Religion and the 1921 Malta Constitution

Author: Mgr Archbishop Charles J. Scicluna Publisher:Kite Group, 2019

Extent: 342 pages

The flow and ebb of the history of religion and politics, faith and Constitutions throughout Malta’s chequered history is a fascinating subject. Malta’s strong Catholic cultural background is doubtlessly the fruit of nationalism. In the same way as other Catholic countries such as Poland or Ireland considered their faith to be a means of identity, so in Malta the Catholic religion was a means of national identity, a national DNA, so to speak, against foreign intrusions. Even the mere holding of a series of lectures and sermons open to the general public by Protestant Ministers in a public theatre in the early twentieth century, stirred a thorny controversy between Church and the British colonial authorities. However, apart from some sporadic incidents, such as the mixed marriage controversies which caused the holding of mammoth monster mass meetings at the Granaries, the British rulers, unlike their French predecessors, were careful not to intrude in religion matters at all, though they insisted on freedom of all religions in Malta.

Mgr Charles J. Scicluna’s treatise on the subject of the religion clause and the 1921 Constitution analyses the events leading to the granting of self-government Constitution and the issue whether the supreme law of a British colony should contain a State religion clause. Mgr Scicluna is eminently placed, having graduated in both law and theological studies, to analyze such a subject giving a historical, political and ecclesiastical view of the pre-1921 events. He takes us through the arguments made for and against the inclusion of a religion clause during the debates of the four sessions of the National Assembly (1919-1921) presided over by Dr (later Sir) Filippo Sciberras. Indeed, in spite of the Assembly’s proposals, when it came to the drafting of the first self-government Constitution in 1921, much to the dismay of the country leaders and intelligentsia, and contrary to the will of the National Assembly, religion was not included in the written Constitution. Indeed, the Bishops of Malta and Gozo, according to the author, immediately lamented: that the Constitution “does not carry the Cross of Jesus the Saviour”, in other words that it does not contain the ‘Religion of Malta’ Declaration.

This led to the enactment of an ordinary law, the Religion of Malta Act 1922, one of the first laws passed by the two chambers (Senate and Legislative Assembly) of the new legislature, based on the National Assembly Proposal. As Scicluna states, such proposal: “was approved by the Commission unanimously and without discussion. It was only this formulation that met the approval of the National Assembly in the historic Third Session at Villa Gourgion, Lija, on 8th August 1919. …the formulation, first present in Mgr. Panzavecchia’s Second Draft (15th July 1919) was adopted for good in the Maltese debate on the religious question. It is the formulation that has been preferred and that has withstood our constitutional meanderings during the last sixty-five years (1921-1986).”

Mgr Scicluna reviews the actions of the main political players dominating the political scene at that time namely, the traditional two Nationalist factions the Unione Politica Maltese headed by a cleric, Mgr Ignazio Panzavecchia and Enrico Mizzi’s Partito Democratico Nazionalista , as well as the pro-British Constitutional Party led by Jesuittrained Gerald, and the newly founded Labour Party within whose ranks militated several clerics such as Mgr (later Archbishop) Michael Gonzi and Canon Bugelli. The author raises the perennial question of the real meaning of the state religion provision, an issue which is still relevant today as shall be seen. He states: “The Senate Debates crystallize the state of the issue but o er no definite solution to the question of what the legislature ultimately wanted the Religion of Malta Act 1922 to mean. There are roughly two positions in the matter. Many of the lay members of the Senate who intervened in the debates referred to the Act as simply declaratory; the ecclesiastical members are clear on insisting on a directive or informative character of the Act.”

The situation remained the same with no religion clause included in any Constitution under British rule between 1921 and 1964; not even the 1961 Constitution which in preparation for the granting of Independence referred to “the State of Malta” even though Malta was still a colony, contained any reference to the Catholic Religion.

The negotiations leading to the 1964 Independence Constitution, however, were partly dominated by the religious question. Not only did the ‘Umbrella Parties’ – the phrase coined to describe those political parties who in the 1962 general elections had expressed commitment, adherence to, and guidance from, the Catholic Church in the turbulent years of the politico-religious dispute – insist on an inclusion of a State religion clause; but they were in disagreement between them as to how far one should protect the Church from interference in its affairs; indeed, the first draft of the Constitution contained a clause whereby anything done by the Church in pursuance of its functions could not be inquired in any court of law. Herbert Ganado even presented his own draft which provided that: “The Roman Catholic Religion and the Roman Catholic Church in Malta shall continue to enjoy all those rights, privileges and prerogatives in accordance with the laws of Malta and the Code of Canon law, obtaining on the appointed day (i.e. 21 September 1964).”

Finally following behind the scenes contacts between the British Government and the Holy See, there was inserted article 2 as follows:

(1) The religion of Malta is the Roman Catholic Apostolic Religion.

(2) The State guarantees to the Roman Catholic Apostolic Church the right freely to exercise her spiritual and ecclesiastical functions and duties and to manage her own affairs.

In 1974, this section was amended. The first sub section was retained though it did not remain entrenched. The second sub-article was, however, substituted with the following two sub-articles:

(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.

While the first and third subarticle can, after 1974 be altered by a majority of all the members of the House of Representatives, the second part was entrenched viz. any alteration requires the approval of two-thirds of all the members of the House. Consequently, if the first part, namely the proclamation of state religion were to be amended or repealed by an absolute majority of the House, the second part, whereby the Church has the right and duty to teach what is right or wrong is entrenched, requiring a qualified majority to change.

In recent times, the question has been raised whether in this time and age one should still retain a ‘state religion clause’ in the Constitution. Just in case anyone thinks that this provision is anachronistic or unique only to Malta, it is pertinent to point out that there are at least two other EU countries whose Constitution, not only contains a state religion clause, but also one using flowery language to stress the point; such as the Irish Constitution, which even after the introduction of abortion in 2018, still proclaims in the very first sentence: “In the name of the Most Holy Trinity from Whom is all authority and to Whom ,as our final end, all actions of men and States must be referred”; and the Greek Constitution in article 3 still states that the prevailing religion in Greece is that of the Eastern Orthodox Church of Christ and “that the Orthodox Church of Greece acknowledging our Lord Jesus Christ as its head is inseparably united in doctrine with the Great Church of Constantinople …”; not to mention that in the United Kingdom, the Head of State, the British sovereign is also ex officio the Head of the Church of England.

An interesting constitutional question, which exists even today is: are these faith declarations, mere declaratory or do they carry more legal weight? One constitutional jurist holds that article 2 forms part of our constitutional DNA, like our national language or flag, and any act directly running counter to such identity factor e.g. the law abolishing the crime of vilification of religion, is unconstitutional. A more moderate approach was adopted by the Constitutional Court in the only judgment since 1964 relating to article 2. In that case a Muslim prisoner alleged that not granting parole to persons serving life imprisonment, ran counter to the Catholic values and virtue of mercy, indirectly enshrined in the proclamation of the Catholic religion as the State religion in article 2.

The Court dismissed this argument and stated: “Article 2 of the Constitution is not a source of subjective rights but give legal recognition to a state of historical fact, namely that the Roman Catholic Apostolic Religion is that embraced by a large majority of the Maltese people.

The State of Malta, however, according to the Constitution is not founded on the said Religion, but on the principles of democracy, work, and respect for fundamental rights. While the teachings of the Catholic Religion were doubtlessly a strong source of inspiration to the Maltese legislator along the years, the basis of the legal system of the State of Malta are democracy, work and the fundamental human rights as interpreted with authority by this Court enlightened by the teachings of these international entities established to supervise the implementation of the obligations assumed by Malta in international treaties and conventions amongst which the European Convention on Human Rights. Consequently, while this Court certainly appreciates and greatly respects the teachings of the Catholic religion, even because it is recognized by the Constitution as the religion of Malta, it is not bound in its judicial role by what is taught by the said Religion, while it has to execute its functions according to the Maltese legal system and the international obligations assumed by the State of Malta.”

Be that as it may, my view is that there is nothing in the Constitution which is futile or superfluous, and that although article 2 on its own does not create rights or obligations, it can serve as a means of interpretation in case of doubts regarding the interpretation of the justiciable provisions of the Constitution such as

Chapter IV, the human rights chapter; In this respect it is important to note that the non-justiciable Declaration of Principles in Indian Constitution, has been interpreted as not being meaningless; indeed, these principles were described, even if not enforceable alone, as “the conscience of the Constitution” by the Indian Supreme Court. The eminent Indian jurist Durga Das Basu commented: “According to the rules of harmonious construction, all parts of the Constitution must be read together, so that in the matter of interpreting the mandatory provisions, the court cannot ignore the Directive Principles.”

One can similarly argue that article 2 is part of the Constitution and cannot be ignore, even though by itself it does not create autonomous obligations and rights. Such article can, for instance, be used to correctly interpret the meaning of the word “person” in the human rights Chapter, in case of doubts arising as to its proper interpretation.

Mgr Scicluna’s research is not only a study in history; it also analyses the political stratagems and maneuvers to bypass the British Protestant attitude of avoiding an established church being recognized in the constitution of a British colony. But it also a legal work searching for a proper meaning to the religion clause, not only in theory but also in practice. Charles Scicluna’s work is a helpful aide, to any person interested in the perennial interaction between religion, politics and the Constitution in the Maltese modern era.