The trial has commenced within the Vatican of, former Archbishop Józef Wesołowski on charges of the sexual abuse of minors.
The trial has aroused questions as to why such trials have not taken place before and why it is taking place in the Vatican rather than in the Dominican Republic where the offences are alleged to have occured. A complicating factor also leading to questions is the fact that this is the second trial of Wesolowski to have taken place in the Vatican on the same allegations. The following is an attempt to provide a simple explanation of the legal issues and systems involved
The reason why the trial is taking place in the Vatican rather than the Dominican Republic is the fact that Wesolowski was the Papal Nuncio in the Dominican Republic at the time of the alleged offences and therefore he is protected by Diplomatic Immunity in respect of any offences he may have committed there.
A Papal Nuncio is an ambassador sent by the Pope to a country which has diplomatic relations with the Holy See and therefore a Nununcio has the same rights and privileges as any othe Ambassador. Diplomatic Immunity is an old concept but is currently covered internationally by the Vienna Convention on Diplomatic Relations of 1961 which has been ratified by virtually every country in the world. Under the Convention Diplomatic Immunity is unambiguously protected
Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.
Article 31: A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
Therefore as a diplomat the normal rule is that Weslowski could neither be arrested, questioned nor prosecuted in the Dominican Republic regarding his alleged crimes. However as a diplomat of the Holy See he is subject to the criminal law of the Vatican State and that criminal law extends to prosecuting him for offences committed abroad whilst acting as Nuncio. Diplomatic Immunity protects a diplomat from the criminal law of the country he is sent to but it does not protect him from the criminal law of his own country which is why Weslowski is able to be prosecuted in the Vatican.
Had Weslowski not been a Papal Nuncio but instead been an ordinary Bishop in the Dominican Republic then the question of Diplomatic Immunity would not have arisen and he could have been tried there, "Ordinary" Bishops, Cardinals etc who are not Papal Nuncios are not protected by Diplomatic Immunity. On the same basis since they are not citizens of the Vatican State they are not be subject to the laws of the Vatican State except when they are physically there.
The Investigation of the allegations against Weolowski will have been carried out by the Vatican Gendarmerie who are all former officers in one of the Italian Police Forces and who will follow standard Italian Police procedures. The trial itself will similarly be conducted according to the rules of Italian criminal procedure which have been adopted by the Vatican since the Lateran Treaties of 1929. The Judges in the case will be lay Judges trained in Italian civil law. If convicted Wesolowki can be sentenced to imprisonment and under exisiting agreements between Italy and the Vatican he could serve any prison sentence in an Italian prison.
The trial Wesolowski has already faced, was a separate trial under Catholic Canon Law which is a code that applies to Catholic Priests and Ecclesiastics throughout the World and which relates to whether they have broken the rules which apply to them as Priests. An offence under Canon Law may well not be an offence under the Civil Law of the country in which it took place and the penalities under Canon Law are purely religious penalties. In the case of Wesolowski the penalty imposed by the Canon Law trial was that he was stripped of his priestly status and laicised, in England often referred to as "being de-frocked".
As already mentioned if Wesolowski had not been a Nuncio and was not covered by Diplomatic Immunity he would have been dealt with by the criminal courts of the Dominican Republic and not the courts of the Vatican; however he would still have had to be dealt with separately under Canon Law to decide if he should be laicised
There are therefore 2 separate trials because there are 2 separate legal systems involved. There is the Vatican State legal system, which is specific to Wesolowski and the small number of priests and Ecclesistics who are Vatican State citizens, and there is the Canon law system which applies to all Catholic Priests everywhere
Showing posts with label Catholic Church. Show all posts
Showing posts with label Catholic Church. Show all posts
Saturday, 11 July 2015
Wednesday, 1 April 2015
Religious Freedom and Education in Quebec - Loyola High School case
The Supreme Court of Canada has supported the Religious Freedom rights of a Catholic School in the Province of Quebec in a case which revolved around s2 of the Canadian Charter of Rights and Fundamental Freedoms which is the section that protects Religious Freedom in Canada
The case of Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII) was the culmination of a 5 year legal battle over the teaching of a compulsory curriculum on Ethics and Religious Culture as opposed to teaching the subject in conformity with the Catholic beliefs which were part of the inherent identity of the School
Since September 2008, as part of the mandatory core curriculum in schools across Quebec, the Minister of Education, Recreation and Sports had required all schools in Quebec to teach a Program on Ethics and Religious Culture (ERC), which teaches about the beliefs and ethics of different world religions from a neutral and objective perspective.
The stated objectives of the ERC Program are the “recognition of others” and the “pursuit of the common good” seeking to inculcate in students "openness to human rights, diversity and respect for others" (or to put it another way the usual meaningless PC claptrap which has inflitrated speech and political discourse in the English [and French] speaking world).
To fulfil these objectives, the ERC Program has three components: world religions and religious culture, ethics, and dialogue. The three components are intended to support and reinforce one another. The orientation of the Program is strictly secular and cultural and requires teachers to be objective and impartial. Teachers are not to advance the truth of a particular belief system or attempt to influence their students’ beliefs, but to foster awareness of diverse values, beliefs and cultures.
The course was compulsory in Provincial state schools but under s. 22 of the Regulation the Minister can grant private independent schools an exemption from the specific requirements of the ERC Program if the School provides an alternative program which is deemed to be “equivalent”. Loyola wrote to the Minister to request an exemption from the Program, proposing an alternative course to be taught from the perspective of Catholic beliefs and ethics. The Minister denied the request based on the fact that Loyola’s whole proposed alternative program was to be taught from a Catholic perspective. It was not, as a result, deemed to be “equivalent” to the ERC Program.
Loyola brought an application for judicial review of the Minister’s decision. Loyola High School c. Courchesne, 2010 QCCS 2631 (CanLII) where the Superior Court decided that the Minister’s refusal of an exemption infringed Loyola’s right to religious freedom under the Charter, quashed the Minister’s decision, and ordered an exemption. On appeal Québec (Procureur général) c. Loyola High School, 2012 QCCA 2139 (CanLII) the Quebec Court of Appeal overuled the Superior Court and concluded that the Minister’s decision was reasonable and did not result in any breach of religious freedom.
At the Supreme Court hearing Loyola modified its request to teach the whole ERC program from a Catholic perspective, and was prepared to teach about the doctrines and practices of other world religions neutrally but it still wanted to teach about the ethics of other religions from a Catholic perspective. The Minister’s position however remained the same namely that no part of the ERC program could be taught from a Catholic perspective.
The Supreme Court decided that the Minister’s decision requiring that all aspects of Loyola’s proposed program be taught from a neutral perspective, including the teaching of Catholicism, limited freedom of religion more than was necessary and as a result, it did not reflect a proportionate balancing and should be set aside. The appeal was allowed and the matter remitted to the Minister for reconsideration.
The court held para 79
"it is the Minister’s decision as a whole that must reflect a proportionate and therefore reasonable balancing of the Charter protections and statutory objectives in issue. It does not, in my respectful view, because it rests on the assumption that a confessional program cannot achieve the objectives of the ERC Program."
A particularly important point of principle relating to the rights of Religious Organisations, including religious schools, was dealt with in paras 90 -91
[90] The Attorney General of Quebec contends that Loyola enjoys no such constitutional protection because it is not a natural person, but merely a legal person: religious freedom protects sincerely held beliefs, and a corporation is capable of neither sincerity nor belief. This raises the question of whether religious organizations are protected by the guarantee of freedom of religion.
[91] In our view, Loyola may rely on the guarantee of freedom of religion found in s. 2(a) of the Canadian Charter. The communal character of religion means that protecting the religious freedom of individuals requires protecting the religious freedom of religious organizations, including religious educational bodies such as Loyola. Canadian and international jurisprudence supports this conclusion.
The Court accepted therefore that Loyola’s teachers were permitted to describe and explain Catholic doctrine and ethical beliefs from the Catholic perspective. They agreed with the principle of the ERC course that Loyola’s teachers must describe and explain the ethical beliefs and doctrines of other religions in an objective and respectful way but accepted that where the context of the classroom discussion requires it, they may identify what Catholic beliefs are, why Catholics follow those beliefs, and the ways in which other ethical or doctrinal propositions do not accord with those beliefs.
An interesting point was raised in para 150 regarding the fact that a completely secular approach was not necessarily a neutral approach
150 By using as her starting point the premise that only a secular approach to teaching the ERC Program can suffice as equivalent, the protection contemplated by the s. 22 exemption provision was rendered illusory.
This mirrored to some extent similar points made by the European ourt of Human Rights in the Lautsi (Italian Crucifix) case in 2011
A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option.
The case may well be too specific to Quebec legislation for it to have a wider influence but since s2 of the Canadian Charter is similar to Article 9 of the European Convention on Human Rights this case could be of value to UK Religious based Schools should they feel that parts of the National Curriculum are contrary to their religious nature and identity. It may be particularly helpful as providing some guidance and reassurance for religious schools considering the difficult question of how they are to teach about same-sex marriage and same-sex relationships
The case of Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII) was the culmination of a 5 year legal battle over the teaching of a compulsory curriculum on Ethics and Religious Culture as opposed to teaching the subject in conformity with the Catholic beliefs which were part of the inherent identity of the School
Since September 2008, as part of the mandatory core curriculum in schools across Quebec, the Minister of Education, Recreation and Sports had required all schools in Quebec to teach a Program on Ethics and Religious Culture (ERC), which teaches about the beliefs and ethics of different world religions from a neutral and objective perspective.
The stated objectives of the ERC Program are the “recognition of others” and the “pursuit of the common good” seeking to inculcate in students "openness to human rights, diversity and respect for others" (or to put it another way the usual meaningless PC claptrap which has inflitrated speech and political discourse in the English [and French] speaking world).
To fulfil these objectives, the ERC Program has three components: world religions and religious culture, ethics, and dialogue. The three components are intended to support and reinforce one another. The orientation of the Program is strictly secular and cultural and requires teachers to be objective and impartial. Teachers are not to advance the truth of a particular belief system or attempt to influence their students’ beliefs, but to foster awareness of diverse values, beliefs and cultures.
The course was compulsory in Provincial state schools but under s. 22 of the Regulation the Minister can grant private independent schools an exemption from the specific requirements of the ERC Program if the School provides an alternative program which is deemed to be “equivalent”. Loyola wrote to the Minister to request an exemption from the Program, proposing an alternative course to be taught from the perspective of Catholic beliefs and ethics. The Minister denied the request based on the fact that Loyola’s whole proposed alternative program was to be taught from a Catholic perspective. It was not, as a result, deemed to be “equivalent” to the ERC Program.
Loyola brought an application for judicial review of the Minister’s decision. Loyola High School c. Courchesne, 2010 QCCS 2631 (CanLII) where the Superior Court decided that the Minister’s refusal of an exemption infringed Loyola’s right to religious freedom under the Charter, quashed the Minister’s decision, and ordered an exemption. On appeal Québec (Procureur général) c. Loyola High School, 2012 QCCA 2139 (CanLII) the Quebec Court of Appeal overuled the Superior Court and concluded that the Minister’s decision was reasonable and did not result in any breach of religious freedom.
At the Supreme Court hearing Loyola modified its request to teach the whole ERC program from a Catholic perspective, and was prepared to teach about the doctrines and practices of other world religions neutrally but it still wanted to teach about the ethics of other religions from a Catholic perspective. The Minister’s position however remained the same namely that no part of the ERC program could be taught from a Catholic perspective.
The Supreme Court decided that the Minister’s decision requiring that all aspects of Loyola’s proposed program be taught from a neutral perspective, including the teaching of Catholicism, limited freedom of religion more than was necessary and as a result, it did not reflect a proportionate balancing and should be set aside. The appeal was allowed and the matter remitted to the Minister for reconsideration.
The court held para 79
"it is the Minister’s decision as a whole that must reflect a proportionate and therefore reasonable balancing of the Charter protections and statutory objectives in issue. It does not, in my respectful view, because it rests on the assumption that a confessional program cannot achieve the objectives of the ERC Program."
A particularly important point of principle relating to the rights of Religious Organisations, including religious schools, was dealt with in paras 90 -91
[90] The Attorney General of Quebec contends that Loyola enjoys no such constitutional protection because it is not a natural person, but merely a legal person: religious freedom protects sincerely held beliefs, and a corporation is capable of neither sincerity nor belief. This raises the question of whether religious organizations are protected by the guarantee of freedom of religion.
[91] In our view, Loyola may rely on the guarantee of freedom of religion found in s. 2(a) of the Canadian Charter. The communal character of religion means that protecting the religious freedom of individuals requires protecting the religious freedom of religious organizations, including religious educational bodies such as Loyola. Canadian and international jurisprudence supports this conclusion.
The Court accepted therefore that Loyola’s teachers were permitted to describe and explain Catholic doctrine and ethical beliefs from the Catholic perspective. They agreed with the principle of the ERC course that Loyola’s teachers must describe and explain the ethical beliefs and doctrines of other religions in an objective and respectful way but accepted that where the context of the classroom discussion requires it, they may identify what Catholic beliefs are, why Catholics follow those beliefs, and the ways in which other ethical or doctrinal propositions do not accord with those beliefs.
An interesting point was raised in para 150 regarding the fact that a completely secular approach was not necessarily a neutral approach
150 By using as her starting point the premise that only a secular approach to teaching the ERC Program can suffice as equivalent, the protection contemplated by the s. 22 exemption provision was rendered illusory.
This mirrored to some extent similar points made by the European ourt of Human Rights in the Lautsi (Italian Crucifix) case in 2011
A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option.
The case may well be too specific to Quebec legislation for it to have a wider influence but since s2 of the Canadian Charter is similar to Article 9 of the European Convention on Human Rights this case could be of value to UK Religious based Schools should they feel that parts of the National Curriculum are contrary to their religious nature and identity. It may be particularly helpful as providing some guidance and reassurance for religious schools considering the difficult question of how they are to teach about same-sex marriage and same-sex relationships
Saturday, 24 January 2015
Allah for Muslims Only ? - 2
On 23 June last year I blogged about a case in Malaysia where the Government had prevented the Catholic Herald of Malaysia from using the word "Allah" in its Malay publication. In its Judgment Roman Catholic Archbishop of Kuala Lumpur v Negeri & Ors Civil Application No.: 08-690-11/2013 the Federal Court of Malaysia, which is the highest Court in the Country, noted [para 30]
" the reasons given by the Minister in his Affidavit In Reply, it is clear that he was concerned with national security and public order."
the Federal Court in the same paragraph endorsed the view of the Court of Appeal
"the usage of the word ‘Allah' particularly in the Malay version of the Herald, is without doubt, do have the potential to disrupt the even tempo of the life of the Malaysian community."
In its Judgement the Federal Court basically took a very narrow and technical view of its powers of Judicial Review and regarded the decision as one that fell within the area of Executive discretion.
The Catholic Church recently applied to the Federal Court to reconsider its Judgment on the basis that it had not properly taken account of the provisions of the Constitution of Malaysia relating to religious freedom. Not surprisingly perhaps the Federal Court having looked at its own decision decided it had been right all along and so the possibility of any further review of the Federal Court decision has ended see News Links HERE, HERE, HERE, There appears to be no further legal route for the Catholic Church to appeal this ban on it using the word "Allah" for God in Malay services and publications and there are already attempts to try to stop the Catholic Herald publishing anything in Malay.
As an outsider this decision by the Malaysian Government to try to control the use of the word "Allah" seems bizarre. Arab Christians use "Allah" and I was recently in Malta, an extremely Catholic country, where in services God is routinely called "Alla". In a strange way to try to keep Allah as a word only to be used by Muslims actually diminishes "Allah" who ceases to be "the God", the one true creator of the Universe and instead becomes merely the God of Muslims on a par with Zeus or Odin.
I wonder however whether this idea of restricting the use of the word "Allah" will spread within the Muslim World. A particular danger may be that the Ahmadiyya Muslims will be targeted and prevented from using the word "Allah" in their services. They are not regarded as "true" Muslims by most Sunni and Shia groups and are already prevented from describing themselves as Muslims in many countries
" the reasons given by the Minister in his Affidavit In Reply, it is clear that he was concerned with national security and public order."
the Federal Court in the same paragraph endorsed the view of the Court of Appeal
"the usage of the word ‘Allah' particularly in the Malay version of the Herald, is without doubt, do have the potential to disrupt the even tempo of the life of the Malaysian community."
In its Judgement the Federal Court basically took a very narrow and technical view of its powers of Judicial Review and regarded the decision as one that fell within the area of Executive discretion.
The Catholic Church recently applied to the Federal Court to reconsider its Judgment on the basis that it had not properly taken account of the provisions of the Constitution of Malaysia relating to religious freedom. Not surprisingly perhaps the Federal Court having looked at its own decision decided it had been right all along and so the possibility of any further review of the Federal Court decision has ended see News Links HERE, HERE, HERE, There appears to be no further legal route for the Catholic Church to appeal this ban on it using the word "Allah" for God in Malay services and publications and there are already attempts to try to stop the Catholic Herald publishing anything in Malay.
As an outsider this decision by the Malaysian Government to try to control the use of the word "Allah" seems bizarre. Arab Christians use "Allah" and I was recently in Malta, an extremely Catholic country, where in services God is routinely called "Alla". In a strange way to try to keep Allah as a word only to be used by Muslims actually diminishes "Allah" who ceases to be "the God", the one true creator of the Universe and instead becomes merely the God of Muslims on a par with Zeus or Odin.
I wonder however whether this idea of restricting the use of the word "Allah" will spread within the Muslim World. A particular danger may be that the Ahmadiyya Muslims will be targeted and prevented from using the word "Allah" in their services. They are not regarded as "true" Muslims by most Sunni and Shia groups and are already prevented from describing themselves as Muslims in many countries
Wednesday, 17 December 2014
Call the Midwife I want an Abortion ! - 3
The Supreme Court has issued its decision in the case of Greater Glasgow Health Board v Doogan [2014] UKSC 68 which was an Appeal from the decision of the Inner House of the Court of Session [2013] ScotCS CSIH_36 itself an Appeal from the earlier Outer House decision [2012] ScotCS CSOH_32.
I have Blogged about the cases in 2012 and 2013. In brief Ms Doogan and Ms Wood are experienced senior Midwives who worked in a supervisory capacity in the Labour Ward of their Hospital. Due to changes in Hospital routines etc Abortions began to be performed in the Labour ward and this change put the two midwives in a moral and legal dilemma that eventually led to the Supreme Court.
They objected to Abortion on Religious Grounds (they are Roman Catholics and the Catholic position on Abortion is pretty unambiguous) and sought to rely on the Conscientious Objection clause in s4(1) Abortion Act 1967 which says.
One thing is clear from the Doogan Judgment namely that the Supreme Court did not even try to find a "reasonable accomodation" and instead went out of its way to emasculate and limit the Conscience Clause in s4. The Court in para 37 of its judgment accepted that the word "participate" can have a narrow or a wider meaning and then in para 38 plumped for the narrow meaning
I have Blogged about the cases in 2012 and 2013. In brief Ms Doogan and Ms Wood are experienced senior Midwives who worked in a supervisory capacity in the Labour Ward of their Hospital. Due to changes in Hospital routines etc Abortions began to be performed in the Labour ward and this change put the two midwives in a moral and legal dilemma that eventually led to the Supreme Court.
They objected to Abortion on Religious Grounds (they are Roman Catholics and the Catholic position on Abortion is pretty unambiguous) and sought to rely on the Conscientious Objection clause in s4(1) Abortion Act 1967 which says.
"no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection"
It is worth pointing out that the conscientious objection clause is not restricted to believers in religion, a Secular Pro-Life person is entitled to rely on s4(1) just as much as a religious person.
The problem that the two Midwives had was that the Hospital did not accept that s4(1) covered their supervisory functions but insisted that it only applied to direct involvement in the physical act of Abortion and the legal case at all Courts has revolved around the question of what "participate in any treatment" actually meant.
The problem that the two Midwives had was that the Hospital did not accept that s4(1) covered their supervisory functions but insisted that it only applied to direct involvement in the physical act of Abortion and the legal case at all Courts has revolved around the question of what "participate in any treatment" actually meant.
The Supreme Court found against the Midwives and the Judgment was, ironically, delivered by Lady Hale. I say "ironically" because on 13th June 2014 Lady Hale gave a speech to the Law Society of Ireland where she said
"I am not sure that our law has yet found a reasonable accommodation of all these different strands [of religious freedom and conscientious objection]"
"I am not sure that our law has yet found a reasonable accommodation of all these different strands [of religious freedom and conscientious objection]"
One thing is clear from the Doogan Judgment namely that the Supreme Court did not even try to find a "reasonable accomodation" and instead went out of its way to emasculate and limit the Conscience Clause in s4. The Court in para 37 of its judgment accepted that the word "participate" can have a narrow or a wider meaning and then in para 38 plumped for the narrow meaning
37: The more difficult question is what is meant by "to participate in" the course of treatment in question. The employers accept that it could have a broad or a narrow meaning. On any view, it would not cover things done before the course of treatment began, such as making the booking before the first drug is administered. But a broad meaning might cover things done in connection with that treatment after it had begun, such as assigning staff to work with the patient, supervising and supporting such staff, and keeping a managerial eye on all the patients in the ward, including any undergoing a termination. A narrow meaning would restrict it to "actually taking part", that is actually performing the tasks involved in the course of treatment.
38: In my view, the narrow meaning is more likely to have been in the contemplation of Parliament when the Act was passed. The focus of section 4 is on the acts made lawful by section 1. It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital (for example, by assigning some terminations to the Labour Ward, some to the Fetal Medicine Unit and some to the Gynaecology Ward), the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. "Participate" in my view means taking part in a "hands-on" capacity.
My first objection to this is that there is absolutely no factual or legal basis on for the Court to decide that the "narrow interpretation" is more likely to have been "in the contemplation of Parliament". There appears to have been no reference made to the Parliamentary Debates as is allowed by the case of Pepper v Hart [1993] AC 593 and which would have revealed that the Abortion Act was only passed because of the conscience clause in s4 and assurances that there would be no compulsion regarding participation in Abortion
There seemed no recognition that the job of a Labour Ward Co-ordinator required a medical qualification and was carried out by these Midwives in their capacity as qualified Midwives so the comparison Lady Hale makes with cleaners etc is simply fatuous
More worryingly the Judgment deals with 2 issues relating to Abortion but which were not part of the issues before the Court
In para 36 Lady Hale says that the Conscience Clause provisions in s4 do not cover a Doctor who is asked to sign an authorisation form to legalise an Abortion
"In Janaway [1989] AC 537, 572 Lord Keith pointed out that such an interpretation would not cover the doctors forming the opinions required by section 1 and signing the certificates to that effect"
This is actually a complete misrepresentation of Lord Keiths remarks in Janaway where after discussing whether s4 applied to Doctors Certificates he said (very correctly)
"I do not think it appropriate to express any opinion on the matter."
I rather wish Lady Hale had accepted the same degree of proper Judicial restraint in commenting on matters which were not specifically part of the issues in the case especially having regard to the fact that Doctors Organisations were not represented at the Supreme Court case and had not been forewarned that legal decisions might be made relating to them so that they could make representations if they wished.
In para 40 she says
"it is a feature of conscience clauses generally within the health care profession that the conscientious objector be under an obligation to refer the case to a professional who does not share that objection. This is a necessary corollary of the professional's duty of care towards the patient. Once she has assumed care of the patient, she needs a good reason for failing to provide that care. But when conscientious objection is the reason, another health care professional should be found who does not share the objection."
Once again this was not an issue in the case, Doctors and Nurses Organisations were not forewarned that judgments might be made on this point so that they could be represented and make representations if they wished. Also it is reading something into an Act of Parliament which has not been put in by Parliament.
Those two elements of the Judgment are frankly disgraceful, Lady Hale and her fellow Judges stepping completely and unjustifiably outside their legitimate role and function as Judges and making judgments on issues which are not before them and on which the persons affected have not been allowed to make any representations. Frankly what annoys me as a lawyer is the sheer lack of professional competence in the way the Judgment is reasoned and the way in which the scope of the judgment goes quite improperly beyond the parties and issues involved.
Two final and closing points on what is a depressing evening
In para 8 Lady Hale goes into depressing detail concerning various methods of Abortion provision and says, in passing.
"Feticide is also carried out where there is a risk of the foetus being born alive following the termination"
To which I can only respond "a risk" ? So she happily accepts that the purpose of the legislation is amongst other things to ensure that babies who might be born alive are prevented from being born alive.
In para 14 she looks at the organisation of the Labour Ward where the Midwives worked
"Since 2010, there have been about 6000 births a year at the Southern General Hospital and just under 60 terminations a year in the Labour Ward."
Therefore since Abortions are just 1% of the work in this ward it would not have caused Glasgow NHS any real difficulties to have "reasonably accommodated" the conscientious objections of these Midwives.
In conclusion the case is an overall disaster for good honourable pro-life Doctors and Nurses who may well find themselves either pushed out of medicine altogether or forced to accept that they can never progress and accept supervisory medical posts
Friday, 28 November 2014
Equality Guidance published by Catholic Bishops
A new guidance document
Applying Equality Law in Practice: Guidance for Catholics and Catholic Organisations
has been published by the Christian Responsibility and Citizenship Department of the Catholic Bishops’ Conference of England and Wales.
The Bishops Conference says that the new Guidance
"Will help Catholics gain a deeper understanding of this area of law and remove any misconceptions caused by its perceived complexity. It is important to note that the guide is not intended as a replacement for specialist legal advice.
The guide makes clear that if any issue arises that might lead to liability under equality law, it is strongly recommended that reader consults a solicitor or legal advisor."
About the guide, Archbishop Peter Smith, chairman of the Christian Responsibility and Citizenship Department said
"The aim of this guide is to offer some clear practical guidance on a complex area of law. It is not a substitute for taking professional legal advice but it aims to raise awareness on what the law allows and to enable potential problems to be anticipated and averted.
"There is both scope and sometimes a need for Catholics to make use of the new law’s provisions which can protect religious freedom."
Whilst the Guidance is, of course, primarily aimed at the needs of Catholics and Catholic organisations it should be of interest to any Religious Organisation looking to understand what their legal rights are
Applying Equality Law in Practice: Guidance for Catholics and Catholic Organisations
has been published by the Christian Responsibility and Citizenship Department of the Catholic Bishops’ Conference of England and Wales.
The Bishops Conference says that the new Guidance
"Will help Catholics gain a deeper understanding of this area of law and remove any misconceptions caused by its perceived complexity. It is important to note that the guide is not intended as a replacement for specialist legal advice.
The guide makes clear that if any issue arises that might lead to liability under equality law, it is strongly recommended that reader consults a solicitor or legal advisor."
About the guide, Archbishop Peter Smith, chairman of the Christian Responsibility and Citizenship Department said
"The aim of this guide is to offer some clear practical guidance on a complex area of law. It is not a substitute for taking professional legal advice but it aims to raise awareness on what the law allows and to enable potential problems to be anticipated and averted.
"There is both scope and sometimes a need for Catholics to make use of the new law’s provisions which can protect religious freedom."
Whilst the Guidance is, of course, primarily aimed at the needs of Catholics and Catholic organisations it should be of interest to any Religious Organisation looking to understand what their legal rights are
Monday, 10 November 2014
Oh Liberty, what crimes are committed in thy name
This is a somewhat personal and possibly off subject posting but it is a subject I feel strongly about and, what the heck, this is my Blog so I can decide what goes in it.
Some weeks ago in the “Catholic Times” there was an article by a Catholic Priest called Monsignor Basil Loftus who writes a weekly column called “Vatican Counsel” where he frequently expresses bizarre and heretical views on Religion and History. I try to avoid his articles as much as possible but occasionally I do read him which is an experience a bit like prodding a toothache just to confirm it is still hurting.
Anyway a few weeks ago he wrote an article in the Catholic Times where he finished with the words that he looked forward to a
"a Franciscan revolution to eclipse in drama and extent the French Revolution"
(The reference to a “Franciscan revolution” is a reference to Pope Francis, Mgr Loftus having appointed himself as chief prophet and interpreter of the frequently off the cuff comments of Pope Francis. For myself when considering the (often opaque) comments attributed to Pope Francis I bear in mind that they usually come via unofficial English translations of remarks made in Italian by a native Spanish speaker with a strong Argentinian accent)
Anyway what sparked my anger with Mgr Loftus was not his remarks about his imaginary Franciscan revolution but rather his extraordinary praise for the French Revolution , not the first time he has praised this destructive murderous event in world history. I therefore wrote a letter which said
“ Even by his own standards the suggestion by Mgr Basil Loftus (19 October) that he looks forward to "a Franciscan revolution to eclipse in drama and extent the French Revolution" is bizarre.
The French Revolution was the cause of the death of thousands judicially murdered in the reign of terror. The Carmelites of Compiegne were guillotined simply for being Nuns and they are merely the best known of the thousands of Catholic Priests, Nuns and believers who were also sent to the guillotine solely for the crime of being practising Catholics.
Besides the reign of terror the Revolution led to massacres in the Vendee and other regions of France and plunged Europe into thirty years of war and destruction stretching from Madrid to Moscow. Is that seriously the "drama and extent" Mgr Loftus wishes on the Church and the world ?
If Citizen Loftus wishes to praise the French Revolution as a model to be followed then he has of course got the liberty to do so but it is a desecration of the memory of the numerous Catholic victims of that revolution for such praise to be uttered by someone who claims the title of Catholic Priest. “
I hoped that the letter would be published and having made my point I assumed that Mgr Loftus would then go on as before like most writers of articles who accept a degree of criticism as part and parcel of their job and are pleased to at least know that someone is reading them. For Mgr Loftus however such a “normal” response is not enough and in an expression of hypersensitivity verging on paranoia he actually wrote a letter himself which was published in the papers letters column as if having 800 words published each week wasn't enough. In his letter he said
“ Yes, the violence of the few did degenerate into the madness of the many, but the French Revolution inspired a continent-wide socio-political revolution of which both Church and State still feel the beneficial effects and, no less importantly, are still building upon.
It is also necessary to recognise that the violence against elements of Catholicism was to no small extent occasioned by the manner in which the institutional Church had identified itself with an oppressive regime which denied basic human dignity to that vast majority of humankind, which had neither civil nor ecclesial rights.
Today, for virtually the first time, Pope Francis is making it possible for voice of every baptised man and woman to be heard in the Church.
This would not have been possible without the progressive effects which the French Revolution inspired. The analogy is quite justifiable.
The puerile attempt at personal vituperation is particularly demeaning in your correspondent as a professional gentleman.
Not only is it lamentable in itself, but it also devalues the otherwise positive contribution which the letter affords as a springboard for further clarification which I am happy to make. “
Well I have a number of points to make but if Mgr Lofus really feels that I was engaging in “personal vituperation” in my letter then frankly he needs to get out more. As most normal people would have realised when I called him “Citizen Loftus” it was a tongue in cheek reference to the fact that during the French Revolution the titles “citizen” and “citizeness” were compulsory and indeed during that era Mgr Loftus would have been Guillotined for using the title “Monsignor”.
However I doubt if that would have happened in his case since Mgr Loftus is not the stuff of which martyrs are made. Having read a number of his articles I am quite sure that he would have been eager to swear to the “Civil Constitution of the Clergy” which in effect nationalised the French Church and made it and its beliefs subservient to the French state. He also I suspect would have been quite happy to participate in the worship of the “Cult of Reason” or the Robespierre inspired “Cult of the Supreme Being”. I am quite certain he would not have joined the thousands who were maintained their faith and were sent to the Guillotine for the crime of being believing Catholics.
For a Catholic priest such as Mgr Loftus to praise the French Revolution for its supposed beneficial effects is a form of Holocaust Denial akin to a Rabbi saying “at least Hitler built good Autobahns”
The reality is that the French Revolution did not help in the human search for freedom quite the contrary it led to a murderous tyranny 100 times worse that the Government which it replaced and in the form of the Revolutionary Tribunal the Law of Suspects and the Law of 22 Prairial it established the legal and institutional blueprint for many other dictatorships in particular that of Lenin and Stalin both of whom were admirers of the Reign of Terror and who followed its example. The French Revolution and its evils put back democratic progress and liberalisation throughout Europe.
In any event to argue, as Mgr Loftus does, that mass murder is justified for the greater good is an historically illiterate and morally repellent argument especially coming from a priest who is supposed to preach the Gospel according to Jesus Christ, not the Gospel according to Robespierre and Stalin
Or, as Marie Roland put it on her way to the Guillotine
" Oh Liberty, what crimes are committed in thy name !".
Some weeks ago in the “Catholic Times” there was an article by a Catholic Priest called Monsignor Basil Loftus who writes a weekly column called “Vatican Counsel” where he frequently expresses bizarre and heretical views on Religion and History. I try to avoid his articles as much as possible but occasionally I do read him which is an experience a bit like prodding a toothache just to confirm it is still hurting.
Anyway a few weeks ago he wrote an article in the Catholic Times where he finished with the words that he looked forward to a
"a Franciscan revolution to eclipse in drama and extent the French Revolution"
(The reference to a “Franciscan revolution” is a reference to Pope Francis, Mgr Loftus having appointed himself as chief prophet and interpreter of the frequently off the cuff comments of Pope Francis. For myself when considering the (often opaque) comments attributed to Pope Francis I bear in mind that they usually come via unofficial English translations of remarks made in Italian by a native Spanish speaker with a strong Argentinian accent)
Anyway what sparked my anger with Mgr Loftus was not his remarks about his imaginary Franciscan revolution but rather his extraordinary praise for the French Revolution , not the first time he has praised this destructive murderous event in world history. I therefore wrote a letter which said
“ Even by his own standards the suggestion by Mgr Basil Loftus (19 October) that he looks forward to "a Franciscan revolution to eclipse in drama and extent the French Revolution" is bizarre.
The French Revolution was the cause of the death of thousands judicially murdered in the reign of terror. The Carmelites of Compiegne were guillotined simply for being Nuns and they are merely the best known of the thousands of Catholic Priests, Nuns and believers who were also sent to the guillotine solely for the crime of being practising Catholics.
Besides the reign of terror the Revolution led to massacres in the Vendee and other regions of France and plunged Europe into thirty years of war and destruction stretching from Madrid to Moscow. Is that seriously the "drama and extent" Mgr Loftus wishes on the Church and the world ?
If Citizen Loftus wishes to praise the French Revolution as a model to be followed then he has of course got the liberty to do so but it is a desecration of the memory of the numerous Catholic victims of that revolution for such praise to be uttered by someone who claims the title of Catholic Priest. “
I hoped that the letter would be published and having made my point I assumed that Mgr Loftus would then go on as before like most writers of articles who accept a degree of criticism as part and parcel of their job and are pleased to at least know that someone is reading them. For Mgr Loftus however such a “normal” response is not enough and in an expression of hypersensitivity verging on paranoia he actually wrote a letter himself which was published in the papers letters column as if having 800 words published each week wasn't enough. In his letter he said
“ Yes, the violence of the few did degenerate into the madness of the many, but the French Revolution inspired a continent-wide socio-political revolution of which both Church and State still feel the beneficial effects and, no less importantly, are still building upon.
It is also necessary to recognise that the violence against elements of Catholicism was to no small extent occasioned by the manner in which the institutional Church had identified itself with an oppressive regime which denied basic human dignity to that vast majority of humankind, which had neither civil nor ecclesial rights.
Today, for virtually the first time, Pope Francis is making it possible for voice of every baptised man and woman to be heard in the Church.
This would not have been possible without the progressive effects which the French Revolution inspired. The analogy is quite justifiable.
The puerile attempt at personal vituperation is particularly demeaning in your correspondent as a professional gentleman.
Not only is it lamentable in itself, but it also devalues the otherwise positive contribution which the letter affords as a springboard for further clarification which I am happy to make. “
Well I have a number of points to make but if Mgr Lofus really feels that I was engaging in “personal vituperation” in my letter then frankly he needs to get out more. As most normal people would have realised when I called him “Citizen Loftus” it was a tongue in cheek reference to the fact that during the French Revolution the titles “citizen” and “citizeness” were compulsory and indeed during that era Mgr Loftus would have been Guillotined for using the title “Monsignor”.
However I doubt if that would have happened in his case since Mgr Loftus is not the stuff of which martyrs are made. Having read a number of his articles I am quite sure that he would have been eager to swear to the “Civil Constitution of the Clergy” which in effect nationalised the French Church and made it and its beliefs subservient to the French state. He also I suspect would have been quite happy to participate in the worship of the “Cult of Reason” or the Robespierre inspired “Cult of the Supreme Being”. I am quite certain he would not have joined the thousands who were maintained their faith and were sent to the Guillotine for the crime of being believing Catholics.
For a Catholic priest such as Mgr Loftus to praise the French Revolution for its supposed beneficial effects is a form of Holocaust Denial akin to a Rabbi saying “at least Hitler built good Autobahns”
The reality is that the French Revolution did not help in the human search for freedom quite the contrary it led to a murderous tyranny 100 times worse that the Government which it replaced and in the form of the Revolutionary Tribunal the Law of Suspects and the Law of 22 Prairial it established the legal and institutional blueprint for many other dictatorships in particular that of Lenin and Stalin both of whom were admirers of the Reign of Terror and who followed its example. The French Revolution and its evils put back democratic progress and liberalisation throughout Europe.
In any event to argue, as Mgr Loftus does, that mass murder is justified for the greater good is an historically illiterate and morally repellent argument especially coming from a priest who is supposed to preach the Gospel according to Jesus Christ, not the Gospel according to Robespierre and Stalin
Or, as Marie Roland put it on her way to the Guillotine
" Oh Liberty, what crimes are committed in thy name !".
Wednesday, 9 July 2014
I Confess ! - Seal of the Confessional in Louisiana
The recent case of George Charlett Deceased No. 2013-C-2879 before the Louisiana Supreme Court has aroused concern amongst Catholic Clergy that it could be the first round in a battle to restrict the seal of the confessional
In the case the plaintiff, a child, alleges she was sexually touched by George Charlett a parishioner, not a clergyman, at her local Church. She alleges that she told her Parish Priest what was going on but he in effect did nothing. The estate of George Charlett was being sued and also the Diocese for the alleged negligent actions of the Priest in not reporting the allegations to the authorities. It is implied that she told the Priest whilst in confession though that specific point is a little unclear from the sparse facts in the Supreme Court judgment.
What is clear is that the Diocese of Baton Rouge tried to have the evidence of what was said in the Confessional excluded from the Girls evidence and that is the question that the Supreme Court was considering. They, not surprisingly, decided that even though the law in Louisiana did recognise that conversations in the Confessional could attract privilege all that meant was that someone could not, in general, be forced to give evidence of what was said in the Confessional but that is very different to saying that someone can be prevented from giving evidence of what was said in the Confessional if they themselves wish to do so.
The Code of Canon Law of the Catholic Church is very strict about the inviolability of the seal of the confessional
Can. 983 §1. The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.
Can. 984 §1. A confessor is prohibited completely from using knowledge acquired from confession to the detriment of the penitent even when any danger of revelation is excluded.
and so to that extent I can see the reason why the Diocese was concerned since if what the girl is saying is untrue the Priest is not allowed to say so or to give evidence about what was really said in the confessional. This is the dilemma that famously faced Montgomery Clift in the Alfred Hitchcock movie "I Confess"
NB: One area of confusion if you read the judgment and Catholic Canon Law is that in the judgment the phrase "the confessor" is used to refer to the girl ie the person who is making the confession whilst in Canon Law "the confessor" refers to the Priest ie the person hearing the confession.
I doubt if the case will be appealed to the US Supreme Court since it is still in its preliminary stages and no evidence has been heard yet. As the Louisiana Supreme Court judgment noted
Whether this particular priest owed this particular duty to the plaintiffs in this particular factual context is a mixed question of law and fact..............there exists material issues of fact concerning whether the communications between the child and the priest were confessions per se and whether the priest obtained knowledge outside the confessional that would trigger his duty to report.
In the case the plaintiff, a child, alleges she was sexually touched by George Charlett a parishioner, not a clergyman, at her local Church. She alleges that she told her Parish Priest what was going on but he in effect did nothing. The estate of George Charlett was being sued and also the Diocese for the alleged negligent actions of the Priest in not reporting the allegations to the authorities. It is implied that she told the Priest whilst in confession though that specific point is a little unclear from the sparse facts in the Supreme Court judgment.
What is clear is that the Diocese of Baton Rouge tried to have the evidence of what was said in the Confessional excluded from the Girls evidence and that is the question that the Supreme Court was considering. They, not surprisingly, decided that even though the law in Louisiana did recognise that conversations in the Confessional could attract privilege all that meant was that someone could not, in general, be forced to give evidence of what was said in the Confessional but that is very different to saying that someone can be prevented from giving evidence of what was said in the Confessional if they themselves wish to do so.
The Code of Canon Law of the Catholic Church is very strict about the inviolability of the seal of the confessional
Can. 983 §1. The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.
Can. 984 §1. A confessor is prohibited completely from using knowledge acquired from confession to the detriment of the penitent even when any danger of revelation is excluded.
and so to that extent I can see the reason why the Diocese was concerned since if what the girl is saying is untrue the Priest is not allowed to say so or to give evidence about what was really said in the confessional. This is the dilemma that famously faced Montgomery Clift in the Alfred Hitchcock movie "I Confess"
NB: One area of confusion if you read the judgment and Catholic Canon Law is that in the judgment the phrase "the confessor" is used to refer to the girl ie the person who is making the confession whilst in Canon Law "the confessor" refers to the Priest ie the person hearing the confession.
I doubt if the case will be appealed to the US Supreme Court since it is still in its preliminary stages and no evidence has been heard yet. As the Louisiana Supreme Court judgment noted
Whether this particular priest owed this particular duty to the plaintiffs in this particular factual context is a mixed question of law and fact..............there exists material issues of fact concerning whether the communications between the child and the priest were confessions per se and whether the priest obtained knowledge outside the confessional that would trigger his duty to report.
In other words preventing the evidence being heard was, at this stage, premature. That said the issue of the "secrecy of the Confessional" and how it applies in situations where the law requires suspicions/knowledge of child abuse to be reported is likely to become an increasing issue in various jurisdictions over the next decade
UPDATE SAME DAY
Coincidences coincidences !!. Shortly after I had published the above regarding Confession in the US the excellent Frank Cranmer put up a post
UPDATE SAME DAY
Coincidences coincidences !!. Shortly after I had published the above regarding Confession in the US the excellent Frank Cranmer put up a post
which is well worth reading. I agree with Franks conclusion
It seems likely, therefore, that the seal of the confessional will come under further scrutiny in the UK.
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
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
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"
"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
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
Friday, 23 May 2014
Holy See and UN Convention on Torture
It is reported that the UN Committee against torture is to issue a report criticising the Holy See regarding how it has dealt with allegations of sex abuse by Priests and others throughout the world. Whilst I am in no way acting as an apologist for child abuse I am concerned at the fact that the Committee is issuing this report which seems to me to go way beyond its legitimate role and the wording of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Holy See has two separate though closely linked international legal identities. It is the spiritual head of the Catholic Church throughout the world and is also the Government of the physical territory of the Vatican State. The only territory which can be described as a "territory under its [the Holy Sees] jurisdiction" is the physical territory of the Vatican State and also Papal Nunciatures which have the status of Embassies in those countries which have diplomatic relations with the Holy See. All other Catholic religious organisations, Dioceses, Churches etc fall under the legal jurisdiction of the various Countries in which they are situated.
This distinction is important for the purpose of the Convention Article 2.1 of which says (my emphasis)
"Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
The phrase "in any territory under its jurisdiction" is repeated in Articles, 5, 11, 12, 13, 16 of the Convention and "territory" appears in Articles 6, 7, 20 . Therefore under the Convention as it is worded the Holy See should only be answerable for any alleged infringements of the Convention committed within the territory of the Vatican State not and not for alleged breaches committed, whether by Catholic Priests or others, in the territory of other signatory states. The Committee, which is established under Articles 17 - 20 of the Convention, therefore appears to be acting way beyond its remit and the remit of the Convention itself.
Furthermore there is a real question mark as to whether child abuse, however horrible, can properly be construed as "torture or other cruel, inhuman or degrading treatment or punishment." as defined in the Convention.
Article 1.1 of the Convention defines Torture as follows (my emphasis)
"For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
whilst Article 16.1 adds (my emphasis)
"Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
Child abuse for the personal sexual abuse of the individual does not fall within the definitions in either Articles 1 or 16 and in addition Priests etc are not "public officials acting in an official capacity" therefore once again the alleged acts fall far short of the criteria of the Convention and the lawful remit of the Committee,
I appreciate that this Blog can be, and undoubtedly will be, criticised as "legalistic" but all I am saying is that the law, in this case, an international Convention, should mean what it says and should not be hijacked or distorted to make it become something it clearly is not and was never intended to be.
The Catholic Church can be and should be criticised for mishandling of Child Abuse but not by this Committee claiming to be acting in the name of and under the authority of this Convention
The Holy See has two separate though closely linked international legal identities. It is the spiritual head of the Catholic Church throughout the world and is also the Government of the physical territory of the Vatican State. The only territory which can be described as a "territory under its [the Holy Sees] jurisdiction" is the physical territory of the Vatican State and also Papal Nunciatures which have the status of Embassies in those countries which have diplomatic relations with the Holy See. All other Catholic religious organisations, Dioceses, Churches etc fall under the legal jurisdiction of the various Countries in which they are situated.
This distinction is important for the purpose of the Convention Article 2.1 of which says (my emphasis)
"Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
The phrase "in any territory under its jurisdiction" is repeated in Articles, 5, 11, 12, 13, 16 of the Convention and "territory" appears in Articles 6, 7, 20 . Therefore under the Convention as it is worded the Holy See should only be answerable for any alleged infringements of the Convention committed within the territory of the Vatican State not and not for alleged breaches committed, whether by Catholic Priests or others, in the territory of other signatory states. The Committee, which is established under Articles 17 - 20 of the Convention, therefore appears to be acting way beyond its remit and the remit of the Convention itself.
Furthermore there is a real question mark as to whether child abuse, however horrible, can properly be construed as "torture or other cruel, inhuman or degrading treatment or punishment." as defined in the Convention.
Article 1.1 of the Convention defines Torture as follows (my emphasis)
"For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
whilst Article 16.1 adds (my emphasis)
"Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
Child abuse for the personal sexual abuse of the individual does not fall within the definitions in either Articles 1 or 16 and in addition Priests etc are not "public officials acting in an official capacity" therefore once again the alleged acts fall far short of the criteria of the Convention and the lawful remit of the Committee,
I appreciate that this Blog can be, and undoubtedly will be, criticised as "legalistic" but all I am saying is that the law, in this case, an international Convention, should mean what it says and should not be hijacked or distorted to make it become something it clearly is not and was never intended to be.
The Catholic Church can be and should be criticised for mishandling of Child Abuse but not by this Committee claiming to be acting in the name of and under the authority of this Convention
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