Barely a month after it was delivered by the European Court of Human Rights (ECHR), the Lautsi case, which found that the display of the crucifix in Italian public schools breaches human rights, is already one of the most widely-debated judgments. This is not surprising.

Many, not just in Malta, consider that the judgement is an affront to countries whose predominant religion is not just long-established but is also an intrinsic part of their national culture and identity.

The judgment, as we all know, is now under appeal and is therefore not yet definite.

If it is confirmed, it would be authoritative on all courts in countries that are signatories to the Council of Europe's Convention on Human Rights, including ours.

However, as has been recalled by some contributors in this paper, Malta's situation is somewhat different in that our Constitution makes a specific reference to the Roman Catholic Apostolic religion as the religion of the country.

Moreover, Malta had also entered a reservation to the legal provision at the centre of this judgement, accepting it insofar as it was compatible with efficient teaching and the avoidance of unreasonable public expenditure, having regard to the fact that the population of Malta is overwhelmingly Roman Catholic.

A quick look at the ECHR judgement.

Briefly, the ECHR found that the display of the crucifix amounts to a violation of human rights because it is incompatible with the state's duty to respect neutrality in the exercise of its public function, in particular, in the educational sector.

In other words, according to the Court, it is not right for the state to indoctrinate children in favour of one particular religion.

The Court said that the presence of the crucifix can easily be interpreted by children of all ages as a religious sign and they will feel educated in a school environment dominated by one religion.

This may well be encouraging for those students who profess that religion but may be "emotionally disturbing" for those professing other religions or no religion at all.

Significantly, the Court added that it does not see how the display of a religious symbol, which can easily be associated with Catholicism, which is the majority religion in Italy, can serve educational pluralism that is essential to the preservation of a democratic society.

From a purely legal perspective it is difficult to find fault with the Court's reasoning, except to say that human rights should not be easily detached from our values. But insofar as the cross is a religious symbol representing one particular religion, then it is clear that a preference for that religion is being demonstrated by the state.

But it may well be the ECHR's narrow emphasis on religious symbolism that put the judgement in an unnecessary straightjacket.

For, in so doing, the Court inadvertently lifted Italy's religion out of its cultural and traditional context as if this could be done seamlessly without any impact on the very identity of the country.

We all know that the cross is an intrinsic part of Italy's millennial history and much the same applies in other countries, not least ours.

Conversely, the cross is not an issue in other countries, such as France, but only because religion there does not constitute a formative element of the country's history and statehood.

The danger of thinking that religion can easily be unbundled from society's cultural and traditional fabric becomes more evident when the Court's reasoning is taken to its logical conclusion.

Thus, for instance, if the cross breaches human rights when displayed in public places, why should it remain on flags that also display a cross?

If crosses on the flags had to go too, many European countries, including ours, would need to change their flag. Of course, this is utterly ridiculous but it vividly shows how the cross is indeed part and parcel of the identity of several European countries and transcends the pure religious connotation.

And it is precisely this point that the ECHR failed to appreciate. For in insisting on seeing the crucifix as solely a religious symbol it uniquely neglected to acknowledge that the cross transcends religion into the wider secular context of culture and tradition.

To put it in other words, the cross in the classroom is not less representative of a country's culture and identity than the cross on the flag. Yet, there is no question that it would be absurd for the Court to rule that a cross on the flag would need to be removed because it violates human rights. This shows how the ECHR may well have entered a blind alley of its own making. It can yet back off and it has an opportunity to do so at the appeal.

To my mind, there is one way of doing it.

The ECHR should decline to determine such issues.

Issues such as these, which touch upon the very essence of a country's specific identity, culture and traditions, should not be easily disturbed. Instead, they should be left to the individual country to determine at the national or even regional level, in accordance with the principle of subsidiarity, because it is each individual country that can best appraise its specificities on such sensitive matters.

Indeed, few outside Italy would have batted an eyelid if the Italian courts decided to rule either way on the crucifix because the assumption is that national courts are best placed to take national culture and traditions into account. But many are opposed to having the ECHR rule on such a matter precisely because Europe is built on cultural diversity.

This is why, on appeal, the ECHR should return the matter back to the Italian courts to be determined at that level. This is, if ever there was one, a matter for subsidiarity.

A very Merry Christmas to the editor, staff and readers of The Times!

www.simonbusuttil.eu

Dr Busuttil is a Nationalist member of the European Parliament.