The Malta Independent 3 February 2023, Friday
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Conscience, MPs, and the abortion law

Kevin Aquilina Sunday, 22 January 2023, 09:21 Last update: about 12 days ago

Cicero once wrote that ‘we have no other rule capable of distinguishing between a good or a bad law, than our natural conscience and reason. These, however, enable us to separate justice from injustice, and to discriminate between the honest and the scandalous’.

The famous Roman orator, jurist and philosopher further opined that ‘to live according to nature, is the highest good; that is to lead a life regulated by conscience, and conformed to virtue and temperance’. Whether these values of conscience, virtue and temperature are still practised – notwithstanding their perennial relevance – is another matter. The test of the pudding is in the eating.

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The test of conscience with the Labour Party’s parliamentary group will be taken when it votes on government’s Abortion Bill.

The definition of conscience afforded by European Court of Human Rights judges Nebojša Vučinić and Vincent A. De Gaetano in their joint partly dissenting opinion in Eweida and Others v. the United Kingdom, that finds favour with this author, reads as follows: ‘Conscience – by which is meant moral conscience – is what enjoins a person at the appropriate moment to do good and to avoid evil. In essence it is a judgment of reason whereby a physical person recognises the moral quality of a concrete act that he is going to perform, is in the process of performing, or has already completed’. Conscience is intimately tied to natural law: Christopher St German translated the law of nature into a fundamental law of reason and conscience’.

For Judge Silvio Meli, the way how to resolve conflictual situations between unjust laws and their enforcement lies in conscience: ‘Each individual has the responsibility of internally enriching oneself by means of cultivating a mature and well-formed conscience based on objective truths as basic for a happy existence. This subjective attitude must however necessarily be further enriched by utilising objective realities imparted from various sources, to enable each individual to form a proper and sincere appraisal of the truths to be followed, and the non-truths to be discarded. Only after this dynamic process of conscience-formation has reached an adequate level of mature synthesis, can an individual arrive at a proper appraisal of a given set of facts’.

State officers are bound by their conscience. This means that they cannot be asked by the law or by superior authority (e.g. a Minister or high ranking civil servant) to perform an act that runs counter to their conscience. The question that has to be asked in relation to this discussion is which one of them is to prevail, the state officer’s conscience or his/her legal duty to obey the law or a superior’s command? Freedom of conscience is both a constitutional and a conventional right. Hence, it is enshrined in the supreme law of Malta and in ordinary law. Article 40 of the Constitution is about ‘protection of freedom of conscience and worship’. A similar provision is found in Article 9 of the European Convention on Human Rights.

Conscience is a public law matter because, as Mario Thomas Vassallo points out: ‘In the Universal Declaration of Human Rights one finds two interesting statements. The first is that all human beings are born free and equal in dignity and rights, and are also endowed with reason and conscience that help them live in society. The second statement ties in with the first: everyone has the right to freedom of thought and conscience, either alone or in community with others (United Nations, 1948). As DeBattista (2020) declares, the freedom to act according to one’s conscience is therefore not [only] a right which once can exercise in private, but a right that can also be exercised in public’.

Although, perhaps, readers might tend to associate conscience more with the judiciary or religion, there is also a legislative dimension to this matter and it also binds the public administration in the execution of its duties.

The situation might nonetheless complicate itself. Suppose that Parliament enacts a law to allow abortion (a) in the case of rape, (b) where the mother’s life might be in manifest jeopardy, or (c) when the mother does not possess the material means to educate, feed, clothe, and provide a decent living to her offspring, and that, notwithstanding that law, not even one single medical practitioner in Malta agrees to perform the abortion. The state could employ a foreign doctor/s to do the job and who entertain/s no qualms in committing a murder of an innocent baby and unprotected vulnerable person. But what if no foreign doctor is willing to come over to do the job in Malta and there is thus no visible alternative to the exercise of conscientious objection?

Cabinet can authorise the Minister responsible for health to step in and, in addition to his ministerial duties, perform the abortion himself. And there have been precedents where Cabinet has authorise a Minister or a Parliamentary Secretary to carry out duties not in line with their constitutional office. Such was the case of Parliamentary Secretary Franco Mercieca and Minister Jo Etienne Abela. Medical doctors on the Labour Parliamentary Group and Doctors for Choice can also be roped in to assist Ministers Chris Fearne (a consultant paediatric surgeon in his own right) and Jo Etienne Abela, if need be. Alternatively, if these Labour Ministers / MPs grow a conscience, can the state instead force a Maltese doctor to carry out an abortion against his/her will on pain of disciplinary action instituted against him/her? Which right is to prevail? Are there any limitations imposed by Human Rights Law to conscientious objection?

For Karl H. Peschke, conflicts ‘between conscience and authority are a problem as old as mankind. The Greek poet Sophocles (496-406 B.C.) provides a dramatic account for such conflict in his tragedy Antigone. King Creon had forbidden the burial of his enemy Oedipus. Yet Antigone, Oedipus’ daughter, buried him nevertheless, her conviction being that this act of filial piety is a demand of the gods. For this she was sentenced to death by her uncle the king.

Conscience acts as a form of higher law and it is conscience that prevails over the legislative act or executive direction: ‘Should an individual reach the sure conclusion that his contrary conviction is after all correct, he may not follow orders or permissions which are contrary to his conscience. He also has the right and often enough even the duty to mould public opinion in order to bring about the change of decisions or laws which in conscience he considers wrong. But he also has the obligation to respect the honest convictions of others, even though they are opposed to his own, just as he likewise can claim this right for himself’.

Adina Portaru defines ‘conscientious objection’ as ‘the refusal grounded in deeply held religious, moral, ethical, or philosophical beliefs, to fulfil certain obligations. The refusal is hence based on the fact that performing the legal obligation in question would lead to a serious conflict with genuinely-held beliefs, so as to force the person to act against the dictates of conscience. Given the necessary link to a shared belief and the close scrutiny they are subjected to, conscience claims cannot be advanced as a carte blanche for disobeying the law or in pursuit of an absolutist conception of personal autonomy’.

An unwritten source of law is that of conscience. The judiciary, for instance, refer to it continuously in their judgments. 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.

On 5 July 2022 it was reported that the preceding day none of the Nationalist Opposition MPs had requested a free vote on the Embryo Protection (Amendment) Bill during the Parliamentary Group meeting. Nationalist MPs had voiced their concerns with the Nationalist Party decision to vote in favour of the amendments. Leader of the Nationalist Opposition Bernard Grech stated that none ‘of the Nationalist Party’s MPs ever requested a free vote on amendments to the IVF law during over 10 hours of discussions across three parliamentary group meetings’ and that: ‘I never said no to a free vote. The matter was discussed in multiple parliamentary group meetings and the issue of a free vote was never raised. After the discussion was concluded and the parliamentary group’s position confirmed, I started receiving requests for a free vote’. The Leader of the Opposition stated that ‘according to the party’s statute, it is the parliamentary group that decides on whether a free vote will be given, not the party leader’.

Former Leader of the Opposition and of the Nationalist Party MP Adrian Delia ‘declared that he will vote according to his conscience because he was against embryo testing that puts life in danger. “To be clear, I declare that I do not agree with testing embryos that could endanger or be fatal to human life … Gozo PN spokesperson Alex Borg also expressed concerns over such testing because he said it may endanger human life in its earliest stages’. On third reading, Opposition MPs Adrian Delia, Alex Borg and Ivan Bartolo voted against the amendments to the Embryo Protection Act. All these MPs were constitutionally and legally correct to exercise freedom of conscience. No internal disciplinary measures ensued against them.

Now that the Abortion Bill is coming to a vote, will the Prime Minister deny a free vote to his parliamentary group to exercise their freedom of conscience? He might well do so. But even if he does, the parliamentary group is not bound by the unconstitutional and illegal diktat of the Prime Minister and his whip. If, on the contrary, the Prime Minister allows a free vote and all parliamentary group MPs vote in favour of the abortion law, then they would have exercised their freedom of conscience and voted for the introduction of the culture of death over life in the Statute Book. It will be, of course, a first for Malta thanks to their vote.

I sincere appeal to Labour Party MPs not to immerse themselves in such acts of inhumane cruelty and bathe themselves in the blood of innocent, vulnerable, and defenceless babies and be accomplices in all the crimes that will be perpetrated because of their own personal vote in the House of Representatives in favour of the abortion bill. Now, if ever, is the historic period in time to say ‘no to cruelty of humankind induced death’, ‘yes to the beauty and joy of life’, and stand up to be counted, come what may to their future careers in the Labour Party.

 

Kevin Aquilina is Professor of Law, Faculty of Laws, University of Malta

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