (2009), and is a barrister in Victoria (Australia).

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