From Dr M. A. Sammut

Ours is a democratic republic based on the Westminster model of constitutional monarchy. (Needless to say, it became a Republic in 1974 – it was not like that at the beginning). Yes, that could appear self-contradictory, but that is how things stand. The Constitution is the basic, or fundamental, law of the land – the law that defines the Maltese State.

Article 2 of our Constitution reads, “(1) The religion of Malta is the Roman Catholic Apostolic Religion. (2) The authorities of the Roman Catholic Apostolic Church have the duty and the right to teach which principles are right and which are wrong. (3) Religious teaching of the Roman Catholic Apostolic Faith shall be provided in all State schools as part of compulsory education.”

To my understanding, this position is different from the English situation.

Whereas the Maltese Constitution seems to imply two distinct entities, namely State and Church, in England the Head of State is Head of the Church, and the Church forms an integral part of the State.

Our situation becomes complex when we consider that whereas our constitutional system is by and large based on the Westminster model, we have a provision that seems to be based on the ideas born during the 19th century French and Italian debate on the separation between State and Church.

The complexity stems from the fact that that debate on the separation between State and Church was, and still is, more or less extraneous to England. The amendments carried out in the latter half of the 20th century in the wake of secularism, have not radically changed the very close, intertwining relationship between Church and State in England. They have merely changed its mechanisms.

Our position is also different from that obtaining in Italy, like us a predominantly Catholic European country.

Article 7 of the Constitution of the Italian Republic explicitly lays down that Church and State are two distinct and sovereign entities, and that the relationship between them is that found in the Patti Lateranensi.

These Patti were amended in 1984, when Roman Catholicism was no longer deemed the sole religion of the Italian State (Additional Protocol, Article 1).

It would be pertinent to point out that the Italian position is very similar to the 1964 Maltese Constitution (see, in particular, Article 2 of the Patti Lateranensi).

The provision as it stands today was brought about by the 1974 amendments. Prof. J.J. Cremona, in his 1994 The Maltese Constitution and Constitutional History Since 1813, refers to the article about religion but adds very little commentary. However, he considers the way the 1974 amendments were carried as “legally misconceived” (p. 106).

A 1997 University of Malta publication (published in Italy by CEDAM and prefaced by the then, and still incumbent, Dean of the Faculty of Laws), entitled Una Rivoluzione in Forma di Legge, calls those amendments “fraude à la Constitution”. Yet, the same publication somehow absolves Parliament by claiming that the whole exercise was possible “in virtù della concezione tipica anglosassone della sovranità parlamentare, che offre mandato pieno, un potere costituente permanente, alle Assemblee rappresentative anche per cambiare la Costituzione, utilizzando quelle tecniche che del caso vengono ritenute più opportune” (p. 59) (“by virtue of the characteristic Anglo-Saxon notion of parliamentary supremacy, whereby representative assemblies are granted unfettered, permanently delegated powers, even to change the Constitution, using the means deemed most opportune in the circumstances”).

The seemingly only tenable position today is that what applies in other European countries does not necessarily apply in Malta. Therefore, we have to have recourse to our own local constitutional experts to furnish us with guidance.

Paragraph 2 of the above-cited article of our Constitution is of utmost interest. Church authorities in Malta have a constitutional duty, not merely a right, to teach which principles are right and which are wrong.

What are the practical consequences of this provision?

Moreover, we have to consider the organ of the State, which is entrusted with the interpretation of the laws of the land, namely the judiciary.

Article 10 (1) of the Code of Organisation and Civil Procedure lays down that “judges shall, before entering on the execution of their office, take, before the President of Malta, the oath of allegiance set out in the Constitution of Malta and the following oath: ‘Oath of Office I do swear that I will faithfully perform the duties of Judge without favour or partiality, according to justice and right, and in accordance with the laws and customs of Malta, to the honour of God and the Republic of Malta’”(emphasis added).

What is “the honour of God”?

If the Constitution (Article 2 (1)) states that the religion of Malta is the Roman Catholic Apostolic Religion, is “the honour of God” to be construed according to the teachings of the Roman Catholic Church?

The oath of allegiance set out in the Constitution binds members of the judiciary to bear true faith and allegiance, inter alia, to the Republic of Malta and its Constitution (article 101 of the Constitution of Malta).

What are the practical consequences of this oath? Are judges and magistrates bound to bear true faith and allegiance to the religion of the Republic of Malta, namely the Roman Catholic faith (Article 2 of the Constitution)?

Can a Maltese judge enforce a law that goes against the Roman Catholic religion?

Is the Maltese State really secular?

Mark A. Sammut

ZEBBUG