Ingram Bondin (‘Remove vilification law’, the Times of Malta, September 9) has made three interesting points in relation to previous articles I have penned in this newspaper where, amongst other things, I held that the deletion of article 163 of the Criminal Code, which currently disallows the vilification of the State religion of Malta, would be inconsistent with the Constitution of Malta.
His arguments are mainly threefold: “There is nothing in the Constitution which compels Parliament to implement a law for the criminalisation of vilification of religion”; “Aquilina’s argument implies ‘that the State cannot valorise something without associating to it a corresponding repressive criminal apparatus’”; and “Aquilina also seems to take a background assumption that the purpose of article 163 is to implement the spirit of Article 2 of the Constitution. This cannot be the case for the same reason that article 163 was passed by the Legislative Assembly in 1933, and that predates the present Constitution... it is extremely disingenuous to suggest that the intention behind the vilification law was to somehow implement the spirit of the present Constitution”.
Without going much into technical legal doctrine and case law, I must explain why – following extensive research, in-depth reflection and comparative study – I arrived at the conclusion that the decriminalisation of the protection of a state symbol or institution such as the State religion (or for that matter the national flag, the national language and the George Cross) is inconsistent with the Constitution’s supremacy provision.
The Malta Independence Order 1964 (to which the Constitution is appended) saves existing laws and declares that they are to continue to have effect from the date of independence onward. The fact that the provisions on religious vilification were introduced in the Criminal Code in 1933 and not in 1964 or afterwards is immaterial to the linkage between the Constitution and the Criminal Code.
The 1964 Constitution saves all pre-Independence laws irrespective of the year when they were enacted and the historical background leading thereto and adopts them.
Bondin takes a literal interpretation of the Constitution when the rules of constitutional construction as expounded by the case law of the most highly authoritative courts with expertise in constitutional matters shun such an approach. In the interpretation of Westminster constitutions like the Maltese, one has also to look at the spirit, and not only at the letter, of the law to understand a constitutional document.
Indeed, a Constitution – contrary to a criminal or tax law – by its very nature cannot be subjected to a strict, rigid or limited interpretation. Otherwise, certain constitutional doctrines prevalent in the Constitution of Malta such as the independence of the judiciary, the anonymity of the public service, the rule of law, the separation of powers, etc. – which are part and parcel of a Westminster Constitution – will all be thrown overboard and cannot ever be considered to form part of the Constitution simply because these doctrines are not spelt out by express words in a specific provision of the Constitution.
The clause proposing the repeal of the criminal protection to the State religion is in a constitutional mess: it makes a mockery of, is derisive of, and is in contempt of, the Constitution
Indeed, they are arrived at by ‘necessary intendment’ or ‘necessary implication’. For instance, the Constitutional Court has construed ‘the fundamental rights and freedom of the individual’ in Chapter IV as applying also to legal persons even if the latter are not ‘individuals’ and even though the Constitution does not, by express words, extend such rights to a legal person.
Yet the Constitutional Court agreed that fundamental rights and freedoms, by necessary intendment, applied to legal persons. So far as I am aware, nobody has held that this is a wrong interpretation of the Constitution. The doctrine of ‘necessary intendment’ is espoused admirably not only by US, Irish, English and several other Commonwealth countries’ courts but even by the highest appellate judicial body in the Commonwealth – the Judicial Committee of the Privy Council.
This doctrine forms the cornerstone of Westminster constitutions obtaining in several Commonwealth countries including the Mother of all Parliaments itself. A literal interpretation of a Westminster Constitution is completely anathema, clearly wrong and disharmoniously out of synch with established case law of all the above-mentioned courts. Indeed, I am not aware of any single foreign jurisdiction which, like Malta, adopts a Westminster constitutional model that resorts to a strictly rigid literal interpretation of its organic law.
Hence, although it is true that there are no express words in the Constitution “which compels Parliament to implement a law for the criminalisation of vilification of religion”, by necessary intendment this must be so and cannot but not be so. Otherwise state symbols established by that same Constitution would end up being worthless, valueless and a sham.
It would mean that I can go before the new parliament building and burn the Maltese flag with impunity, that I can spit and trample upon in public the George Cross and that I can vilify the Roman Catholic apostolic religion with no consequence, as if none of these constitutional official State symbols had no meaning or value for the State of Malta.
If these symbols do not attract the vigour of the criminal law, then their inclusion in the Constitution would be meaningless for the State of Malta, the Maltese people and State organs and institutions. The protection of state symbols has to come through ordinary law as it is not expected that the Constitution provides for this. As a matter of fact – and correctly I dare add – it does not but ordinary law does.
Thus, the logical question which arises is whether the literal interpretation of the Constitution’s provisions is consistent with the spirit of the Constitution. My reading of the law and of the intention behind the framers of that document is that without protecting the state institutions against their dishonour, the Constitution cannot have full effect; nor can it reign supreme. That is why the State has to valorise state institutions by appending to them a corresponding repressive criminal provision for their protection.
The Constitution proclaims the Roman Catholic apostolic religion to be the religion of Malta, it bestows upon the Roman Catholic Apostolic Church ‘the duty and the right to teach which principles are right and which are wrong’ and provides that religious teaching of the Roman Catholic apostolic faith must be ‘provided in all State schools as part of compulsory education’. It cannot be doubted, therefore, that the people of Malta who approved the Constitution in the referendum preceding independence, were proclaiming a deep religious conviction, faith and intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs.
Otherwise why elevate the Roman Catholic apostolic religion to the status of a national state symbol? On the ground of the Christian nature of the State of Malta and on the ground that the vilification of the Roman Catholic apostolic religion is consistent with, and gives effect to, the safeguard and protection of the constitutional state symbol of the state religion, there lies an inconsistency in Bill 113 of 2015 which purports to decriminalise the vilification of the State religion and thereby denudes and undermines its safeguard and protection.
The conclusion is therefore obvious. The clause in Bill 113 of 2015 proposing the repeal of the criminal protection to the State religion is in a constitutional mess: it makes a mockery of, is derisive of, and is in contempt of, the Constitution. As such a clause is a joke, contemptuous and derisive, article 6 of the Constitution, the supremacy provision, has to be invoked as a vehicle for disallowing the incorporation by ordinary law of any statutory provision, like clause 2 of Bill 115 of 2015, which is not only inconsistent with the Constitution but also does neither respect nor reflect that Constitution.
Indeed, in my view, the only honourable way left open for the government is, as my first preference to either refrain from moving the second reading of that Bill in the House of Representatives until the legislature is dissolved and Bill 113 dies a natural death or as my second preference to declare in second reading that the decriminalisation of vilification of the State religion will be deleted during committee stage thereby perennially condemning that clause to the realm of oblivion.
Professor Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.