On 4 February 2026, the daily The Malta Independent published a news feature titled 'Malta's Women's Lobby calls for forum to discuss decriminalising abortion'. Essentially, what the Women's Lobby is after is to remove criminal penalties for the crime of abortion: "criminal penalties for women are not an appropriate way forward to addressing complex personal and healthcare realities after an abortion has occurred". They quoted - quite contrary to their decriminalisation claim - that the Leader of the Opposition "suggested that whether a woman should face imprisonment ought to be assessed on a case-by-case basis" and the Prime Minister "suggesting that harm may be reduced through measures such as conditional discharges or suspended sentences".

Decriminalisation of an offence means a person's conduct will not be punished by the state. To give a concrete example, if John commits the crime of femicide, if ever the crime of femicide is decriminalised, then John cannot be punished at all, neither through a suspended sentence, or a conditional discharge, or some other form of criminal punishment.

Neither the Prime Minister nor the Leader of the Opposition were making a case for the decriminalisation of the crime of abortion but for the adoption of different forms of punishment. The former was suggesting leniency in the punishment awarded - the substitution of a custodial sentence of imprisonment with a suspended sentence of imprisonment or a conditional discharge. The latter submitted that the imposition of a criminal punishment should be left in the hands of the judiciary rather than in those of the legislature that tend to adopt a one size fits all punishment that does not necessarily always apply to the special circumstances of each case.

So the first question that has to be asked is what is the Women's Lobby actually proposing: (a) decriminalisation where no form of criminal punishment is inflicted by the courts?; (b) removal of custodial punishments but still allowing other more lenient punishments such as a fine, suspended sentence, conditional discharge, probation, etc.?; (c) addressing criminal penalties on a case by case basis?; (d) depenalising the crime of abortion, that is, whilst retaining abortion to be unacceptable conduct in a civilised society, it is still punished by the law but not by the Criminal Law? It could thus be punished as an administrative offence, for instance, by inflicting an administrative penalty upon the offender in question; (e) adopting some other solution not listed above?; or (f) where possible, applying a combination of any two or more of the above?

Unless the Women's Lobby informs us exactly what they want to see implemented, it is difficult to provide appropriate feedback in the absence of a clear, well argued, proposal.

Now the Women's Lobby might have well been encouraged to put forward the decriminalisation of abortion proposal, perhaps following the Prime Minister's recent statement that under his premiership no woman whom the courts would have found guilty of having committed an abortion and sentenced to a custodial sentence of imprisonment will actually serve that term of imprisonment. This is because he will intervene and exercise the prerogative of mercy to commute the prison sentence.

Let me first discuss this prime ministerial statement that raises grave rule of law issues as it implies that henceforth he will be judge and jury of abortion cases, not the judiciary. In other words, he will perform a judicial function, usurp the judiciary's function to decide criminal abortion cases, dent the judiciary's independence, and breach the right to a fair and public trial by appointing himself judge and jury above the judiciary in the total absence of impartiality and independence of his office in the exercise of judicial functions. Now I can be accused that I am making a lot of fuss here on the rule of law. But this has to be seen in the wider context of executive interference in the judicial organ of the state with the Constitutional Court not only censoring that interference but approving it. Take the latest Lebrun judgment where the Constitutional Court went totally out of its way to apply its judicially contrived policy of government appeasement (but on this case and others, another time). This court has the enviable talent of inventing government appeasing doctrines such as that of applying its own contorted notion of juridical interest to Public Law actions, or misreading the Constitution or the European Convention on Human Rights with the end result always being that it is only government that wins and benefits from its judgments.

First, the prime minister, rather than allowing the courts to decide abortion crimes on a case-by- case basis, or amending the law to apply a more lenient punishment, has adopted a blanket statement that applies to all abortion offenders irrespective of the circumstances of each case.

Second, by adopting such an absolutist policy, he is subverting the judicial organ of the state. Whilst the latter would have established guilt and determined a punishment that may be one of effective imprisonment (but not necessarily so for a suspended sentence can in certain cases apply), the Prime Minister has elected himself as judge and jury above the court judgment thereby sending the message that he is above the law and that whatever the courts of criminal jurisdiction decide, he will exercise a veto as to whether those decisions will be implemented or not and change the punishments according to his own whims rather than according to a pre-established sentencing policy.

Third, this statement resents autocratic leadership. For what prevents the Prime Minister, by way of government policy to decide that, henceforth, he will resort to exercise the prerogative of mercy for all those criminal court judgments that he disagrees therewith? Remember the COVID-19 days when the Prime Minister came up with the ludicrous statement that all those persons found guilty of COVID-19 infractions would have their punishment commuted. Remember his statement of a few days ago where he wanted to assist those commercial establishments that had illegalities on their properties but, even here, back tracked from proceeding further. Again, in both cases, the Prime Minister was putting himself above the law, deriding the rule of law, dishonouring the separation of powers, and disrespecting the values of a democratic society.

Fourth, the Prime Minister's statement is in breach of the separation of powers doctrine for, abusively, he wants to meddle in that business of the state that is constitutionally vested in the judiciary and not in the executive. The prerogative of mercy, admittedly, has been consistently abused by both Nationalist and Labour governments in the past. Suffice it to state that this prerogative power is itself violative of the separation of powers doctrine. So the Constitution should be amended to remove this colonial historical relic and substitute it by one that is based on due process of law that is compliant with human rights and more appropriate to a democratic republic that does not tolerate autocratic and abusive rule.

Let me explain why I find fault with the Women's Lobby who are arguing in favour of decriminalisation of the crime of abortion and why their contention is flawed.

First, abortion is a serious crime. Essentially it entails the termination of human life. It is of the same nature as other life terminating crimes such as genocide, homicide, femicide, infanticide, and killing the President of Malta (amongst others). All these crimes, apart from abortion, attract a very long term of imprisonment. Abortion, on the contrary, attracts a lesser punishment of between eighteen months to three years imprisonment. The crime of abortion is punished only by a custodial penalty, not by a fine. In certain circumstances (where the punishment is of less than two years imprisonment), a suspended sentence may be inflicted.

Second, if abortion is decriminalised, not depenalised, the result is that abortion will no longer be a criminal offence and it will become normal regular conduct. If, on the contrary, abortion is depenalised, it will still be punished, not as a criminal offence but as an administrative offence. As administrative offences do not admit the imposition of custodial sentences, then no imprisonment would be inflicted in the case of an administrative depenalised offence but some other non-custodial punishment such as a fine, conditional discharge, absolute discharge, community service order, probation, etc.

Third, the Women's Lobby are favouring decriminalisation, not depenalisation. Consequently, abortion will neither attract a criminal punishment (custodial or otherwise) or an administrative punishment (some non-custodial punishment). And they appear to favour decriminalisation for all forms of abortion whatsoever, be it of a foetus or an embryo, including situations where only a few hours are left before the pregnancy is brought to term.

Fourth, the juridical nature of abortion is similar to the above mentioned -cides: genocide, homicide, femicide, and infanticide as well as killing the President of Malta. Abortion and all these crimes involve the termination of human life in all its instances: prior to birth (abortion), up to one year after birth (infanticide), and from one year upwards throughout all the stages of human development (homicide, femicide). Nevertheless, the law already allows a lighter custodial punishment for abortion (eighteen months to three years imprisonment), and for infanticide that is a form of wilful homicide but the maximum punishment is of not more than twenty years imprisonment. Homicide, femicide, genocide, and killing the President are all punished with the maximum punishment of life imprisonment.

Fifth, to decriminalise abortion, a form of termination of human life, would mar with the punishments inflicted for the other -cides and killing the President, that admit very prolonged terms of custodial punishments - twenty years or life imprisonment, although in the case of infanticide the Criminal Code does not impose a lower punishment - 'a term not exceeding twenty years' but still considers infanticide as a form of wilful homicide. So a judge cannot, for instance, impose imprisonment for one day in the case of an infanticide as the court will not be respecting the proportionality of the crime's harm to society in terms of the Criminal Code equivalence to homicide.

Sixth, being a form of termination of human life, the punishment of abortion in terms of its duration of imprisonment is quite on the low side when compared to the other -cides and to the offence of killing the President. To go below that punishment as in the case of depenalisation would imply that killing a human being will now be punished by a conditional discharge, an absolute discharge, a fine, a community service order, a probation, or some other non-custodial form of punishment. This would be quite ridiculous to argue. To remove entirely the criminal punishment and the administrative punishment will mean that abortion would be legal in the same way that it is legal to resort to another form of termination of human life measure such as excessive smoking and drinking, and drug abuse.

Seventh, nevertheless, the Women's lobby - possibly though this might not be necessarily the case - would not want that an abortion be allowed during the seventh, eighth, or ninth month of pregnancy. Should this be the case, then they still have to somehow punish - criminally or administratively - those women who abort a few weeks, days, hours, or minutes before the pregnancy comes to term.

Eighth, the Women's Lobby have to determine the legal status of a foetus and an embryo. Are these human beings or are they a bundle of cells? Are they human beings in the making or not? Do they enjoy human dignity? Are they living or animate creatures of nature? Should the foetus and/or the embryo enjoy any rights at all when still in the womb? For although one is discussing here the criminal law implications of abortion, there are also civil law and human rights law implications that have to be addressed.

Ninth, the Women's Lobby are proposing 'a response centred on support rather than punishment'. Now support and punishment are not mutually exclusive as the Women's Lobby contend. They can - and in reality do - go hand in hand. If one were to generalise this argument, then the implication would be that all criminal offenders should be supported but never imprisoned. Now there are situations where this argument can never work as in the case of serial killers, serial rapists, excessively violent criminals, recidivists, etc.: one cannot allow these prisoners to benefit from non-incarceration rehabilitation remedies such as probation, conditional discharge, absolute discharge, etc. for the harm these prisoners commit to society is beyond proportion and uncontrollable.

So the determination that has to be arrived at is: how big or small is the harm that abortion brings to society? The abortionists will probably argue none, because they consider the wilful destruction of human life of a vulnerable person as a personal private matter. It is up to the woman who should decide the fate of a bunch of cells, not the courts. But, from the other side of the coin, is not a foetus a human being? Does it not enjoy human dignity? Should not its vulnerability entail that it be protected from a life-terminating decision that the carrier might take? What value is the abortionist give to life, whether of human cells, the foetus and the embryo? For, if society respects, a dead body and the reputation of a dead person, why should it not respect living human cells, foetuses, and embryos?

If a foetus is not a human being then what will stop an abortionist from arguing that a person with disability is not a human being and, in agreement with Hitler, advocating their murder? And if a particular race is considered to be subhuman - like the Jews for Hitler's final solution - what will stop an abortionist from arguing that the Jews are not human beings as they are subhuman and deserve to be killed en masse? And what will stop the abortionist from arguing that indigenous peoples or colonised people are savages and uncultured and should be enslaved or re-educated (read indoctrinated)? Once the floodgates of hell are opened, there would be a point of no return back to human civilisation.

A bunch of cells, a foetus, and an embryo are all human beings in the making. To kill a human being in whatever stage of his or her physical development - foetus, embryo, infant, teen, adolescent, adult, and senior citizen - is a regressive step in the progressive development of civilisation as it dehumanises the human person and disrespects the dignity of a human being. It is evil as much as all the other -cides are evil and should therefore be subject to criminal punishment. But, as the perpetrator of the crime of abortion is a human being, she still has to receive all the necessary physical, psychological, and mental support both when in prison and, if need be, afterwards.

If six million Jews were butchered by the Nazi regime and if, according to WHO statistics, 73 million induced abortions take place worldwide every year, the figure of the Holocaust pales into insignificance when compared to the WHO yearly statistics. So abortion is by far more serious than a homicide or a femicide or killing the President because it has transformed itself into a collective crime - like genocide - and its occurrence as the WHO number shows is stratospheric.

Clarity is required from the Women's Lobby as their proposal raises more serious concerns that it appears to solve. At the moment, I am at a loss at understanding their philosophy, logic, consistency, coherence, and cogency behind their proposal to decriminalise the crime of abortion.

Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta