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.

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.

@ 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.

Luigi, your reasoning is right.

Save that divorce is not a human right.

It is a civil right.

The two notions are different.

@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?

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.

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?

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.

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

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