Judges not infallible, but corrective procedures can set things right — Hafiz Hassan
JUNE 25 — Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that 'the fetus in its earliest stages . . . shares humanity with those who conceived it.'
More than half a century ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties (Conestoga), has grown and now has more than 1,000 employees. Conestoga is organised under Pennsylvania law as a for-profit corporation.
The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO.
The Hahns believe that they are required to run their business 'in accordance with their religious beliefs and moral principles.' To that end, the company's mission, as they see it, is to 'operate in a professional environment founded upon the highest ethical, moral, and Christian principles.'
The company's 'Vision and Values Statements' affirms that Conestoga endeavours to 'ensure a reasonable profit in [a] manner that reflects [the Hahns'] Christian heritage.'
As explained in Conestoga's board-adopted 'Statement on the Sanctity of Human Life', the Hahns believe that human life begins at conception.
It is therefore 'against [their] moral conviction to be involved in the termination of human life' after conception, which they believe is a 'sin against God to which they are held accountable.'
The moral conviction of the Hahns and Conestoga mirrors that of the Greens and Hobby Lobby, whose story I shared in 'Where artificial persons can profess a faith'.
Hobby Lobby's statement of purpose commits the Greens to 'honoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.'
Each Greens 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.
In accordance with those commitments, Hobby Lobby stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so.
They 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.'
Now, can Conestoga and Hobby Lobby, being corporations, engage in the 'exercise of religion'?
The majority in Burwell v Hobby Lobby Inc. referred to the Dictionary Act, whose definition of the word 'person' includes corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.
The majority has no doubt that 'person', in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear.
Conestoga and Hobby Lobby won their respective suit against the federal government for being persons, albeit artificial, having the right to engage in the exercise of religion.
Article 160 of the Federal Constitution deals with interpretation, and it provides specific meanings to words used in the Federal Constitution. — Pexels pic
Sisters in Islam Forum, on the other hand, won its suit against a state religious authority for being an unnatural person (read: artificial) to which a fatwa (religious edict) does not apply.
The majority in the Federal Court's decision rules that Sister in Islam (SIS) is not a person professing the religion of Islam. The phrase 'persons professing the religion of Islam' is used repeatedly in paragraph 1 of the State List of the Ninth Schedule of the Federal Constitution.
According to the majority, only a natural person can profess, not an artificial person.
Reference is not made though to the definition of 'person' in the Federal Constitution itself—the supreme law of the land.
Article 160 of the Federal Constitution deals with interpretation, and it provides specific meanings to words used in the Federal Constitution.
Article 160(1) refers to the Eleventh Schedule to the Constitution and states that the meanings given there shall apply. The Eleventh Schedule states that 'person' includes a body of persons, corporate or unincorporate.
So unlike the word 'parent' which is not defined in the Federal Constitution, the word 'person' is.
And not unlike the word 'person' in the US which is defined in a legislation (Dictionary Act), the word is also defined in the Interpretations Act 1948 and 1964.
Judges are not infallible, but corrective procedures like appeal and review can set things right.
Infallible they may not, but attributing motives is wrong.
Justice Robert Jackson of the US Supreme Court famously quipped: 'We are not final because we are infallible, but we are infallible only because we are final'.
It means an apex court's decision is considered final, not because they are inherently perfect or incapable of error, but rather because there is no higher judicial body to review them.
But here in Malaysia, there can be a review of an apex court's decision, albeit in very exceptional circumstances.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
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