The Criminal Code (Amendment) Bill, published in The Malta Government Gazette on July 10, 2015 essentially proposes the decriminalisation of the crime of vilification of religion, presumably in the interests of freedom of expression.

The reason for such measure appears to be that other provisions in the Criminal Code have, since the enactment of articles 163 and 164 of the Criminal Code criminalising vilification of religion in 1933, supplemented these provisions thereby rendering these two provisions outdated. But is this really the case?

Articles 163 and 164 of the Criminal Code both criminalise vilification of religion. This crime is committed “by words, gestures, written matter, whether printed or not, or pictures or by some other visible means”. The crime consists in:

(a) publicly vilifying “the Roman Catholic Apostolic Religion which is the religion of Malta”; or (b) by giving “offence to the Roman Catholic Apostolic Religion by vilifying those who profess such religion or its ministers, or anything which forms the object of, or is consecrated to, or is necessarily destined for Roman Catholic worship”.

Article 164 extends the provisions of article 163 to other cults tolerated by law, with the only difference between the two being their punishment.

In the case of vilification of the Roman Catholic Apostolic religion the punishment is one of imprisonment for a term from one to six months and, in the case of other cults, the punishment is of imprisonment for one to three months.

One can argue that the time has come to have a uniform punishment for vilification of any religion whatsoever but, on the other hand, one does understand the cultural and religious reason behind the discrepancy in punishment.

First, in terms of article 163 of the Criminal Code, it is clearly established that “the Roman Catholic Apostolic Religion is the religion of Malta”.

In article 2 (1) of the Constitution of Malta, it is solemnly proclaimed that “The religion of Malta is the Roman Catholic Apostolic religion”.

Once this is the case, it follows that the vilification of the Roman Catholic Apostolic Religion seems to breach the constitutional provision rendering the deletion of article 163 of the Criminal Code unconstitutional as it runs counter to the supremacy provision of the Constitution.

Indeed, clause 2 of the Criminal Code (Amendment) Bill is inconsistent with the provisions of the Constitution insofar as it removes the protection from vilification of the religion of Malta.

For the Constitution to prevail, it cannot allow clause 2 of the Criminal Code (Amendment) Bill to be enacted into law as otherwise article 2(1) of the Constitution would end up being a dead letter.

It does not make sense, both from a logical and legal perspective, to declare the Roman Catholic Apostolic religion as the religion of Malta in the highest law of the land and to then allow its flagrant vilification with impunity.

If the Roman Catholic Apostolic religion is an important symbol for Malta then the natural corollary is that it has to be protected by the criminal law. Otherwise, the constitutional recognition given thereto is rendered worthless.

The decriminalisation of the offence of vilification of religion appears to be unconstitutional

The deletion of article 163 of the Criminal Code may be challenged by any person in court in terms of article 116 of the Constitution on the basis of a popular action. It may also be the subject of an abrogative referendum.

Second, the vilification of religion does not contravene freedom of expression in the same way that the crime of defamation of a human being does not amount to a violation of freedom of expression. Case law of the European Court of Human Rights and of the Maltese courts is quite clear on this matter.

Indeed, I cannot understand the need to delete the criminal offence of vilification of religion on grounds that it runs counter to freedom of expression because this is not the case.

Freedom of expression is not limitless: the Constitution and the European Convention Act allow limitations and restrictions thereto when these are reasonably justifiable in a democratic society.

Even if, for argument’s sake, it was conceded that vilification of religion runs counter to freedom of expression, then the Bill would be falling into a self-contradiction as it would allow the retention of defamation and defamatory libel on the statute book but not vilification of religion.

It is highly contradictory to decriminalise vilification of religion without taking the corresponding measure with regard to defamation and defamatory libel (not to mention other forms of libel under the Press Act such as trade libel and obscene libel).

Third, the Objects and Reasons of Bill 113 “are to update the provisions of the Criminal Code on crimes against religious sentiment also given that since these laws have been enacted in the 1930s the Criminal Code has been amended several times in order to impose criminal sanctions on the instigation of religious and other forms of hatred”.

No reference is made to these other provisions in the Criminal Code, which criminalise the vilification of religion and, if that were to be the case, it would be quite strange because it is nonsensical to punish the same criminal conduct in two or more distinct offences.

Moreover, the crime of vilification is distinct from that of instigation of religious hatred. For instance, if regard is had to article 82A of the Criminal Code dealing with incitement to racial hatred, although religion is mentioned in this provision, religion is an adjunct to racial hatred.

The crime relates to stirring up ‘violence or racial hatred’ on the grounds of, amongst others, religion.

Therefore, I can incite racial hatred against a black community because that community practises a religion to which I do not appertain.

Vilification of religion does not necessarily require the commission of any form of violence; nor does it need to be inspired by sentiments of racial hatred.

The constitutive elements of both crimes are, thus, different and independent of each other.

Hence, even from a purely criminal law point of view, vilification of religion, on the one hand, and incitement to violence and racial hatred on grounds of religion, on the other, are not the same thing.

The Criminal Code (Amendment) Bill therefore needs to be rethought, if not scrapped altogether.

The decriminalisation of the offence of vilification of religion appears to be unconstitutional; is compliant with freedom of expression; and is not repeated nor contained in any other provision of the Criminal Code except in article 163, which is, however, being proposed to be repealed in utter disrespect to the letter and spirit of the Constitution of Malta.

Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.