A bizarre judgment

The bizarre judgment by the seven-member panel of the European Court of Human Rights in Strasbourg, prohibiting the use of the Christian symbol of the crucifix in an Italian state school, created quite a stir in countries with a Catholic tradition. In Italy, a myriad of political leaders - even the most secular - voiced their dissent. In Malta, the two political leaders expressed their full disagreement.

The first thing one has to bear in mind in this controversy is to draw a clear distinction between the Strasbourg-based European Court of Human Rights, which is an institution of the Council of Europe, and the Luxembourg-based European Court of Justice, which enforces EU law in the 27 member states of the European Union. The judgment was delivered by the first not the second.

Malta joined the Council of Europe in 1965, 40 years before it joined the EU. In April 1987, it accepted the compulsory jurisdiction of the European Court of Human Rights. In so doing, it allowed any person in Malta to file an application against the Maltese government for breach of human rights under the European Convention. The judgment of the court is not really legally binding in the sense that, unlike the European Union's Court of Justice, there is no enforcement mechanism such as the imposition of the pecuniary penalties but the implementation of the judgment is supervised by a Committee of Ministers. The only real sanction is political pressure or, possibly, suspension or expulsion.

Having examined the contents of this judgment, it is obvious why the Italian authorities have already assembled a group of legal experts to file an appeal before the Grand Chamber composed of 17 judges.

The court seems to have delivered such a far-reaching judgment without examining the ensuing legal consequences and meddled in an area that is traditionally reserved to the member states themselves.

In fact, in the past, the court has steered away from such thorny subjects such as divorce or abortion, allowing member states a wide margin of appreciation in such matters. It is inexplicable why seven judges felt they should interfere with such an emotional and delicate question as the presence of Christian symbols in educational institutions.

The crucifix is not the imposition of any religious view. It is the symbol of a tradition and the embodiment of core Christian values that includes religious tolerance and freedom of conscience. As the Polish Constitution proclaims: "The values of Europe comprise the values of those who believe in God as the source of truth, justice, goodness and beauty and of those who do not share such belief but who, through other sources, accept and defend those values."

On receiving news of the judgment, G.K. Chesterton's The Ball And The Cross sprang to my mind. In this novel, a conversation ensues between Professor Lucifer and a monk by the name of Fr Michael. The latter tells a story about a man who, like Lucifer, took the view that the symbol of Christianity was a symbol of unreason. His obsession against the cross started with his battering the crosses by the roadside; in a height of frenzy he even climbed the steeple of the parish church and tore down the cross.

"Then one summer evening as he was wending his way homewards, along a lane, the devil of his madness came upon him. He was standing smoking for a moment, in the front of an interminable line of palings, when his eyes were opened... he saw, as if by a sudden change in the eyesight, that this paling was an army of innumerable crosses linked together over hill and dale. He whirled up his heavy stick and went at it as if at an army. Mile after mile along his homeward path he broke it down and tore it up. For he hated the cross and every paling is a wall of crosses. When he returned to his house he was a literal madman. The next day he was found in the river".

Fr Michael explains the story to Lucifer: "It is a parable. You begin by breaking up the cross but you end by breaking up the habitable world".

The judgment of the European Court of Human Rights is short-sighted because it will have the opposite effect. It will make the symbols of Christianity an object of persecution and, in the process, they will become more widespread. They will sprout in every corner and angle, in the most unconventional ways, and will make their appearance in the most unexpected places. Persecution and victimisation, at least in the long run, never seem to work.

The judgment also threatens the very structure and membership of the Council of Europe. What if the Grand Chamber confirms the judgment and the Italian government, enjoying the support of its coalition partners and even the parties in the opposition, refuses to abide by the decision and allows the cross to stand where it is? Will the Council of Europe suspend or expel a high contracting party with a strong Catholic tradition on such a matter?

The judgment is wrong on the merits. It is also short-sighted in not evaluating the consequences, institutional and otherwise, which it has caused.

Hopefully, the Grand Chamber will restore order and common sense in line with the case-law so far of the European Court.

Dr Borg is Deputy Prime Minister and Minister of Foreign Affairs.