Tuesday, 11 January 2011

Malta Today: One nation before God? Malta braces itself for the religious-secular divide

Tuesday, January 04, 2011, by Raphael Vassallo

The battle against IVF continues where the recent Bishops' pastoral warns against the freezing of embryos

Exactly 50 years after Archbishop Mikiel Gonzi's interdictment edict divided the nation, Malta once again braces itself for a bitter conflagration over secular/religious issues.

Half a century may sound like a long time for the echoes of distant battles to linger in the air; but as the first decade of the 21st century passes us by, it is evident that the core issues of the 1961 'politico-religious dispute' have yet to be fully resolved.

Though much has changed in the intervening five decades, recent controversies strongly suggest that the Church-State frontier remains at best a grey area. Foremost among these debates concerned divorce: as yet unavailable through Maltese legislation, though favoured by a growing majority, and already recognised by Maltese courts when obtained from overseas jurisdictions.

All this may change in the near future, depending on the outcome of a private members' bill presented by Nationalist MP Dr Jeffrey Pullicino Orlando last July. The political ramifications of this initiative – especially for the ruling Nationalist party – are discussed in depth elsewhere (see page 2). But the full implications for the role of the Church in affairs of State have yet to be properly diagnosed.

Nor was it just divorce to upset the Church-State apple cart in 2010. Over the same period there was also the appearance of an orchestrated campaign against in vitro fertilization (IVF) therapy, in reaction to a proposal (by another Nationalist MP, Dr Jean Pierre Farrugia) for a legislative framework that would allow for the possibility of freezing embryos in Malta.

And after a rather obscure ruling last month by the European Court of Human Rights, we also witnessed the resuscitation of a moribund campaign for a so-called 'pro-life' Constitutional amendment – in a country where abortion is already illegal, and an estimated 96% want to keep it that way.

Last but not least came the government's decision to appeal in the case of Joanne Cassar – a woman who underwent gender reassignment therapy, and whose legal battle for the right to marry is now entering its fifth year.

Taken together, the overwhelming image is that of increasingly volatile tensions between, on the one hand, an emerging counter-cultural current in line with the reality of Malta as an EU member state; and on the other, the deeply-entrenched popular notion of Malta as a quintessentially Church-dominated State, living out former President Eddie Fenech Adami's self-avowed fantasy of 'exporting Christian values' to Europe.

Gender jeopardy

Although arguably less seminal than other issues, in many respects Joanne Cassar's ongoing ordeal is symptomatic of the popular confusion between the country's temporal and spiritual authorities.

The case goes back to May 2006, when the Registrar of Marriages denied Cassar and her fiancé the possibility to get married, on the grounds that the Marriage Act prohibited unions between persons of the same gender (and disregarding the fact that Cassar's birth certificate had been amended post-surgery to reflect her gender change from man to woman).

Cassar duly referred the matter to court, and on February 12 2007, Mr Justice Gino Camilleri upheld her request and ordered the director of Public Registry to issue the necessary marriage banns.

But the registrar appealed, and in his decision to overturn the previous ruling, Mr Justice Joseph R. Micallef observed that while the Marriage Act defined marriage as a union "between a man and a woman", Maltese law offered no legal definition of either gender.

Crucial to his subsequent verdict was the testimony of Dr Michael Asciak: former chairman of Parliament's bio-ethics committee, as well as a pro-life activist (who once sought to have a pro-choice campaigner arrested under the Domestic Violence Act), and a self-avowed member of Catholic lay organisation, Opus Dei.

Accepting Asciak's testimony that "after gender reassignment therapy, a person will have remained of the same sex as before the operation", the court upheld the marriage registrar's request and annulled the marriage banns.

Eventually the matter found its way to the Constitutional Court, which – citing a previous European Court of Human Rights ruling (Christine Goodwin vs. UK) – ruled in Cassar's favour last November.

But her battle is far from over. Hours before the expiry of the 30-day legal deadline, Attorney General Dr Peter Gatt filed an appeal on behalf of the Government of Malta, arguing that a marriage contract could only take place between two people of the opposite sex, and also – significantly – that "any different interpretation will lead to marriage between two people of the same sex, which is certainly diametrically opposite to the Maltese public order."

The implications are inescapable: not only are previous rulings of the ECHJ inapplicable to the local scenario as far as the State is concerned; but 'Maltese public order' is evidently modelled on the entirely conservative opinions of the ruling cultural elite, and which can invariably be traced directly to established Catholic orthodoxy.

Censor sensibility

Cassar's case will therefore spill over into 2011 and possibly even beyond, and there is simply no way of guessing how the cookie will eventually crumble insofar as transgender rights and related issues are concerned.

Either way, the final judgment will have an immediate bearing on the State's presumed 'moral underpinning'. If Cassar wins her case, a principle enshrined in the Universal Declaration of Human Rights will find legal precedence over Catholic dogma in Malta: marking a rare instance where religious hegemony was directly (and successfully) challenged.

On the other hand, if she loses, the overwhelming implication will be that Church influence on State matters supersedes even that of the Council of Europe – and with it the entire concept of supposedly inalienable human rights.

As such, the case closely mirrors another, unrelated issue to have tested the limits of Maltese identity in 2010: the issue of censorship.

Of the many cases of individual censorship to have emerged recently, two in particular – those of Anthony Nielson's play Stitching (banned by the Censorship Board) and Alex Vella Gera's short story Li Tkisser Sewwi ('expelled' from campus by University rector Prof. Juanito Camilleri) – are arguably the most pivotal.

In upholding the Stitching ban last June, Mr Justice Joseph Zammit McKeon observed that "the values of a country could not be turned upside down simply in the name of freedom of expression"; and also that "according to our law, the very fact that a person swears in public, regardless of the reason, is a contravention."

But even as the producers appealed against the controversial ruling, parliament took the initiative to surreptitiously (and unanimously) increase the penalties for contravention of Article 208 of the criminal code – the same article of law cited in the case of Li Tkisser Sewwi – prompting a furious response by the Front Against Censorship, a lobby-group inspired by both the above cases.

Replying to criticism in person, Justice Minister Carm Mifsud Bonnici made the following, telling remark: "The fact that The Front Against Censorship is opposing such legal provisions… is evidence of the fact that the Front does not endorse the same values the people of this country have consistently upheld…"

In vitro values

But what, exactly, are the 'values' Dr Mifsud Bonnici had in mind? Based only on a dispassionate view of certain other events of the year, the answer is far from self-evident. In the course of 2010 alone we witnessed some of the most heinous and gruesome incidents of violence to have occurred recently (the murder of Rose Garroni springs to mind), as well as an apparent upsurge in both major and petty crime, and a steady increase in marriage breakdowns – with our national rate now at a par with that of the United States.

From this perspective, it seems that initiatives such as the six-fold increase in penalties for Article 208 – or for that matter, the case against Joanne Cassar, or the multiple prosecutions for blasphemy, etc. – are aimed at reinforcing only the external impression of a 'society based on Christian values'… whether or not this impression actually stands up to scrutiny.

It is a scenario that is likely to extend into the immediate future, as the country gears up for an inevitable battle against the regulation of IVF therapy – not, it must be stressed, a battle against IVF itself (IVF having been available, unregulated, in Maltese hospitals for the past 30 years) but rather against any legislation that can give the practice the cloak of legality.

Indeed, it emerges directly from the objections themselves that critics of this medical procedure (spearheaded by the Catholic Church) are more concerned with the specific act of regulating the practice at law, rather than with the practice itself.

The Bishops' pastoral for the first Sunday of Advent last month was in part devoted to a 'warning' against the perceived evils of IVF: "How can we carry on insisting that children are at the centre of our social and civil life if we condone the freezing of embryos when in other countries, this has ultimately resulted in the killing of embryos?"

The Bishops went on to warn that "where proposals to legislate are concerned" – a clear reference to an IVF report prepared by MPs Jean-Pierre Farrugia, Michael Farrugia, and Frans Agius – it is not always the case that "children are declared to be the focal point of our reflections… These do not always reflect the Christian ethos and are not always for the benefit of children."

The same IVF report is currently on the Parliamentary agenda, and is likely to be voted on later this year.

Divorce – the 'only in Malta' syndrome

Parallel reasoning seems to be the case also for the parliamentary discussion on divorce – which is likely to prove the single most contentious of the Church-State issues of 2011, if nothing else because it elicits such profound emotions on both sides of the divide.

For those lobbying in favour of divorce legislation – a slender majority, according to most recent surveys – the issue boils down primarily to Civil Rights. It is also perceived to be a 'necessary evil' to counter the undeniable surge in broken marriages in recent years, with the newly-formed 'Yes' movement arguing endlessly that "divorce does not end marriages; it provides a solution for marriages that have already failed."

The same arguments also point towards the establishment of Civil Marriage in 1972: arguing that such marriages are joined together by the State, with no input from God, and that therefore the same State ought to theoretically be able to put them asunder.

Opposition to divorce is equally passionate, often as not motivated by the widespread association of 'divorce' with other, similarly contested issues such as abortion and euthanasia: both significantly perceived to be things that happen 'in other countries', as opposed to here in 'Catholic Malta'.

To give the anti-divorce argument its full due, the case is also often presented as an issue of 'positive' versus 'negative' reasoning: the Bishops having time and again urged political parties to focus their energies on 'strengthening the institution marriage', rather than merely throwing in the towel by providing remedies in cases where marriage has failed.

But with emotions running high on both sides, it was inevitable that the entire debate would soon descend into a degree of mudslinging.

Pro-divorce activists have repeatedly been threatened with "hellfire and damnation" – on one occasion (albeit indirectly) by means of a Church billboard – while the Bishops' arguments have often been construed as a thinly disguised attempt to defend their 'ill-gotten monopoly' on marriage annulments: a monopoly ceded by former PM Eddie Fenech Adami in 1994, and which is often cited as tangible 'proof' of an unholy alliance between Church and State.

And just to add to the 'otherworldly' atmosphere that has to date pervaded the discussion as a whole – as if to stress the idea that Malta is somehow part of a different universe from the rest of Europe – along came Prime Minister Lawrence Gonzi's remarkable affirmation, just before Christmas, that he intends to continue isolating the country from foreign influence.

In his own words: "I am not going to decide matters according to what is happening other countries… Even if divorce exists worldwide, I shall not be moved."

However, it remains to be seen whether Gonzi shall be 'moved' against his will by members of his own party. But with the country now lumbering inexorably towards some form of closure – most likely in the form of a referendum – this coming year it is likelier than ever that the eternal question of Malta's innermost identity will finally be resolved… for better or for worse.

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