Now that the frenzy of the divorce campaign is over, perhaps we should pick up some pieces that were among the casualties of the campaign. One of them is the right to a lawyer of one’s choice.
During the campaign it was reported that Deborah Schembri, a family lawyer and front-person of the Yes campaign, had “automatically excluded herself” from practising in the Ecclesiastical Tribunal by speaking publicly in favour of divorce.
It turned out that Dr Schembri had, in fact, not quite excluded herself but was simply eliminated from the list of lawyers who can plead in the Church tribunal because of her views on divorce. She was informed of this by one of her own clients.
Dr Schembri’s removal was justified on grounds that only lawyers who uphold the Church teachings on marriage can plead in the Church tribunal. It was explained that lawyers who practise in this tribunal obtain a warrant for this purpose and only do so on condition that they undertake to uphold these teachings. Clearly, these teachings are at odds with any notion of divorce for which Dr Schembri has been a standard-bearer.
Going by those rules, therefore, the tribunal’s Judicial Vicar acted within the rules of the Church by announcing Dr Schembri’s expulsion from its tribunal. And there is no doubt that the Church has its own rules and it is free to apply them.
But there is a problem.
The problem lies in the fact that, in Malta, the decisions of the Church tribunal are recognised by the state. There is a specific Church-state agreement that grants civil recognition to the decisions of the Church tribunal. Yet, the state is also bound by the European Convention on Human Rights that, among others, guarantees the right to a fair hearing.
Article 6 of the convention provides that “in the determination of his civil rights and obligations … everyone is entitled to a fair… hearing by (a) court.”
This provision also extends to the right of being assisted by a lawyer. And, of course, the right to choose one’s own lawyer is of the essence for one’s own defence.
There is case law of the Strasbourg-based European Court of Human Rights that upholds the right to be assisted by a lawyer. And the European Court does not exempt the Ecclesiastical Court from respecting this right.
So the question therefore arises as to whether the elimination of Dr Schembri from the list of lawyers who can plead in the Church tribunal constitutes a breach of her client’s right to be assisted by a lawyer of her choice. And if Dr Schembri’s exclusion does indeed breach fundamental rights, then how can the state recognise the judgments that are delivered by a tribunal that fails the test of human rights?
So this is not about whether the Church tribunal may apply its own rules – that is not contested. This is about whether the state can recognise judgments of the Church tribunal that do not meet established human rights standards.
The situation got even more complicated when it was reported that Dr Schembri was not the only one to get the axe. Other lawyers have been or may be removed from the list. Two prominent figures in the Labour Party were mentioned specifically in the press. And they may not be the only ones.
And going by the logic of the “automatic self-exclusion” argument, the same should arguably apply to all lawyers who publicly expressed a view in favour of divorce and, for good measure, to all lawyers who are involved in the PL since its leader took a clear stand in favour of divorce.
And it gets worse.
For clients who want to win their case will play it safe. And their best bet will be to choose lawyers hailing from the Nationalist Party ranks, especially those who vote no in Parliament and lawyers who took a prominent part in the No campaign.
Now let us stop and think.
Is this in harmony with the right to a fair trial and the right to be assisted by a lawyer of one’s choice?
I think not and, if we follow this line, I fear that we risk going down a dangerous slope that clashes with the state’s duty to guarantee fundamental rights. Not just on the right to a fair trial but also on other rights, such as the right to religious belief and the right to political association.
It is a slippery slope. And there is only one way out.
Now that the campaign is over, the government should enter into talks with the Church authorities in order to redress this matter. It must argue that the removal of Dr Schembri from the list of lawyers who can plead in the Church tribunal raises serious concerns on whether the decisions of this tribunal live up to standards of human rights that the state is duty-bound to guarantee.
And the state cannot recognise the judgments of a non-state tribunal unless it is satisfied it operates in a way that respects the basic tenets of human rights, just like the civil courts. In default, the state would be failing its own duty to uphold human rights.
Dr Busuttil is a Nationalist member of the European Parliament.
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