The minister responsible for justice has just administered the final coup de grâce to the offence of vilification of religion. The ink by which this law was written had not yet even dried up when two new religious vilification cases surfaced. They fitted neatly under the repealed provision though not under the new provision just introduced.

The first is the theft of holy hosts from the Franciscan church in Valletta and the other is the desecration of the Holy Quran at the multi-faith room of Mater Dei Hospital.

The vilification of religion offence catered perfectly well for both such crimes. Yet, since August 12, the relevant provision was substituted by a much narrower criminal offence, that of religious hatred, which does not necessarily cover all forms of religious vilification.

There are also human rights implications which might, if challenged, render the new provision null.

While the government has publicly stated that it has strengthened the Criminal Code by making illegal incitement to religious hatred, the two episodes mentioned above are not covered by this newly-created crime.

At face value, theft of holy hosts does not fall under religious hatred for it is difficult to prove from the theft itself that the motive was religious hatred. They could have been stolen because the thief is a devout Catholic who wants to administer Holy Communion to himself in private at the comfort of his home or to sell hosts for the purpose of their desecration during a satanical mass.

Though the generic intent is the same – the act of stealing the hosts – the specific intent differs. The first is covered by the crime of theft; the second amounted to vilification of religion.

The State is now an impotent witness and complacent to the act of religious vilification itself

But since religious vilification is now relegated to history, if the thief is caught, yet no evidence is procured as to where the hosts ended up or what was the real motive of the theft, the most the police can do is to charge the suspect with theft.

If, on the other hand, the thief admits he sold them to a third party for desecration purposes, though he never actually intended to carry out the act of desecration himself but simply wanted to have enough money to nurture his drug dependency, then, the material act in itself does not establish a nexus between the subsequent desecration of the hosts by the third party and the thief’s religious hatred.

Here, the intention of the offender is not desecration because of his animosity against the Catholic religion but to pocket some money from the sale. His interest is purely pecuniary. The facts of this case are not linked to religious hatred.

The enactment of the new crime of religious hatred and the repealed crime of decriminalisation of religious vilification have, therefore, weakened not strengthened the Criminal Code.

Insofar as the desecration of the Holy Quran goes, it has to be proved that the desecration was committed with the intention of spreading religious hatred. How can this be proved in a court of law?

Although when compared to host desecration, prima facie the desecration of the Holy Quran is potentially a more likely candidate to fall under the religious hatred provision, this it is not without its difficulties. It has to be proved that the accused had the special intention to incite religious hatred when he desecrated the Holy Quran. If it was only meant as a joke or to ridicule, offend, vilify, insult or contemn Muslims, then that is a totally different matter altogether unrelated to inciting religious hatred.

Furthermore, there is also a risk that the result might be that the perpetrators in this second case might go scot free if they challenge the new provision on human rights grounds.

Interestingly enough, in both cases, freedom of artistic expression was not an issue. Therefore, the aim to decriminalise the offence of vilification of religion to allow for more artistic freedom is not an issue here.

Here we are now faced with a situation where (a) the police have serious difficulties to prosecute the hosts’ thief under the crime of religious hatred and (b) there are serious legal hurdles which impede them from obtaining a successful conviction in the case of the desecration of the Holy Quran under the offence of religious hatred.

A new lacuna has been introduced in Maltese criminal law, which will allow people to vilify religion, whatever denomination it might be, irrespective of freedom of expression that might not necessarily be at issue.

Vilification can be the order of the day because no criminal consequence will follow, even if the vilification – as in the two cases mentioned above – are totally unrelated to artistic expression.

Yet, in Malta there are Christians, Jews, Muslims and other religious believers who cherish their faith and are offended when their religion is vilified in this way.

The State is now helpless and cannot do much about it apart from being an impotent witness and complacent to the material act of religious vilification itself.

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