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I.M. Jack – It never rains

Blogging being the very private enterprise that it is (and the one-man exercise too) there are times when the frequency and immediacy of posts is not exactly up to scratch. That this week has been one of those times is the result of a combination of circumstances that are best not delved into (especially since they involve exposing the lazier side of me). Having said that much has been happening that deserves the J’accuse once over and it would be a shame not to at least give the past ten days or so the I.M. Jack treatment.

1. What’s so gay about marriage?

We have to begin with the number one pet peeve that J’accuse has had all this week. If I was to pick it up from its backside then I’d say the whole issue is about gay marriage – or to give it the politically correct moniker: same-sex marriage. We have seen the protests, the rock stars (!) gone political, the pressure groups getting miffed, the supposed civil rights groups getting hoity toity and the inevitable bandwagon politicians yelling “What-ho” and all that. Why? Well apparently Minister Chris Said, is guilty of not having introduced same-sex marriage or a legally decent equivalent when he produced the Civil Partnerships Cohabitation bill (or whatever its name may be) out of the Nationalist government’s pre-electoral hat.

Really MGRM? Say what Aditus? No same-sex marriage eh? How horrible. Devastating. The only problem is that the bill intended on putting civil unions within a more sound legal framework was never intended to introduce gay marriage. What various pressure groups were “given to understand” is legally, constitutionally and politically irrelevant. A cohabitation bill is a cohabitation bill is a cohabitation bill. Across Europe one can witness a variety of do-it-yourself models of civil partnership laws. They are all intended to be a sort of package of rights for people who live together but who DO NOT WANT TO or CAN NOT get married. Siblings living together is the least controversial of examples.

Not gay marriage though. It has absolutely nothing to do with it. Of course you can site examples of countries where short of obtaining the ultimate (and most obvious) solution of legally sanctioned same-sex marriages, the nation has settled for a similar package of rights that does not go by the name of marriage but gets rather close to it. This was never the case in Malta. At least not from a legislative point of view. Civil unions, cohabiting persons or what have you – the idea is to get this set of persons a bundle of rights under Maltese law.

Same-sex marriage has nothing to do with this. Neither does the concept of family which the Minister was drawn into commenting upon. All the ruckus about discrimination within the context of “marriage” is a false alarm. Now if we were talking about a bill to introduce same-sex marriage in Malta. Now that would be another thing altogether – and J’accuse would be right behind the inevitable process where persons of the same sex are allowed to tie the knot and have that union recognised as a marriage under civil law.

2. So what is the bill about?

Sadly for the nationalist party it is beginning to be a bit of an enigma what the bill should really be about. This blog still sticks by its theory that the bill is being forced through because of a pre-electoral pact struck hurriedly around 2008. As has rightly been pointed out in other quarters (MaltaToday methinks), the inability of the conservative elements of the party to come to terms with the liberal content of this kind of legislation has led to a half-baked law that manages to insult sectors of society by treating them as second class citizens. Even without the useless conflagration about what constitutes family, the nationalist government could not really believe to get away with a law that blatantly discriminates between classes of citizens when defining the same right.

It should have been so simple really. A clearly defined framework of rights that would be available to any two persons entering a civil union. Property rights, fiscal rights and social service rights to begin with. Issues of gender would have been cleanly skirted and most controversy would have been set aside barring the few nitpicking details. That we are where we are – and that controversy has not only not been skirted but is dancing naked on the tables of Said’s ministry – is a clear indication of the Faustian pact entered into before last election. The gay sector is very obviously (and rightly, in an opportunistic sense) up in arms. On the one hand it has every reason to do so given the bumbled manner in which the law discriminates between types of partnerships and on the other it is taking advantage of the sudden outburst of public sympathy to drive same-sex marriage into the agenda even though it was evidently not the original aim of the bill.

Just what the doctor ordered innit?

3. Joseph and the Rainbow Coloured Fence

Muscat is having a hard time disguising his glee at the PN’s latest faux pas in the world of gays, lesbians and other happy people. He should be careful. The MGRM community is thankfully not headed by a bunch of gullible sods who will drool at every ambiguous word thrown at them by politicians. I am sure that by now they can tell a bandwagon riding politician (and party) when they see one – even if it flies the rainbow flag on party HQ on gay pride days. What the MGRM could do is try to take advantage of the apparent openness of someone like Joseph Muscat – and boy would they be courting trouble.

Take his declaration yesterday when he stated that politicians have no right to decide who is a family. Would you really yell bingo? Is this really as liberal as it sounds? Let me spell it out for you: it is about as liberal as the pope’s underwear. What this is, in fact, is a declaration of yet another open season of fence-sitting by dear Joseph. Just like in the divorce debate, Joseph plans not to lead but to fence-sit and declare “free vote” season again. Joseph is correct when he says that it is not a politician’s right to determine who forms a family.

Joseph forgets a second, more important, and responsible corollary though : that it is a politician’s duty to listen to the needs of society – the interest of the common good and the rights of minorities – and ensure that these needs are properly safeguarded by participating in the enacting of laws to that effect. A same-sex marriage law will not write itself while Joseph, Owen and Varist are busy waving rainbow flags in some protest walk. A same-sex marriage law will be drafted, presented and voted in by responsible politicians who responsibly read the signs of times and legislate the obviously inevitable. Something tells me it won’t be Inhobbkom Joseph.

4. Franco rebutted

Before I start the usual rant about Malta’s unpreparedness come the first storms let me just point out that this evening’s rebuttal by the PN executive of any Franco attempt to get reinstated onto their list of candidates is just par for the course according to J’accuse’s pre-estival predictions. The time-table has long been set and parliament does not have a very long life beyond the opening session once summer recess is over. Trust you me… the PN is not counting on Franco voting for any bill and Franco knows this only too well hence his latest private members’ bill regarding fuel oil – a bid to get voters for his inevitable splinter “party” come next elections.

5. It never rains…

Xita happens. Nuff said.

 

 

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The State of Our Unions

Chris Said must not be too happy with the reception that has been afforded the Civil Cohabitation Partnerships Bill. The MGRM and AD as well as the Civil Rights group Aditus have all slammed one aspect or another of the bill. It must be said that the greatest hype has been around the expectations that had been instilled among the gay community with regards to a move that would finally constitute the adoption of a gay marriage law in Malta. Not being an infallible sentient being I am not sure whether I am getting all the signs right but I do have more than a modicum of suspicion that there is more than a strong tinge of confusion in the matter from all parties concerned – either wilfully and in line with particular agendas or unwittingly and underlined by a particular level of ignorance of what the law is about.

On PACS and othe civil partnerships

Let us begin with the abstract – away from the hustle and bustle of what is the current line of thought in Malta. The first point that must be clearly established is that a law on civil partnerships and a law on gay marriage are two very different pieces of legislation. The fact that the former (a civil union law) could facilitate the life of gay couples (and that is an understatement) does not in any way make the two any less different. The clearest and most straightforward example is France and French law where thankfully the confusion that may be brought about by the religion inspired forms of marriage is virtually non-existent.

Since the 15th November 1999 France has what is called a PACS -translated in English as a civil solidarity pact. By definition it is an agreement between two adults (see: no mention of gender or blood relation) who enter such an agreement with the purpose of jointly organising and administering their lives. It changes their situation in the eyes of the law: couples are said to be pacsé on their status description and they stand to be considered as a unit in different situations such as fiscal calculations and entitlements as well as presumptions in the case of inheritance. PACS was introduced in France when marriage was on the downturn and was definitely not exclusively considered as a marriage solution for gay couples (in 2012, 94% of PACS were between opposite sex couples). It goesd without saying though that the concept of a civil union or a recognised cohabitation includes the possibility of same-sex couples.

PACS was never intended to replace or come close to the concept of marriage – the civil concept mind you. Most civil unions are intended in this manner.

Same-sex Marriage

Very different from PACS is the legislation of gay marriages. If we look at our Wikipedia fact machine we will see the following verbal venn diagram:

Currently 22 of the 51 countries in Europe recognize some type of same-sex unions, among them a majority of members of the European Union. Eight European countries legally recognize same-sex marriage, namely Belgium, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain and Sweden. An additional fourteen have a form of civil union or unregistered cohabitation. San Marino only allows immigration and cohabitation of a citizen’s partner. Several countries are currently considering same-sex union recognition.

Do note the difference. 22 countries recognise some type of same-sex unions. Of these eight recognise same-sex marriage. The additional fourteen have a form of civil union or unregistered cohabitation. Malta’s Bill would add it to the latter fourteen. It has nothing to do with the formal recognition of gay marriages. Even after the Cohabitation Bill is passed we would still be aeons away from any form of legal sanction of marriage between same-sex couples.

So what’s happening in Malta?

I have it on quite a reliable source that on the eve of last election a deal was struck between a panicking Nationalist party and the MGRM. The deal was simple: MGRM would block vote for PN and PN would enact a cohabitation law. That got some uber necessary votes away from the PL (the hopeful vote) and the AD (the protest vote). Let’s call this the Xarabank deal for want of a better description. Now we know how the PN legislative agenda has been disrupted ever since the divorce surprise but the Bill had to be shoved through as promised otherwise the next election would find the PN with its pants down… and we don’t want any of that do we?

So we have a cohabitation bill being drafted at gunpoint so to speak and whatsmore – as Raphael Vassallo pointed out – being piloted by a former head honcho of the anti-divorce movement. What we end up with is a bill that seems to be blatantly discriminatory and fails to produce the goods insofar as the goal of a solid civil unions law is concerned. It’s the second (non-couple) part of the law that has drawn much attrition – mainly for what are being described as discriminatory conditions.

The bill fails to take into consideration the situation of siblings sharing the same household – failing to factor in recent ECJ case law in this regard. It also ignores completely the tax issues relating to the civil union – practically neutering one of the most important aspects of the law. These criticisms – and, if they are proven to be true, the criticisms aimed at the different time-frame for the recognition of civil unions depending on the type of union – are not only founded but very important if any bearing is to be had on the final version of the law.

There is though the issue of “family” and “gay marriage” that has been thrown into the discussion by most of the groups reacting to the bill. Such talk is highly misplaced. Fine tuning the Cohabitation Bill is not only good but imperative. The criticism and constructive suggestions should be confined to the declared aims and intentions of the bill. Same-sex marriages is definitely not one of them. Don’t get me wrong –  it will never be too soon for a discussion and process to be opened in order to have a same-sex marriage law in Malta. It is important to recognise the difference though and not to be drawn into facile conclusions.

The Cohabitation Partnerships Bill does seem to need more than a bit of fine tuning. It would be unfair and very underhand of all parties concerned should the remit of such a bill be extended to the introduction of same-sex unions. Such an introduction does not deserve to be made surreptitiously. Rather. It should be made openly, consciously and following an open national consultation – possibly including a vote (unless all our parties include the proposal in their next manifesto – in which case we will just be voting in the government that would turn the proposal to legislation).

If the country was deemed mature enough to debate, vote upon and ultimately enact a divorce law then there should be no reason why the same should not hold true of same-sex marriages. I for one believe it’s inevitable.

Change. You want it? Vote for it.