The Medical Council recently issued a statement appealing to the government to include a conscientious objection clause in the equality bills currently being debated in parliament.

This was a significant event, for the council is the only legally recognised institution which regulates the medical and kindred professions. It is established by law and its members are partly elected and partly nominated by the government, including its chairperson.

This appeal has been endorsed by a myriad of organisations. The Medical Association of Malta, The Maltese Catholic Bishops Conference, and Christian pastors, the Malta Employers’ Association, the Association of Catholic Church Schools, Association of Independent Schools, parents’ associations, Life Network Foundation, Catholic Voices, lay Catholic organisations, and the list continues to grow.

The opposition has also prepared an amendment, an overriding conscience clause that would guarantee such a right. What is the government waiting for to adopt such a proposal which is supported by such a wide range of institutions and NGOs?

Indeed, the need for such a clause has become even more imperative in view of the clause contained in the bills which render them supreme vis-à-vis other ordinary laws bar the constitution. So, the equality bills may amend what will be considered to be discriminatory according to a vaguely worded definition, and shall prevail over any other law such as the Criminal Code.

Now it is true that the government has stated that there is no intention of making lawful what is today illegal, in virtue of these bills. I have no reason to doubt the sincerity of this statement.  But as the bills stand today, they prevail over other ordinary laws and may stealthily change them without any reference to parliament.

Let me give just one example: surrogate motherhood is prohibited by law. If this is considered to be discriminatory under the new laws, surrogate motherhood would be introduced without any reference to parliament. Now, commercial surrogacy paves the way for baby selling and exploitation of women. In Malta it would enter through the back door owing to the supremacy clause.

Surrogate motherhood would be introduced, without any reference to parliament

Considering the fact that until now the government has obstinately insisted on such a clause, this raises serious doubts as to whether there is any ulterior motive in such circumstances.  Its insistence implies that there might be some laws or practices, unknown till now, which would be altered or suppressed through this supremacy clause. A conscientious objection clause thus is needed more than ever, in view of such insistence.

Naturally such a clause can be circumscribed to avoid abuse.  For instance, the person raising the objection would need to confirm such a fact by an oath, and the objection must be reasonable, and in no way breach such fundamental rights as the right to life. This avoids such objection being used to block the use of life-saving methods or interventions. 

One final note: those who are objecting to the inclusion of such a clause are claiming that the right to such objection is already indirectly contained in the European Convention on Human Rights and the constitution. This argument is fallacious for ordinary laws are to be drafted in line with such human rights provisions. 

 The legislator should seek comfort in the fact that after all any citizen may challenge the constitutional validity of a law; but should strive to enact laws which are constitutionally valid in the first place. Besides, if one were to apply the aforementioned fallacious argument, then one might also argue that one does not need an equalitybill at all, since unjustified discrimination is already catered for both in the constitution and the European Convention and its Protocol!

A government which listens should not ignore the pleas and cries of such a wide range of professional and non-governmental organisations. It cannot be that they are all wrong and only the government is right.

Tonio Borg is former European Commissioner.

Independent journalism costs money. Support Times of Malta for the price of a coffee.

Support Us