During the Christmas season more than any other time, the Maltese generously seek to help the needy of every kind. At the highest levels, this is also accomplished through legislation which seeks to protect the most vulnerable. An example of this is legislation providing for further protection of women who go through domestic violence.
While the Gender-Based Violence and Domestic Violence Bill seeks to prevent and combat such violence, it is observed that another vulnerable group of human beings, namely the unborn, has been left out.
There is no doubt that neither the government nor the Opposition intend to deprive the unborn of protection. Indeed, it was very clear under the Domestic Violence Act that the unborn child deserves protection from domestic violence just like any other household member.
However, the new Gender-Based Violence and Domestic Violence Bill seeks to transpose the Istanbul Convention and to repeal the Domestic Violence Act.
Thus, the vulnerable unborn children which Parliament sought to protect through the Domestic Violence Act of 2006, are being overlooked.
In view of this, it is imperative to include the unborn child in the definition of “family or domestic unit” as surely the Maltese people want the unborn child to remain protected from violence.
The Istanbul Convention holds that it will not prejudice provisions of internal law under which more favourable rights are accorded. Therefore, adding to the list of protected persons under the definition of “family unit”, “the child conceived but yet unborn”, is in perfect accord with the principles of the convention.
Concerns have been raised regarding the fact that according to Article 39 of the Istanbul Convention transposed in this Bill, it is only a criminal offence for a woman to be forced to undergo an abortion. Article 39 does not criminalise abortion when the woman consents and does not oblige Malta to introduce abortion.
Under the Bill, the Maltese Criminal Code, which criminalises abortion in all circumstances, whether or not the mother consents, remains intact.
This has been confirmed by the government which declared that abortion will remain illegal in Malta.
Since the Istanbul Convention holds that where any ordinary law is inconsistent with the rights set out in the convention, it is the convention that prevails, this would render Maltese law inconsistent with the convention.
In the circumstances, it would be appropriate for the Attorney General to draft an opinion confirming the government’s statement. This would clarify the matter and underline the protection due to unborn children.
If it is truly the aim of Parliament to protect all persons who fall victimto gender-based violence and punish perpetrators appropriately, then the unborn child should not be left out of such protection.
This is no far-fetched safeguard when local cases of unborn children killed through domestic violence made headlines only a few months ago.
Sarah Portelli and Ramon Bonett Sladden are lawyers.