Leilani Maldonado
The Constitution of 1964 establishes the Roman Catholic Church as the state religion. Malta is one of the most Catholic countries in the world and has one of the highest rates of church attendance, (Malta Today article) although a steady decrease in church attendance, especially among the young, points to a changing culture. In 1967, weekly Mass enjoyed an 82% attendance rate, which dropped to 73% in 1982, then to 52% in 2005.
Malta’s population of 410,000 is 98% Catholic. The other 2% of the population, made up mostly of foreign residents, consists of about a thousand non-Catholic Christians, three thousand Muslims, one thousand Jews, and a handful of Hindus. A number of Maltese practice Buddhism and Freemasonry, including some members of the Catholic Church.
While many diverse religions are represented among Malta’s population, the culture remains very much Roman Catholic. Approximately 365 Catholic churches are shared among the three islands, and are the cultural center of every town and village. There are also three Anglican chapels, one mosque, and one synagogue.
PART II: HISTORICAL BACKGROUND
Malta’s Catholic tradition harks back to the first century A.D., when Paul the Apostle shipwrecked on the isle of Melite, as recorded in Acts 27. Paul converted Publius, then the Roman governor over the island, and appointed him as the first Bishop of Malta.
A. Arab Rule
Little is known about the Christians in Malta after Publius. Arab invaders arrived in 870AD and destroyed much of Malta’s population. The islands remained mostly uninhabited for two centuries, until Arabs returned to colonize it in 1048AD. Although the Arab domination did not last long, its influence on Malta’s language endures to the present day: Malta is the only Christian European country where “Allah” is the name for God.
B. Return of Christianity
In 1091 the Normans swept south to conquer Sicily and then Malta, reinstating Catholicism as the official religion. By the late 1400s, Muslims were required to convert to Christianity or leave altogether.
In 1523 the Knights of Saint John, a chivalrous order dedicated to caring for pilgrims, were expelled from their headquarters in Rhodes. With the Pope’s approval, Emperor Charles V deeded Malta to the Order in perpetual lease. Soon the Knights ruled the island in fact as well as in name, defending it against Ottoman invaders, building churches and a hospital, and contributing to the arts. Their rule guaranteed the dominance of Catholicism in Malta for nearly three centuries.
C. Social Reform and Independence
As the Enlightenment spread across Europe, ideas of individualism and liberty came into conflict with the authoritarian governance of the Knights. In 1798, Napoleon assumed leadership of Malta, freed thousands of slaves, and put an end to the feudal system.
While many Maltese had welcomed Napoleon, they were less eager about the anti-Catholic French forces. Their practice of pillaging local churches led to a rebellion, in which Great Britain’s support enabled Malta to expel the French. At the people’s request, the nation in 1814 became a British Dominion. Under Britain’s 150-year rule, religious diversity and tolerance flourished. Malta became independent in 1964.
D. Jews in Malta
During Arab rule, a population of about 250 Jews lived in Malta. They flourished under Norman rule, until the Edict of Expulsion in 1492 forced them out of the country.
When the Knights of Saint John assumed power, some Jews returned on the belief that they would now be allowed to practice their religion. However, they fared even worse under the Order’s neglect, often being taken as hostages for ransom or subjected to slavery. Repression crippled the exercise of Judaism in Malta for three centuries, until slavery was abolished in 1798. Maltese Jews struggled to maintain a presence in Malta throughout the 19th and 20th centuries. In 2000, the help of foreign Jews enabled the construction of a synagogue.
PART III: LEGAL SOURCES AND BASIC APPROACHES TO RELIGION AND BELIEF
The Constitution of 1964 is the last in a series of stepping stones granting Malta increasing independence. It declares Malta sovereign and neutral, and reaffirms the Roman Catholic Church as the state religion. Nevertheless, it emphasizes respect for fundamental rights. Article 1 states that “Malta is a democratic republic founded on work and on respect for the fundamental rights and freedoms of the individual.” This declaration is reinforced by provisions in Chapter 4 that guarantee the individual’s right to life, liberty, equal protection of the law, and freedom of conscience and expression (Art. 32); freedom of assembly and association (Art. 42); and freedom from religious discrimination. (Art. 45)
While freedom of religion is ensured, equality of religions is not. Authorities of the Roman Catholic Church have “the duty and the right to teach which principles are right and which are wrong.” The Constitution compels all state schools to provide Catholic instruction, but allows individuals to opt out of religious instruction.
This dual characteristic of Catholic predominance and religious freedom also appears in the country’s criminal and civil laws. It is a crime to publicly vilify the Roman Catholic religion, and doing so entails a sentence of up to six months imprisonment. A similar provision exists for public vilification of any other religion, but that offense carries a lesser sentence of up to three months.
The state has entered several agreements with the Church in order to foster cooperation. These consist of incorporating the School of Theology within the University of Malta, granting to the Church the right to direct Church schools with autonomy subject only to the state’s general educational regulations, transferring ecclesiastical property to the state, and recognizing the civil effects of canonical marriages.
In most respects, however, the law affords equal protections to all religions. The Criminal Code adds sentencing enhancements to several crimes if motivated by discrimination against any religion, and it is illegal to impede the function of any religious service and to wear the ecclesiastical garments of any religion without authorization. It is a crime against humanity to commit a widespread or systematic attack against any religious group. The Civil Code prohibits preferential treatment toward religious adoptive parents. The Police Act requires officers to apply the law without discrimination against any religion. Moreover, the Ecclesiastical Courts Law clarifies that Catholic courts have no jurisdiction over temporal matters. These provisions ensure that the Church’s dominance does not engender discrimination against minority religions.
The state further ensures religious liberty for its citizens by participating in international treaties. In 1949, Malta joined the Third and Fourth Geneva Conventions, which established the right of prisoners to freely exercise their religion. Since then, Malta has signed treaties that prohibit religious discrimination; that recognize the right of parents to have their children educated according to the parents’ beliefs, an individual’s right to change his religion, and a minor’s right to freedom of conscience; and that generally commit the signatory parties to respect freedom of religion.
As a general comment, little reference is made in this article to court decisions, because case law relating to religious freedom or discrimination is sparse and has had little effect on public policy.
PART IV: INDIVIDUAL FREEDOM OF RELIGION OR BELIEF
A. General Scope of Protection
While Article 1 of the Constitution endorses Catholicism as the correct religion, Article 40 provides that “All persons in Malta shall have full freedom of conscience and enjoy the free exercise of their respective mode of religious worship.” In addition, Article 45 prohibits state discrimination to the effect of disabling one party or privileging another on the basis of religion.
Laws are carefully crafted to preclude discrimination as defined in Article 45, either by ensuring equal treatment or by allowing differentiation that does not place disabilities or restrictions on non-Catholics. Malta’s laws can generally be described as non-discriminatory, in that they do not target non-Catholic groups or create strong incentives for non-Catholics to convert in order to receive benefits.
B. Status of Minors
Freedom of religion generally extends to minors. While the Constitution mandates religious education for all students of state schools, it also allows minor students to opt out of religious instruction by submitting an objection.
Articles 41 and 42 of the Constitution state that no person may be hindered in his freedom of expression, freedom of association, or freedom of assembly, except by way of parental discipline or to rationally further a governmental interest. Under the Convention on the Rights of the Child, the state agrees to respect minor’s rights to freedom of conscience.
C. Activities Protected
All religious associations enjoy similar legal rights, including the ability to perform marriages, to own real property, and more. The law allows citizens to sue for violations of religious freedom.
D. Limitations to Freedom of Religion or Belief
Some limitations on freedom of expression and conscience exist in order to protect religious sentiment and the general welfare. The law makes it a minor offense to publicly vilify a religion or commit a public indecency by use of blasphemous words. In addition, every freedom granted by the Constitution and by treaty is subject to considerations of public safety, order, decency, and health, and the protection of the rights of other individuals.
PART V: THE LEGAL STATUS OF RELIGIOUS COMMUNITIES
The state refrains from supervising religious groups in most aspects. The law does not require churches to register or obtain licenses from the state, nor are there any benefits for doing so. There are no separate classifications for different religious associations. The only real limitation to free exercise is the state’s duty to balance religious freedoms with the rights of others.
PART VI: RELIGIOUS AUTONOMY
As stated above, the only governmental restrictions on religious exercise exist in Article 40 sub-article (3) of the Constitution, which allows the state to limit religious freedoms only when doing so is reasonably required in the interest of the public good.
PART VII: EDUCATION
The Education Act establishes compulsory education for children ages 5-16. Children can attend either state schools, Catholic schools, or other private schools. The state subsidizes tuition for Catholic schools, which are attended by 30% of Malta’s student population.
The Minister of Education has the duty of ensuring that Catholic instruction is provided in all state schools. Article 47 of the Education Act, like Article 40 of the Constitution, allows parents to choose for their children not to receive instruction in the Catholic religion.
Article 20 of the Education Act allows any religious association, whether non-profit or otherwise, to establish a school as long as the association meets the national minimum standards. A few religious groups have taken advantage of this provision. Until 2012, a Creationist (Christian fundamentalist) school operated in the town of Mosta, and only closed for lack of students. As of 2015 there is one Muslim school, which was recently allowed to expand in order to accommodate Malta’s growing Muslim population.
PART VIII: RELIGION AND PERSONNEL MATTERS
The Constitution provides broadly for freedom from discrimination in employment. Article 7 recognizes “the right of all citizens to work” and the state’s obligation to “promote such conditions as will make this right effective.”
PART IX: FINANCE
As in many aspects of Malta’s national administration, the Roman Catholic Church has a unique financial position as the state religion, but not an excessive amount of privilege. Church schools are heavily subsidized by the state so that students do not have to pay tuition, but the rest of their financing comes from member donations, annual Church collections, and reduced salaries for priests. The Church’s relationship with the state also affects its property. In 1991, the Holy See entered into an agreement with the state to transfer all of the church’s immovable property that was not required by the Church for pastoral uses, in return for appropriate remuneration.
While the establishment of the Church as the state religion necessarily entails some differences in financial management between the Church and other religious organizations, these differences are remarkably few and unrestrictive on the freedoms of minority religions. Religious groups of all kinds are permitted to own property, including real estate, and all are exempt from value-added taxes (VAT). Non-registered as well as registered religious associations are allowed to claim the same tax-exempt status.
Public funds, issued by the Office of the Commissioner for Voluntary Organizations (CVO) are often a major source of revenue for religious organizations, both Catholic and otherwise. Between 2009 and 2012, the CVO issued 91 exemptions (monies and government grants), at least 60 of which went to religious organizations such as parishes, charitable institutions, and social clubs. The CVO’s significant contributions to religious organizations have raised criticism on the grounds that many of the beneficiaries are not enrolled in the Office of Voluntary Organizations and thus are not accountable to the CVO for the way they spend their contributions. However, this is not a privilege exclusive to religious groups, since many of the organizations that receive contributions are non-religious.
Some modest tax benefits are available for religious individuals, but they do not apply exclusively to religious persons. The 2015 national budget provided a €150 tax deduction to parents of children who attended religious or private schools and made use of the school’s transportation.
PART X: RELIGIOUS ASSISTANCE IN AND ACCESS TO PUBLIC INSTITUTIONS
The penological system of Malta consists of a correctional facility, a therapeutic center for substance abuse patients, a courthouse jail, and a forensic unit located inside a hospital. Detainees are permitted religious observance and reasonable access to visitors.
XI. RELIGION AND FAMILY MATTERS
Maltese residents may choose a civil or a religious marriage. Marriages performed by the Roman Catholic Church have the effect of civil marriages under the law, as do marriage annulments decreed by the Church. Other churches are free to perform weddings, but the marrying couple needs to obtain a license in order for their vows to have civil effect. The application fees for a marriage license are similar for civil, canonical, and other religious weddings. As of 2011, divorce is legal and is recognized by the state.
Malta’s laws protect against discrimination in other family matters. The Civil Code, Article 115, provides that an adoption decree shall not be made “in favour of a person who is in holy orders or bound by solemn religious vows,” although the court is instructed to consider the religious persuasion of the adoptive child. No instruction is given as to religion in the matter of child custody, only that the paramount consideration should be the welfare of the children.
XII. RELIGION IN CRIMINAL LAW AND OTHER PUBLIC REGULATIONS
Public vilification of a religion is an offense punishable by up to six months imprisonment. Under Articles 163 and 164 of the Criminal Code, it is a crime to publicly vilify the religion itself, its members or ministers, or any object used exclusively for worship. In 2009, the Court of Criminal Appeal held that dressing up as a nun, by itself, cannot be considered public vilification of the Roman Catholic religion or its objects of worship, unless the wearing is accompanied by circumstances or words amounting to vilification.
The crime of public vilification is not exclusive to offenses against religions, as individuals can also be punished for publicly vilifying a judge, a police officer, the Attorney General, or other such representatives of the state.
A person who commits the offense of contravening public order by uttering obscene words in public may receive an enhanced sentence if those words are blasphemous. Disrupting a religious service is also an offense, with a punishment not exceeding one year imprisonment.
The Criminal Code also penalizes violations of freedom of religion. Article 82A imputes liability to any person who makes insulting or threatening actions with the intent to foster violence or hatred against another person on the grounds of his religion or belief.
PART XIII: SELECT BIBLIOGRAPHY & LEADING CASES
Major legislation, major books, periodical literature, and court cases
Books
Roger Balm, “Malta,” 1996.
The Catholic Encyclopedia
David Noy, “Jewish Inscriptions of Western Europe, Volume 1,” 2005.
Reports
Commissioner for Voluntary Organizations Report 2012
Legislative Sources
Constitution of Malta (1964)
Cap. 9 Criminal Code (1854; last amended 2015)
Cap. 16 Civil Code (1870; last amended 2015)
Cap. 358 Ecclesiastical Entities (Property) Act (1992)
Cap. 327 Education Act (1988; last amended 2015)
Cap. 492 Voluntary Organizations Act (2007; last amended 2015)
Third Geneva Convention relative to the Treatment of Prisoners of War (1949)
Fourth Geneva Convention relative to the Treatment of Prisoners of War (1949)
Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (1953)
United Nations International Covenant on Civil and Political Rights (1976)
United Nations Convention on the Rights of the Child (1990)
Cases
The Police v. Jonathan Saliba, 23/10/2009, Court of Criminal Appeal
K583 .R313 M63 (Reserve) Modern Legal Systems