The crucial responsibility for the enactment of marriage laws in a secular, liberal, pluralistic democracy, such as Malta’s, lies with our legislators in Parliament. On divorce, it is ultimately up to our lawmakers to make the decisions on the best way forward, mindful of the need to act always in the best interests of society as a whole. Our legislators have a responsibility to ease the suffering caused by marital breakdown. The primary concern of members of Parliament should be the well-being of all individuals in society as a whole, including those who may only form a minority within it.
Jeffrey Pullicino Orlando, a government backbencher, has shown considerable moral courage in the face of pressure not only from his party leadership but also from the Maltese Church and its apologists in bringing forward a Private Member’s Bill for the introduction of long overdue divorce legislation. This is not, as one commentator said, “a democratic sin”.
On the contrary, what Dr Pullicino Orlando has done is in the best democratic traditions of that rare beast in Maltese politics: The enlightened member of Parliament who is there to serve the best interests of all citizens.
He is determined to bring forward the debate on the Bill by January 2011. Will he achieve this? And what will be the way forward thereafter?
That he can achieve this debate by January cannot be doubted.
The Prime Minister has declared himself – for reasons he will not explain – against the introduction of the civil dissolution of marriage in Malta. Yet, he will surely be unable to resist a determined member of Parliament – whose one vote in Parliament could bring down his government – from bringing forward such a Bill.
My assessment, therefore, is that, as Dr Pullicino Orlando applies the squeeze, the Prime Minister will comply and there will be a debate in Parliament within a few months. It is also likely to be a free vote as it is not in the interests of the government for it to divide along party lines.
What happens thereafter is far more difficult to predict. The Prime Minister will be inclined to kick this issue into the long grass and probably seek ways of placating Dr Pullicino Orlando, perhaps with promises of future glory. It is the kind of supine response to a painful social issue which, sadly, one has come to expect.
The Leader of the Opposition is in a quandary. He had similarly promised a Private Member’s Bill on the issue and a free vote in Parliament if he were elected to govern. But Dr Pullicino Orlando has pre-empted him. What does he do now? Like the Prime Minister, ever the opportunist, unless he senses that members of Parliament in their majority might support Dr Pullicino Orlando’s Bill, the Leader of the Opposition will also tend to kick the matter into touch.
In our politics of institutionalised conflict, important social changes get caught in the political crossfire. Yet, prevarication here is not the right answer.
Leaders of courage and vision should combine across party lines to solve this desperate social issue by introducing the long-outstanding legal remedy of divorce onto our Family Law statute books on the lines of the Pullicino Orlando Bill. Sadly, this is probably wishful thinking.
Unless there is a damascene change of heart in both leaders in the two years before an election, it seems as though divorce might come to dominate the next election campaign.
Should there be a referendum on the issue? The Prime Minister is likely to offer a referendum as a sop as well as a means of postponing a decision on the issue, preferring to follow public opinion than lead it. He will argue that this will enable Parliament to gauge the will of the people. The Leader of the Opposition may well follow suit.
However, referendums are alien to the tradition of our parliamentary democracy. Under our form of government, Parliament is sovereign and members of Parliament are elected precisely to legislate for what is best for the country as a whole, guided but not bound by the feelings of their constituents. We have had only one referendum since Independence and this was about whether or not to join the European Union. Since it was so fundamental a constitutional step, this is acknowledged as the right thing to have done. But it is also worth recalling that our earlier, decisive strategic move to become a republic – arguably as important a constitutional issue – was carried by a simple two-thirds vote in Parliament.
It would be utterly incorrect for the issue of divorce to be settled through a referendum. It would set the wrong precedent on constitutional grounds. It would also be wrong on grounds of natural justice. The kind of heavy-handed intervention by the Maltese Church, which we have already seen trailed, that anybody voting in favour of divorce would be going against the doctrinal teaching of the Church (and, therefore, “sinning”? ), would undoubtedly influence the outcome of such a sensitive decision. This is the very antithesis of democratic government.
The ultimate decision on the best way forward on divorce is a matter which should rest with legislators in Parliament, which is sovereign, acting in the best interests of society as a whole. Do our political leaders not have the moral courage and vision to work together to see this?