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Archive for the ‘Law, Culture and Religion’ Category

No to Symphysiotomy Inquiry

February 19, 2010 2 comments

“If Minister Harney was in my body even for one day we would have the review the next day”.

Kathleen Naughton, Survivors of Symphysiotomy

Following last night’s Prime Time  report on symphysiotomy, the group  Survivors of Symphysiotomy has called on the Taoiseach  to initiate an immediate inquiry into the use in Irish hospitals of the childbirth surgery which permanently widens the pelvis. IrishHealth.com carries a good report on the issue and on the survivors’ campaign here.

The Minister for Health, Mary Harney (above left), has refused to set up any inquiry . Calls for an inquiry in 2002 met with a similar response. Survivors of Symphysiotomy have now called for the Minister to be dismissed from cabinet.

Ireland was the only country in the developed world where symphysiotomy was practiced in the 20th century. It was used into the 1980’s and has left many women with lifelong serious medical difficulties including chronic pain, difficulty walking and incontinence. The Institute of Obstetricians and Gynaecologists, however, has said that the practice was considered valid at the time when it was employed.

A health package has been made available to women who are suffering the after-effects of the operation, but it seems entirely reasonable that, in addition to this provision, their claims should be examined and debated in the public sphere. This is especially the case because survivors have raised issues around their consent to the practice, and about its use on young mothers and mothers who were in the ‘care’ of state and religious organisations at the time of their operations.

You can watch some very interesting presentations on the issue given at a meeting hosted by the Feminist Open Forum in October here. Speakers included solicitor Colm McGeehin, who represents over 100 women affected by the practice. BBC’s Women’s Hour also discussed the issue in 2002.

We hope to have more indepth commentary on the story as it develops.

Hindu cremations in the Court of Appeal

February 10, 2010 Leave a comment

Davendar Ghai has won his case against Newcastle City Council in the Court of Appeal. We blogged about it previously here. It will now be possible for Mr. Ghai to be cremated on a Hindu funeral pyre – in a structure with walls but no roof – in England after he dies. Lord Neuberger in the judgment said that:

“Contrary to what everyone seems to have assumed below, and I am not saying it is anyone’s fault, it seems to us that Mr Ghai’s religious and personal beliefs as to how his remains should be cremated once he dies can be accommodated within current cremation legislation.”

The judgment is now available here.

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Polygamy in the High Court

February 8, 2010 1 comment

The Sunday Times reported yesterday that the High Court will soon rule on the validity of an Irish citizen’s marriage under s. 29 of the Family Law Act, 1995. The man is Lebanese. He married two women in Lebanon, where polygamous marriage is permitted. He entered Ireland with his second wife and claimed asylum. His first wife arrived in Ireland much later.  The man has children with both and  apparently lives with both in Ireland.  Seven years ago the Department of Justice had refused to grant a visa to the man’s first wife. However, after the man challenged the refusal in the High Court, the Department agreed to quash its initial refusal. As part of this settlement, the man is required to seek a s. 29 ruling. The Times reports that ‘[t]he state and the wives are all represented in the case. The residency rights of both spouses will depend on the decision. A number of similar cases are awaiting the outcome.’ The case looks to be (or is very similar to) that of Hussein Ali Hamoud. The Irish Independent reported on his case in 2003 here.  There is been remarkably little media discussion of the case today. Marian Finucane discussed the issue, to some extent, on RTE Radio 1 yesterday. The podcast is here (from minute 21). The Examiner also published a short opinion piece.

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Civil Partnership Bill, Second Stage….Of Tatchell, MacLiammoir, Fathers and Left-Wing Extremist Feminism

January 28, 2010 Comments off

Gilligan and Zappone

On Wednesday the second stage debate on the Civil Partnership Bill continued in the Dail (see an explanation of the Irish legislative process here). The Bill has now passed the second stage and has been referred to the Select Committee on Justice, Equality and Women’s Rights. An archive of the customary liveblog (and very entertaining it is too) is here.

References were made throughout the debate to two Bills which preceded the present government’s efforts; the Norris Civil Partnership Bill of 2004 and the Labour Party’s ill-fated Civil Unions Bill of 2006 (notable for its provision for children’s rights and for adoption).

Some highlights of the debate (I am confining myself to comments which introduced new points or made old points in an important way. We have blogged the second stage already here and here )included:

A Threat to Marriage?

Beverley Flynn (FF) emphasised the special protection afforded to marriage under the Constitution. This was a theme taken up by Brian Hayes (and by many his FG colleagues) who, unusually (perhaps almost uniquely) for this debate, actually discussed and demonstrated some understanding of the applicable law: One of the myths that has been circulated is that the Bill will downgrade the position of marriage. I wish to refute that assertion because I do not believe marriage will be downgraded at all. The clear protection afforded to marriage under Article 40 of the Constitution is absolute. That protection can be changed only on foot of a referendum and it cannot be altered by an Act of Parliament. That was made abundantly clear in the remarks of Ms Justice Dunne in the High Court in the case taken by Dr. Zappone and Dr. Gilligan, in which they attempted to have recognised a marriage of their union in Canada in Irish domestic law. It is worth putting on the record what Ms Justice Dunne said in that case, which, I understand, is still under appeal in the Supreme Court. She said: I think one has to bear in mind all of the provisions of Article 41 and Article 42 in considering the definition of marriage. Read together, I find it very difficult to see how the definition of marriage could, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple… The definition of marriage to date has always been understood as being opposite sex marriage. How then can it be argued that in the light of prevailing ideas and concepts that definition be changed to encompass same sex marriage? Having regard to the clear understanding of the meaning of marriage as set out in the numerous authorities opened to the Court from this jurisdiction and elsewhere, I do not see how marriage can be redefined by the Court to encompass same sex marriage… Marriage was understood under the 1937 Constitution to be confined to persons of the opposite sex. In no way will the passage of this Bill downgrade or undermine marriage because absolute and clear protection is given in Articles 40 and 41 to marriage as an act between persons of opposite sex. I am not saying that in the future that could not change. However, the only way it could change is if there is a referendum. It is the people who will decide whether that definition of marriage as expressed in Bunreacht na hÉireann can change. I reject the notion that in some way the Bill downgrades marriage because absolute and fundamental constitutional protection is given to marriage in Articles 40 and 41.

It is interesting to note that the Minister for Justice in his response referred to two ways in which the Bill bears the marks of the government’s desire to protect the institution of marriage. First, he discussed the balance to be struck between a past spouse and a current co-habitant: I do not believe that establishing the duration of cohabitation under the provisions in the Bill will be a particularly difficult matter, although there are certain necessary variations in a case where either of the cohabitants has been married to another person during the period of cohabitation. This is consistent with the Attorney General’s advice that we must ensure that in such cases the spouse, being a party to a marriage, must take priority over the potential claims of any other cohabitant. Second he distinguished between the relief available on marriage breakdown and that sought to be made available when cohabiting relationships end: The Bill’s redress scheme is not designed to redistribute the property or finances of a couple who split up; it is designed to mitigate hardship where a relationship ends leaving one former cohabitant financially vulnerable. The Government has no proposals to widen the provisions for cohabitants in a way that would serve to undermine the institution of marriage.

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France and Muslim Women’s Dress: Report Relased

January 26, 2010 2 comments

Andre Gerin is Chair of the Commission which reported today

UPDATES on Wednesday: Here are links to some of the best commentary on the Gerin Report from today’s papers:  Raphael Liogier in the Guardian locates the partial ban within a broader crisis of French identity. The Financial Times calls the partial ban an example of ‘Republican bigotry‘ while the NYT claims that ‘the Taliban would applaud’ the French proposals. There is mention of a ‘pro-veil’ attack at a Paris mosque and discussion of splits within the Commission in the Times. The Independent also discusses the lack of French unity on the burqa question and the Christian Science Monitor discusses political strategising around Muslim women’s dress. An older article in the Independent argues that wearing the burqa in the 21st century is ‘preposterous’. The BBC asks ‘Should the UK ban the Muslim face veil?’.

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The parliamentary committee set up in June to investigate the wearing of the burqa and the niqab in France released its report today. The report is available here (in French only). “The wearing of the full veil is a challenge to our republic. This is unacceptable,” says the report. “We must condemn this excess”. Agnes Poirier has an interesting take on the negotiations which led to the report. Natasha Lehrer summarises the key findings for the Index on Censorship as follows:

As expected, the commission stopped short of recommending a blanket ban on the wearing of the burka, proposing instead a ban on covering the face in administrative buildings, schools, hospitals and public transport. “This measure would oblige people not only to show their faces at the entrance to all public buildings but also to keep their faces uncovered during the entire period in which they are in a public building.” The report goes on to emphasise that “the consequence of violating this injunction would not be criminal but would be sanctioned by the service being sought being refused.”

In addition the commission suggests that wearing the burka might also be banned in buildings used by members of the public — for example banks or post offices — where identity checks and CCTV are used for security purposes, for example to prevent robbery. For similar reasons of public safety, driving whilst wearing the burka might also be forbidden.

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Civil Partnership Bill, 2nd Stage Debate (2): Rhetoric, Religion and the Republic

January 22, 2010 Leave a comment

Narratives of Progress: Who Stands by the Republic Now?

In his speech in yesterday’s Civil Partnership debate, Deputy James Reilly (FG) said:

 I know that some speakers do not feel it goes far enough, but it is useful to remind ourselves from whence we have come. It is well within living memory when homosexuality was a crime in this country. Before that, it was even considered to be an illness. Awareness and enlightenment has slowly come, but it has come nonetheless.

 Yesterday saw the Civil Partnership Bill claimed from both sides of the house as emblematic of Ireland’s move towards not merely progressive but secular politics. Labour’s Ciaran Lynch, for instance said that ‘this Bill is a milestone, as Ireland moves from a theocracy to a democracy’.  The Civil Partnership Bill, it seems, is the mirror in which we look when we no longer want to see the Ireland of the Ryan Report gazing back.

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Nadia Eweida in the Court of Appeal

January 20, 2010 Leave a comment

Yesterday, the Court of Appeal reserved judgment in the case of Nadia Eweida, a Pentacostal Christian and British Airways check-in worker who was banned from visibly wearing a small cross and chain around her neck while at work. BA  permitted  employees to wear items which were required by particular religious belief, such as the Jewish yarmulke, the Sikh kara and turban and the Muslim hijab but did not permit other symbols or garmets which expressed a political or religious allegiance. Ms Eweida wears the cross as an expression of her Christianity and to remind others that Jesus loves them. BA eventually changed its policy – in part because of financial pressure exerted by the Church of England – but in the meantime a precedent was set at the Employment Appeals Tribunal which Ms Eweida, with the backing of Liberty, is seeking to challenge. Ms Eweida’s case will be of interest to those who are following similar Irish disputes, including that over the place of Sikh turbans in the garda uniform.

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Ghai v Newcastle City Council in the Court of Appeal.

January 19, 2010 1 comment

“My loyalty is to Britain’s values of fairness, tolerance and freedom. If I cannot die as a true Hindu, it will mean those values have died too.”

In the UK, the Court of Appeal has reserved judgment in the case of Davender Ghai (pictured left, centre), an elderly Hindu man who is challenging a decision of Newcastle City Council refusing permission for the construction of a site on which traditional Hindu funeral ceremonies could be celebrated. Such ceremonies involve the cremation of the deceased’s remains on an open-air funeral pyre, which is set alight by the eldest son or other appropriate relative. Mr. Ghai explains the ritual, which includes the breaking of the deceased’s skull, here. In 2006, Mr. Ghai was involved in the illegal Northumberland funeral rites of Rajpal Mehat, which included an open air pyre. The BBC reports with footage of the event here. The local police did not intervene and the Crown Prosecution Service determined that prosecution would not be in the public interest.The Council argues that the burning of human remains other than in a crematorium is prohibited by legislation. Mr. Ghai was unsuccessful in the High Court. The judgment of Cranston J is here and a shorter case note is available here.

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‘A Law of Liberation and Not A Ban’: Update on France and the Burqa.

January 17, 2010 5 comments

Jean-François Copé (pictured left), of the conservative French political party, the UMP, has recently tabled legislation that would make wearing the burqa or niqab in public an offence punishable by a fine of 750 euro. The draft text reads: “No one may, in spaces open to the public and on public streets, wear a garment or an accessory that has the effect of hiding the face.” André Gerin, chairman of a parliamentary inquiry into the use of full face veils in France, ruled out the possibility of a total ban in November of last year. We blogged about the Gérin Commission here. It is expected to report some time this month. The New Zealand Herald translates an interview which Copé gave to Le Figaro explaining the rationale behind his proposal:

“The parliamentary resolution will help to recall the fundamental principles of respecting the rights of women as a key element of the Republic. The law will respond to the question of security… How can we imagine that a teacher can let a child go out of school and be handed over to someone whose face cannot be seen?… At a time when we are developing the means of video-protection, how can we think of people walking around with their faces covered?..Exceptions to the ban would be made for “carnival or cultural events” where people were masked, he said.

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Public education and migration: the patronage system under scrutiny

January 13, 2010 Leave a comment

As the Irish Independent reported yesterday, the OECD “has proposed that the Government set up new state-run primary schools to better cater for the new multi-ethnic pupil population.” In its review of migrant education in Ireland, published in December 2009, the organisation observed: “the Irish authorities should consider creating net new capacity and re-deploying existing capacity through this channel [of multidenominational schools].” Furthermore, it notes: “a new model of primary school patronage, under the VEC structure, catering for children of all beliefs and none, reflecting the increasing diversity in this area, is currently in operation in two locations in Dublin.”

The system of educational patronage, through which the public education function in Ireland has historically been delegated to bodies owned by, and operated according to the ethos of the religious denominations prevailing in particular areas, has been the subject or renewed contestation since the publication of the Ryan and Murphy reports in particular. Although the State remains formally neutral in law between different religious denominations, most notably in the Education Act 1998, which gives legislative status to school “patrons” – to whom boards of management are accountable for the upholding of the ethos or “characteristic spirit” of schools – Ireland nonetheless has a de facto hegemony of Catholic-ethos schools, with parents in many areas of the State having little choice but to avail of these. For recent commentary on the patronage system from the standpoint of the republican premise of non-domination, see Tom Hickey’s recent post on this site.

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