Comprehensive Unity: The No Anglican Covenant Blog

Wednesday, December 22, 2010

Can fairness be attained with the proposed covenant Part 2

Alan T. Perry, Priest: Anglican Church of Canada, Canon: Christ Church Cathedral, Montreal and recognized expert on Canon Law, has published Part 2 of his discussion of Natural Justice and the proposed.Anglican Covenant concluding that "The proposed Anglican Covenant does not meet the standards of Natural Justice. It is intrinsically incapable of rendering decisions
which are demonstrably fair."
Does the proposed Anglican Covenant satisfy the standards of Natural Justice, or the Duty to be Fair? We have already seen that, from the perspective of the first principle of the Duty to be Fair, “Hear the other side,” the vagueness of the process for settling disputes (section 4.2) (“the process”) combined with the high degree of discretionary power given to the Standing Committee raises some serious concerns about whether the process will be demonstrably fair. If there were a mechanism to propose changes to the proposed Covenant, I would suggest adding a clause to the procedure that might say something like, “the Standing Committee and the Instruments of Communion shall respect the principles of Natural Justice when conducting the process in this section.” Such a clause might help address the concerns that I previously raised.

Now we turn to the second principle of fairness: nemo judex in sua causa debet esse (“No one must be the judge in his own cause”) - the rule against bias.
In the proposed Covenant we find only one stated restriction on who may participate in the process: “participation in the decision making of the Standing Committee or of the Instruments of Communion in respect to section 4.2 shall be limited to those members of the Instruments of Communion who are representatives of those churches who have adopted the Covenant, or who are still in the process of adoption.” (s. 4.2.8) (And what, exactly, does “still in the process of adoption” mean here? Does that include all the Churches of the Anglican Communion that have not yet voted not to adopt the Covenant?)

It would seem obvious, but it is not stated, that the representative either of a Church that has “raised a question” pursuant to s. 4.2.3, or of a Church about which a question has been raised, should be excluded from participating in the decision-making processes. They should certainly be heard, but they should not be making decisions. But what about an Instrument of Communion that raises a question? Is it proper for that Instrument or its members to be making decisions about the question that it has raised? Would that not be the same as being the judge of its own cause?
In effect, then, the only solution would be to bar the Instruments of Communion from raising questions at all, for there is a similar difficulty if any of them raises a question. But even that would not solve all the problems of potential bias in the process. Jones and de Villars list five types of bias which are included in the rule against bias (pp. 403ff). The first four are personal and the fifth is structural. They are:
financial interest in the outcome of the dispute;
relationships with persons involved in the dispute;
outside knowledge of or involvement with the matter in dispute;
inappropriate comments or behaviour;
institutional bias.

In law, it is generally not required to demonstrate an actual bias to prove that a decision is unfair, one must only demonstrate a “reasonable apprehension of bias,” which means that the test for bias is quite strict. So with that in mind, let us examine these five type of bias in light of the proposed Covenant’s process for resolving disputes.

Read it all here

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