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

Friday, 16 May 2014

Same-sex marriage: Legal Rights for Churches

The Christian Institute has issued an excellent guide to the rules and exemptions covering Churches and Marriage now that the Marriage (Same Sex Couples) Act 2013 is in force.

Details are HERE and you can download the Guide itself.

Thursday, 8 May 2014

Greece v Galloway - Town Council Prayers in the US

In the case of Town of Greece v Galloway 572 U.S. ____ (2014) the United States Supreme Court has decided that that prayers before the opening of meetings of a Town Council does not violate the Ist Amendment to the U.S. Constitution which prohibits 

"an establishment of religion".

The case has echoes of the English case of Bone v Bideford Town Council [2012] EWHC 175 (Admin) (discussed in my 10 February Blog)

The case emerged after two women filed suit against the town of Greece in New York, claiming that the town’s practice of opening town council meetings with prayer violated the 1st Amendment. The facts presented in the case indicated that the vast majority of citizens who prayed were Christians, and that their prayers were Christian in content. The women charged that this practice violated the Establishment Clause of the Constitution. They did not demand that the practice of prayers before council meetings cease, but demanded that the prayers offered should be “inclusive and ecumenical prayers” and that all references would be to a “generic God.”

The Court ruled that the practice of the Town Council did not, in fact, violate the 1st Amendment and more interestingly rejected the entire concept of requiring prayer to be “nonsectarian prayer” to a “generic God.” As the Court stated:

"To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents’ contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech."

In looking at the background to the case the Supreme Court noted that the town Council followed an informal method for selecting prayer givers, a town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town at no point excluded or denied an opportunity to a would-be prayer giver. A minister or layperson of any persuasion, could give the invocation. But nearly all of the congregations in town were Christian; and  the participating ministers were too. The Town Council neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content.  On one occasion a Wiccan Priestess applied to give the prayers and was allowed to do so. 

Justice Kennedy, giving the majority ruling in the case noted that that today’s interpretation of the Constitution must be guided by the actual practices of the framers. In other words, the Constitution must not be read to forbid what the framers of the document unquestionably allowed. He also quoted with approval the memorable words of Goldburg J in Abington School District v. Schempp 

“untutored devotion to the concept of neutrality” must not lead to “a brooding and pervasive devotion to the secular”

Justice Kennedy also added

Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.

A point regarding tolerance that our National Secular Society should perhaps think about