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.




19 Comments Comment

  1. Paul Bonnici says:

    We should have referendum on whether we should pay taxes and another referendum to reduce the salaries of MPs.

    I wonder what the results would be!

  2. Mario Frendo says:

    When people in Malta talk about how those with money can divorce, usually they are referring to the shady practices of the Catholic Church with respect to the giving of annulments and so forth.

  3. Hypatia says:

    I consider this a very good, cool-headed, clinical analysis based exclusively on rational thinking. I suggest it should be read by those who are proposing a referendum.

    My feeling is that the referendum is being proposed not in aid of democracy but to thwart it. Democracy cannot exist without personal rights and divorce is a personal civil right.

    The absence of divorce legislation is denying a right to those who want to use it. Divorce legislation, on the other hand, will not deny anyone any right or even impose on anyone, who refuses to accept it, the use of that right.

    Many oppose divorce on religious grounds but will not admit to it because they know what the response would be from those who do not care for religion.

    They therefore hide behind the pretext of the “common good” as if they are the sole arbiters of what the common good consists of. This attitude inevitably implies that the whole world (except Malta and The Philippines) either does not know what the common good is or it refuses to strive for it.

    The geocentric vision of the universe has long been discredited but this does not deter the opposers of divorce from looking at Malta as the centre of the world, a besieged fortress radiating righteousness and standing alone in defiance of the forces of darkness.

    When are we truly going to wake up to reality and see ourselves for what we are?

    • Joethemaltaman says:

      Malta,
      Questo e’ l’ombelico del mondo
      E’ qui che c’e’ il
      Pozzo dell’immaginazione
      Dove convergono le esperienze
      E si trasformano in espressione
      Dove la vita si fa preziosa
      E il nostro amore diventa azioni
      Dove le regole non esistono
      Esistono solo le eccezioni

      http://www.youtube.com/watch?v=3ZY3bm93Wk4

  4. red nose says:

    The great majority of voters here in Malta do not know how to spell the word “referendum” let alone understand its implications. The sheep will always follow the shepherd. So the political “leader” against will tell his followers to vote No, on the other side, the “leader” in favour will tell his followers to vote Yes; – is has always been like that and that is how it will remain.

  5. o.galea says:

    Hi Daphne…
    I beg to differ re “money has nothing to do with it” part.
    A close relative of mine not only got a divorce but has since remarried. (second marriage is a state marriage). Both parties in the first marriage are maltese and lived here all their lives.
    Second marriage is recognised by the state and all that goes with it. They both live here too.
    Have no clue how much all that cost!

    [Daphne – It’s impossible. There is obviously something you do not know – that one of them has two passports, for instance, which would allow him/her to fake residency with a bit of planning. Or they don’t have a divorce at all, and got their marriage annulled in the Maltese court. You can’t buy a divorce. Or rather, Malta doesn’t recognise divorces which are bought, from the jurisdictions which sell them.]

  6. interested bystander says:

    What about a referendum on making sodomy illegal?

  7. Min Weber says:

    DAPHNE: STOP SUGGESTING THAT GOVERNMENTS CAN COME UP WITH LEGISLATION WHICH LACKS A POPULAR MANDATE.

    YOU ARE COURTING THE RETURN TO DICTATORSHIPS!

    Are you becoming a Progressive, or what?!

    • Joseph A Borg says:

      “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” — Thomas Jefferson

    • Joethemaltaman says:

      What utter nonsense. Governments do not need a popular mandate for every single piece of legislation. An electoral manifesto is just an outline of policies which that particular party intends to follow throughout the legislature. These policies can change if circumstances so dictate.

      A week is a long time in politics, just imagine what five years are. The PN was elected on the ticket of reducing taxes and budget deficit, along came a global recession, and look what is happening now.

      Likewise, if a piece of legislation becomes necessary, it can and should still be passed even though it was not included in the manifesto.

      If one believes that because the electorate voted for a particular party’s manifesto than that is what will be turned into law, it could be argued that it is undemocratic for the opposition to vote against any bill arising from it because it would be trying to deny the electorate the legislation it voted for.

      Regarding divorce the PN does not need a mandate simply because it is not the PN who are presenting the bill, but a private member. That is why it is a private member’s bill, because it does not arise from any party policy or manifesto.

      All this talk of dictatorship is pure crap.

      • Min Weber says:

        @Joethemaltaman

        “Governments do not need a popular mandate for every single piece of legislation”

        That is right.

        But some pieces of legislation do need a referendum.

        Plus, my friend, do you think you’re bright when you say that an argument is crap. An argument is either valid or invalid.

        Just like these two arguments of yours, which are as invalid as can be, and I will tell you why.

        Argument #1: “Likewise, if a piece of legislation becomes necessary, it can and should still be passed even though it was not included in the manifesto.”

        Why it is invalid: Who decides that a piece of legislation is necessary? Parliament? Government? By which standard? On which basis? My friend, democracy means that the people is sovereign. Now try to figure out what that means.

        In a dictatorship the rulers decide what is necessary. In a democracy, the people.

        Argument #2: “If one believes that because the electorate voted for a particular party’s manifesto than that is what will be turned into law, it could be argued that it is undemocratic for the opposition to vote against any bill arising from it because it would be trying to deny the electorate the legislation it voted for.”

        Why it is invalid; The opposition has to keep to its own manifesto.

        We in Maltese do not really understand these things because we have a two-party system.

        But we all followed the negotiations between the Conservatives and the Lib Dems in the UK. What do you think they were negotiating? The colour of the new curtains in 10 Downing Street? Whether they should all be wearing ties of the same colour since they have a coalition? Stop being insular – the world is not just Malta!

        Please don’t use “crap” again. The reason is blatantly obvious, isn’t it?

  8. Adrian Vella says:

    Well said, Daphne. The government is trying to shy away from a crucial decision – a pass-the-parcel sort of thing. And had it not been for Jeffrey Pullicino Orlando – who has enough balls to do it – no one would have. Hats off to him.

    Why make this such a national issue when it is a basic human right? Just legislate, even if it was not in the electoral programme. An increase in taxes was not on the agenda either.

  9. Luigi says:

    As a rule, I am dead set against governments resorting to referenda on any matter of human or civil rights. In my view it is a cheap and cynical approach, that could set a terrible and dangerous precedent.

    Moreover, the toughest questions are precisely the ones that we expect, and need, our well-paid and well-pensioned parliamentarians to wrap their noggins around and actually deal with.

    This whole business of divorce demonstrates that there are several weaknesses inherent in Malta’s constitution. The insanity of privileging one religion over all others or, preferably, none, for starters. The sheer lunacy of granting to the Curia, the “duty and the right to teach which principles are right and which are wrong,” presumably notwithstanding the fact that from time to time the interpretation of right and wrong on the basis of Catholic dogma may blatantly conflict with international norms, or the various international conventions to which Malta is a party,

    There may be another flaw in the constitution. This is not the first time that a democratically elected government has been faced with a challenging question of rights, knows what it should do, but also knows that doing the right thing would result in the immediate loss of valuable votes among the more reactionary or conservative elements within their party.

    In other jurisdictions, governments have the power to present the highest court of the land with a “constitutional reference”, which might ask the court to consider, for example, whether the perceived human right really exists, whether there is an ongoing violation of that human right, and whether a specified course of action would remedy that violation.

    The nice thing about this kind of mechanism is that upon issuance of the court ruling, the governing party is then free to pass the law in question, while telling their constituents that they were essentially ordered to do so by the highest court in the land.

    I stand to be corrected, but to my knowledge, this option is not available in Maltese law (although I am certain that it was available to colonial Malta by way of recourse to the Judicial Committee of the Privy Council of the House of Lords). This defect is especially problematic when a minority right is at stake, and none of the main political parties is prepared to take a real stand on the issue.

    There is no question that the preferred course of action here would be for the present government to introduce, and pass, legislation that brings Malta in line with the rest of the civilised world on this issue.

    The truly sad thing is that this is a golden opportunity for the PN to stake out its territory among the camp of the liberal and the socially progressive.

    If only the governing party could find the “cojones”, perhaps we could actually see the next election being fought on the basis that: (i) PN will promise to introduce and pass divorce legislation as part of their electoral platform; while (ii) Joey and his team will also promise to introduce divorce legislation, but will put it to a free vote. That would separate the men from the boys, for a change.

    But of course that will never happen.

    Since Malta’s politicos are not yet ready to take a firm position on this matter, then perhaps they can at least add divorce to the growing list of issues under consideration by the Social Affairs Committee, or some other parliamentary committee, with the express mandate that the committee must conduct broad and meaningful consultations with representatives of various sectors within civil society.

    Under the circumstances, I wonder if a referendum on this issue is not such a bad alternative. For all of their hysteria, neither the bishops nor the kappillani (nor even the ubiquitous Joe Zammit of timesofmalta.com fame) will follow voters into the polling booth to shame or bully them into voting “no”.

    Quite frankly, I suspect the some of those voters who are now most vociferous and public in their objection to everything related to the “D-word,” whether out of fear of upsetting their spouses or being denied the Eucharist, might actually vote “yes” in the privacy of that polling booth.

    Calling a referendum on divorce might also have some unexpected results. Is it possible that a clearly-worded referendum question would attract otherwise disaffected and apathetic young voters to show up at the polls and exercise their democratic rights?

    Would it encourage Maltese voters to abandon their typically blind, reflexive, uncritical and apathetic, intensely and pervasively partisan, “my-party-never-changes-and-my-party-is-always-right” approach to voting?

    Think about it: the two leading national parties continue to vascillate between: (i) issuing ineffectual, lukewarm and ambivalent responses to the question of divorce legislation; to (ii) reacting with thinly-veiled hostilility, emboldened by the fire and brimstone prognostications of the utterly predicable Curia. This is one referendum that will not offer Maltese voters the clear opportunity to vote “Lejber, ghax huma kontra” or “PN, ghax huma favur”. Perhaps voters will actually have no choice but to think for themselves, for a change.

    Could it be that on this one issue, the Maltese public, in vast numbers, will indeed vote their conscience in this referendum. If so, what are the chances that this would steer them toward liberty and fairness?

    • Min Weber says:

      Luigi, your reasoning is right.

      Save that divorce is not a human right.

      It is a civil right.

      The two notions are different.

      • Luigi says:

        I disagree. See Article 16 of the Universal Declaration of Human Rights:

        “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.”

        This article is not limited in application to spinsters and bachelors, widows and widowers. It applies broadly to all men and women of full age, irrespective of prior marriages and prior divorces.

        Article 16 continues: “They are entitled to equal rights as to marriage, during marriage and at its dissolution….”

        Consider how Malta actively discriminates against its own citizens and residents whose marriages have failed vs. those persons who have residency privileges anywhere else in the world. Members of the first group continue to be denied the right to a divorce and the right to remarry, whereas members of the second group have their foreign divorces readily recognized by Malta. One could argue that Malta is not discriminating as between men and women at the dissolution of their marriages, but one cannot deny that Malta is discriminating between the first and the second group, on the basis of nationality.

        Article 16 goes on to state that: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Note that this privilege is not restricted to the ideal Catholic family, where neither spouse has been previously married and divorced. This entitlement to protection includes, in my books, access to all the civil and legal protections that come with the covenant of marriage, should the two spouse choose to go down that road, regardless of their prior marital history.

        The right to marry, the right to equal rights during marriage and at its dissolution, the entitlement to protection as described, are all “inalienable rights of all members of the human family,” according to the preamble of the UDHR. It is frankly settled law that the UDHR forms part of customary international law.

        By extension, divorce must be a human right.

      • Min Weber says:

        I would disagree with your last comment: “By extension, divorce must be a human right.” The conclusion does not follow from the rest of the argument.

        The Human Right is to marry even upon the dissolution of a previous marriage.

        It is clear from the text that the dissolution of the marriage is not a human right. For the simple reason that dissolution can occur even by death.

        The situation being envisaged in Article 16 is the case of people who are not allowed to remarry upon divorce, upon death of a spouse, or upon any other circumstance.

        You would have been right in your interpretation had the wording been something like this: “They are entitled to equal rights as to marriage and, during marriage, to its dissolution.” Instead, the Article says: “They are entitled to equal rights as to marriage, during marriage and at its dissolution.”

        I agree that the UN Declaration is a cofidication of customary international law. That is the reason why I have been arguing that Human Rights exists independently of States. HR are not created by States; they are merely codified – because, as you rightly point out, they form part of customary international law.

        And since divorce is not a human right, but a civil right, its legislation requires popular mandate, because it would not be a codification of customary law but an ex novo creation of a law.

  10. Silvio Farrugia says:

    I agree with you, Daphne, but our politicians and the church would probably get a shock after a divorce referendum! Most families have separated members and many recognise the hardships.

    Also anybody who has a brain realises that legal separation is worse then divorce. We can see it all around us. It is only the usual hypocrisity on this island, pretending in front of other nations that our family is stronger then theirs and also that we are so so Catholic.

    Remember also that the people are more educated nowadays and will see the ploy of some of those against divorce. Divorce is a must.

    • Min Weber says:

      @ Silvio Farrugia

      “our politicians and the church would probably get a shock after a divorce referendum! Most families have separated members and many recognise the hardships”

      Ah! Finally, some sense!

      Prosit.

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