It is no longer allowed to charge in court persons who desecrate hosts or the Holy Quran unless it is proved that the motive behind the act of desecration was motivated by religious hatred. Photo: Matthew Mirabelli

The government got it wrong when it decriminalised the offence of vilification of religion for a multiplicity of reasons.

First, as explained in my opinion piece ‘Religious vilification’ (August 25 ), since August 12 it is no longer allowed to charge in court persons who desecrate hosts or the Holy Quran unless it is proved that the motive behind the act of desecration was motivated by religious hatred.  This is because such conduct is now legal; there is no crime on the statute book that specifically criminalises such conduct.

On the other hand, the executive police are placed in a straitjacket for they have to try to unconvincingly overstretch the provisions of the Criminal Code to find a provision therein under which to charge a person in court once the religious hatred provision is not wide enough to cater for the material acts of the recently repealed vilification of religion crime.

The end result will be that the police will not be able to prosecute due to the inexistence of a crime or acquittal of the accused is declared due to the said inexistence.

Second, believers – of whatever denomination – now feel insulted by the State and helpless whenever their religion is vilified. I am not referring here to the context of artistic expression, the intended aim behind the decriminalisation of the offence of vilification of religion.

Indeed, the two examples of the desecrated holy hosts and the Holy Quran were not a manifestation of a theatrical performance. This only indicates how short-sighted government was when it advocated this measure.

Third, the removal of the crime of religious vilification from the statute book in no way allows full and free artistic expression for the simple reason that there are other provisions in the Criminal Code in terms of which artistic expression will continue to be criminal.

Blasphemy and obscenity, among others, are still a criminal offence and it is probably more these offences which are breached in artistic expression than the actual vilification of religion. I thus consider this as a government measure gone wrong as the wrong offence has been targeted.

Fourth, several other states in the world have kept their vilification of religion offences on the statute book notwithstanding the fact that they are secular states and/or do not proclaim the Catholic religion to be the religion of the state in their constitution as we do, even though freedom of conscience, religion and worship is open to any person in Malta, be s/he a theist of whatever denomination, an agnostic or atheist.

Fifth, an analysis of the new article 82A(1) of the Criminal Code, as now in force, reveals several legal hurdles for its enforceability ranging from its lack of legal certainty to its ambiguity.

Given that in article 82A(1) of the Criminal Code there are established 1,716 distinct and separate crimes (and this is a conservative estimate in the light of the ambiguity of the words ‘otherwise conducts himself in such a manner’), the possible permutations of these crimes, when combined together, amount to an infinite number of possible results.

Believers – of whatever denomination – now feel insulted by the State and helpless whenever their religion is vilified

For only one provision of the law, infinity is already an extraordinary astronomical amount of offences a single person can commit under article 82A(1) in the completed form. But this infinite result does not include the attempted offence, conspiracy to commit the offence, instigation to commit the offence or incitement to disobey the law through inciting to commit the offence  as the offence in article 82A(1) refers only to the completed offence.

If more than one perpetrator were to be involved, the number of offences – whether completed, attempted, conspired, instigated or incited – will have to be multiplied by the number of perpetrators.

Nor am I including in the above calculation the combination ofall permutations of the completed offence, the attempted offence, the conspired offence, the instigated offence or the incited offence.

The number of possible combinations of the 1,716 completed offences which article 82A(1) creates results already to an infinite number, let alone if the attempted, conspired, instigated and incited offence were to be combined both with the completed crime and among themselves.

Undoubtedly the main problem here lies in 1,716 offences contained in one single provision that gives rise to legal uncertainty apart from the ambiguity of certain words used in the provision which can, were they to be counted, increase further the 1,716 figure.

According to the European Court of Human Rights, “a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct” (Sunday Times v. United Kingdom). How can the ordinary citizen regulate his/her conduct when one provision of the law can generate, on its own, an infinite number of possible offences let alone if that same provision is combined with other provisions of the Criminal Code?

Any person accused under this provision will consequently end successfully challenging it on the basis of Article 7 of the European Convention on Human Rights rendering article 82A totally irrelevant and without effect.

Sixth, nor does this provision satisfy the accessibility of the law criterion, that is, “the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case”.

I can conceive of no court in Malta – not even the European Court of Human Rights – concluding that article 82A of the Criminal Code is not in breach of the legal certainty and foreseeability ingredients when the number of combinations and permutations generated thereby is infinite.

Article 7 of the European Convention of Human Rights establishes the principle of nullum crimen, nulla poena sine lege – no person may be convicted or punished except on the basis of a law. As DJ Harris et al put it, “an individual must be able to know from the wording of the relevant provision and, if need be, with the courts’ interpretation of it, what acts and omissions will make him criminally liable and what penalty will be imposed”.

If challenged, article 82A(1) will have to be declared to be in gross violation of the nullum crimem, nulla poena sine lege legal maxim unless government distributes in all households and places on all public notice boards a book setting out the infinite number of offences which article 82A(1) establishes to satisfy the legal certainty, accessibility and foreseeability criteria developed by the European Courts of Human Rights so that nobody would be in a position to plead that ignorance of the law is no excuse!

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