A Council of Europe (CoE) study on freedom of expression and freedom of religion, argues that it is no longer desirable for European democracies to criminalise blasphemy, and calls for the abolishment of such laws.
Malta is one of the few European states that penalises the public vilification of the Roman Catholic religion with a maximum term of sixth months' imprisonment – and three months for other religions.
Only Greece contemplates a higher term – two years' imprisonment – for malicious blasphemy.
The debate on so-called religious insult was brought to the fore by the Board of Film and Stage Classification's decision to ban the play Stitching, for reasons that included blasphemy.
And adding to the dose of ecclesiastical umbrage, only this week seven revellers at the Nadur carnival were arraigned for dressing up as priests – much to the outrage of the bishops. It seems Malta has reverted back to 1959.
The report on European laws on religious insult and incitement to hatred in all the European nations, was prepared by the Venice Commission, an advisory body of the Council of Europe composed of experts of constitutional law.
In their two-year study, the experts concluded that it is neither necessary nor desirable to create an offence of religious insult, that is insult to religious feelings, without the element of incitement to hatred as an essential component.
The Commission argues that pluralism, tolerance and broadmindedness means that freedom of expression should not be limited to protect an individual's belief from criticism. The right to freedom of expression implies that it should be allowed to scrutinise, openly debate, and criticise, even harshly and unreasonably, belief systems… as long as this does not amount to advocating hatred.
The Commission argues that the offence of blasphemy should be abolished” and that democratic societies must not become hostage to the excessive sensitivities of certain individuals… the level of tolerance of these individuals who would
feel offended by the right to freedom of expression should be raised. A democracy must not fear debate, even on the most shocking or anti-democratic ideas… persuasion, as opposed to ban or repression, is the most democratic means of preserving
Whereas the rest of Europe has an unwritten blasphemy law enforced by violent religious intolerants, Malta quaintly has an official blasphemy law enforced by the police.
In the light of the muslim terrorism in Paris, the Maltese press have been noting the irony the country's Prime Minister Joseph Muscat heading off to Paris to participate in a unity rally, whilst presiding over a country with a blasphemy law that
makes it illegal to acquire or distribute the many issues of Charlie Hebdo featuring religious cartoonery.
Uttering any obscene words - although what constitutes obscene words is not defined - in public is one of the contraventions affecting public order included in Article 338 of the Criminal Code. But Article 342 sets out that if the act involves
blasphemous words or expressions, the offender may be jailed for up to three months, although a fine may be levied instead.
Another contravention listed in Article 338 includes ecclesiastical habits or vestments among the uniforms which cannot be worn without the permission of the authorities.
The Criminal Code also includes three articles which specifically address crimes against the religious sentiment. Article 163 and 164 concern the vilification of religion, granting a privileged position to the Roman Catholic religion -
declared to be Malta's religion in the Constitution - in the process.
Article 163 sets out that whoever publicly vilifies the Roman Catholic Apostolic Religion which is the religion of Malta, or gives offence to the Roman Catholic Apostolic Religion by vilifying those who profess such religion or its ministers,
or anything which forms the object of, or is consecrated to, or is necessarily destined for Roman Catholic worship, shall, on conviction, be liable to imprisonment for a term from one to six months. Article 164 criminalises the same behaviour
when directed towards any cult tolerated by law, but in this case, only a maximum jail term of three months is foreseen.
Article 165 criminalises the obstruction of religious services, this time making no distinction between Roman Catholic services and those of other religions tolerated by law. Anyone who obstructs religious services carried out with the
assistance of a minister of religion or in any place of worship or in any public place or place open to the public may be jailed for up to one year, or up to two years if the obstruction involves threats or violence.
A Maltese Charlie Hebdo would clearly fall foul of both Article 163 - the cover of one issue, for instance, carried a depiction of the Trinity engaged in a sexual act - and Article 164.
Due to some of the magazine's more risque content, anyone involved in its production or distribution could also be prosecuted under Article 208, which criminalises the production, acquisition or distribution of obscene or pornographic material,
with offenders liable to imprisonment for up to 1 year.
And it's not as if Maltese blasphemy law is some sort of dormant anachronism from the past. Blasphemy laws are still actively enforced, and a number of people have received suspended jail terms as a result.
A number of people had ended up in Court and charged with vilifying the Roman Catholic religion in the wake of the 2009 Nadur carnival. Then-Archbishop of Malta, Paul Cremona, and Gozo Bishop Mario Grech had jointly urged the authorities to
intervene before the police confirmed that arraignments would take place.
A 26-year-old man who dressed up as Jesus received a one-month jail term suspended for six months after pleading guilty. But a group who dressed up as nuns pleaded not guilty and were acquitted because they were not wearing any religious symbols.
However, another young man received a suspended jail term for vilifying the Roman Catholic religion in 2009: he displayed visuals which included, among other things, Pope John Paul II and a naked woman while DJing at a music festival.
The Maltese parliament has approved, at the third reading stage, amendments to the Criminal Act that repeal legislation that censured the vilification of religion, decriminalises pornography and criminalises revenge porn.
The law punishing the vilification of the Roman Catholic religion had been in place since 1933 and was used by the authorities to censor works of art, theatre productions and prevent films from being screened.
When he originally presented the proposed amendments in February, justice minister Owen Bonnici sought to allay fears that the law would not allow people to incite religious hatred, noting that the incitement of hatred based on religion, gender,
race, sexuality, gender identity or political belief was already illegal as per a more recent law and would remain so. He said:
In a democratic country, people should be free to make fun of religions, while not inciting hatred.
The Nationalist opposition had been opposed to the proposed amendments and had accused the government of political atheism , and of adopting policies of forced secularisation .
On his part, Archbishop Charles Scicluna tweeted his dismay at news that MPs had, as expected, successfully passed Bill 133:
Demeaning God and man indeed go hand in hand. A sad day for Malta. Lord forgive them: they do not know what they do.