Simon Busuttil
The principle of non-discrimination
The Times recently gave prominent coverage to a proposal submitted in the European Parliament to recognise same-sex marriages. The proposal was eventually replaced by an amendment I tabled. But, understandably, it created a great deal of controversy - both in Malta and elsewhere in Europe - and it calls for a clear explanation of what exactly took place in Strasbourg last month.
First of all, the context.
Parliament was voting on a resolution relating to the so-called Stockholm Programme, which is the European Union's road map for the establishment of an area of freedom, justice and security.
The programme covers a vast range of issues spanning from civil liberties to terrorism and from immigration to visa-free travel. In all these areas, the European Parliament is now fully involved as a co-legislator.
But because it also covers civil liberties, the resolution became embroiled in a controversy over one single paragraph - out of about 150 - that called for the recognition of same-sex marriages contracted in other EU countries. This paragraph, pushed by the Liberal group, called on "Member states to ensure that the principle of mutual recognition is also applied to same-sex couples in the EU - notably married couples, partners or de facto couples - at least in relation to rights relating to freedom of movement".
The issue of discrimination on grounds of sexual orientation is not new to the European Parliament.
My position and that of my political group, the EPP, is that we uphold the principle of non-discrimination, including on the basis of sexual discrimination, which is already part of EU law. We are, therefore, committed to co-operate to combat discrimination and to strive towards a more inclusive society, including the gay community.
A number of countries, including Malta, are even preparing to legislate in order to afford a set of rights and obligations to cohabiting couples, including same-sex couples. They are free to do so.
However, we do not favour same-sex marriage and, therefore, we do not support the obligation to recognise same-sex marriages contracted in other EU countries.
We consider that countries are and should remain free to decide for themselves whether they want to legalise such marriages and, indeed, this matter is not within the EU competence. Nor should it be.
Likewise, we consider that member states should not be required to recognise same-sex marriages contracted in other EU countries. So far, just four EU countries have legalised such marriages, namely, the Netherlands, Belgium, Sweden and Spain. Others may follow suit. But it should be up to them to do so not the EU.
This is why our group opposed the insertion of this paragraph in the final resolution on the Stockholm Programme and this reference, if included, would have precluded us from supporting the final resolution.
But unlike us, many other groups in the European Parliament do favour such an approach - especially the principle of mutual recognition of same-sex marriages - and that is why the issue is deeply divisive.
Ahead of last month's plenary session, intense negotiations were undertaken to try and find a way out of this impasse. It was not easy.
As the EPP spokesman on this area, I was in charge of negotiations on this issue and I approached other groups in order to find a compromise that a majority could live with.
I proposed that the principle of mutual recognition should be applied only in the case of countries that have already legalised same-sex marriages. In other words, if a same-sex couple gets married in Belgium, their marriage should be recognised in, say, the Netherlands or Spain where such marriages are already legal, but not in, say, Italy or Malta, where they are not. This proposal was not accepted by the Liberals because they felt it did not go far enough.
In the event, an alternative compromise was found with the Socialist group on another wording which stated that "without prejudice to national legislations on family law", EU countries should "ensure freedom of movement to EU citizens and their families, including registered partnerships and marriages, according to articles 2 and 3 of Directive 2004/38/EC, avoiding all kinds of discriminations on all ground including sexual orientation".
This compromise wording had the benefit of recognising the principle of non-discrimination on all grounds.
But at the same time it preserved the right of individual countries to decide for themselves on issues relating to family law. It also removed any reference to mutual recognition.
This means that EU citizens who have entered into a same-sex marriage can benefit from freedom of movement within the EU - like all other EU citizens - but this would not entail a recognition of their married status in other EU countries.
It's a fine balance and, as is often the case, when you strive to reach a compromise you do not make everyone happy. But it was a reasonable compromise and that is why it obtained the support of a strong majority.
The compromise replaced the original paragraph that we opposed and, therefore, enabled my group to support the entire resolution on the Stockholm Programme, which reflects political priorities that our group holds close to heart, such as the all-important policy of combating illegal immigration and of ensuring an effective solidarity in the area of asylum.
The issue of non-discrimination will not stop here. It will come again.
But this episode teaches us that this is not a zero-sum game and that there are parameters that need to be respected. The principle of subsidiarity, allowing individual countries to decide for themselves on such sensitive matters, is one of them.
Dr Busuttil is a Nationalist member of the European Parliament.
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Galea. L
Dec 10th 2009, 09:31
Jesmond Micallef
I totally agree with you. Marriage is the union of two persons of different sex. Any other union cannot be called a marriage. If you read for a lawyers degree you cannot claim an architects degree because you feel you are being discriminated against. That is the simple reasoning that those who promote the recognition of homosexual marriage should get into their heads.
William P Flynn
Dec 9th 2009, 21:56
@Joe Vella
So it doesn't strike you as bizarre that we belong to a union of nations and we don't recognise one of their legally married couples if they come to Malta. How would a Maltese heterosexual couple feel if they they go to, say, a country in the Middle East or China and that country says you aren't married in its laws because you were married in a Catholic church and they don't recognise Catholic marriages?
Homosexual people should have the same rights as heterosexuals. It will take time but it will happen. Live and let live.
I agree it is (rather it should be) a civil matter but I see you brought up the Catholic firebrand of abortion and Moslem law and branded this argument with it; as usual. Sssssss…
We'd be deluding ourselves if we think the Catholic church didn't have its hand in this.
Jesmond Micallef
Dec 9th 2009, 21:49
I STRONGLY OBJECT to the use of the word "MARRIAGE" when it comes to the subject matter described in this article.
May I recommend the introduction of new vocabulary here, somehow........
The use of the word "marriage" in relation to binding relationships of people of the same sex is simply put, COMPLETELY WRONG AND FALSE. The word "marriage" should only be used in relation to male to female, or vice versa, binding relationships, ONLY. The other types of relationships are not the same, hence new vocabulary is urgently required here.
Joseph Carmel Chetcuti
Dec 9th 2009, 21:00
So you believe in the principle of non-discrimination but when it comes to practice, as say with marriage, you want to discriminate! Simon's reasoning defies logic. On the other hand, divorce secured overseas is recognised in Malta. I quote from an article by Aron 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 why not adopt the same principle with same-sex marriages contracted overseas? Or do you think such recognition is against public policy? Simon, do not take us for fools!
Gerry Cowie
Dec 9th 2009, 20:44
What firm evidence can Mr Flynn provide from Australia for the implication that the Roman Catholic Curia controls Malta? Or am I mistaken in what I read?
I do believe this is a civil issue and not one for the usual attack on the Church.
How is this situation the same as apartheid? Is it intended that any same-sex couples who have gone through a Civil Partnership would be ostracised, put in special buses, not allowed to mix with others in society and so on?
Whilst Mr Flynn's concern for others is admirable, I feel his contribution is more geared towards his openly anti-religious views rather than the matter in hand.
This is about the recognition or otherwise of same-sex partnerships, not the maltreatment of those who choose to engage in them.
Please note that I am not passing judgement on those who join in such partnerships.
Joe Vella
Dec 9th 2009, 14:51
@ Stephen Vella
What I get hot about is for others in some foreign land having to decide for me. Personally, I have nothing against gays or lesbians. For you information, I acted as a witness to a same sex marriage couple in Toronto so there is nothing personal.
I believe social issues that touches on morality and values should be decided locally and not in some foreign country.
Would you like lets say if Spain allows Sharia Law to be practised in Spain; Would you want to have Sharia Law be legal as well in Malta without having a say?
Stephen Vella
Dec 9th 2009, 14:30
Busutill's line of reasoning is bizarre to say the very least. So he first says that he and his political group is "against discrimination" and then he goes on to say that the same political group does not favour same sex marriage. Baffling indeed!
@Joe Vella. You seem to get very hot under the collar whenever gay issues are discussed. You speak a lot about morality so tell me how exactly would a same sex couple living next door to you threaten your very precious morality ?
Joe Vella
Dec 9th 2009, 14:10
@ Cyrus Engerer
If you or anyone else wants to have same sex Marriage recognised in Malta it should not be brought in through the back door. You and others should push our Members of Parliament to bring about the necessary changes. Issues that touches on the morality of a Nation should be decided by the National Parliament of that particular Nation and not by any other Sovereign State(s).
Joe Vella
Dec 9th 2009, 14:05
@ William Flynn
The issue doesn't deal with church marriages, but with civil marriages, so I do not understand why the Church was brought into this. The question is, shall morals issues in one European State be dictated by another State? I think not.
Joe Vella
Dec 9th 2009, 14:00
@ Jonathan Camilleri
Are we going to have a referendum on every issue. What have been passed by the EU parliament is for every State to decide on such issues.
Mr. Camilleri, Should we leave it to any other State for lets say to decide for us Maltese whether Abortions should be allowed in Malta?
James Dimech
Dec 9th 2009, 13:07
I find Busuttil's compromise to be reasonable at this point. Malta should not be made to recognize same-sex unions from other Member States point blank.
We first have to debate the issue at a local level. Then if we agree to enable same sex marriages in Malta, we can recognize other marriages from abroad
Cyrus Engerer
Dec 9th 2009, 11:55
Decisions like these by maltese politicians domestically and within the EU will continue contributing to the asylum of various Maltese nationals to other European countries in which there is no discrimination based on sexual orientation.
William P Flynn
Dec 9th 2009, 11:34
This is a type of Apartheid based on sexual orientation. How dare countries not recognise a legal marriage in another country? Fair enough if Malta is controlled by the Catholic Curia and same-sex marriage is a taboo in Malta; but it is the height of stupidity not to at least have the broadmindedness to at least recognize the fact.
How is this different from South Africa under Apartheid when a black person coming from another country with no segregation into South Africa had to abide by the South African segregation laws?
This is theocratic intolerance pure and simple.
Jonathan Camilleri
Dec 9th 2009, 10:50
Dear Simon,
Why would you want to decide on behalf of the gay community in Malta whether same sex marriage is "good" or not?
A democratic representation would, at least, let the democracy decide, by way of a referendum.
Is it because of the Roman Catholic influence on the Legislation?