I have been asked to elaborate why I held, in a previous contribution to this newspaper, that the repeal of the crime of vilification of the Roman Catholic Apostolic Religion is inconsistent with the Constitution of Malta.

Although the Constitution applies to the republic and its territories in article 1, it is not the Constitution which states which are the territories of Malta. Such statement is made by the Territorial Waters and Contiguous Zone Act, the Continental Shelf Act, the Fisheries Management and Conservation Act and the Fishing Waters (Designation) and Extended Maritime Jurisdiction Act.

Although the Constitution proclaims the Catholic religion to be the religion of Malta, it is not the Constitution which affords protection to this constitutional symbol. This is found in article 163 of the Criminal Code. The marginal note to this article is appropriately entitled ‘Vilification of the Roman Catholic Apostolic Religion’. Nevertheless, clause 2 of Bill 113 is proposing the deletion of article 163 of the Criminal Code.

The Constitution empowers the authorities of the Catholic Church to teach which principles are right and which are wrong but what protects the ministers of this Church from vilification is article 163 of the Criminal Code.

The State is obliged by the Constitution to provide religious teaching in the Catholic Faith in all its schools as part of compulsory education. However, what gives effect to such requirement is article 47(3) of the Education Act.

What the fundamental law recognises as a constitutional symbol has to be upheld

The Constitution also describes the national flag of Malta in article 3(1) but this constitutional symbol is protected in terms of article 6 of the Emblem and Public Seal of Malta. A marginal note is, in fact, entitled ‘Vilification of the national flag of Malta, etc.’

The Constitution also demands that a representation of the George Cross forms part of the national flag of Malta although it is not the Constitution that protects this constitutional symbol but the George Cross (Restriction of Use) Ordinance.

Although article 5 of the Constitution determines the national language of Malta, what safeguards it is the Maltese Language Act.

When article 6 of the Constitution refers to a law which is “inconsistent with this Constitution”, it does not make use of the words “a law which is in contravention of this Constitution”, even though these are found spread throughout the whole Constitution.

The words “inconsistent with” are distinct from “in contravention of”. The two expressions are not tautologous.

“Inconsistent with” is defined by law dictionaries as “not compatible with”, “contradictory with” or “acting at variance with”.

“In contravention of” is defined as meaning “contrary to”, “in conflict with”, “in violation of”, “infringing”, “failure to comply with”.

The Constitution uses both the terms “inconsistent with” and “inconsistent with and in contravention of”. But it does not use the words “in contravention of” by themselves, separate and distinct from the words “inconsistent with”.

“Inconsistent with” is broader in meaning than “in contravention of”; the latter expression has a narrow, limited, restricted meaning. A provision of ordinary law may be inconsistent with the Constitution though not necessarily in contravention and vice-versa.

Clause 2 of Bill 113, which proposes the deletion of the crime of vilification of the Catholic religion is inconsistent with article 2(1) of the Constitution (“The religion of Malta is the Roman Catholic Apostolic religion”) though not necessarily in contravention of it. Bill 113 is not stating that the Catholic religion will no longer be recognised as the religion of Malta.

However, it is inconsistent with the constitutional provision because when the Constitution is recognising the Catholic religion as the religion of Malta, when it is entrusting a non-statal authority - the Catholic Church - with both the duty and the right to teach what is right and wrong while also entrenching, by a two-thirds majority, this bit of the Constitution and when it is stipulating that the said religion forms part of compulsory education in all State schools, it is clear that the Constitution is recognising that religion as a constitutional official State symbol on a par with other constitutional symbols such as the national flag, the George Cross, the national anthem and the national language.

As a consequence of such recognition, the vilification of the national religion, the national anthem, the national flag, the George Cross and the national language is inconsistent with such constitutional recognition. For if these were not worthy of recognition by the Constitution, why were they then accorded constitutional status?

On the contrary, their vilification cannot but not constitute an insult and an affront to the Constitution. What the fundamental law recognises as a constitutional symbol has to be upheld. By removing the protection granted to these constitutional symbols through ordinary law - as Bill 113 is purporting to do with regard to the national religion - the protection given thereto is removed thereby allowing its vilification, with impunity, and without any form whatsoever of consequence (or punishment).

This sort of action weakens the constitutional provision which extends its protection to the constitutional symbol of the national religion through constitutional ordinary law.

Therefore, while clause 2 of Bill 113 cannot be said to be “in contravention of” article 2 of the Constitution, it is inconsistent with the elevated status it accords to the national religion.

Through article 2 of the Constitution, the national religion was granted constitutional (and not just ordinary law) status. This is not the case, for instance, with regard to the national bird (the blue rock thrush - il-Merill), the national tree (the Sandarac gum tree - is-Siġra tal-Għargħar) or the national dog (the Pharaoh hound - Kelb tal-fenek), not to mention also the Maltese għana or the Maltese festa.

Astonishingly enough, the emblem and the public seal of Malta are not constitutionally recognised.

However, they are protected by ordinary law, thereby enjoying an inferior legislative status when compared to the national religion, the national flag, the George Cross, the national anthem and the national language.

It therefore follows that if “inconsistent with” in article 6 of the Constitution (which makes the Constitution the supreme law) is equated to the term “in contravention of”, the natural and inevitable consequence of this would be that it is possible to vilify the national flag of Malta, the George Cross, the national language, the national anthem and the national religion with impunity. It is illogical to ascribe such interpretation which runs counter to both the letter and spirit of article 6 of the Constitution.

Any other construction of article 6 of the Constitution would simply bring it in disrepute and contribute to nullify the Constitution’s supremacy provision. Such unconstitutional interpretation cannot not be vehemently opposed tooth and nail by article 6 of the Constitution.

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