Taking out what is irrelevant

Austin Gatt insists divorce is not a fundamental right but a civil one and deems as ridiculous the argument that, since the whole world has accepted divorce, Malta must do so too.

In this debate, missing the woods for the trees is very, very easy, so I propose to explain why certain arguments are irrelevant to the debate.

“Divorce is a fundamental right.” It is not true. Fundamental rights are those rights that are generally recognised by all societies as fundamental to persons. They are usually found in constitutions or in international charters (such as the UN, the Council of Europe etc.) to which countries voluntarily subscribe. In none of these is divorce mentioned as a right.

Divorce is simply a civil right, which various societies have (or have not) at various times in their history introduced in their civil codes using vastly different rules and principles, much in the same way as Parliament, through legislation, regulates contracts, succession etc. Consequently, “denying” any person “the right to divorce” is not denying him a right at all. It is merely the decision of that society to give or not to give that right to its citizens.

The fact that the vast majority of countries have introduced the right of divorce does not make it a “fundamental right”. If it were so then abortion – introduced as a civil right in many countries – would also be a fundamental right! And I am not putting divorce and abortion on an equal footing (they are definitely not) but merely using the example. I could have used the right of gay persons to get married or the right to euthanasia, both of which are fast becoming accepted by a good number of jurisdictions but have probably still not reached majority status. Again, I stress I am merely bringing examples and not equating divorce with any of them.

In a good number of countries, abortion has been introduced on the basis that a woman has a “right” (some proponents even say a fundamental right) to control her body, so if she wants to abort, she aborts. In others, the right to abortion has been introduced but restricted to, say, cases of rape. In all cases, however, it becomes a civil right once introduced. Substitute the word “abortion” with the word “divorce” and put the sentence in the context of a marriage and you very much have the same thing! I very much hope we do not go down this route.

The point being made is simple: just because most countries legislate to give citizens a particular right does not mean a civil right becomes a fundamental right. Divorce is, however, a civil right, namely a right that a particular society at a certain point in time of its development decides its citizens should have. Different countries have introduced divorce in their laws at different stages of their development – differences of hundreds of years actually – and there is no one unique divorce system.

This is very normal with civil rights because civil rights broadly reflect the needs, aspirations, values of the particular society introducing them. Our civil rights of succession are very, very different from countries with an Anglo-Saxon tradition. Euthanasia is still only accepted, as a civil right, in a few countries but it still remains a civil right in those that do accept it. These differences are, in my view, merely a reflection of what each particular society thinks about that particular right. It does not, per se, make that society better or worse – maybe a society in which I would not want to live but not better or worse than the society I live in.

So the bottom line is that civil rights are introduced by societies as such societies develop and it is completely up to each society to decide whether to have divorce as a civil right or not. I can, for example, easily see divorce being viewed by Maltese society as an acceptable civil right but I think that same society is not as yet prepared to accept abortion, gay marriages or euthanasia as civil rights.

“All the world recognises divorce so why should not Malta as well?” This is the most ridiculous argument I have ever heard because, on the same basis, we should introduce abortion because I think it is also only us, the Philippines and the Vatican that still do not consider abortion as a civil right. If we take this argument to its logical conclusion, then we should also introduce gay marriages and euthanasia as soon as the majority of countries do so and not even discuss the issue at all! I repeat I am not equating divorce with any of these!

Emulating others for the sake of it is never a good idea, even if that makes us exceptions. I am not one who believes all manner of colossal maledictions will befall Malta if divorce is introduced but it is simply demeaning to use the argument that we should adopt the civil rights of other societies. There should be more compelling arguments for the introduction of divorce in Malta and if there are not then it should not be introduced.

We should do what we think is good for our country in the context of our social fabric and our value system. Our values – today – are not exactly the values common in most European countries (let alone those in the US or other far off countries). Undoubtedly, there is a progressive convergence with Maltese social mores becoming more akin to the European ones but it is as clear as day we are not there as yet. In fact, we are rather far off and data I will present will show this. Our values are not better or worse than those of other societies, merely different. Even if divorce is introduced, it should be introduced in the context of these values and, to be fair to the proponents of the present divorce debate, I think they have taken this in consideration already in choosing not to go down the “quickie divorce” route.

“If you introduce divorce, abortion will follow.” That is not necessarily so. It is true Malta stands out among nations as opposed to both and it is true Malta is one of the few exceptions. Nevertheless, it is true as well that in all countries that recognise both, such recognition came at very different times – with divorce preceding abortion by hundreds of years – and, generally speaking, only when that particular society was deemed ready for it.

In other words, it all depends on us and my feeling is the aversion to abortion in Malta is much higher than it is to divorce. While an automatic correlation is totally incorrect, one cannot escape the fact that most – if not all countries – that have first introduced divorce subsequently introduced abortion with various and very different levels of access. Some sort of logical conclusion must be drawn from this simple fact.

It is also true that the general sentiment in Malta is practically 100 per cent against abortion but does it remain so strong if one starts “limiting” its applicability to certain cases: if a woman is the subject of a rape; if it is known the child will be born severely handicapped and other similar, ethically difficult scenarios. The same could possibly be said of euthanasia.

Again, this is also very similar to when one tests the divorce related questions in surveys. If the question is “Are you in favour or against divorce?” there seems to be an even split with a slight tendency for the no to win. If the question is “Are you in favour or against divorce if the husband repeatedly beats his wife” I have no doubt the pro-divorce lobby will win hands down. However, if the question had to be “Are you in favour or against divorce that allows a husband who beats his wife to re-marry?” the no camp would then win hands down. It is all in the question.

The pro-divorce lobby is definitely correct when it objects to divorce being equated to abortion but it cannot be gainsaid there is no connection at all, a connection which, I think, is related to a general change (for the worse) of the value system society is adopting where the concept of the individual (and his/her relative rights) have overtaken the concept of what is good for society. That, however, is a different argument.

Tomorrow: The role of the Catholic Church