It is indeed unfortunate that procedural jockeying has displaced the real discussion that should be taking place about how to strengthen the institute of marriage and how to address the reality of failed marriages. Form over substance is commonplace in partisan politics but not when fundamental matters such as marriage are at stake.
A matter of national interest should, without a popular mandate, never have been raised by a Private Member’s Bill. That, however, is history and faced with the Pullicino Orlando/Bartolo motion, Parliament should deal with it, without necessarily letting the motion condition parliamentary process.
There is now consensus that a popular mandate should be sought. That is salutary. There is, however, still divergence of opinion on the form of the mandate. Faced with a Private Member’s Bill, Parliament has two fundamental choices: either to seek a popular mandate prior to the discussion of the Pullicino Orlando/Bartolo motion or after Parliament has started to discuss the motion and prior the final vote.
The former mandate should necessarily take the shape of whether divorce should be introduced or not, full stop. In the case of an affirmative vote, Parliament will then proceed to discuss the motion without any constraints on parliamentary sovereignty to amend the Bill as it deems fit. Jeffrey Pullicino Orlando need not worry unduly that Parliament will legislate in favour of a Las Vegas style divorce because the members of Parliament who have already expressed themselves publicly will ensure this will not happen.
On the other hand, if Parliament is to seek a popular mandate after the discussion on the motion, then, logically, the question put to the electorate need not be merely whether the electorate is in favour or against divorce but it could include the prevalent features of the Bill as refined in committee stage, after parliamentary discussion.
Both options are legitimate positions to take.
Unfortunately, the resolution presented by the Labour Party and supported by Dr Pullicino Orlando does neither of the above and simply asks the electorate to deal with the motion itself. Admittedly, this may have been a knee-jerk reaction to the Nationalist Party’s “double hurdle” proposal which was perceived to renege, partially at least, on the Prime Minister’s promise for a referendum.
The Labour proposal, however, expects the electorate to play policymaker and legislator itself without Parliament lifting a finger. If the referendum vote is negative, Parliament will not proceed to discuss the motion. If the referendum vote is affirmative, Parliament will, subject to “conscientious objectors”, be faced with the prospect of merely rubber stamping the electorate’s decision by providing legislative form to the substance decided upon by the electorate.
Seeking a popular mandate, in one form or another, is legitimate and advisable; abdication of parliamentary responsibility is not.
Having burdened the electorate with the responsibility to do the job our parliamentarians were paid to do, the Labour resolution also proposes to deprive the electorate of the tools to take an informed decision by prohibiting the use of state funds either in favour or against a particular position. This prohibition obviously requires clarification.
Can public funds be used to explain the status of Maltese marriages, the pros and cons of alterative means to address marriage breakdowns? Does this restriction prohibit the Commissioner of Children from fulfilling her duty and bringing the voice of children to the table since they, more than anybody else, are affected by divorce legislation?
Ensuring that state funds are used objectively is one thing. Muzzling the organs of state on the pretext of objectivity is another thing altogether.
It is salutary that the Labour resolution acknowledges that the divorce decision is one which will have a “historic and very significant impact on society”. That acknowledgement, however, cannot be reconciled with the road map it proposes: passing the parliamentary buck in order for the electorate to decide on the Pullicino Orlando/Bartolo motion itself, in an inexplicably rushed manner, without the benefit of listening to our parliamentarians’ views and without state support to take an informed decision. Decisions that significantly impact society should not be taken in this superficial manner.
Civic society expects our parliamentarians, under the reconciliatory hand of the President of Malta, to agree on a mutually acceptable road map, one which ensures the electorate will be consulted after the views of parliamentarians are heard, after the groundwork for an informed decision has been laid and prior to a final parliamentary vote on the matter. Procedurally and constitutionally, all of that is possible, provided goodwill prevails. The institute of marriage, the victims of marital breakdown and society at large deserve better.