Civil unions and the Imam - of rights and referenda

Should civil rights be subject to a referendum? And who decides what constitutes a civil right? RAPHAEL VASSALLO looks at the contents of a can of worms opened by Imam Mohammed El Sadi, who has proposed a referendum of same-sex unions.

Mohammed El Sadi: Those who do not agree with civil unions, in spite of their large numbers, are inefficient, voiceless and have no material presence
Mohammed El Sadi: Those who do not agree with civil unions, in spite of their large numbers, are inefficient, voiceless and have no material presence

A proposal by the spiritual leader of Malta's Muslim community has cast a spotlight on a thorny and as yet unresolved issue: whether civil rights affecting minorities - in this case, same-sex couples - should be subject to the will of the majority in the form of a national referendum.

Writing in The Times yesterday, Imam Mohammed El Sadi questioned whether government enjoys an electoral mandate to forge ahead with a bill to regulate civil unions, despite having convincingly won an election on the strength of a manifesto promising precisely such legislation.

"Some may argue that the majority gave a mandate to the Labour government, which won the majority of seats in Parliament, to legalise civil unions for same-sex couples," he wrote. "[...] I don't think so, because the Maltese people elected their representatives in Parliament according to a large package of policies, which, really, does not give one the right of particular choices; you either take it as a whole or you leave it."

El Sadi went on to posit his own view that a large majority would oppose the bill if given a chance: "The LGBT [community], in spite of its small size, is united, efficient and enjoys the support of the media, the local high authorities and EU institutions. On the other hand, those who do not agree with civil unions, in spite of their large numbers, are inefficient, voiceless and have no material presence."

The head of the Muslim community includes 'different religious institutions' among this vast and as-yet untested silent majority... hinting that these same institutions may even be abdicating their spiritual mission to oppose this bill: "Even the different religious institutions that have a spiritual mission and clear religious teaching in this regard seem indifferent, fearful and shy."

Interestingly, he also envisages a much broader coalition including "people of different faiths, colours and political affiliation, conservatives or liberals, rightists or leftists, believers or atheists who all disagree with civil unions..."

El Sadi ends with an appeal "to Prime Minister Joseph Muscat and to Opposition Leader Simon Busuttil to consider this proposal to hold a national referendum to resolve the civil union issue..."

Majority rule

At face value, the Imam's concern seems to reflect a widespread conviction - by no means limited to the Muslim community, or even to Malta - that, in any democracy, the majority is automatically empowered to overrule any given minority on any given issue, by means of a popular plebiscite.

But this is far from universally accepted. In fact similar questions have been raised in other countries, where same-sex couples have been regularised at law; and in many cases, the ensuing debate unfolded along almost identical lines.

Consciously or otherwise, El Sadi's arguments closely echo those of Christian conservatives in the United States, where same-sex unions have now been regularised to varying degrees. Last year, New Jersey's Republican governor, Chris Christie, likewise proposed a referendum on the issue.

"I think this is not an issue that should rest solely in my hands, or the hands of the Senate President or the Speaker or the other 118 members of the Legislature," he said. "Let's let the people of New Jersey decide what is right for the state."

The proposal elicited a stern reply from Newark's Democrat mayor, Cory Booker: "... dear God, we should not put civil rights issues to a popular vote to be subject to the sentiments and passions of the day. No minority should have their civil rights subject to the passions and sentiments of the majority."

But one hardly needs to cross the Atlantic to find similar parallels. Here in Malta, former Prime Minister Lawrence Gonzi in 2011 used the exact same reasoning as New Jersey's governor, this time to propose a referendum on divorce. Even his choice of words bore an uncanny resemblance to the American governor's argument: "I don't think this is an issue to be decided solely by 69 members of the House", Gonzi told a group of journalists soon after a private member's bill had been tabled.

It fell to various columnists and opinion-formers to replicate Cory Booker's repartee in the local context, but to no avail: the referendum was held, and the rest is history.

With the benefit of hindsight, it could be argued that El Sadi now risks repeating the same fundamental mistake made by Gonzi in 2011: i.e., to greatly overestimate the strength of a presumed majority before it has actually been tested.

On a separate level, there is also latent irony in the fact that the spiritual leader of a minority religion should appeal to majority opinion to inculcate in others his own worldview. If he is successful, he could conceivably set a precedent that could return to haunt his own Muslim community in future. (The very first online comment posted beneath his article called for a similar referendum on immigration... and subsequent comments would sarcastically use El Sadi's own arguments to call for a referendum to 'make Islam illegal'.)

Be that as it may, the underlying issue - i.e., whether, as Newark's mayor pointed out last year, it is appropriate for minorities have their civil rights subject to "the passions and sentiments of the majority" - remains unresolved.

Contacted by this newspaper, Professor Kenneth Wain - who lectures on ethics at the University of Malta - expressed doubts regarding El Sadi's claims to represent a widespread majority.

"First of all, the Imam is fully within his rights to express his opinion in the matter, and I found the article itself to be very moderate," he said. "But at the same time there doesn't seem to be any national controversy on this issue. Both sides of the House are in agreement, and the proposal enjoys the backing of the third party too. In fact there seems to be national consensus on the issue..."

Wain however admitted to being uncomfortable with the implications of the proposal.

"I find it worrying that civil rights could be withheld or denied at the whim of a majority; but at the same time the issue is not so straightforward."

One of the main problems, he argues, is that no one has a monopoly on civil rights. "Without any clear legal definitions, the issue of whether something constitutes a civil right or not is ultimately discretionary. Someone has to decide, and the question becomes how to take the decision... whether by parliamentary vote, or by referendum, etc."

Meanwhile, owing to the divorce precedent, one cannot realistically rule out the possibility of taking such decisions by means of a referendum, as suggested by El Sadi. But the law is not clear on how to actually proceed. Unless the prime minister consents to hold a referendum (in which case the process would be similar to the 2011 divorce referendum) the only legal option available would be an abrogative referendum... which could in turn only be applied to remove existing legislation from the statute books.

In this scenario, El Sadi's coalition would therefore have to wait until the law was enacted, then collect the 34,000 signatures required by law to force the referendum.

This, Prof. Wain argues, remains the only realistic option available to El Sadi and others who think likewise. "If he gets enough support for his proposal, there is nothing stopping him from going through the proper legal channels."

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Mr. Vassallo, kindly blame it on my age, when I see all this aggressive approach against the Imam. I say when I was young where we not close to Islam then what we are today. Was it not a women to go to church had to cover herself? Was it not we had our own Ramadan? Was it not we used to have prayers for morning, mid-day, night, etc., did we not also penalized people to be gay? etc., etc. One can say this Imam is of the old school but is strong in his faith to one God as Jesus advice: Only God the father is Good. So are we sure we are hitting the right man with a good cause. Do not we have in the second commandment not to 'make false images' of course if we have it in our church it all right. This issue of gay matter, psychologist say that it is possible to have a handful but the rate it is, it is like everybody want to be gay, it is not my business if they do it in private but legalize it we are become a permissive society without responsibility to any after damage. I expected the bishops bring this up but if the Imam did, when Jesus was asked someone is speaking in God's name Jesus answered if he is let him, because God work in different ways. I never was a Muslim and will never be one but if one speak with sense let him speak.
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@concerned citizen - Amen to that - and the sooner the better! ... I became curious: what nationality is the Imam? If he is not a Maltese citizen is it quite a cheek to interfere; and if he is a citizen, he is probably naturalized, in which case he should be more sensitive and show more gratitude to his new homeland.
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I would also ban the hijab and any other veil, and the burkha!
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I would also ban the hijab and any other veil, and the burkha!
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@concerned citizen - Amen to that - and the sooner the better! ... I became curious: what nationality is the Imam? If he is not a Maltese citizen is it quite a cheek to interfere; and if he is a citizen, he is probably naturalized, in which case he should be more sensitive and show more gratitude to his new homeland.
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Minority Rights should NEVER be decided by referendum... if that were the case, Blacks would still be slaves in the USA, and there would probably still be quotas as to how many Jews could apply to Medical Schools... More to the point, if the Imam thinks a referendum is acceptable about gay rights, how about a referendum about Islamic rights,too? We all know that the Maltese (and not just them...most Europeans!)do not particularly like the Arabs or Muslims in general; putting THEIR rights to a referendum would probably end in as unjust a result as the Imam hopes would happen concerning gays. But the Imam knows he's safe... Muslim rights will never be decided by referendum. It just wouldn't be acceptable; so why does he think it should be about gay issues? Answer: hypocrisy. Bottom line: in every country where gay marriage exists, all the "horrors" that supposedly would ensue, as the Imam and others might warn us - NEVER HAPPEN. SO... pay him no heed...vote in the civil union law for gays (or be really daring and make gay marriage legal...it will eventually come to that anyway...might as well go straight to the point!)
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Since there already is a consensus among the population in general and also in the cabinet we need to move on and pass this law without any more delays.
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I support civil unions, and I think there's wide support for them in Malta. But, this specific issue aside, 'civil rights' can't exist independently of a political context, a state, and that state has to be governed by majority rule (with supermajorities for fundamental matters). Rights are not natural, they don't fall out of the sky, and they can't be created by committees of enlightened individuals outside the normal democratic political process.
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I am not a Muslim and never will be but agree wholeheartedly with the Imam's suggestion. If this makes it to the statute books, I would be amongst the first to sign a petition for an abrogative referendum.