The so called 2016 “equality bills”, being debated in Parliament, are in conflict with the European Union Treaty of Lisbon.

In a 2016 position paper, cited by Tonio Borg in this Times of Malta article, the Church expresses concern that the transcribing of this EU Directive “will apparently be used by the Maltese government to restrain the freedom which the Catholic Church, other Churches and other religious organisations currently have in the administration of their respective institutions.”

This would in effect be an ‘administrative illegality’ that originates from a political purpose, since an EU Directive must be transcribed faithfully respecting its spirit and objectives. The transcription of Directives by national governments is scrutinised and audited by the EU Commission. In such cases the EU Commission would ask the member state to affect changes.

Tonio Borg posits that ‘Interfering in a Church school’s curriculum when it comes to providing a particular faith-based education in all subjects is also an infringement of the European Convention on Human Rights’. Indeed, certain ‘provisions’ of these bills, as distinct from EU Council Directive 2000/43/EC et al, and the degree of ‘supremacy’ that the bills enjoy over “any law, practices or measures” may be interpreted to be null and void if it is proved that the bills are in contravention of the EU Treaty.

One cannot but question the background and reasoning behind such anti-societal and anti-religious manoeuvres earmarked to jeopardise the democratic freedoms of a state that recognises Christianity (Catholicism) in its constitution. Irrespective of the justified and long outstanding government legislation on selected societal minorities, the past years were characterised by dubious notions of ‘ossified’ neoliberalism veering towards a subtle promotion of secularism. It is a government that according to Jan-Werner Muller translates to “an articulated and sophisticated justification of a vanguard-party dominance” (2013) as confirmed by the prime minister himself in his acclamation of a governance by majority-rule.

The second sentence of the preamble of the Treaty stipulates that this “Union draws inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law”.

This could be interpreted as a compromise on the issue of whether the Treaty should have included a reference to Europe’s “Christian roots,” “the struggle between religious and secular actors. However, generally speaking, it provided better opportunities for the churches to exercise their influence on the supra-national European level and confirmed the strong presence of the religious component in European identity.” (Mudrov, 2011)

The explicit declaration that the Union is “inspired” by a “religious heritage” that historically has fulfilled the function of reaffirming a “primacy of the spiritual” over politics is further emphasised by the fact that the Treaty makes no mention of the principles of “laicité” or of “secularism”. (Invernizzi, Accetti, 2015)

The Treaty of Lisbon, together with other Union treaties does not claim to govern relationships between politics and religion in a direct way. This is left to the competences of member states.

This notwithstanding, the fact that competences in such matters have not been conferred to the Union does not mean it has no role in structuring these relationships.

Article 2.5 of the Treaty specifies that “In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out action to support, coordinate or supplement the actions of the member states without thereby superseding their competence in these areas.” These areas include culture, education and social policies.

Political thinkers and historians interpret this arrangement as a supra-state authority with the function of imposing limits on what the member states have the right to do in this domain in accordance with what is enshrined in the Treaties approved by every member State.

In fact, the European Court of Justice and the European Court of Human Rights regularly arbitrate on conflicts related to religious freedom and issues concerning the role of religions in civil society.

Article 17.1 establishes that “The Union respects and does not prejudice the status under national law of the churches and religious associations or communities in the member states.”

While “not prejudicing” the status of churches and religious associations under national law refers to the principle of non-interference, case law of the European Court of Justice and the European Court of Human Rights, places emphasis on the verb “respect” that the Courts interpret “meaning more than ‘acknowledge’ or ‘take into account’. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State.” (ECHR in Folgero v Norway)

Article 17 goes further: “Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.” This sentence is very significant, as it implies that the European Union recognizes a particular status for religious organizations in civil society, by virtue of their “specific contribution” to the culture and political identity of the groups that compose it.

The specific recognition of “churches” in the context of this “Dialogue with Religions, Churches, Humanisms” also provides some indication of the influence of cultural and historical factors. Links between religious bodies and the Union were placed on a more formal basis in 1992 when the Commission established a programme called “A Soul for Europe” whose aim was described as “giving a spiritual and ethical dimension to the European Union”. The facilitation of religious contributions to policy making was not merely a result of a desire to accommodate religious perspectives within EU law and policy but was also seen as an opportunity to use religious organisations to develop a European Civil Society which was regarded as necessary to sustain European integration. Such principles need to be enshrined in Malta’s Constitution.

In short, this boils down to the lawful political initiative that a public authority effectively not just “respects” the identity of the organisation with respects to general principles of our ‘living’ but to effectively encourage and assist these organisations in executing their contribution to society.

Malta, like other EU countries including Ireland, Germany and Italy, could be considered to have what Samuel Moyn (2015) refers to as a form of “religious constitutionalism”. The establishment of a constitutional court empowered to strike down legislation taken to be inconsistent with such principles, effectively encapsulates the democratic exercise of political power within a set of religious parameters, guaranteed and enforced by an institution of the state itself.

Malta’s Constitution, that provides for a Constitutional Court, establishes the Roman Catholic faith as the country’s religion. The authorities of this church have the duty and the right to teach which principles are right and which are wrong. (Art. 2)

Emphasis is placed on the words “duty” and “right” of the church to teach its “principles”. “Principles” in its wide context stands for belief that influences behaviour resulting from, but not limited to, morals, ethics, standards, probity, conscience as enshrined in the Christian faith and the Catholic Church ethos.

Christian inspired democracy is the raison d’être of today’s European Union and its structured institutions and treaties. It is relevant to point out that after the second world war, Western European countries were determined to create a political system where democracy is not understood in terms of a notion of popular sovereignty, but rather in terms of a countervailing conception of popular autonomy. These concepts have prevailed for decades and have been reconfirmed in the Union’s most recent Treaties.

Malta has endorsed and agreed to these Treaties upon its membership to the European Union. The party in government that believes blindly in majority rule is expected to adhere and to execute the governance of these islands and its people in accordance with EU Treaties and with the EU belief in the churches and religious contribution to society.

Any attempts by government to pass legislation along secular notions, even if in good faith, need be challenged forthwith.