The time has come to review the 1995 Church-State agreement, which gives the EcclesiasticalTribunal precedence over the civil courts in annulment cases, according to the Labour Party.
The issue came to fore after the Church Tribunal suspended lawyer Deborah Schembri earlier this year because of her role in the pro-divorce movement.
A spokesman for the Labour Party said “yes” when asked whether the time had come to review the 1995 concordat.
The agreement stipulates that annulment proceedings before the civil courts should stop if either one of the spouses decides to take the case to the Ecclesiastical Tribunal.
However, Dr Schembri’s suspension has raised concern in legal circles, with Nationalist MEP Simon Busuttil questioning whether the Church’s actions were in harmony with the fundamental human right to have a fair trial and to be assisted by a lawyer of one’s choice.
In an opinion article earlier this month, Dr Busuttil said the fact that annulment decisions taken by the Church Tribunal also had civil effects meant it had to adhere to the standards of human rights the state was duty-bound to guarantee.
“Malta should come in line with other democratic countries where Ecclesiastical Tribunals of Catholic dioceses are fully respected in a context where they follow proceedings in the civil courts and not the other way round,” the Labour Party spokesman said.
He added that Dr Schembri should be reinstated on the Church Tribunal’s register “as soon as possible” but noted that it was government’s actions that were of greater concern.
“It is up to the Church to make its own decisions but our concern lies mainly with the government. One has to point out that the European Court of Human Rights found that Italy breached the fundamental right to a fair hearing and a lawyer of your choice because the Italian state, like Malta, is bound through an agreement with the Holy See to recognise decisions taken by the Ecclesiastical Tribunal,” the spokesman said.
A spokesman for the Nationalist Party said ecclesiastical law did not take precedence over civil law but added that this “did not diminish the need for a regular review of any and all existing agreements”.
When asked whether Dr Schembri should be reinstated by the Church, the PN spokesman said “all lawyers working at the Church Tribunal should be treated in the same manner and what applies to all lawyers should also apply toDr Schembri”.
In a meeting with the Chamber of Advocates last week, the head of the Church Tribunal refused to discuss Dr Schembri’s case, insisting she was not on the agenda.
Chamber of Advocates president Reuben Balzan quoted the Church authorities saying that pro-divorce lawyers were not going to be suspended from representing clients in annulment proceedings but the ban on Dr Schembri was not lifted.
Dr Balzan asked for a specific meeting to discuss Dr Schembri’s case since no explanation was given as to why she was being treated differently to other lawyers.
Speaking to The Sunday Times, Dr Schembri said she would wait for the meeting before taking any decision on how to pursue her case.
“The reasons they quoted for banning me are the same ones they are using with other lawyers who expressed pro-divorce views to continue practising in the tribunal. I am looking forward to understanding the difference,” she said, adding that if her ban is not removed it would be a clear indication that the Church was only interested in silencing her during the campaign.
Dr Schembri believes the matter falls under the responsibility of the state since it has an obligation to defend the fundamental human rights of its citizens.
However, the Home Affairs Ministry declined to say whether it believed that Dr Schembri’s ban was in breach of her clients’ fundamental human right to be assisted by a lawyer of their choice, or whether the 1995 Church-State agreement should be revised.
A spokesman for the ministry said ecclesiastical law did not take precedence over civil law but confirmed that the civil courts had no jurisdiction on marriage nullity cases unless both parties agreed to go before them.
“What is provided in the Marriage Act is that when a question arises as to whether a marriage celebrated under Canon Law is null, the decision of the Ecclesiastical Tribunals with regard to the question ofnullity of that marriage are respected and the Ecclesiastical Tribunals have jurisdiction on such issues of nullity unless both parties to the religious marriage decide not to take the case before them,” the spokesman said.
He noted that all decisions by the Church Tribunal had to be reviewed by the civil Court of Appeal before being registered and the Marriage Act provided certain safeguards. “The Maltese Court of Appeal cannot register a decision by the Ecclesiastical Tribunals and give it civil effect unless ‘during and in the proceedings before the tribunal there was assured to the parties the right of action and defence in a manner substantially not dissimilar to the principles of the Constitution of Malta’.”
ksansone@timesofmalta.com