Monday, 7 January 2013

Malta Today: Will 2013 be the year of civil rights in Malta?

A civil rights crossroad: for Malta, 2013 could turn out to be the year of change, or the year of permanence.
Sunday 6 January 2013 - 16:15 by Jurgen Balzan

A survey carried out by MaltaToday in May 2012 shows that 60% of 18 to 34-year-olds agree with the introduction of marriage for same-sex couples, while only 23% of those over 55 years are in agreement.

For the Chinese, 2013 will be the year of the snake, for UNESCO, it is World Water Year, for the Vatican, the year of faith and for the European Union, the year of the citizen. For Malta, 2013 could turn out to be the year of change or the year of permanence.

However, irrespective of the 9 March election outcome, the next 12 months could well prove to be a landmark year for civil rights in Malta. Parliament has already approved the IVF law, while cohabitation is expected to be one of the first bills discussed during the next legislature.

Other issues - such the decriminalisation or legalisation of drugs, and gay marriage -seem to have squeezed themselves on the national agenda, and Malta could follow recent developments in Europe and the US, where the two issues have stirred unexpected controversies.

In recent weeks, the Vatican has gone on the offensive in response to gains for gay marriage in the United States and Europe, using every possible opportunity to denounce it through papal speeches and its media organisations.

This week, Pope Benedict said the Vatican was ready to forge alliances with other religions against gay marriage, saying the family was threatened "to its foundations" by attempts to change its "true structure".

In Europe, British Prime Minister David Cameron and French President François Hollande faced a barrage of criticism over gay marriage. Hollande came under fire for his proposals to legalise gay marriage, as street demonstrations illustrated the deep divisions in French society, while the head of the Roman Catholic Church in England and Wales issued a harshly worded attack on the Conservative government's plans to introduce same-sex marriage, lambasting them as "shambolic".

Gay Marriage

Despite valiant efforts to introduce the cohabitation bill last year, the draft law was a disservice to all parties involved. Cohabitation law and gay marriage are two very different pieces of legislation, however the Civil Partnerships and Rights and Obligations of Cohabitants Act tried to intertwine cohabitation and rights of same-sex couples together.

The first to propose the legalisation of gay marriage was the divorce champion and outgoing MP Jeffrey Pullicino Orlando, who once again tested the limits of the Nationalist government's Christian Democrat credentials by floating the idea in March last year.

In the forthcoming electoral campaign, the PN and Labour will more or less share the same position on gay marriage, with both parties agreeing on civil partnerships without granting full marriage rights enjoyed by heterosexual couples.

Much to the dismay of the gay community, in the aftermath of the 9 March election it is highly unlikely that any of the two major parties explicitly endorse gay marriage.

Despite attempts to endear itself with the LGBT community by flying the rainbow flag over its headquarters in Hamrun and endorsing an inclusive discourse, Labour and its leader Joseph Muscat have repeatedly declared opposition to gay marriage and adoption by gay couples.

Labour's position is slightly more liberal than that of the Nationalist Party, which will not go further than the cohabitation law which did not make it beyond the first reading in parliament. On the other hand, Labour is in favour of civil unions, which will most probably be modelled on the French PACS (civil solidarity pact) granting couples rights and responsibilities, but less so than marriage.

The inability of the conservative hawks within the PN to come to terms with the liberal nature of the cohabitation bill led to a half-baked law that insultingly treated same-sex couples as some kind of second-class citizens.

Alternattiva Demokratika is the only party to date to unequivocally support the introduction of gay marriage, backing the Malta Gay Rights Movement's Gender Identity Act proposal calling for expedient legal gender recognition and for gender reassignment procedures under the national health care service.

Unless all political parties include the proposal to introduce civil partnerships or gay marriage in their manifestos, the country could be called to voice its opinion in a referendum as other countries have in recent times.

A survey carried out by MaltaToday in May 2012 shows that 60% of 18 to 34-year-olds agree with the introduction of marriage for same-sex couples, while only 23% of those over 55 years are in agreement.

The survey showed that support for gay marriage increased by 13 points since 2007, when the first MaltaToday survey on this issue was conducted.

Overall, an absolute majority of 51.2% is opposed to the introduction of gay marriages while 42% agree with gay marriage. Those in favour of same-sex marriages included a significant 9% who specified that they agree with the introduction of same-sex marriage but disagree with these couples adopting children.

To date, 11 countries have legalised gay marriage. In 2001, the Netherlands became the first, quickly followed by Belgium. In 2005, Canada and Spain followed, despite strong protest by the Roman Catholic church in Spain.

In 2006, South Africa became the only African country to allow same-sex marriage after enshrining gay rights in its post-apartheid constitution in 1994. Norway, Sweden, Iceland and Denmark have also legalised gay marriage.

In 2010, Portugal followed Spain in legalising gay marriage and Argentina became the first Latin American country to allow same-sex marriage, with Uruguay expected to follow suit once the country's Senate approves a law that would make all marriages equal.

In Mexico, a same-sex marriage law was enacted in 2010 but only in the capital - Mexico City - while last year voters in Washington, Maryland and Maine became the first to approve gay marriage at the ballot box in the US. They joined a list of states recognising same-sex unions, including New Hampshire, Iowa, Connecticut, Massachusetts, New Hampshire, New York and Vermont, as well as the District of Columbia. However, 31 States have amended their constitutions to prohibit same-sex marriage, North Carolina most recently, in May.

Meanwhile, the US supreme court also announced it would take up the issue of same-sex marriage for the first time ever, agreeing to hear two cases that could decide whether gay and lesbian Americans have the same constitutional right to marry as heterosexuals.

Cohabitation Law

The greatest fault in the draft Civil Partnerships and Rights and Obligations of Cohabitants Act was its lack of clarity. Instead of defining a framework of rights including property, taxation, social welfare and legal rights, the bill championed by outgoing justice minister Chris Said went completely adrift by defining differences between different types of partnerships.

In an attempt to shoehorn in civil partnerships for same-sex couples in a cohabitation law, the Nationalist government failed on two fronts. It presented a discriminatory cohabitation law and failed to take heed from the divorce debacle, while also missing out on an opportunity to table a separate bill on civil unions.

The bill received an unenthusiastic reception by an irate gay community, which said it was misled about the draft law's content and parts of the bill were even branded discriminatory by some quarters.

In 2011, 22.7% of all births in Malta were extramarital, however Gonzi's two administrations have procrastinated in introducing the law, despite repeated promises that his government will honour an electoral commitment made by the PN in 1998 to recognise the rights and obligations of cohabiting couples.

Reports and indications that the bill would recognise the 'civil partnerships' of same-sex couples, gave the gay community an impression that the PN government was ready to go beyond a mere recognition of same-sex partners as cohabitees.

However, legitimate demands and expectations for equal recognition between heterosexual and homosexual couples were muted when the bill authored by Justice Minister Chris Said made a distinction between different-sex couples who do not want to or cannot marry, and same-sex couples' relationships that meet the criteria established in the bill.

The bill followed another controversial bill, the IFV law, which was also lambasted in some quarters for being half-baked. While the approved IVF Bill limits the treatment to married or "stable" heterosexual couples, the cohabitation bill was shot down because it did not put the union between same-sex partners on a par with marriage.

The cohabitation bill failed to take into consideration the situation of children sharing the same household and completely ignored fiscal issues.

If a new government is intent on doing right by both cohabitating couples and same-sex couples, two separate bills must be presented. One with a clear structure regulating fiscal, social and legal rights of persons living together and a separate bill on gay marriage, or civil partnerships or unions as the two major parties probably prefer to call it.

Drug legalisation

As anywhere else in the world, Malta's drug policy is and has always been closely linked to political manoeuvring. In recent months the pro-legalisation lobby found new impetus with a number of well-attended demonstrations held in Valletta and compared to previous years, the issue is no longer a taboo subject.

Pro-legalisation lobby activist David Caruana had said the time had come "not only to decriminalise drugs, but as both political parties said this week, a reform is also needed for the classification of drugs. Legalising and regulating cannabis would place government in charge of it, taking it away from the criminals and out of the hands of children."

Albeit no party in Malta supports the legalisation of drugs, Alternattiva Demokratika is the only party so far to openly support the decriminalisation of drugs for personal use. The Greens argue that this policy "was successful in countries like Portugal and that it results in more safety and less crime".

On the other hand, the PN and Labour remain adamantly opposed to the legalisation or decriminalisation of drugs. Although the Labour Party has been somewhat ambiguous in relation to persons in possession of drugs for personal use, it has a similar stand to the PN, which have consistently said that it has no intention whatsoever of decriminalising or liberalising Malta's drug laws.

In the post-1987 years, former Labour leader Karmenu Mifsud Bonnici had startled even his own colleagues by floating the idea of 'legalisation of all drugs' to which the Nationalist government of the day responded by toughening up its anti-drugs stance as did all succeeding administrations since then.

However, although all parties and social partners agree on the effects of drugs on humans, the tough anti-drug policies, epitomised by the 'war on drugs' in South America and other parts of the world, are being put to question.

In recent years, politicians the world over have started doubting whether the 'war on drugs' waged in all corners of the world was really the way forward. Weeks ago, British deputy prime minister Nick Clegg admitted that politicians knew the 'war on drugs' was failing and urged Conservative prime minister David Cameron to show courage over the decriminalisation of drugs.

Meanwhile, a six-year study of Britain's drug laws by leading scientists, police officers, academics and experts concluded that decriminalisation should be introduced. The report by the UK Drug Policy Commission, an independent advisory body, said possession of small amounts of controlled drugs should no longer be a criminal offence and concluded the move will not lead to a significant increase in use.

In November, on the same day Americans voted for the re-election of Barack Obama, voters in Colorado and Washington legalised marijuana in pioneering decisions that challenged the United States's decades-old war on drugs. The amendment makes it legal for individuals to possess and for businesses to sell marijuana for recreational use.

The annual marijuana crop harvested in the US is now the nation's most valuable, worth more than cultivation of corn and wheat combined, according to an analysis by the former head of the legalisation group NORML. At an estimated $35.8 billion marijuana is by far the largest cash crop in the United States when compared to the average production values of other crops from 2003 to 2005.

Prison rights activist Fr Mark Montebello - who recently spent some time in the heart of Mexico's drug-war region - had said that decriminalisation "strikes at the root of the problem adding that the current tough policies only strengthen the international drugs trade".

The outspoken Montebello had claimed that the drugs trade is "Malta's greatest business," saying that resistance to the idea of decriminalisation stemmed from the involvement of powerful players in the illicit trafficking of drugs.

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