Thursday, 10 July 2014

Sharia :Law in India

A fascinating case before the Supreme Court of India which deals with a question which is also debated in the UK namely the role and status of Sharia Tribunals

In the case of  Madan v India SCIndia 7 Jul7 2014 an application was made for a declaration that the activities of Shariah tribunals were unlawful and that the various bodies sponsoring them should be disbanded.

As is usual in these cases the Judge was provided with what he described as "the galore of obnoxious Fatwas " with some pretty appalling examples being quoted.  The basis of the case was said to be that the 
"All India Muslim Personal Law Board ... is striving for the establishment of parallel Muslim judicial system in India. According to the petitioner, adjudication of disputes is essentially the function of sovereign State, which can never be abdicated or parted with"

The Judge accepted that Sharia Tribunals existed and were issuing Fatwas but disagreed that they therefore constituted a parallel Muslim judicial system. He said that a Fatwa 

"has no legal sanction and can not be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal. Therefore, the grievance of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived."

However the Judge did not give a blank cheque to Sharia Tribunals to do as they wish.  He was concerned by one particular case where a wife who had allegedly been raped by her father in law then had a Fatwa issued dissolving her marriage.  The Fatwa had not been applied for by either the wife or her husband but by a journalist and the Judge did condemn the issuing of a Fatwa in such circumstances

"Issuance of Fatwa on rights, status and obligation of individual Muslim, in our opinion, would not be permissible, unless asked for by the person concerned or in case of incapacity, by the person interested. Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights. It cannot be used to punish innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force.

no Dar-ul-Qazas or for that matter, any body or institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it."

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 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


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.

Friday, 4 July 2014

MCCULLEN v. COAKLEY - Rights of Pro-lIfe Protestors

In the case of McCullen v. Coakley 26 June 2014 USSC the US Supreme Court had to grapple with the contentious issue of the rights of Pro-life counsellors and protestors in the vicinity of Abortion Clinics.

Massachusetts had passed a law which made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” The Act exempted from this prohibition employees or agents of such facility acting within the scope of their employment.”

The Court held that this law was a breach of the free speech rights set out in the 1st Amendment to the US Constitution and a part of the judgment is worth repeating since it goes to the heart of the concept of free speech a concept that so many agree with in theory but disagree with in practice when it comes to the expression of views with which they disagree

"It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out. In light of the First Amendment’s purpose “to pre­serve an uninhibited marketplace of ideas in which truth will ultimately prevail,” FCC v. League of Women Voters of Cal., 468 U. S. 364, 377 (1984) (internal quotation marks omitted), this aspect of traditional public fora is a virtue, not a vice"

Thursday, 3 July 2014

Hobby Lobby US Supreme Court Case

The US Supreme Court in a close 5 - 4 judgement has decided that a "for-profit", ie commercial, business can still claim to religious protection for the beliefs of its, relatively small, group of owners.

Burwell, Secretary of Health and Human Services v. Hobby Lobby Stores INC  30 June 2014 USSC involved companies which were commercial but which nevertheless were run by a small number of individuals with specific religious beliefs which they attempted to put into practice in the running of their business.  As the judgement explains

Hobby Lobby’s statement of purpose commits the Greens [ie the owners] to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.” App. in No. 13–354, pp. 134–135 (complaint).Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. 723 F. 3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays,even though the Greens calculate that they lose millions in sales annually by doing so. Id., at 1122; App. in No. 13– 354, at 136–137. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use;they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.”

As a business Hobby Lobby was required by the Patient Protection and Affordable Care Act to provide Health Insurance provisions for their employees which they did not object to indeed they had been providing Health Insurance even before it became compulsory.  However the owners [the Green Family] did object to paying for 4 specific types of Contraceptives which, in effect acted as Abortifacients by preventing embryo implantation after fertilisation.  The owners of the business objected to paying for this Abortion procedure which went against their religious beliefs.  

The US Supreme Court is to be congratulated in that it properly understood and articulated the fundamental issue in the case namely, whether the law has the right to compel and individual to be moral complicit in an immoral act, which is a question issue that the British Courts have consistently failed to acknowledge let alone understand

"The belief of the Greens ..... implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another."

The main argument in the case revolved around the Religious Freedom Restoration Act of 1993 rather than the 1st Amendment to the US Constitution.  The Act states that 

“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

The main argument of the Secretary of Health revolved around whether a "for profit" corporation could claim to be involved in the "exercise of religion".  In the judgment of the US Supreme Court such a corporation was entitled to the protection of claiming to exercise religion depending on the facts ie it is very unlikely that most for-profit corporations could claim protection under the Act but in cases of "closely held" corporations such as Hobby Lobby then the 1993 Act did apply.

Though the case has been widely proclaimed in the US it is a very specific case on very specific, and unusual facts and a very specific Act of Congress rather than the US Constitution so it is possible that it will have limited   influence on jurisprudence internationally.  However as already said at least the US Supreme Court has addressed the issue of moral complicity up front so that might encourage UK courts to do the same.

The issue was addressed to some extent by the Inner House of the Court of Session in Doogan v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH_36  where the Court quoted with approval a South African case Christian Education SA v Minister of Education (2001) 9 BHRC53 where the Constitutional Court of South Africa said

"believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law. "

In this respect it is perhaps interesting that Lady Hale, Justice of the UK Supreme Court, emphasised the importance of issues of conscience in a speech on 13 June 2014 when she cast doubt on the validity of the Supreme Court decision Bull  v Hall [2013] UKSC 73 which involved Christian B&B owners attempting to operate their B&B on Christian principles so perhaps the Hobby Lobby case will have some influence as a pointer that Courts should be reluctant to force anyone to act contrary to their conscience in business as well as elsewhere in life