Ramon Bonett Sladden
Malta’s legislators are currently debating the Gender-Based Violence and Domestic Violence Bill (Bill 14/2017). Upon reading the title, any reasonable person could be led to think that opposing such a Bill would be insane. However, there is much more to this Bill than meets the eye. As the saying goes, one should not judge a book by its cover. Similarly, one should not judge a Bill by its title.
In his Speech to the Electors of Bristol at the Conclusion of the Poll (1774), the philosopher Edmund Burke said that a representative owed his constituents not only hard work, but also his judgment. He added that a representative who substituted his reasoned and mature judgment with his constituents’ opinion would betray and not serve his constituents’ best interests. It is precisely in this vein that one implores all MPs to read this bill and all bills very carefully prior to voting one way or another.
First and foremost, it is noteworthy that the Istanbul Convention, which is the centrepiece of the Bill, is already part of Maltese law in terms of Cap. 532 of the Laws of Malta. Art. 5 of Cap. 532 clearly states that the Istanbul Convention shall thenceforth be part of the laws of Malta and as a result, would be enforceable. One should also bear in mind that Malta already has a law on domestic violence, namely the Domestic Violence Act (Cap. 481). When the Bill becomes law, it will repeal and replace Chapters 481 and 532.
The preborn child
Art. 39 of the Istanbul Convention limits its condemnation of abortion to those instances when it is forcibly carried out on the mother. The corollary of this is that the Convention does not object to abortion when the mother consents. However, it must be said that this Bill does not decriminalise or legalise abortion in Malta. Art. 22(2) of the Bill stipulates that the Bill shall prevail over ordinary law insofar as the latter is inconsistent with its provisions. Obviously, the Bill does not prevail over our Constitution, as the Constitution is supreme law, not ordinary law. Furthermore, it has been made amply clear that the current government does not intend to introduce abortion. Nonetheless, prudence and the need for legal certainty dictate that it is appropriate for the Attorney General to be instructed to issue a legal opinion confirming that this Bill, when it becomes law, will neither introduce abortion nor make it easier to do so.
The Domestic Violence Act, which will be repealed when this Bill is made law, includes the unborn child in its definition of a household member. However, there is no equivalent definition in the Bill. As a result, the unborn child will lose the protection currently afforded to it by the Domestic Violence Act. In view of the government’s clear articulation of its position on abortion, it is reasonable to amend the Bill in such a way as to extend protection to the unborn child in situations of domestic violence. Surely no one can disagree that the unborn child can be a victim of domestic violence and therefore requires protection.
Education
Art. 14 of the Istanbul Convention makes the state the primary educator of children. This violates Art. 2 of Protocol I to the European Convention on Human Rights which is clear that when the state assumes functions related to education, it must respect the rights of parents to ensure the education of their children in accordance with the parents’ religious and philosophical convictions. Art. 6 of the Education Act (Cap. 327) is also clear that it is the right of every parent to decide on any matter regarding their children’s education. Contrastingly, Art. 14 of the Istanbul Convention violates parents’ rights to educate their children in accordance with their own philosophical and religious convictions. Making matters worse, the Istanbul Convention proceeds not to allow states to make reservations to Art. 14.
The frightfulness of Art. 14 is shown in Art. 12 of the Istanbul Convention which tasks the state with eradicating, among other things, customs and traditions based on stereotyped roles for men and women. Men and women are biologically quite different; therefore, it makes sense that men take on certain roles while women take on different (but by no means inferior) roles. This article betrays the true intent of its drafters, which is to legislate the faux sameness of men and women by referring to vague and undefined “genders”. The framing of gender-based violence and domestic violence as sister issues is intended to render any opposition susceptible to being portrayed as pro-violence. Needless to say, this is not the case.
The implementation of Articles 12 and 14 of the Istanbul Convention would result in the obligation of the state to eradicate the binary model of human procreation which is sustained by all major philosophical and religious streams. If one is truly aiming to be progressive and to safeguard human rights, one should instead adopt positive measures to allow parents to home school their children.
Defining “gender”
In the definitions it sets out, the Istanbul Convention defines “gender” as “the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men”. Such a definition contravenes the requisite of legal certainty as it depends on fickle trends and subjective assessments. Additionally, the definition is unquestionably wrong because it deems men’s roles and women’s roles as socially constructed straitjackets. This is not so.
Making matters worse, the definition of “gender” set forth by the Bill does not tally with the one set out in the Convention. The Bill defines “gender” as meaning the roles, expectations, activities, behaviours and attributes constructed by society which a society may at any time associate with a man, a woman or an individual of any other gender. Through its reference to “any other gender”, it is clear that the Bill’s definition denudes the word “gender” of genuine meaning.
Both definitions are also in conflict with the definition already agreed on when Malta signed and ratified the Rome Statute of the International Criminal Court (2002) in which it was stated that the word “gender” refers to the two sexes – men and women – to the exclusion of any other meaning.
The definitions in the Convention and the Bill negate the obvious biological differences which exist between men and women. Coupled with the Bill’s diktats on education, it emerges that the Bill can and will be used as a tool to violate freedom of conscience and of religion in the helping professions and the religious sphere.
Nils Muiznieks, who recently visited Malta, said the Bill’s gender neutrality contravenes the spirit of the Istanbul Convention which was drafted specifically in order to protect women (hence the notion of gender-based violence). Once the Bill includes woolly notions of other genders, it automatically defeats the spirit of the Istanbul Convention. Therefore, it is in the best interest of men, women and of legal certainty to abandon the conflicting definitions and retain the definition found in the Rome Statute.
It is for the reasons described that our MPs must vote down Bill 14/2017, which Bill introduces legal reasoning anathema to public order as described. Instead, our legislators should fight domestic violence and protect men and women in Malta by drafting a harmonious Bill which safeguards the preborn child, the rights of parents to educate their children and protects both sexes from violence of any sort.
Dr Bonett Sladden is a lawyer