Archive for November 2010

Grounds for Divorce Under Proposed Legislation: The Irish and Italian Perspectives

This article first appeared on Quid Juris? GHSL's Online Law Student Journal on 24/10/2010, published by L-Ghaqda Studenti tal-Ligi (GHSL), authored by Andrew Sciberras

On the 6th of July 2010, Dr. Jeffrey Pullicino Orlando MP (Nationalist Party) tabled a Private Member’s Bill (the Bill) in the House of Representatives wherein he formally presented the Family Law (Divorce) Act. This article intends to examine and comparatively analyse the provisions of the said bill, particularly focusing on the grounds for obtaining the divorce decree, although the author does not exclude examining other areas of the subject in due course.

In the preliminary it must be remarked that the said bill seems to have been derived almost lock, stock and barrel from the Irish Family Law (Divorce) Act of 1996. Therefore, recourse to Irish jurisprudence relating to the grounds of divorce is fundamental in order to achieve a better understanding of the subject. The Irish law adopts the so-called ‘no-fault divorce system’, meaning that parties are spared from ‘the potentially embarrassing and adversarial requirement of stating fault based grounds by providing for the dissolution of a marriage on a finding that the relationship is no longer viable.’ This is unlike the situation deriving under the laws regulating separation in the Civil Code wherein the grounds for separation include fault-based motives such as adultery or cruelty.

The Grounds for Divorce under the Bill and Irish Law

It is general practise that one of the first exercises a Court faces upon hearing a case is in deciding whether it has jurisdiction or otherwise. In accordance with Article 30 of the proposed bill the Court may grant a divorce decree if, but only if, one of the following requirements is satisfied:-

(a) either of the spouses concerned was domiciled in the State on the date of the institution of the proceedings concerned; or

(b) either of the spouses was ordinarily resident in the State throughout the period of one year ending on that date.

It is interesting to note that this article grants jurisdiction to the Courts of Malta also on the basis of ‘ordinary residence’ and is not limited strictly to the more rigid and arbitrary notion of ‘domicile’. Thus, this appears to complement, albeit not entirely, Article 3 of the Brussels II Regulation which confers jurisdiction in matters relating to divorce, legal separation, or marriage annulment with the Courts of the Member State in whose territory the spouses are ‘habitually resident’. This is unlike the rule obtaining under Article 33 of the Marriage Act (Chapter 255 of the Laws of Malta) which only permits the recognition of a divorce obtained outside Malta if one of the spouses is domiciled in or is a citizen of that foreign country.

According to Article 3 of the proposed bill if the Court is satisfied that:-

(a) at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years;

(b) there is no reasonable prospect of reconciliation between the spouses; and

(c) such provision as the court considers proper, having regard to the circumstances exists, or will be made for the spouses and any dependant member of the family

the court may, in exercise of the jurisdiction conferred by the Constitution, grant a decree of divorce in respect of the marriage concerned.

As has already been elaborated, it can be seen from the foregoing that no element of fault or blame needs to be ascribed to either party in order to qualify for a divorce under this section. Furthermore, the wording of this article suggests that all three grounds must be satisfied before a decree can be granted. It is therefore prudent to analyse each ground separately in order to obtain a better understanding of the legislator’s intention.

1. Lived Apart

The spouses must have been living apart for four of the previous five years. Therefore, to obtain a divorce decree, it is necessary that the parties be married for in excess of five years. Unlike the Italian legislation, which shall be examined later, this requirement is satisfied even if the ‘separation’ between the spouses is de facto. Unfortunately for both practitioner and judge however the proposed bill and the Irish law on which it is modelled provide no definition of the expression ‘lived apart’ or ‘living apart’. This raises several pertinent questions of interpretation. For instance, can the spouses be considered to be ‘living apart’ even though they live under the same roof? Upon whom does the onus to prove that the spouses have been living apart fall? The prevailing view, according to Irish jurisprudence is, in response to the first question, that it all depends on the facts of the case. However, case-law can help to put the answer on a firmer footing. In the UK judgment Santos v Santos it was held that:-

[L]iving apart…is a state of affairs to establish which it is in the vast generality of cases…necessary to prove something more than that the husband and wife are physically separated. For the purposes of that vast generality, it is sufficient to say that the relevant state of affairs does not exist whilst both parties recognise the marriage as subsisting. That involves considering attitudes of mind and naturally the difficulty of judicially determining that attitude in a particular case may on occasion be great…identification of an attitude of mind is required. [At p. 255].

This reasoning was accepted in the Irish judgment of McA vs. McA where judge McCraken J. recognised that as ‘there is a mental element to’ living apart other than mere physical separation, there is more to living together than being physically in the same house. In this case the father’s return to the family household was motivated by the desire to develop his relationship with his children and not to restart the marriage. In absence of the intellectual attachment to the marriage the spouses were deemed to be living apart even though they shared the same household.

2. No reasonable prospect of reconciliation

The court must be satisfied that ‘there is no reasonable prospect of reconciliation between the spouses’. The four-year separation period (per the first requirement) may already be indicative of the fact that reconciliation between the spouses is unlikely the Court is still under the obligation to examine whether there is a reasonable possibility for reconciliation. In fact Articles 4 and 5 of the proposed bill obliges the lawyers representing the applicant and respondent respectively to discuss with their clients the possibility of a reconciliation and give him or her the names and addresses of persons qualified to help to effect a reconciliation prior to the institution of proceedings.

As with the first requirement it all depends on the facts and circumstances of each particular case and the degree of acrimony or agreement in each case will assist the court in deciding the issue. In E.P. v C.P. it was held that this ground would be satisfied if the breakdown of the marriage was irretrievable: both parties accept that there is no reasonable prospect of reconciliation. In this sense the Courts must not adopt a strict interpretation of this requirement. Rather, they must ensure that there is no reasonable prospect of reconciliation and not that there is absolutely no hope.

3. Such provision as the court considers proper

The Court must be satisfied that such provision as the court considers proper, having regard to the circumstances exists, or will be made for the spouses and any dependent members of the family. This means that the Court must be prima facie ensured that provision, that is, alimony or maintenance, for the spouses and any dependant members of the family already exists or will be made prior to granting the decree of divorce. It could be that prior to divorce, the spouses have already obtained a judicial or consensual separation and, in consequence, one of the spouses has already been directed by the Court to pay maintenance to the other and to sustain his or her children. Again, this requirement is not devoid of interpretational problems, in particular the interpretation that should be given to ‘dependent member of the family’. Should this be limited to the definition given in Article 2 of the proposed bill (see footnote 11) or should it be extended so as to cover all children such that a divorcing parent may be ordered to pay maintenance even to his adult children?

Grounds for Divorce under Italian Legislation

Interestingly enough, Italian legislation does not speak of divorzio but of scioglimento del matrimonio civile, that is, of the dissolution of the civil marriage and/or of cessazione degli effetti civili del matrimonio concordatario, celebrato da ministri del culto cattolico (termination of the civil effects of marriage celebrated by ministers of Catholic worship).

In order to examine the relevant rules, recourse must be made to Article 149 of the Codice Civile which states that marriage shall be dissolved upon the death of one of the spouses and in other cases prescribed by law. These ‘other cases’, in the context of divorce, are provided for in Law No. 898 of 1970, as amended by Law No.74, 1987, namely the so-called ‘divorce law.’

First, Articles 1 and 2 of Law No. 898/70 indicate that the first investigation to be made by the Court regards the inability to maintain or restore the material and spiritual communion between the spouses for one of the causes identified by Article 3. The declaration of divorce, therefore, does not automatically follow a finding of the presence of one of the reasons under Article 3, but in any case requires the determination by the Court of the existence of a practical impossibility of maintaining or restoring family life upon the failure of the spiritual and material union between the spouses. This is similar to the provision under the Irish legislation which requires that ‘there is no reasonable prospect of reconciliation between the spouses’ for the decree of divorce to be granted although it goes one step further by linking the impossibility of reconciliation with the breaking down of the spiritual and material union between the spouses.

That said, the Court must determine that one of these strict objective grounds, pursuant to Article 3 of the Act under review exists:-

1) the conviction of one of the spouses, after the celebration of the marriage, which conviction has become res judicata, even for acts committed before the celebration of the marriage, to life imprisonment or imprisonment for a term of more than fifteen years for one or more intentional crimes or any term of imprisonment for incest, rape, induction, coercion, exploitation or prostitution, or for aiding and abetting the murder of a child or attempted murder against a spouse or child, or even to any term of imprisonment, with two or more convictions for crimes of injury, circumvention of an invalid, of non-family care and abuse committed against a spouse or child;

2) the acquittal of one of the spouses from having committed one of the crimes in the previous paragraph upon grounds of insanity or due to prescription of the criminal action if the divorce court establishes, respectively, the inability of spouses to maintain or restore family life or that there are in fact committed the elements and conditions for the punishment of these crimes;

3) the judicial pronouncement of personal separation between the spouses which has become res judicata or by decree of approval in case of consensual separation, provided that at least three years have passed from the first appearance of the spouses before the presiding judge in the proceedings of personal separation.

4) a marriage ratified (that is celebrated), but not consumed, regardless of the ignorance of the possible impossibility of sexual intercourse;

5) a court decision which is the final step in rectifying the allocation of sex, according to Law No.164, 1982 (transsexualism)

It is manifestly evident that the grounds for dissolution of civil marriage under Italian legislation are much more elaborate than the Irish grounds for divorce. First of all the Italian legislator acknowledged that dissolution should be made possible if one of the spouses is res judicata convicted for particularly heinous crimes meriting imprisonment for life or imprisonment beyond 15 years as well as conviction for crimes against public morals such as incest, rape and prostitution. It seems that here the legislator is acknowledging the fact that upon such conviction there is a big possibility for the spouses to be unable to maintain or restore family life but it does not exclude, by virtue of Articles 1 and 2, the possibility for reconciliation between the spouses nonetheless.

The fourth ground listed above links the dissolution of the marriage with judicial or consensual separation provided that three years have elapsed since the first appearance before the presiding judge in the proceedings of separation. This is unlike the Irish law which does not require such judgment or the commencement of such proceedings but that the spouses have lived apart for four of the past five years. The Italian ground could be the wiser one because various necessary and fundamental formalities such as the allocation of the matrimonial home, alimony payments, and custody of children would have already been covered by virtue of the separation proceedings. Moreover, separation proceedings, coupled with the three year separation period after their commencement, would serve as further conclusive proof that there is ‘no reasonable prospect of reconciliation between the spouses’.

Furthermore, the Italian grounds for dissolution of the marriage also incorporate one of the traditional grounds for annulment, this being impotence (the inability to bear offspring) or refusal to consummate the marriage. This section seems to pay homage to the secular and Canonical legal doctrine that consummation of a marriage, that is, the conjugal act between the spouses for the purpose of bearing offspring, is a fundamental aspect of marriage and an obligation spouses owe to each other. In fact, both the Marriage Act and Canon law provide that an inability or refusal to consummate the marriage is a valid ground for annulment. A more controversial provision, but one which should not be excluded by our legislator, is in the granting of divorce if one spouse has undergone sex reassignment surgery and has legally changed his or her gender through a Court decision in this regard.

It should also be noted that with the amendments of Law No.74/87 the Italian divorce law has been streamlined such that spouses may present a divorce application jointly, in which case the law provides for a closed session (in camera) where the parties will appear before the Court for the first and only hearing. This is known as the procedimento per direttisima or ‘direct route’ and is somewhat similar to Article 4 (2) (b) of the proposed bill provides the spouses with the possibility of mediation to help effect a divorce on a basis agreed between them jointly.

This article appeared on Quid Juris? GHSL's Online Law Student Journal on 24/10/2010, published by L-Ghaqda Studenti tal-Ligi (GHSL), authored by Andrew Sciberras

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Who Dares, Wins

This article first appeared in IDEAT Journal Vol. 2, Carpe Diem, published by Fondazzjoni Ideat August 2010, authored by Andrew Sciberras.

I began writing this article with the intention of continuing where I left off in our first edition’s cover-story which attempted to answer the question: why do we need a progressive movement for Malta? Whilst my intention remains intact, namely that we must now concern ourselves with examining how to construct such a movement, I have decided to do away with all clichĂ©s and dullness of political pieces. It is nigh time that we cut right to the chase. Besides, the summer lull does not soothe the inspiration, ironic as that may sound. For this reason I would like to apologise to our dear readers for what would otherwise be an unprofessional approach to political writing.

That things are simply not right is more than manifestly evident. Twenty-odd years of Nationalist administration have seen many highs (and it would be utterly close-minded to deny this) but at the moment we are simply living the lows. We all know that people are severely concerned with their standard of living and that it’s become such a struggle for many to cope with bills and expenses. We all know that corruption and mismanagement of public funds is rife; that issues such divorce, civil-partnerships (or dare I say marriage?) for LBGT couples, abortion and even “avant-garde” artistic expression are still taboo. When a minor is incarcerated in the Corradino Correctional Facility and a person requiring treatment has to wait for years to get it you know that we are on the brink of despair.

If progressive politics seeks to change all this it is patently obvious that we need a committed group of progressive politicians running our country. For Labour to be a part of this change it cannot be progressive in name and on paper but also in mind and in spirit. It cannot stop at identifying the above-mentioned problems and dragging on about them for months on end in the mass media. That is the issue-based politics which garners attention but doesn’t convince. What people want to know is what Labour is going to do about it? Corruption and mismanagement are indeed bountiful, but what concrete measures will Labour introduce to increase transparency and good governance? The cost of living has sky-rocketed but how does Labour plan to lower taxes, increase public spending and keep the deficit in check? How will Labour introduce divorce (a basic civil right) and limit censorship of the arts when it is itself unsure on where it stands on such issues? Evarist Bartolo (MP, Labour Party) hit the nail on the head when he asked the questions: “What does the Labour Party stand for in the second decade of the 21st century? How can it run Malta better than the PN and create the necessary political, economic, social and cultural conditions in our islands to give our people a much better quality of life? Shouldn’t we take real steps to start moving closer to the open and liberal societies of the EU?”

I sincerely believe that the majority of Maltese citizens feel let down by the Nationalist administration. But Labour cannot possibly lead a centre-left coalition if it is not yet fully trusted. Whilst grass-roots support may have been revitalised since Joseph Muscat was elected leader, the party has yet to convince mid-range income earners that it has the right solutions for today’s problems. To do this is it needs to change radically from the inside-out. It needs, as I said, a committed group of progressive politicians ready and willing to embrace reform. In order to do this, things may be somewhat unpleasant. As the saying goes, there is no gain without pain.

For starters it has to take a clear stand on the breed of politicians it wants to represent voters in Parliament. Do not get me wrong. I am all for giving MPs the right to express themselves freely. Sometimes we can do with a little less whipping and lot more principle. But you cannot have a party which calls itself progressive whilst harbouring some of the most staunchly conservative minds in the country. Diverging opinions are healthy but extremes will lead one to question the party’s consistency and resoluteness to put into practice that which it believes in. The party needs to ensure that, above-all, its MPs (and future ministers) are open-minded and not self-serving; that do not occupy their seat to serve the interests of the majority but of all the country’s citizens. In this light Marlene Pullicino’s (MP, Labour Party) frank admission that she was “narrow-minded enough to disregard this responsibility” is heartening and a welcome step in the right direction.

In no way should this be construed as an indictment of past and present MPs. All MPs are entitled to their opinions and they have served the country and their constituencies well. But a line must be drawn if the party wants (as it rightfully should) to construct a deep and far-reaching movement of progressives and centrists. To have a strong government Labour must look to revitalising itself by reaching out to fresh faces and go-getters who share a similar appetite to battle for change. A future campaign should not be built around politicians who focus on fixing potholes but on the idea that Labour can make a difference; that change is indeed possible. But for this to occur, change must first occur within the party structures and it is time for those who are reluctant to accept this to graciously bow out.

Labour must also renew its sense of purpose as a socially liberal party. There is no wrong committed in moving forward into the twenty-first century. Rather, its failure to do so would render Labour, as Bartolo wisely said, “another shade of PN, unable to offer an alternative to the increasing number of people who want our society to open up and become more liberal and socially tolerant and just.” Ultimately a great injustice is committed upon society and future generations if it they are eternally bound by the cultural and ethical norms of the past.

I remain hopeful that in a few years’ time we will see a Labour Party that is capable of progressive governance; a party which does not lack in courage to implement radical reforms to take Malta forward. It did so in the past and it can surely do so again in the second decade of the twenty-first century. I am certain that Joseph Muscat shares this vision and all that remains now is that he acts upon it. He who dares, wins.

This article appeared in IDEAT Journal Vol. 2, Carpe Diem, published by Fondazzjoni Ideat August 2010, authored by Andrew Sciberras.

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Grasping the Progressive Ideal

This article appeared on IDEAT Journal Vol. 1The Road To Progress, published by Fondazzjoni IdeatApril 2010, authored by Andrew Sciberras.

There is no doubt that Joseph Muscat’s nation-wide call for a united progressive and moderate movement to affect change in the country’s direction has come at the right moment. Indeed, since the Nationalist Party’s close-shave victory in 2008 things only seem to be going downhill. The onset of the global financial downturn has certainly stalled growth, stability and peace of mind yet the political disaster currently facing government is for the most part its own doing. The Honourable Prime Minister Lawrence Gonzi and his closest aides have a penchant for consolidatingtheir power-base, leaving his own MP’s, let alone the rest of the country, feeling completely neglected and useless. It comes as no surprise, therefore, that the prime minster must first mend the crisis plaguing his fragile one-seat majority before assuming proper leadership of the country. This has left the country ravaged by ubiquitous maladministration across the board ranging from growing unemployment and an intolerable cost of living to the deterioration of the welfare state and a stifling conservative hegemony.
Yet the Labour leader faces a tall order as those on the left demand less talk and more action whereas conservative forces dismiss such talk on movements as hogwash in a clear attempt to preserve and maintain the status-quo. On top of that Muscat must reconcile the differences amongst factions within his own party some of which promote ideological caution whilst others push him to adopt bolder and more ambitious stances. It seems to be an impossible feat especially in a country with a long history of blind partisan loyalty and a bitter political divide. However, movements are no novel concept to Maltese politics. Just five years ago the “Yes” movement successfully campaigned in favour of EU accession and time has shown that civil society can provoke discussion on topical issues, if not prod government to bow its head and heed their call. Such has been the case when civil society pressured the public administration to change course (albeit on individual cases) on environmentally harmful undertakings and, more recently, to kick-start a nation-wide debate on the country’s archaic censorship regime.

But what does the ‘progressive and moderate’ movement actually stand for? This is the one question that merits a swift response if any movement wants to achieve credibility. Surely all movements or coalitions establish their identity by rooting for a similar cause or causes. This does not mean that the individual components of a political movement abandon their loyalties and their allegiances as a qualification for unity but, rather, to work together on points of commonality whilst respecting each other’s differences. It is time to inject a good dose of pluralism in Maltese politics, especially if, as a progressive movement should, we want to address the so-called “democratic deficit” fostered by an inane tribalism and the growing indifference of the common voter. In such climate people’s resentment and apathy becomes all the more understandable and it is absolutely crucial that they do not remain neglected.

Labour does well to recognise this predicament and more so, to listen, understand and give a voice to the disenchanted masses. For no political party, no matter how powerful and distinguished has a monopoly over wisdom. Progress neither begins nor ends with Labour but with the input of each and every individual in society. And what is progress after all? Some want to make believe that it is an imperceptible term used by politicians to make them appear hip and modern. Others may fear that it is a threat to tradition and devoid of values. Sometimes the simplest answer holds the greatest truth. In unsophisticated terms progress is the act of moving forward. Not such an intimidating enterprise for those several thousand who are sick and tired of all the hidden, or indeed barefaced, agendas to keep Malta firmly anchored in the past. And the same goes for those on the left as well.

Progress can only be accomplished by abandoning traditional dogmas still reminiscent of the old left and by becoming more pragmatic, flexible and forward-looking for one cannot possibly solve today’s problems solely by the means of the past. There is absolutely no wrong in building bridges and welcoming new partners, because after all, fruitful debate and viable solutions don’t emerge from close-mindedness but from a broad spectrum of people holding different ideas. Having said that, it would be sheer folly and wholly counter-productive to the movement’s call for change if it purports to be a haven for one and all, that is for the environmentalist and the unscrupulous speculator, the civil libertarian and the moral traditionalist, and so on. This is, in fact, a perception that the Labour Party must address as of now and for the future. As the prime mover in an umbrella movement for change Labour must show that it truly means business and dismantle once and for all the idea that its current existence hinges primarily on politics of convenience.

This is why progressivism, flexible and pragmatic though it may be, must be firmly grounded in democratic values. Progress cannot be achieved if human rights, civil liberties and egalitarianism are placed on the backburner. Progress will stall if social justice and dialogue are substituted by obstinacy and arrogance. Consumers will continue to suffer if they find no solace in a bungled and weak regulatory system. Students will resort to apathy and hopelessness if those who are supposed to represent their interests linger in passivity and indifference. A nation’s precious environmental heritage will be long-forgotten if the authorities tasked with protecting it unquestionably side with speculators. These misfortunes must be tackled head on not just by Labour, which must be ever-present in positing workable alternatives, but by civil society as well including the unions and NGO’s for it is easy to criticise and prolong mediocrity than to work together and achieve concrete results.

The movement must also be ready to embrace modernity and rid itself from the cultural mentality that some things are better left unsaid and unquestioned. Taboos also have an expiry date. Not less than two years ago for instance, the local Curia officially declared war on secularism in its Victory Day homily (September 8, 2008) comparing the threatening idea of secularism to the Fascism of the 1930s and 1940s. Unrelated or otherwise, what came after was a slew of shameful indictments, fines and the potential imprisonment of persons who, knowingly or not, dared to challenge moral norms. Equally damning is the fact that to this very day Maltese society continues to be denied basic liberties such as divorce and finds itself deeply mired in social inequality and a general lack of broadmindedness perpetrated by the powers that be. It truly is a bitter irony for all those who genuinely believed that accession in the European Union would usher a new Renaissance to realise that after six years of EU membership we still do not enjoy comparable rights to those of our European counterparts.

On Church-State relations Muscat hit the nail on the head when he claimed that whilst a steadfast friendship should be maintained both entities are wholly separate in that they do not share any political or moral allegiance to one another. Incidentally, however, Joseph Muscat’s reluctance to go the whole hog on divorce and offer instead a free-vote on the contentious issue has sparked further debate, particularly on a future Labour government’s willingness to adopt this civil right. Whilst one can understand that on moral issues one should not be forced to vote against his or her own personal ethic, it is our firm belief that the current position should be reconsidered, especially in light of the commendable declaration by the Labour leader that the majority must never decide for the minority (although it is highly doubtful whether those in favour of divorce are actually in the minority). After all, Labour did not shy away from decriminalising homosexuality and giving women voting rights even though these measures were highly controversial in their day and age.

Progressivism however should not merely be construed as being analogous to social liberalism. This is a common misconception. More than just an ideology, progressivism encompasses an attitude towards the world of politics that is far less bleak than the divisive dichotomy of liberal versus conservative which tends to dominate popular politics. Progressives must also look to mending today’s decaying economic structures and reversing environmental degradation. In a blatant case of ‘strong with the weak and weak with the strong’, government’s short-term answers to shoring up the spiralling deficit have primarily been based on transferring State monopolies into private hands and ushering a punishing regime of indirect taxation and hidden tariffs. Backtracking on its promise to make sustainable development the core of its five-year program, it has created a monster out of MEPA and shows no shame or regret in defending the use of polluting technology. As a result, citizens feel dejected and have legitimately forgotten that government can be used as a force for good. Good governance cannot possibly be conceived when people are removed from the equation, leaving the ruling party widely exposed to special interests and powerful lobbies. Such a system is devoid of the checks and balances necessary for a democratic society to function properly and transparently.

Change is a difficult endeavour for any one party to achieve on its own. It requires ambition and an unfaltering conviction in the face of dogged opposition by those who fear it. This is why working together in a spirit of pluralist democracy becomes all the more essential. Any movement driven by the idea of change must not neglect reality, however. Whilst it is good to dream, for ideas are born from dreams, one must learn to walk before one can begin to run. In this sense, a movement of progressives and moderates (an unlikely pair for some) can provide harmonious equilibrium between temperance and radical action. This is not to say that both ends of the spectrum should cancel each other out but that there is likelier chance of success in achieving the common aims that they both share by working together. After all by squabbling amongst ourselves we can only nurture the arrogance and mismanagement that has taken Castille by storm. It is time to forge a better future for our country and its people. That time is now.

This article appeared on IDEAT Journal Vol. 1, The Road To Progress, published by Fondazzjoni Ideat April 2010, authored by Andrew Sciberras.

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