MaltaToday | 20 April 2008 | Abortion is murder? Then the law is wrong

OPINION | Sunday, 20 April 2008

Abortion is murder? Then the law is wrong

Raphael Vassallo

It’s been a bad week for Malta’s most scarce resource: common sense. First we had MEPA chairman Andrew Calleja’s brusque (but at least honest) confession that the commodity is in short supply in the corridors of MEPA. And just as we were recovering from the complete lack of surprise, what happens? Why, the Council of Europe has to go and poke its nose into our own private universe of hypocrisy… asking us to decriminalise abortion, of all ridiculous things.

I mean, honestly. Won’t those blasted Europeans ever leave us alone? We were doing just fine without them: Gift of Life had suspended its frantic drive to amend the Constitution; we were more or less coming to terms with the fact that maybe we’re not such a special place after all… and suddenly, it’s all the way back to mass hysteria, plastic foetuses, flying forceps, videos of butchered babies... So gee, guys, thanks a lot. You’ve been such a great help.

Oh, and a small word of advice to the Council of Europe: please note that when you say “decriminalise”, people here understand “legalise”. (Which is hardly surprising, considering that when I say “Council of Europe”, the same people understand “European Commission”. Where the hell is Joanna Drake when you need her?)
Besides, in case you haven’t noticed, abortion is already decriminalised in Malta. When’s the last time you heard of a Maltese woman being jailed for terminating a pregnancy? Because it’s never actually happened, you know. There have been two (2) prosecutions in living memory; and guess what? Both cases were inconclusive.

Leaving aside the CoE resolution – which by the way was passed on Wednesday, and... oh look! Nothing happened – I can’t but notice an ominous shift in the rhetoric of the pro-life brigade as a result of all this foreign interference. In particular, the phrase “abortion is murder”: currently being repeated like a mantra at every opportunity, for all the world as if it were actually true. (My favourite example was the online comment: “Abortion is murder, period!”… as if to suggest that menstruation is murder, too.)
All well and good, I say. If the pro-life majority doesn’t actually know the law, then so be it. Let them get into a flap over nothing, see if I care. But when the newly appointed Justice Minister also buys into the great misconception, then you know that something, somewhere is amiss.

Carmelo Mifsud Bonnici (that’s our justice minister, folks) was on Friday quoted as saying the following, astonishing words: “Abortion is actually the homicidal act of a human being who has no means of protection.”
Hmm. OK, let’s start with the obvious. “The homicidal act of a human being?” Surely he meant to say “a homicidal act perpetrated upon a human being…” (Although to be fair, he was quoted in English. It is widely known that Mifsud Bonnicis make more sense when quoted in Italian.)
Meanwhile, I am sorry to have to insist on lexical accuracy, but the words “homicidal act”, placed in the context of a legal debate (and in the mouth of a Justice Minister, no less) actually have a specific meaning, and more to the point carry very weighty legal implications indeed. Maltese law in fact draws a clear and inescapable distinction between homicide and abortion, and stipulates vastly different penalties accordingly. So I can only conclude that Carmelo Mifsud Bonnici either doesn’t know the law, or places such faith in the ignorance of his fellow countrymen, that he assumed nobody would notice his rather glaring mistake.

Either way, had he bothered to actually read the Criminal Code, he might have noticed that abortion is a criminal offence in Malta only by virtue of Article 241, which states: “(1) Whosoever, by any food, drink, medicine, or by violence, or by any other means whatsoever, shall cause the miscarriage of any woman with child, whether the woman be consenting or not, shall, on conviction, be liable to imprisonment for a term from 18 months to three years;” and “(2) The same punishment shall be awarded against any woman who shall procure her own miscarriage, or who shall have consented to the use of the means by which the miscarriage is procured.” (Believe it or not, the above is around the full extent of our abortion law. Beautiful, isn’t it?)

Anyway, as you can see for yourselves, the law stops short of defining abortion as homicide. In actual fact, Maltese law in its entirety stops short of defining a foetus as a person: unless you count Article 4(5b) of Chapter 417 of the Patents Act, which denies patents relating to “the human body, at the various stages of its formation and development from the moment of conception” (So in the end, it took a law governing intellectual property rights to actually define the human being. Makes a lot of sense, that.)
Oh, and there is also the Domestic Violence Act, which a certain former MP invoked to try and have a visiting lecturer arrested. But at no point is there any reference to abortion being “killing defenceless human beings”; and this can be attested by the stipulated penalties themselves.

It find it odd that I should have to point this out to our Justice Minister, but in case he slept through all his Criminal Law lectures at University, the maximum penalty stipulated for wilful homicide in this country is… LIFE IMPRISONMENT. And as the recent campaign by Mid-Dlam Ghad-Dawl has so successfully hammered home, “Life is life”: in other words, the convict will only leave Corradino Prison in the comfort of her own personal coffin. Admittedly this extreme sentence is rarely handed down; but still, we are talking about typical homicide prison sentences that hover in the region of 10 or 15 years, sometimes 20 or 25. But the maximum prison sentence for abortion – which by the Justice Minister’s definition would qualify as an aggravated crime, no less – is only three years. That’s one year more than what Norman Lowell got for insulting the President of the Republic; and Harry Vassallo for failing to submit a VAT return.
Clearly, then, Maltese law does not recognise abortion as a “homicidal act”. So why does our Justice Minister? And what does this tell us about the precarious state of Maltese justice, when the man responsible for its administration gets his legal definitions so completely muddled up?

Of course, it is tempting to just laugh it off as Carmelo’s umpteenth attempt to ingratiate himself with the moral majority (his earlier attempts involved trying to ban mini-skirts from Gzira, and waging a Holy War against pole-dancing in Paceville). But unfortunately, the implications are serious this time around. Lest we forget, there is still a movement afoot to amend our Constitution to the effect that abortion does indeed become aggravated homicide. I imagine most people haven’t paused to consider the legal consequences: certainly Article 241 of the Criminal Code would be the first to go (for if you constitutionally define the fertilised ovum as a full human being, how can you then justify the resulting discrimination, whereby murder of a human being is considered less serious than tax evasion?)

But the major issue is this: if Carmelo Mifsud Bonnici so firmly believes that abortion is homicide… then it follows that he doesn’t (or at least shouldn’t) agree with the current legal status of the crime, as well as its stipulated three-year maximum sentence. So what exactly is he saying? That abortion should be punishable by longer sentences? Life, maybe?
Incidentally, the same question applies to all who opposed the Council of Europe’s call for decriminalisation; and also to the Gift of Life Foundation, which is an aggressive promoter of the “abortion is murder” motif. What exactly would these people like to see? Women being imprisoned? Every time I ask this question, the answer I get bleated back at me is that the pro-lifers want to “help women”. But how? By threatening them with jail? And how can one possibly expect a woman who has already aborted to seek help from the same people who would like to see her behind bars? (Please note that these are not rhetorical questions. I’d like some answers.)

Meanwhile, there can be little doubt that Carmelo Mifsud Bonnici has absolutely no intention of introducing life imprisonment for abortion; just as I imagine he would have little stomach to justify a Maltese court ruling which places (say) a 15-year-old girl behind bars even for three years. But just in case I am wrong – and at face value, Mifsud Bonnici’s statement does indeed suggest I am – are we to take his comment as the beginning of a new crusade to turn abortion into aggravated homicide at law? Does he intend to change Criminal Code to specify the same penalties for abortion as exist for murder? Does he, in a word, intend to put his money where his mouth is?

So go on, Carmelo. Let’s see what your pro-life credentials are really made of. Let’s see if you really intend to turn your fine words into actions… or if y ou just want to impress the masses with your piety, only without actually lifting a finger in defence of the unborn child.

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