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Governance of Priests & Religious

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PREFACE 13
Acknowledgement 17
Part – 1
governance of priests and religious: conflict situations and how to handle
(a helpful guide) 1 9
CHAPTER-I 21
1. INTRODUCTION ; 21
RELEVANT CASE LAWS 22
1. St. Anthony’s College v Paul, Petta 22
The right to be heard as a fundamental right 23
NATURAL JUSTICE 25
The situation would have been Different 26
Rights arising from the basic principle of natural justice 26
Position in India 27
1 .1.6. Natural Justice a secular spiritual touch 27
The main principles of natural justice 28
Nobody should be a judge in his/her own case
(nemo judex in sua causa) 28
The second principle- 29′
Audi Alteram Partem (Hear the other party) 29
b. hear the other side-Audi Alteram Partem 30
While considering the Audi Alteram Partem rule
it was observed that: 3 1
No strait jacket formula could be found 33
Expanding the principles of natural justice 33
Ll.l 1. Natural Justice is a great humanizing principle 34
The soul of natural justice is fair play in action 3 5
Natural justice is another name for commonsense justice 35
1.1.14. The term’principles of natural justice’ is not easy to determine .. 36
Basic elements of a fair hearing 36
The universally accepted legal principle 37
Natural justice a must in dealing with priests and religious 38
Things to be followed while dealing with any member
(religious/priest) 38
The Supreme Court on Civil Nature ( Dr. (Sr) Y. Philomina) 40
Malankara Jacobite Syrian Christian community 4 1
Tamil Nadu Christians 43
Excommunication order passed by the CSI Bishop of Madras. 43
ShriV.K. Kurien 44
(c) The sinner did not give any sign of penance prior to death
Kurein’s case brings to the forefront several questions as to: 47
The Lesson to learn perhaps are: 49
Divine Retreat Centre Divine Retreat Centre v
State of Kerala & Ors. 49
Model Standing Orders on misconduct 55
Position in Unites States 58
Similarly, the US Court has observed: 59
Reasonable Degree of prudence 61
Redressal Mechanisms62
Other remedies available to the religious /priests 62
Adopt an arbitration clause 63
Religious and Priests as arbitrators (legal aid) 63
Religious vows do not cancel human and ecclesial rights 64
Reflection 65
Mechanisms and controls 67
CHAPTER-II
HUMAN RIGHTS & CONSTITUTIONAL LAWS 69
2. INTRODUCTION 69
2.2.1. What is a Right? 69
2.2.2 Natural Rights proclaimed in the canon code arising from
human nature are: 69
Human Rights and Their Evolution 70
Meaning of Human Rights 71
The Principles of Human Rights 71
Universal Declaration of Human Rights 72
The human rights standards 72
They are: 72
The duty bearers of the human rights 73
5. Protection of Rights in the Church 94
THE CIVIL RIGHTS 95
The meaning of civil rights 9 5
Public and Private Autonomy 96
The two historical classification of law 96
Legal issues that brought the larger family of civil law 96
The section under civil code that deals with civil rights ….: 97
The explanations 97
The expression civil nature 97
The Supreme Court’s observation 97
Position of religious right of civil nature 98
The dispute about the religious office 98
The position of religious and priest’s rights 98
The position of rights arising out of specific contracts 98
5.5.1 3. The concept of dedication and civil rights 99
THERELIGIOUS/PRIESTS AND THEIR RIGHTS 99
The rights of the religious and priests 99
Fundamental right as basic human rights 99
I he universally accepted legal principle 100
Natural justice in dealing with priests and religious 1 0 1
Promotion of Civil Rights and Obligations in the Church 101
LAW OF CONTRACT 103
7.7.1. Introduction 103
-7.7.2. The public perception of contracts 103
7.7.3. Position of Contractual Rights under canon law 1 04
7.7$. Definition of Contract , 105
Agreement comes into existence 1 05
Object and Scope 105
The object of the law of contract 1 06
The position of contract under the law 106
A legally enforceable contract 106
7.7.1 1. An agreement is said to be reached 1 07
7.7.1 2. The necessity capacity to contract 1 07
CON TRACT FORMATION 107
.The Essential Elements of.a Contract 107
Considerations and objects are lawful 109
I he agreements are contracts 109
The protection of civil rights of the religious 109
Advisable to have a written contract with
the respective religious authorities 109
Applicability to religious congregations 1 ! 0
All the agreements are not enforceable I 10
WRITING REGISTRATION AND LEGAL FORMALI TIES …. 110\
Position of oral contract 110
The contract that required being in writing 1 1 1
The problem with the oral contracts 1 1 1
Importance of contract in religious and their mission 1 1 1
The advantage ofsuch contracts : 1 11
If there is no contract/ or terms and conditions
in relation to the job 1 1 2
A reasonable wage 112
Women religious . 112
(i) Same working conditions 112
9.9.9. (ii) Justice demands equal pay for equal work 113
9.9.9. (iii) Universal Principle 1 1 3
9.9.9. (iv) Government position on wage- I 1 3
CONSEQUENCES OF BREACH OF CONTRAC T 114
10.10.1 .The consequence of breach of contract? 1 14
Example ; 114
Compensation for breach of contract where
penalty stipulated for 115
FREEDOM OF RELIGION AND INSULATION FROM CIVIL COURTS 11 5
1 1.11.1. Provisions of the Constitution granting fundamental
rights of freedom 115
1 1.11.2. The constitutional right
religious to manage its own affairs 116
Restriction 1 16
1 1.1 1.4. The State interfere in the domestic affairs
in matters concerned with religion 1 16
CHAPTER III 119
ALTERNATIVE DISPUTE RESOLUTION 119
Are these Settlements valid? 120
12.12.1. Arbitration 120
What is Arbitration? ‘ 121
Overview 122
CONCILIATION 123
Conciliation Law: Definition 123
Proposals for a settlement 124
Settlement agreement 125
14. MEDIATION 125
Philosophy of mediation 126
The uses of mediation in preventing conflicts 127
The Role of a Mediator 127
Suggestions for preventing conflicts
between religious and diocese 128
14.14.4. Responsibilities regarding confidentiality in mediation 128
14.14.5.. Legal implications of mediated agreements 130
Mediation an alternative dispute resolution 130
Common aspects of mediation 131
Family: 132
Workplace: 132
Public disputes: 133
Disputes involving the following issues: 133
14.14.8. Mediation commonly includes the following aspects or stage 133
Specific to Mediation 134
Conflict-management 135
14.14.1 1. Measuring the effectiveness of conflict management 135
Benefits of mediation may include: 135
Confidentiality and mediation 136
Mediation private and confidential 136
4.14.1 5. Global relevance 137
14.14.16. Fairness 1 38
CHAPTER-IV 141
15. SEXUAL HARASSMENT OF WOMEN AT WORKPLACE .. 141
15.15.1. Introduction HI
15.1 5.3. Vishaka’s case: 142
1 5.1 5.4. As stated by the Supreme Court,
these guidelines are applicable to: 144
Preventive Steps 144
Procedure pertaining to filing of complaints: 145
Misconduct 149
Workers Initiative: 149
1 5.15.17. Priests and religious as employers. 150
15.15.18. Priests and religious as employees 1 50
1 5.15.19. Criminal Proceedings: 150
PART-II ‘ 153
Resolving Conflicts through Christian Conciliation 153
CHAPTER V 155
RESOLVING CONFLICT THROUGH CHRISTIAN
CONCILIATION 155
Illustration 156
16.16. 1. In order to do the Lord’s work,
we must resolve conflicts in the church in a biblical mariner. 156
Philippians 4:2, 3 156
Confront in love: 157
Cover in love: 158
The two principles above should be applied 1 59
Conflict Is Neither Good Nor Evil,
yet Our Response May Be 160
1 6.16.7. A Lawsuit Is Not Always God’s Best Answer 160
The Church Needs and Has
A Wise Man/Woman for the Resolution of Conflict 160
Jesus Provides a Process for Reconciliation and
Dispute Resolution 161
We Cannot Ignore A Dispute That Someone Has With Us . 161
16.16.1 1. We Are to Bear One Another’s Burdens 1 62
16.16.1 2. Keep People on Top of the Slippery Slope- 162
Show How Conflict Is an Opportunity 1 63
Listen Carefully and Dig for Information 164
16.16.1 5. Resolving Conflict through Christian Conciliation 1 65
Conflict Coaching 165
Mediation 168
overview 168
Know When to Step In 169
Be Prepared to Play Several Roles 169
Be Distinctively Biblical ……………..172
Earn a Passport ……. 173
Provide the “Three P’s” of Satisfaction ……..’. 174
1 8.18.6. Use the GOSPEL 1 75
Arbitration 176
Overview 176
Biblical Basis 176
Difference between Mediation and arbitration 177
Entering into an Arbitration Agreement 178
Legal Considerations 1 78
9.19.5. The Arbitration Process 179
19.19.6. The Final Decision 180
19.19. /.Enforcement 180
Bibliography- 180
PART III 181
CANON LAW 181
CHAPTERVI ’82
CERTAIN ASPECTS OF CANON LAW 182
Bishops and the Religious 1 8 I
Canon Law and the Delinquent ‘187
Removal of a Pastor
References

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