Wednesday 31 July 2013 - 11:14 by Raphael Vassallo
Should civil rights be subject to a referendum? And who decides what constitutes a civil right? RAPHAEL VASSALLO looks at the contents of a can of worms opened by Imam Mohammed El Sadi, who has proposed a referendum of same-sex unions.
Mohammed El Sadi: Those who do not agree with civil unions, in spite of their large numbers, are inefficient, voiceless and have no material presence
A proposal by the spiritual leader of Malta's Muslim community has cast a spotlight on a thorny and as yet unresolved issue: whether civil rights affecting minorities - in this case, same-sex couples - should be subject to the will of the majority in the form of a national referendum.
Writing in The Times yesterday, Imam Mohammed El Sadi questioned whether government enjoys an electoral mandate to forge ahead with a bill to regulate civil unions, despite having convincingly won an election on the strength of a manifesto promising precisely such legislation.
"Some may argue that the majority gave a mandate to the Labour government, which won the majority of seats in Parliament, to legalise civil unions for same-sex couples," he wrote. "[...] I don't think so, because the Maltese people elected their representatives in Parliament according to a large package of policies, which, really, does not give one the right of particular choices; you either take it as a whole or you leave it."
El Sadi went on to posit his own view that a large majority would oppose the bill if given a chance: "The LGBT [community], in spite of its small size, is united, efficient and enjoys the support of the media, the local high authorities and EU institutions. On the other hand, those who do not agree with civil unions, in spite of their large numbers, are inefficient, voiceless and have no material presence."
The head of the Muslim community includes 'different religious institutions' among this vast and as-yet untested silent majority... hinting that these same institutions may even be abdicating their spiritual mission to oppose this bill: "Even the different religious institutions that have a spiritual mission and clear religious teaching in this regard seem indifferent, fearful and shy."
Interestingly, he also envisages a much broader coalition including "people of different faiths, colours and political affiliation, conservatives or liberals, rightists or leftists, believers or atheists who all disagree with civil unions..."
El Sadi ends with an appeal "to Prime Minister Joseph Muscat and to Opposition Leader Simon Busuttil to consider this proposal to hold a national referendum to resolve the civil union issue..."
At face value, the Imam's concern seems to reflect a widespread conviction - by no means limited to the Muslim community, or even to Malta - that, in any democracy, the majority is automatically empowered to overrule any given minority on any given issue, by means of a popular plebiscite.
But this is far from universally accepted. In fact similar questions have been raised in other countries, where same-sex couples have been regularised at law; and in many cases, the ensuing debate unfolded along almost identical lines.
Consciously or otherwise, El Sadi's arguments closely echo those of Christian conservatives in the United States, where same-sex unions have now been regularised to varying degrees. Last year, New Jersey's Republican governor, Chris Christie, likewise proposed a referendum on the issue.
"I think this is not an issue that should rest solely in my hands, or the hands of the Senate President or the Speaker or the other 118 members of the Legislature," he said. "Let's let the people of New Jersey decide what is right for the state."
The proposal elicited a stern reply from Newark's Democrat mayor, Cory Booker: "... dear God, we should not put civil rights issues to a popular vote to be subject to the sentiments and passions of the day. No minority should have their civil rights subject to the passions and sentiments of the majority."
But one hardly needs to cross the Atlantic to find similar parallels. Here in Malta, former Prime Minister Lawrence Gonzi in 2011 used the exact same reasoning as New Jersey's governor, this time to propose a referendum on divorce. Even his choice of words bore an uncanny resemblance to the American governor's argument: "I don't think this is an issue to be decided solely by 69 members of the House", Gonzi told a group of journalists soon after a private member's bill had been tabled.
It fell to various columnists and opinion-formers to replicate Cory Booker's repartee in the local context, but to no avail: the referendum was held, and the rest is history.
With the benefit of hindsight, it could be argued that El Sadi now risks repeating the same fundamental mistake made by Gonzi in 2011: i.e., to greatly overestimate the strength of a presumed majority before it has actually been tested.
On a separate level, there is also latent irony in the fact that the spiritual leader of a minority religion should appeal to majority opinion to inculcate in others his own worldview. If he is successful, he could conceivably set a precedent that could return to haunt his own Muslim community in future. (The very first online comment posted beneath his article called for a similar referendum on immigration... and subsequent comments would sarcastically use El Sadi's own arguments to call for a referendum to 'make Islam illegal'.)
Be that as it may, the underlying issue - i.e., whether, as Newark's mayor pointed out last year, it is appropriate for minorities have their civil rights subject to "the passions and sentiments of the majority" - remains unresolved.
Contacted by this newspaper, Professor Kenneth Wain - who lectures on ethics at the University of Malta - expressed doubts regarding El Sadi's claims to represent a widespread majority.
"First of all, the Imam is fully within his rights to express his opinion in the matter, and I found the article itself to be very moderate," he said. "But at the same time there doesn't seem to be any national controversy on this issue. Both sides of the House are in agreement, and the proposal enjoys the backing of the third party too. In fact there seems to be national consensus on the issue..."
Wain however admitted to being uncomfortable with the implications of the proposal.
"I find it worrying that civil rights could be withheld or denied at the whim of a majority; but at the same time the issue is not so straightforward."
One of the main problems, he argues, is that no one has a monopoly on civil rights. "Without any clear legal definitions, the issue of whether something constitutes a civil right or not is ultimately discretionary. Someone has to decide, and the question becomes how to take the decision... whether by parliamentary vote, or by referendum, etc."
Meanwhile, owing to the divorce precedent, one cannot realistically rule out the possibility of taking such decisions by means of a referendum, as suggested by El Sadi. But the law is not clear on how to actually proceed. Unless the prime minister consents to hold a referendum (in which case the process would be similar to the 2011 divorce referendum) the only legal option available would be an abrogative referendum... which could in turn only be applied to remove existing legislation from the statute books.
In this scenario, El Sadi's coalition would therefore have to wait until the law was enacted, then collect the 34,000 signatures required by law to force the referendum.
This, Prof. Wain argues, remains the only realistic option available to El Sadi and others who think likewise. "If he gets enough support for his proposal, there is nothing stopping him from going through the proper legal channels."