The crucifix in state schools

Many have asked what the implications of Lautsi v Italy, perhaps better known as the Crucifix In State Schools case, determined by the European Court of Human Rights, might possibly be on the same practice adopted in all state schools in this country. I would, therefore, like to tackle the issue from a strictly local viewpoint.

In Lautsi, the ECHR held that there was a violation of article 2 of the First Protocol (right to education), taken jointly with article 9 of the Convention (freedom of thought, conscience and religion).

From the outset, a number of important points need to be borne in mind.

Firstly, Lautsi cannot be invoked either with respect to the display of crucifixes in Church or private schools or, generally, in any other public places.

Secondly, Lautsi is, in any event, not directly enforceable in Malta.

Thirdly, when signing the convention and protocol on December 12, 1966, Malta made an express reservation in regard to article 2 of the protocol, having regard to the fact that the population of Malta is overwhelmingly Roman Catholic.

Malta is indeed not as secular a state as some might tend or even wish to think. Those who refer to the distinction between Church and state clearly overlook the fact that article 2 of the Constitution of Malta unwaveringly proclaims that "The religion of Malta is the Roman Catholic Apostolic Church". This is only as it should be because, in making this solemn declaration, the state is doing none other than recognising factual reality. Not only that, but the supreme law of the land goes on to provide that the authorities of the Roman Catholic Apostolic Church have the duty and the right to teach what principles are right and wrong and that religious teaching of the Roman Catholic Apostolic faith shall be provided in all state schools as part of compulsory education.

Lest someone cry foul at the perceived forced teaching of the Roman Catholic Apostolic faith in all state schools as part of compulsory education, let me immediately rush to point out that this is, of course, to be read in conjunction with the exemptive provisions of article 40(2) of the same Constitution, dealing with protection of freedom of conscience and worship. In full respect of that very freedom, this article provides that persons who have not yet attained the age of 16 shall not be required to receive instruction in religion should objection thereto be made by the person who, according to law, has authority over him and neither shall any other person be so required in the event that he were to object thereto.

It is interesting, and I believe of importance, to realise that article 2 of the Constitution is framed within Chapter I, titled The Republic Of Malta, which embraces all the defining attributes of the Maltese state, including such matters as the republic and its territories, the national flag, the national anthem, the national language and the supremacy of the Constitution over any other law. The Roman Catholic Apostolic faith is therefore one of the essential components of the Republic of Malta.

With the context of this fundamental background, in the display of crucifixes in classrooms of Maltese state schools (and, for that matter, in all other public buildings including the Courts of Justice, no less), the state only affirms the cardinal constitutional principle to the effect that the religion of Malta is the Roman Catholic Apostolic faith and, with particular reference to classrooms in state schools, only reinforces the mandatory constitutional requirement for religious teaching of the Roman Catholic Apostolic faith to be provided in all state schools as part of compulsory education, within the limits as I have described.

In Lautsi, the actual violation found by the ECHR referred to article 2 of the First Protocol. This is made up of two sentences. The first provides that no person shall be denied the right to education. The second provides that, in the exercise of any functions which it assumes in relation to education and to teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The government of Malta, way back in 1966 but even now still holding good, declared that the principle affirmed in the second sentence was being accepted by Malta only insofar as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure, having regard to the fact that the population of Malta is overwhelmingly Roman Catholic.

I doubt that the government of Malta, or, for that matter, any other contracting state at the time, could possibly have had in mind the display of crucifixes in state schools, and rightly so, because one clearly fails to see how the right to education in a Catholic country, where the crucifix is so evident in every sphere of public and private life, could possibly be compromised by such manifestation. Nevertheless, the reservation clearly affords a strong line of argument to the effect that the removal of crucifixes from Maltese state schools as Lautsi would seek to achieve would not be compatible with the provision of efficient instruction and training of children in this country, having regard to the fact that Malta is overwhelmingly Roman Catholic. This is further reinforced by reference to the constitutional principles discussed above.