Legitimising a divorce law

The Nationalist Party’s executive council is due to meet tomorrow to discuss divorce. Nothing in its political philosophy blocks it from adopting a pro-divorce platform, if it is based on good sense. But the executive needs to address other questions.

Would a divorce law be legitimate during this term?

The question touches Labour even more sharply than it does the PN. During a 2008 campaign interview with Reno Bugeja on Dissett, then Labour leader Alfred Sant ruled out Labour taking the lead on divorce; civil society had to take the initiative.

To wriggle out of that one, Labour would need wickedly to argue that Jeffrey Pullicino Orlando indubitably qualifies as a society given the sheer number of his political personas. (But can it swallow pronouncing him civil?)

The PN did not say a word about divorce in 2008. It has sometimes enacted major legislation or policies that were not on its electoral programme. But the direction taken was generally to be expected, either because it was hinted at or because previous administrations had actively pursued the same policy.

With divorce, no such sense of direction was given. If anything, movement in this direction is so unexpected that some even argue (although erroneously) that such a law would contradict the PN’s philosophy. Whenever a PN government embarked on a widely unexpected policy – such as the removal of automatic subsidies on utility bills during this legislature – that policy has been widely resented as illegitimate. So, before any law is passed, some form of public mandate needs to be sought.

A general election?

There is nothing illegitimate about having divorce as a campaign issue. But there are political considerations.

One of three positions could be adopted.

The first would amount to a promise to take action that… might (but might not) lead to a divorce law. Joseph Muscat’s promise of a Private Member’s Bill is one variant.

A referendum promise by the PN would be another. It would simply be interpreted as prevarication by the electorate.

Second, a pro-divorce platform: Even if the pro- and anti-divorce voters were divided equally between Labour and the PN, it is probable that the anti-divorce, habitual Nationalist voters would punish their party more harshly for a pro-divorce stand than anti-divorce, habitual Labour voters would punish theirs.

Third, an anti-divorce platform: it would very likely see the PN punished at the polls by the significant socially-liberal segment of its vote, whose support it needs to win the next election.

Paradoxically, the more Prime Minister Lawrence Gonzi would try to attract this liberal segment by other means – by managing economic success, say – the more this liberal segment would be likely to abandon him. They would consider that he had given what he could to the country; the next liberal steps had to be taken in the social sphere and these could only be taken by someone else. Hence, the paradox: the greater success Dr Gonzi displays, the greater sense of an ending to his era among liberals.

A White Paper?

There seems to be a movement within the PN in favour of conducting public consultation through a White Paper. Certainly, at some point the party has to come to grips with the kind of detail that goes into a White Paper (like background information on current household and demographic patterns or the various impacts on specific social welfare programmes and pensions).

But a White Paper usually argues a position. Could a government seriously issue a White Paper without taking one? Either way, on what basis does it decide that a position has been “mandated”? The kind of feedback that White Papers attract can be interpreted in more than one way.

Any decision based on this option would be considered a whitewash by the losing side. The decision would have no legitimacy.

A referendum before 2013?

There is nothing illegitimate about a referendum. Divorce is not a matter of minority rights because it is about redefining a public institution for everyone.

It is about civil rights. Unlike human rights, which are inalienable, civil rights are not universal, being freely adopted by states as part of their self-definition. It is legitimate to ask eligible voters to decide on this self-definition in a referendum.

What legislative model?

A referendum campaign can be bitter enough to poison civil life, especially if it is felt that more is at stake than just divorce. The Maltese Church appears to see the introduction of divorce, however tightly regulated at first, as just the beginning of a slippery slope towards very liberal laws on divorce, abortion, etc.

The Irish referendum may offer a way of addressing such fears. In 1995, Irish voters did not just vote to remove the constitutional ban on divorce; they voted to replace article 43.1.2 with a new one, which permitted divorce but imposed a number of restrictions. Liberalising the divorce law would require a new referendum.

An adaptation of this model – say, a constitutionally-entrenched divorce law, possibly part of a wider package specifying the protection of family life – would go some way to address the slippery slope lobby. It could make the PN seem to be addressing a difficult, divisive issue with circumspection and even-handedness – liberalising here, tightening up there – in the best interests of law and order.

But is the PN executive interested in, somehow, seeming circumspect and even-handed? I guess we will soon find out.

ranierfsadni@europe.