Monday, 23 June 2014

Allah For Muslims Only ?

The Federal Court of Malaysia, which is the highest Court in the Country, has issued a judgment supporting a ban by the a state Government on the Catholic Herald of Malaysia preventing it from using the word "Allah" as a title for "God" and ending a years-long legal battle that has caused religious tensions in that Muslim-majority country.

The Catholic Church had been seeking to reverse the government ban preventing it referring to God by the Arabic word “Allah” in the local Malay-language edition of the Herald newspaper but a seven-judge panel in the administrative capital Putrajaya has supported an earlier ruling in the Court of Appeal that only Muslim publications could use the word "Allah".  The Court of Appeal Judgment was the case of  Negeri and Ors v Roman Catholic Archbishop of Kuala Lumpur No:. W-01-1-2010 14 October 2013 also Here & Here with official Press Summary.

The Federal Court Judgment will be added to this site once it becomes publicly available:  NOW AVAILABLE Roman Catholic Archbishop of Kuala Lumpur v Negeri & Ors, Civil Application No.: 08-690-11/2013

The dispute began in 2007 when the Home Ministry threatened to revoke the publishing permit of the Herald for using the Arabic word in its Malay-language edition. The church launched a court case to challenge the directive, arguing “Allah” had been used for centuries in Malay-language Bibles and other literature to refer to “God” outside of Islam but the authorities said that using “Allah” in non-Muslim literature could confuse Muslims and entice them to convert which is a crime in Malaysia. This is in accordance with the Constitution of Malaysia clauses 3 & 11

3(1) islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation
11(4) State law and in respect of the Federal territories of Kuala Lumpur, Labuan and putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of islam

An example of the enforcement of Article 11(4) is is the Selangor Non-Islamic Religions (control of propagation amongst Muslims) Enactment 1988  which states

4(1) A person commits an offence if he persuades, influences or incites a Muslim---
(a) to be inclined towards any non-Islamic religion, or 
(b) to become a follower or member of a non-Islamic religion; or 
(c) to forsake or disfavour the religion of Islam.
(2) A person who commits an offence under subsection (1) shall, on conviction, be liable to imprisonment for a term not exceeding one year or to a fine not exceeding ten thousand ringgit or to both.
(3) It shall not be a defence to a charge under subsection (1) that the Muslim was not affected by anything said or done by the accused to him.

9(1) A person commits an offence if he-
(a) in any published writing; or
(b) in any public speech or statement; or 
(c) in any speech or statement addressed to any gathering of persons; or
(d) in any speech or statement which is published or broadcast and which at the time of its making he knew or ought reasonably to have known would be published of broadcast,uses any of the words listed in Part I of the Schedule, or any of its derivatives or variations, to express or describe any fact, belief, idea, concept, act, activity, matter, or thing of or pertaining to any non-Islamic religion.

One of the "words listed in Part 1 of the Schedule" is "Allah"

In December of 2009, the High Court of Malaysia decided that the use of the word "Allah" by the Catholic (and other Christian Churches) was constitutional which led to incidents of violence against Christian Churches.  In October of 2013, the Court of Appeals overturned the 2009 decision stating 
"the usage of the name 'Allah' is not an integral part of the faith and practice of Christianity."
and that is clearly also the opinion of the Federal Court of Malaysia

An interesting question is whether this case could have implications for Christians, and other Non-Muslims in other Muslim Majority Countries.  "Allah" is the common name for "God" in Arabic and has been used by Arab Christians since the Muslim Conquests of the Middle East.  The Christian and Muslim concepts of what "God" or "Allah" is or how he manifests himself to mankind differs but the same word is used. It is not inconceivable however that Non Muslims in Arab and other countries could now find that their right to use the word "Allah" is increasingly called into question

A helpful summary of the history of the case was displayed in the Malay Mail Online which I reproduce below (c) Malay Mail 

Monday, 16 June 2014

Fernandez Martinez v Spain - Priestly Celibacy and the European Convention

The Grand Chamber of the European Court of Human Rights has given its judgment in the case of Fernandez Martinez v Spain12 June 2014 which involved a former Catholic Priest who was sacked from his post as Catholic Teacher of Religion.  The case was an Appeal from the earlier decision Fernandez Martinez v Spain 15 May 2012 which I blogged about at the time

Martinez was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from the obligation of celibacy. The following year without waiting for an answer he was married in a civil ceremony. He has had five children with his wife, to whom he is still married. (NB a point not discussed in the judgment is the fact that this marriage would have been doubly invalid from the Catholic perspective being both in breach of his vow of celibacy and being solely a Civil and not a Religious marriage ceremony)

From October 1991 onwards, Martinez was employed as a teacher of Catholic religion and ethics in a State-run secondary school of the region of Murcia under a renewable one-year contract. In accordance with the provisions of an Agreement of 1979 between Spain and the Holy See, which laid down that “religious education shall be taught by the persons who, every school year, are appointed by the administrative authority from among those proposed by the Ordinary [ie the Bishop] of the diocese”

In November 1996 the Murcian newspaper La Verdad contained an article about the “Movement for Optional Celibacy” of priests (MOCEOP) where Martinez was named and where various aspects of Church teaching were attacked including teachings on Abortion and Birth Control as well as Clerical Celibacy.

On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education in a written memorandum that Martinex was no longer to be regarded as a teacher of religion "proposed by the Ordinary of the diocese" and in consequence his employment was terminated by the Ministry of Education. Therefore his employment was terminated by a secular Governmental authority but on the basis of a decision made by a religious authority

Martinez appealed through the Spanish Court system and ultimately to the ECtHR alleging breaches of Articles, 8 (right to private life), 9 (freedom of religion), 10 (freedom of expression), whilst Spain in reply relied upon Articles 9 (freedom of religion), and 11 (freedom of association) with both sides relying on the exemptions laid down in those various articles. 

Whilst the Grand Chamber agreed that Articles 8, 9, 10 and 11, were all relevant in the case the gist of the case was the fact that Martinez was not able to remain a teacher of the Catholic religion as a direct consequence of the publicity given to his family situation and therefore the case should be considered only under Article 8

In looking at the case the Grand Chamber accepted that it involved a balancing exercise between the rights of Martinez as an individual and the rights of the Catholic Church as a religious community.  In a very tight decision, 9 votes to 8, the Chamber accepted that the rights of the Church to its autonomy took precedence over the individual rights of Martinez who had the right to protest about Church policies but did not have the right to insist that he remain employed as a teacher of Catholic beliefs whilst at the same time protesting and defying those beliefs

[123] In the present case, this balancing exercise concerns the applicant’s right to his private and family life, on the one hand, and the right of religious organisations to autonomy, on the other..... 

[127]  As regards the autonomy of faith groups, the Court notes that religious communities traditionally and universally exist in the form of organised structures. Where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. Seen in that perspective, the right of believers to freedom of religion encompasses the expectation that they will be allowed to associate freely, without arbitrary State intervention. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords. It has a direct interest, not only for the actual organisation of those communities but also for the effective enjoyment by all their active members of the right to freedom of religion. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual’s freedom of religion would become vulnerable

[128]  Concerning more specifically the internal autonomy of religious groups, Article 9 of the Convention does not enshrine a right of dissent within a religious community; in the event of any doctrinal or organisational disagreement between a religious community and one of its members, the individual’s freedom of religion is exercised by the option of freely leaving the community ...... Respect for the autonomy of religious communities recognised by the State implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity.

So far so good however the Grand Chamber clearly did not want to leave religious communities with absolute freedom in this matter

[132]   a mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient to render any interference with its members’ rights to respect for their private or family life compatible with Article 8 of the Convention. ... the religious community in question must also show, in the light of the circumstances of the individual case, that the risk alleged is probable and substantial and that the impugned interference with the right to respect for private life does not go beyond what is necessary to eliminate that risk and does not serve any other purpose unrelated to the exercise of the religious community’s autonomy.

Tie this judgment in with the recent UK Supreme Court decision in the Shergil v Khaira case and it seems clear that there is going to be more questioning by Secular Courts of the autonomy of Religious Organisations

What is most startling in the judgment is the dissenting judgment of the Russian Judge Dmitry Dedov who states that the requirement of Celibacy is itself a breach of Article 8 and therefore the Catholic (and incidentally Russian Orthodox) Church should not be allowed to require celibacy as a condition for of the priesthood (Episcopacy). Though his judgment is a minority one the fact that the Grand Chamber was so split on this decision 9 votes to 8 does not bode well for the continuing freedom of religious organisations to make their own disciplinary or doctrinal rules

Thursday, 12 June 2014

Shergil v Khaira - When can religious doctrine be justiciable ?

The Supreme Court has just issued its judgment in the case of Shergill v Khaira [2014] UKSC 33 an appeal from the Court of Appeal decision Shergill v Khaira [2012] EWCA Civ 983

The case involved a dispute between two groups of Sikhs and the trusteeship of two Gurdwaras (Sikh places of worship).  Essentially the Trustees had been removed by Sant Baba Jeet Singh Ji Maharaj, who claimed to be "the Third Holy Saint" and successor  to "the First Holy Saint", who was the founder of the Gurdwaras in the 1980s.  The Claimants asserted that Sant Baba Jeet Singh Ji Maharaj was not in fact "the Third Holy Saint" and therefore was not entitled to remove them.

In the Court of Appeal it was held that the issues in the case would require the Court to adjudicate on matters of Religious Belief or Doctrine and as such were inherently "Non Justiciable"

The principle that issues of Religious Doctrine and Belief are non justiciable in the UK Courts is of long standing.  In the House of Lords case of  Free Church of Scotland v Overtoun [1904] AC 515, at page 643, Lord Davey said 
“My Lords, I disclaim altogether any right in this or any other civil court of this realm to discuss the truth or reasonableness of any of the doctrines of this or any other religious association”

4) This principle was restated with clarity in Blake v Associated Newspapers Ltd [2003] EWHC 1960 (QB)  where Mr Justice Gray said 
[21].. It is well-established by such cases as General Assembly of Free Church of Scotland v. Lord Overtoun [1904] AC 515; R. v. Archbishops of Canterbury and York ex parte Williamson (transcript from M Hill, Ecclesiastical Law, 2nd Ed, OUP, 2001 at 672-676) and Varsani v. Jesani [1999] CH 219 that the court will not venture into doctrinal disputes or differences.  

And also by the House of Lords in Secretary of State for Education and Employment ex parte Williamson  [2005] UKHL 15 where Lord Walker said  
  [57] . For the Court to adjudicate on the seriousness, cogency and coherence of theological beliefs is (as Richards J put it in R (Amicus) v Secretary of State for Trade & Industry [2004] IRLR 430, 436-7, para 36) to take the Court beyond its legitimate role.

In HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group & Anor [2010] EWHC 1294 (QB), and Shergill v Purewal & Anor [2010] EWHC 3610 (QB), Mr. Justice Eady and Sir Charles Gray respectively stayed Libel proceedings on the grounds that they would inevitably involve the Court adjudicating on issues of Sikh doctrine and belief and as such were non justiciable issues 

The rationale and justification for this principle of Non Justiciability in matters of religious dispute was  set out by Lord Justice Mummery in  his judgment in Shergill v Khaira [2012] EWCA Civ 983
[70] , non-justiciability is a salutary principle of judicial self-restraint. It ensures that judges do not overreach themselves and that they abstain from deciding questions that are neither appropriate for, nor capable of decision by, judicial method. Judges are not capable of understanding and deciding everything and it is not their function to do so. Judges are not omniscient. The courts they sit in are courts of law. There are matters on which a court is not competent to speak with authority, because of the limitations inherent in the nature of the judicial process, and therefore should not speak. That is so where the questions are not matters of law at all, such as subjective inward matters incapable of proof by direct evidence or by inference”.

Faced with this century of consistent legal authority one might have expected the Supreme Court to have agreed with Mummery however the Supreme Court made a rather subtle distinction of its own which may or may not erode the concept of Non Justiciability in future cases

[45] where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust

[46] The law treats unincorporated religious communities as voluntary associations. It views the constitution of a voluntary religious association as a civil contract as it does the contract of association of a secular body: the contract by which members agree to be bound on joining an association sets out the rights and duties of both the members and its governing organs. The courts will not adjudicate on the decisions of an association’s governing bodies unless there is a question of infringement of a civil right or interest. An obvious example of such a civil interest is the loss of a remunerated office. But disputes about doctrine or liturgy are non-justiciable if they do not as a consequence engage civil rights or interests or reviewable questions of public law

In this case the SC held the issues essentially involved the interpretation of a Trust rather than any asjudcation on the correctness or otherwise of religious doctrines.  In para 53 the Court returned to the founding authority on Non Justiciability  Free Church of Scotland v Overtoun [1904] AC 515 and said
 as Lord Davey said in Free Church of Scotland v Overtoun (at pp 644-645) the civil courts do not have the right "to discuss the truth or reasonableness of any of the doctrines of [a] religious association". He stated
"The more humble, but not useless, function of the civil Court is to determine whether the trusts imposed upon property by the founders of the trust are being duly observed."

The fact that the Supreme Court still clearly considers Overtoun to be good law will probably prevent this new decision opening up Court to arguments about religious doctrine but the decision has pushed the door of Non Justiciabilty open by a crack and time will tell whether that crack will be pushed open further in the future