An unwritten source of law, it has been held in legal literature, is that of conscience. The judiciary, for instance, refer to it continuously in their workings.
Freedom of conscience is also part of the written laws of Malta. We find it enshrined both in the Constitution of Malta and in the European Convention Act. The latter incorporates into Maltese Law the European Convention on Human Rights and Fundamental Freedoms of the Council of Europe.
Conscience is an indispensable requirement in any decision making, be it for parliamentarians, cabinet ministers, and the judiciary.
Conscience need not necessarily be tied to any religion or belief for every person has a conscience which dictates to him or her what is right or wrong. Even an agnostic or an atheist has a conscience and s/he should – like a believer – be fully entitled to exercise his/her freedom of conscience. Conscience is natural to humanity and, as such, is areligious. But, of course, if one is religious then his/her conscience will be formed according to his/her religious belief. The same applies to agnostics and atheists or persons holding other opinions, political or otherwise.
The latest episode of the Leader of the Opposition denying in practice his parliamentary group the possibility for the Opposition bench to have recourse to a free vote does not augur well for freedom of conscience. For this freedom to be exercised in the case of Opposition MPs (and government MPs as well), it should not be entirely and exclusively dependant on the decision of the Leader of the Opposition (or of the Prime Minister in the case of government MPs).
Freedom to vote or decide in terms of one’s conscience should be inscribed clearly in the Constitution in relation to state institutions and, in the case of political parties, in their own statute. It should be automatic and should never require for its exercise the prior permission of any person or body, be it the party leader, the national executive, or any other political party or state structure. It is high time that political parties update their statutes and practices to bring them in line with Human Rights Law.
For we either enjoy freedom of conscience or not. It cannot be made subject to the whims and caprice of any person whosoever it may be.
The undemocratic institution of the whip can, at times, serve as a ploy to deny freedom of conscience as when MPs are denied the right to exercise their fundamental human right to freedom of conscience.
The latest episode of Opposition MPs Adrian Delia, Ivan Bartolo, and Alex Borg voting against the amendments to the IVF law on the basis of their conscience – together with Carm Mifsud Bonnici declaring that he would have done the same had he not been sick, down with COVID, when the vote was taken, does strictly speaking bring them in breach of party discipline. For – from the perspective of the Nationalist Party – they have decided to go their own way in the House of Representatives, ignored the whip’s command, and voted against the dictatorial imposition of the party whip. From the perspective of human rights, nonetheless, all four should be commended for having stood up to a political party that does not respect freedom of conscience even though it criticises the government for abuse of the rule of law but then ends up doing worse.
Of course, one does understand that the Nationalist Party was cornered by the government’s propaganda. In the case of the amendments to the IVF law, the opposition, like government, wanted to follow the tide and ride on the popularist band wagon. Otherwise, it would have been singled out as anti-progress and failing to appease the population by showing how empathic it is to the needs of couples resorting to IVF, even if this meant their putting aside the dignity of the unborn who, after all, is a bunch of cells with no political worth once embryos have no vote to cast in a general election.
However, in doing so, the Nationalist Party is not entitled to contravene human rights. For respect for the rule of law applies not only to the government but to others as well, be it the Opposition, the independent press, civil society organizations, etc.
As these dictatorial traits still linger on in Maltese Law, Parliament needs to take positive action in terms of its positive obligations under Human Rights Law to ensure that freedom of conscience is adhered to by the House of Representatives when it votes upon any decision.
It should not be up to the Party Leader or Party bureaucracy to permit or disallow freedom of conscience. It has to be both respected and applied throughout by all state institutions and political parties, nobody excluded.
As there are state institutions such as parliament and cabinet that do not allow freedom of conscience as of right, the Constitution should be amended to allow for it explicitly, more so when a request is made and the Party Leader and/or Party structures deny such a fundamental human right.
Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta