Wednesday, 6 January 2010

MaltaToday: An open letter to Simon Busuttil
27.12.9 by Joseph Carmel Cehtcuti, Melbourne, Australia

In a recent article (‘The principle of non-discrimination’, Times of Malta, 9 December), you put your case against the recognition in Malta of same sex marriages contracted in other countries. The controversy followed the debate surrounding the Stockholm Programme and your successful opposition to the mutual recognition principle as far as it affects married or de facto same-sex partners and couples. You think that the mutual recognition principle should only apply to countries that accept same-sex marriages.
You no doubt are aware that the mutual recognition principle provides a strong impetus to intra-national and international co-operation. In some instances, it may also be taken as a sign of respect towards the customs and values of other countries.
At the intra-national level, particularly those countries with a federal system of government, as is the case in Australia, it was not unusual for a state to put up barriers against service providers from other states. In 1992, and in response to this problem, the Commonwealth government passed the Mutual Recognition Act to facilitate the freedom of movement of goods and service providers between Australian states. As a result, a lawyer registered in one jurisdiction is now able to practice in another jurisdiction. States followed on from where the federal government left off. In Victoria, the Legal Profession Act 2004 enabled interstate practitioners to engage in legal practice in Victoria subject to them meeting some conditions. Significantly, under the Trans-Tasman Mutual Recognition Act 1997 (Cth), legal practitioners from New Zealand can apply to practice in Victoria.
At the international level, the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (1971) (to cite one example) set out to establish common provisions on mutual recognition and enforcement of judicial decisions rendered in signatory countries. You are no doubt aware that on 15 and 16 October 1999, at Tampere in Finland, the European Council called for, amongst other things, the enhanced mutual recognition of judicial decisions and judgments.
The principle of mutual recognition is anything but new in Malta. Take, for instance, the Mutual Recognition of Qualifications Act (2002). Even on issues that are seen by some as contentious such as divorce, Malta has not been slow from applying the principle. Let me quote from an internet article by Aaron Mifsud-Bonnici: “With regards to divorce, annulment and the capacity to remarry, one may note that prior to 1975 the Maltese Courts categorically refused to recognise foreign divorces on the ground of public policy. Following the enactment of the Marriage Act in 1975 foreign divorces were recognised if they conformed to the requirements of Section 21. Section 21 provides that the decision of a foreign court on the status of a married person, or affecting such status, shall be recognised for all purposes of law in Malta if the decision is given by a competent court of the country in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen.” (
So what is so different with applying the principle of mutual recognition to same-sex marriages as it is applied to divorce granted in other countries? May I respectfully propose one answer: prejudice.
And the question is: Let us stop all this nonsense about the principle of mutual recognition and countries telling Malta what to do. If the Nationalist Party government was serious about maintaining Malta’s sovereignty, it would not have applied for membership of the European Union in the first instance.
You have already stated that you do not “favour” same sex marriages. Why is this so? Why are you opposed to same-sex marriage? What public policy grounds, if any, are you relying on? Why not come out with it?
Gay men and lesbians in Malta are tired of Nationalist Party politicians telling them how much they really love them and doing nothing about it. It is a love affair we do not enjoy. Some spice and stimulation need to be injected into the relationship. Sadly, the Party has a history of stonewalling (it did it in 1973 when Dom Mintoff decriminalised homosexuality). It is stonewalling now and will invariably continue to stonewall until the next election when a fed-up Maltese electorate including many Nationalist Party supporters will finally throw it out into the dust-bin of history. As for your assurance that you are “committed to co-operate to combat discrimination and to strive towards a more inclusive society, including the gay community”, I have to say that I can only take your declaration with a pinch of salt. After all, gay men and lesbians demand to be respected not only as individuals but also as couples and as families… and that includes same-sex marriage.

1 comment:

  1. AnonymousMay 06, 2013