Conscientious objection may be exercised even if no law says so.

giacomo_rocchiOsservatorio Internazionale Cardinale Van Thuân Newsletter n.741

del 9 Novembre 2016

Judge Giacomo Rocchi: synopsis of the recent symposium held by the Livatino Study Center.

Held at the Chamber of Deputies in Rome on 21 October last was a symposium of the Livatino Study Center on the theme: “Conscience without rights”. We interviewed one of the speakers, Mr. Giacomo Rocchi, a judge at the Court of Cassation.

Mr Rocchi, could you give us an overview of what emerged during the Livatino Study Center’s recent symposium held in Rome?

In his presentation Rosario Livatino defined conscientious objection as recognition of the internal forum by the non confessional state; in effect, the domineering issue at this moment has to do with the relationship between the individual person and the State, which expects citizens to do things forbidden by their conscience.

If reason and conscience are what characterize man with his dignity and greatness (the Constitution Gaudium et Spes, cited by Secretary of State Cardinal Piero Parolin in his most meaningful introductory remarks, defined conscience as “the most secret nucleus and the sacrarium of man where he is alone with God, whose voice echoes deep down within him”), each state which calls itself democratic cannot but give serious thought to ways and means to protect the conscience and the liberty of its individual citizens.

Gregor Puppinck from the Centre Européen pur le droit ed la justice clarified the concept of conscientious objection, recalling such objection based on moral convictions and that stemming from religious faith, and stressing the duty of the individual to exercise it and the right for it to be recognized by the state, as sanctioned on the international level by numerous Treaties and in Europe by the Convention on Human Rights.

In my turn, I provided an overview of Italian legislation, highlighting the fact that lawmakers over the last 30 years – from 1972, the year when conscientious objection to the draft for military service was recognized, to 2004 with Law 40 on artificial fecundation – had always opted to acknowledge conscientious objection in order to protect the freedom of religious conscience. This was done in discharge of a constitutional obligation specifically enunciated by the Constitutional Court in 1991 (Ruling n° 146).

When passing the new law on civil unions, however, Italian Parliament decided not to comply with this obligation despite how evident it was that the implementation of this law would have led to issues of conscience for the public officials (as well as professionals and private entrepreneurs) called upon to apply it. The right to conscientious objection, however, is guaranteed by article 2 of the Italian Constitution, which recognizes the inviolable rights of man and was specifically evoked by the Constitutional Court. It may therefore be sustained that this right may be exercised even if there is no law regulating said exercise (something obviously auspicious) and that both the executive branch and the judicial branch must recognize this right.

In the same way, when interpreting legislation already in force, government officials and judges will have to retain the right to conscientious objection as a fundamental right of man.

In a series of brief testimonials, Pietro Uroda, Ermanno Pavesi and Paolo Maria Floris illustrated the situation faced by pharmacists, physicians and public officials when abiding by an imperative dictated by conscience not to be party in the application of unjust laws, and the ever increasing difficulties they encounter.  Massimo Gandolfini broadened the field to include education by describing the work done by the “Let’s defend our children committee”.

Prof. Mauro Ronco, the president of the Livatino Center, brought the symposium to an end by underscoring the prophetic and at times heroic nature of conscientious objection, urging a full recognition thereof by the state.

Why is conscientious objection in danger today? Which categories are most seriously affected?

We can distinguish three groups of dispositions that safeguard the conscience of individuals: those relative to binding rules directly stemming from religious faith (e.g. the day of rest guaranteed by the Understandings, or nutritional precepts protected simply by organizational measures), those relative to conscientious objection on the part of individuals with respect to obligations imposed by the State which cannot be considered objectively unjust, and, lastly, those which safeguard conscientious objection with respect to the application of unjust laws.

At present there are no special limitations regarding the first two groups: respect of religious freedom is guaranteed by the Constitution (even though dark clouds are building up on the horizon). Unjust laws – those which permit iniquitous and in no way justifiable practices, like Law 194 on abortion and Law 40 on artificial fecundation – constitute the area where the right to conscientious objection is being challenged by ceaseless attacks.

In itself, this is not surprising. A state that legally permits the killing of innocents by virtue of the law on abortion is ill at ease when being silently reproached by conscientious objectors with respect to the harsh reality of the practice unjustly legalized. Each unjust law is based on falsehood and the distortion of the truth. Evident therefore are the efforts to distort the objective and concrete situation, for example, by denying human dignity to the embryo and the fetus as is evident in the statement reiterated in numerous regulations that Law 194 does not protect the embryo prior to nesting, and then the spreading use of the “day after pill”, whose anti-nesting (and hence abortive) effect is denied.

At danger is the right of all those who have anything to do with abortions, even if not materially involved. Proof of this is the case of the physician conscientious objectors working in Family Guidance Centers and obliged by the Latium Region to sign the certificate whereby a woman, seven days after the issuance thereof, may abort. This obligation is imposed on the basis of the false assertion that there is no direct link between the issuance of said document and the abortion itself.

The law on civil unions – bereft of any norm regarding conscientious objection on the part of mayors and public officials – already offers glimpses of the same attitude of intimidation and negation of liberty.

Doesn’t reiterating the right to conscientious objection run the risk of falling victim to the modern notion of conscience, that being something absolute, unquestionable and in itself the source of the moral norm?  

This is the point raised by Cardinal Parolin, who sustains that the issue of the limitation of conscientious objection exists “in order to see to it that an indiscriminate affirmation of the right to objection would not entail de facto anarchy and an arbitrary avoidance of legal obligations”.

As a judge, what is your position on conscientious objection with respect to law?

I believe that a democratic state should have no fears about broad recognition of conscientious objection, albeit regulating ensuing organizational aspects. A democratic system admits and encourages diversity of opinions and the approval of legislation by majority rule, as well as the possibility that a specific law may later be repealed and amended.

On the other hand, the state is at the service of the citizen. If it expects behavior forbidden by conscience it turns into a totalitarian state. Moreover, in the presence of objection regulated by law, the individual objector does not challenge the legitimacy of the state, and can therefore more easily take part in the pursuit of the common good.

I was very taken aback by an excerpt in a recent ruling of the Latium Administrative Tribunal which, confirming the obligation for physicians in family guidance centers to sign the certificate for an abortion, even if objectors, sustained that the conscience of objectors “could not feel troubled” by this practice. In this manner not only does the state oblige a physician to do something going against his conscience under the threat  of penalties, but also insists on entering into his conscience and “educating him”; small traces of a totalitarian vision of the state.

Why isn’t conscientious objection by mayors admitted in the Cirinnà law on civil unions? And if the law had so contemplated, would it therefore be a good law?

The Livatino Center had prepared specific amendments to the bill which were submitted by MPs while discussion was underway, but they were either rejected or fell by the wayside when the bill was passed by a vote of confidence.

A Parliament that wants to equate in the public sphere two realities that are not equivalent, cannot but repress any dissent or distinction, threatening penalties or outright dismissals.

The law would have still been unjust even if it had acknowledged conscientious objection, but at least it would not have forced many citizens to engage in practices forbidden to them by conscience.

As in the case of abortion, the state leaves many serious choices up to individual conscience, but then takes action to deny conscientious objection on the part of certain parties opposed to what the state itself considers a right. Isn’t this a contradiction?  

Cardinal Parolin stated that this is “a time when human will is arrogating unto itself the right to create rights, eliminating one after another the limits that nature, ethics, religion and the selfsame humanistic culture had thus far indicated”, and stressed how paradoxical it was that man was being wounded also in the intimacy of his conscience.

I believe that the recognition of “new rights” by the state is not based at all on the reference to the conscience of individuals. Just think about abortion: the self-determination accorded to a woman is based on the nonexistent contrast between the woman’s health and the life of the child, and on the substantial “cancellation” of the child when the choice is made. Along very much the same lines, the promotion of same sex “matrimony” conceals from the parties involved the reality of the union recognized in the public sphere, a reality contrary to the truth of man.

A conscientious objector recognizes the natural reality surrounding him, and through the use of reason and a well formed conscience responds to the order by the public authorities of the state to kill or give public relevance to a same sex union by saying: I cannot, I don’t want to! This is all such a person can do because he knows that not heeding the command of his conscience means the loss of his own dignity.

Therefore, I’d say that there is no contradiction: when embarking upon the approval of unjust laws the state is reluctant to acknowledge the full right of those who recall its duty, on the contrary, to pass laws that are just and finalized to the common good.