What will serve the people best?

Ever since God bequeathed to Moses the Ten Commandments inscribed on two tablets of stone, nothing else has ever been cast in stone. This applies to legislation, policies, international agreements, alliances and so on. What was agreed upon with the finest of intentions and as the best response to particular situations could be renegotiated with the best of intentions in an attempt to find the best possible solutions for emerging situations.

Politics should be there for the service of the people, not for the service of ideologies

This quite naturally also applies to the 1992 agreement on marriage between the Holy See and the Government of Malta. Developments that could lead to its improvement should be welcome if they really lead to its improvement.

When questioned about it by The Times way back in 2011, the Church in Malta, which, one must point out, is not a party to the agreement, took a philosophical attitude: “If specific elements in the agreement could be enhanced, resulting in an authentic benefit for those resorting to the present agreement, the Church would look positively upon such real improvements.” The Church wisely enough emphasised improvements that benefit the people that resort to this agreement, not benefits for any institution.

The Government seems to think that the agreement could be improved to the satisfaction of both parties and to the people of Malta. Prime Minister Joseph Muscat has opted to announce his intention to renegotiate the agreement in St Peter’s Square just after the inauguration of Pope Francis. Muscat should have shown more savoir-faire and broke the news on a different occasion.

Important as such a development may be, it was not important enough for it to be included in the political manifesto of the Labour Party. The issue is now being presented as one of principle. If this is the case, why was it omitted from the election manifesto?

Quite naturally, the negotiations will be carried on two fronts. Eventually there will be the formal discussions between Maltese government ministers and Vatican prelates. Such discussions bet­ween states will quite naturally take their time. Concurrently, with the meetings between diplomats and politicians, there will also be the attempt to massage public opinion through the media.

The position of the Government has not been made public, but it is being said that it wants to revise the 1992 agreement with the Holy See so that the Civil Court would prevail over the Ecclesiastical Tribunals. Comments posted with newspaper stories and articles show that not everyone is fully informed about what the agreement actually stipulates.

Before this agreement was forged, whoever opted for a Church officiated marriage had also to marry again civilly. This marriage was generally held in the sacristy after the Church celebration. Catholics who wanted a declaration of nullity had to bring a case before the Church tribunal and another one before the Civil Court.

The agreement changed all this. Only one marriage ceremony was needed. This was then registered for civil effects. Moreover, only one case for a declaration of nullity was required before either the civil or Ecclesiastical Tribunal.

If the parties in the case choose the Ecclesiastical forum, then the ensuing decisions would be presented to the Civil Tribunal. Acceptance was not automatic. The Civil Courts looked into a number of issues, for example that both parties have been given the right of defence before registering it.

There were a few exceptional cases when the Civil Court did not accept the decision of the Ecclesiastical Tribunal. This shows that the Civil Court is not a rubber stamp operating under the thumb of the Ecclesiastical Tribunal.

On the other hand, the couple could decide to take their case to the Civil Court without resorting to the Ecclesiastical Tribunal; even if theirs was a Church marriage. This is another instance where there definitely is no issue of Ecclesiastical prevalence over Civil Courts.

There are instances where the couples disagree as to which tribunal the case should be referred to. In such a case, the will of the party which wants to resort to the Ecclesiastical Tribunal prevails over the will of the other party. This prevalence respects the original agreement made by the parties to have a Church marriage.

There are people who disagree with this. However, one should note that this affirms the precedence of the will of one spouse over the will of another spouse. It is not a sign of the prevalence of the Ecclesiastical Court over the Civil Courts. Even in this case, the decisions of the Church tribunals will have to be sent to the Civil Court which can opt not to endorse the declaration of nullity if it believes there was something amiss with the process.

There is another possible scenario. If the two agree to start civil proceedings but at some point one of the spouses decides to revert to the Ecclesiastical Tribunal, then the Civil Court will stop hearing the case, which will then become the jurisdiction of the Ecclesiastical Tribunal. This is also another case where prevalence is given to the will of one of the parties, not to a particular tribunal.

This is the most controversial aspect of the agreement. Many, myself included, do not agree with this provision as it can lead to abuse.

One can argue that as a matter of principle, the State should neither recognise a Church marriage nor should it recognise the decisions of the Church Tribunals. Others can argue in a different way, buttressing their arguments by reference to a number of agreements which are similar to the present agreement between the Holy See and the Government of Malta.

Whether the present state of affairs remains the same, or whether it is slightly or radically changed, or whether Malta returns to the situation prevalent under Dom Mintoff, the effect on the Ecclesial institution will be minimal.

The issue is a different one. Will the situation of those married couples who benefit from the present agreement be better or worse if changes are effected? This is an important question, as politics should be there for the service of the people, not for the service of ideologies.

joseph.borg@um.edu.mt