When a referendum is undemocratic

Published: July 11, 2010 at 10:31pm

A poster from Ireland's 1986 referendum to remove the constitutional ban on divorce

A poster from Ireland's 1986 referendum to remove the constitutional ban on divorce

I am tired of hearing people claim that the divorce issue should be settled by means of a referendum.

Divorce is a civil right and you do not vote on civil rights. They are beyond debate and beyond dispute.

Those who think otherwise should at least attempt to understand how crazy they sound to the rest of the world when they try to explain the situation in Malta, or to justify their position.

In the eyes of other Europeans, Malta’s democratic status is called into question by the absence of divorce. They cannot conceive of a democracy in which divorce is not permitted. If there is no divorce, then there is no real democracy. And they are right.

An increasingly small minority of people in Malta do not understand that divorce is beyond discussion and that it is no longer a matter of opinion. But that is their problem. I am certain there are still some people around who think that Maltese women shouldn’t have been given the vote in the aftermath of World War II.

And I know for a fact that there are many who think that removing the husband as legal head of the family and sole administrator of the family unit and its property – in 1993, I hasten to add, and not 1903 – was the death-knell of l-ghaqda fil-familja. Now that husbands can no longer take unilateral decisions and must not only consult their wives but obtain their consent, those wives have got all sorts of ideas above their station and there’s no end of trouble.

What a shame. We should have put the ‘equal partners in marriage’ legislation to a referendum vote, shouldn’t we? After all, it affected the lives of men, so they should have been allowed to vote on it, along with the women.

But fortunately, it didn’t even occur to the government to ask the electorate whether they wished to retain the husband as head of the family (Tixtieq li r-ragel jibqa l-kap tal-familja? Iva/Le) because doing so was just inconceivable. You don’t use a democratic tool to curtail or hinder democratic development.

You don’t ask the electorate to vote on whether wives should continue to have the status of a child in their own marriage. Parliament just went ahead and legislated. And similarly, parliament should just go ahead and legislate for divorce.

How is divorce more important, so important that it merits a referendum and special voting status, than the 1993 legislation which fundamentally changed the nature of marriage? Or than that shocking piece of regressive legislation, also in 1993, which went back to the pre-1975 situation and gave marriages by the Catholic rite legal status once again, and by means of which the state ceded jurisdiction over declarations of nullity to the Catholic Church tribunal?

Those pieces of legislation back in 1993 had wider and deeper effects on the family unit and on the nature of marriage than the introduction of divorce ever will.

You could safely argue, and I am about to do so here, that the rash of failed marriages which Malta has experienced since can be traced back directly to the ‘equal partners in marriage’ law.

Nothing in Maltese cultural, familial and social conditioning prepares either wives or husbands for equal partner status. If it doesn’t do so now, imagine how much less prepared those were who married in 1950, 1970, 1980 or even 1990. They married under one legal regime and suddenly found themselves married under another.

Husbands who had been acting unilaterally, sidelining and ignoring their wife’s wishes and even her best interests, for 10, 20, 30, 40, 50 years were required overnight to take decisions in partnership with their wives, and they just couldn’t put up with it.

Wives who had never taken a decision in their lives found themselves signing on dotted lines and being yelled at by impatient husbands who couldn’t be bothered with explanations.

Husbands raged at bank managers who wouldn’t give them an overdraft without their wife’s permission. Then they raged at their wives if they refused that permission. Wives angry at husbands adopted a policy of non-cooperation.

Husbands angry at wives refused to release housekeeping money until those wives signed. And so it went until the marriage broke down completely.

The ‘equal partners in marriage’ legislation fundamentally changed the nature of the Maltese family unit in a way that divorce never can. Yet the Nationalists, who promoted that legislation and brought it before parliament successfully, are now behaving as though divorce is something ta’ barra minn hawn.

Did that legislation strengthen the family unit, or weaken it? It obviously weakened it, because the strength of the family unit as we knew it before 1993 was in a husband who called the shots and took the decisions and a wife who was powerless to object and who had no financial clout.

The trouble began when men found themselves forced at law to consult their wives and to seek and obtain their consent for a variety of actions. Lots of men couldn’t handle this change to their status and lots of women, when informed by the law that their status was no longer that of a bossed-about child, understood that there was much they could do and much they no longer had to do.

Those politicians who see in a referendum the solution to their dilemma are cowards who wash their hands of action. We have elected them to take decisions on our behalf. We have not elected them to pass the buck back to us.

Their understanding of democracy is scant indeed if they believe divorce is a matter of opinion and something to be voted on in a referendum. Would they also have put votes for women or the banning of discrimination against homosexuals to the test of a referendum? A referendum on divorce is no different.

As for those who cite Italy and Ireland as examples of divorce being introduced after a referendum, here are the facts. The Italian parliament legislated for divorce in 1970. No referendum was held, despite the Maltese urban legend to the contrary. Catholic groups in Italy then decided to collect enough signatures for an abrogative referendum.

They succeeded, and this abrogative referendum – which means a referendum to rescind a piece of legislation, as distinct from a referendum to bring a piece of legislation into being – was held in 1974. It was Italy’s first. The Italians turned out in force and voted No – that is, they voted to keep divorce legislation – by an unexpectedly large margin. The No vote was 59%.

In Ireland, quite unlike Malta, there was a constitutional ban on divorce. In Malta, the constitution can be amended only by means of a two-thirds vote in parliament. In Ireland, the constitution can be amended only by means of a referendum. Therefore, for purely legal reasons which had nothing to do with democracy or consulting the electorate, the Irish parliament could not legislate for divorce off its own bat, and a referendum had to be held to amend the constitution instead. Ireland held a referendum (twice) not to introduce divorce, but to remove the constitutional ban on divorce. It is a crucial difference.

MONEY HAS NOTHING TO DO WITH IT

I’d like to put a bit of a rocket under another irritating urban legend. This is the mistaken belief that if you’re Maltese and have money, then you can get divorced elsewhere, and so the current situation discriminates against those whose marriages have broken down but who have no money. It doesn’t.

Money does not get you a divorce. Residence in another country does. You can’t wave your Maltese passport and a cheque-book around in, say, Britain, Germany or France and get yourself a divorce. You would have to live there for the required length of time. How many people can do that, money or no money – just up sticks and go, transfer their life to another country, simply to get a divorce?

All this talk makes it seem like there’s some kind of ‘rich list of divorced people’ in Malta, but there isn’t. The divorces registered here tend to fall into two types: Maltese people married to non-Maltese who initiated divorce in their own country, and Maltese who lived elsewhere – Britain, Australia, the USA, Canada – and got divorced there. Money just doesn’t come into it.

This article was published in The Malta Independent on Sunday today.