Politico-Legal Jabberwauling

GOA, Aug. 04, 2009, 10.00 Hrs (Averthanus L. D’Souza):

The All India Catholic Union (Goa State Unit) very unfortunately, indeed, chose to launch an unprovoked attack against the Catholic Church by convening a Conference in Goa on the theme “Should there be a law to protect the properties of the Church?” The choice of the theme was both provocative and intriguing, because there was no indication whatsoever, either remote or proximate, that the properties of the Church in Goa were under any threat of being expropriated. The only implication that could be drawn was that the AICU wanted to “protect” the properties of the Church from the Church. They mobilized two of the better known political cum legal personalities to advocate their case in public: Mr. Eduardo Faleiro, former Minister in the Union Government and currently Commissioner of the Government of Goa for NRI Affairs (who presided) and Justice K.T. Thomas, retired Judge of the Supreme Court of India. In spite of the eloquence of these prominent personalities, the AICU simply failed to make a convincing case for the intrusion of the Government in the management of the temporal affairs of the Church. Let us analyse the arguments objectively and dispassionately.

Concordat between the Holy See and Portugal

Mr. Eduardo Faleiro argued that the law which regulates the relationship between the State and the Church was created by the Concordat of 1940 between the Holy See and the then Government of Portugal under the dictatorship of Salazar. He contended that this law was repealed by the democratically elected government of Portugal which replaced the Salazar government on the ground that it was unconstitutional and violative of the democratic Constitution that came into force in Portugal in 1974. ”The Concordat of 1940 was “repealed” (sic) and was substituted by a new Concordat in 2004”. Mr. Eduardo Faleiro erroneously equates a Concordat with a “treaty.” The fact is that “treaties” can be entered into only between two or more sovereign governments. Since the Holy See is not a political entity as commonly understood, the Holy Father enters into Concordats with political entities to ensure that the rights and privileges of the Catholic Church are respected and preserved. The word Concordat is the Latin for an “Agreement.” How an agreement, freely entered into between a sovereign state and the Holy See can ever be “unconstitutional and violative of the Constitution of that State” was not made clear to the gathering. The Holy See entered into Concordats even with viciously anti-Catholic governments like Nazi Germany in an attempt to safeguard the rights and properties of the Church there. The fact that Nazi Germany violated the Agreement is another matter altogether.

Another (totally unsubstantiated) contention advanced by Eduardo Faleiro is that the signing of Concordats between the Holy See and sovereign governments results in the creation of the Church as a “state within a state,” which, he claimed, is simply not acceptable to sovereign states. He completely failed (or neglected) to demonstrate the truth of this allegation that the Church in Goa is a “State within a State.” As a legal luminary who has also had considerable experience in international relations, Mr. Faleiro should have been better informed about the distinction between “treaties” and Concordats, and the fact that such Concordats simply cannot constitute the Catholic Church as a “state within a state.”

The French Revolution

Eduardo Faleiro also made reference to the French Revolution and gave a twisted interpretation of the Concordat which was made between Napoleon and Pope Pius VII. According to accepted historical sources, the Concordat of 1801 between Napoleon and Pope Pius VII was entered into at the initiative of and at the request of Napoleon himself. The canard that the Church was ‘deposed’ in France and that the French Revolution was a revolution against the Church is just that – a canard – and it is unbecoming for an educated legal luminary to perpetuate such patent falsehoods. The French Revolution was a revolution against the “ancien regime” viz. the monarchy and an attempt to create a democratic government based on the principles of liberty, equality and fraternity.

Sex abuse scandals in the U.S.A.

Another argument adduced in favour of legislation to control the administration of church assets was the sex abuse scandal which rocked the church in America a few years ago. Reference was made to the huge amounts of money that were paid out as compensation to the victims of sex abuse by a few Catholic priests. Allusion was also made to a similar scandal which shook the church in Ireland more recently. It was contended that the paying out of compensation to the victims of sex abuse constituted a breach of trust with the ordinary Catholics who contribute towards the maintenance of the church and its institutions. It was further argued that this provided sufficient cause to bring in legislation in Goa to control the management and administration of the finances and material assets of the church in Goa. Very significantly, however, there was no attempt whatsoever to show how bringing in legislation to control the finances of the church in Goa would, or could, possibly, remedy the unfortunate situation in the U.S.A or Ireland, or how it would even ameliorate the crisis arising out of the admittedly inexcusable behaviour of some clerics. The argument (or even the insinuation) that the church in Goa should be penalised for the sins of the clergy in the U.S.A. or anywhere else is simply too bizarre to require any rebuttal.

Appropriation or management of Church properties

Retired Justice K.T. Thomas preferred to alter the theme of his keynote address to: “Should there be a law for governing church property?” He reassured his audience that Article 26 of the Constitution of India provides adequate safeguards to prevent any appropriation of properties belonging to any religious body. He explained that no Parliament or State Legislature can pass any law to appropriate any property belonging to any religious denomination. However, he claimed that the administration of the finances of any religious trust could be made subject to judicial scrutiny. He gave the examples of the Thirupathi Temple which was governed by the “Thirupathi Thirumala Devastanam Act,” the Guruvayoor Temple which was governed by the “Guruvayoor Devaswam Act” and the “Madras Hindu Religious and Charitable Endowments Act” of 1951. He also cited the examples of the “Sikh Gurudwara Act” and the “Wakf Act” which governed the administration of the Sikh and Muslim Religious Trusts respectively. He affirmed that legislation to supervise the financial management of Christian Churches could likewise be enacted under the provisions of Article 26 of the Constitution of India. He asserted that: “In a republic where every thing is brought under law, where Constitution is the highest, the religious denominations should welcome the enacted laws to administer their properties, so that accountability to the people and transparency of the actions can be ensured.”

Justice K.T. Thomas gave no indication of whether he was familiar with the provisions of the “Canon Law” of the Catholic Church. Neither did he indicate that he was aware of the fact that Canon Law does not in any way conflict with the civil laws of the country in which the Church carries out its God given mission. In his concluding remarks, Justice K.T. Thomas made what can only be construed as derogatory observations about the functioning of the Catholic Church, although his remarks covered all Christian churches. He said: “I feel that the opposition is on account of a fear that a provision for judicial scrutiny is likely to expose the expenses and the magnitude of the wealth of the denomination.” He further went on to say: “I would say that those who resist any such law being enacted could have the sinister motive of misusing the funds and wealth of the religious denominations.” Such a generalized, unfounded, condemnatory statement which presumes mala fides on the part of those who do not subscribe to his own views is unexpected from a retired Judge of the Supreme Court of India. It is contrary to the basic principle of jurisprudence that no individual (or group of persons) should be presumed to be guilty until he is conclusively proven to be guilty beyond any reasonable doubt after a due process of law. Derogatory observations such as these are common in political circles, but are definitely not expected from a retired judicial officer of such a high rank.

The “Principle of Subsidiarity”
Legal luminaries like Justice K.T. Thomas and Eduardo Faleiro need to complement their knowledge of the law by becoming better acquainted with an important principle which has been designated the “Principle of Subsidiarity.” According to this principle, no authority of a higher order should assume either the functions or the responsibilities of lower bodies; instead, they should exercise their own powers in such a way as to enable lower bodies to assume greater responsibilities consistent with their objectives and capabilities. This involves, what in political terms has come to be called, “devolution of powers”. In India, the concept of Panchayati Raj is being sought to be realized all over the country. This involves the devolution of powers and responsibilities to the lowest rung of the socio-political ladder, which is the village. The objective of realizing Panchayati Raj is going to be a long and tedious process; but it must, nevertheless, be actively pursued.

Justice K.T. Thomas, in his address to the Conference quoted William Pitt to the effect that “where law ends there tyranny begins.” This was reinforced by another quotation of Paul Siegert: “Absolute power minus accountability is equal to corruption.” Justice Thomas is perhaps also aware of the observation of another eminent political scientist, Edmund Burke, who said that that government is best which governs the least. Complementary to this is the well-known saying of Lord Acton that “power corrupts, and absolute power corrupts absolutely.” The wisdom of these great political scientists is clear – it is not desirable for power to be concentrated at the highest levels of the political spectrum. The government should not determine how private organizations or social groupings should conduct their own affairs. The proposal of the All India Catholic Union (and its State Unit) to pressurize the government to control the management of the material assets of the church runs counter, not only to the principle of subsidiarity, but also to the best wisdom of the political philosophers of recent times.

The Church in Goa has put in place a system of administration of the material assets of the parishes and of the Diocese which is in accordance with this principle of subsidiarity, and also of Canon Law. Those who are so vociferous about participatory administration should carefully study the Statement of the Diocesan Synod and the Diocesan Pastoral Plan, 2002” (particularly sections 91 to 92.3). Of course, like any other plan, the implementation of this Plan will have many hurdles to overcome, but it is the road map for the Archdiocese of Goa and Daman charted out by the Diocesan Synod of 2002 after the widest possible participation of the Catholic community in Goa and Daman.

The Rule of Law

An international Congress of Jurists which was held in New Delhi from the 5th to the 10th January, 1959 adopted a model of the “Rule of Law” which was the first such model to have been evolved since the end of the Second World War. The main thrust of this model, it can safely be asserted, is to place “restraints” on the functioning of legislatures, executives and judiciaries in order to safeguard and promote the rights of persons. Clause III (1) reads: “Every legislature in a free society under the Rule of Law should endeavour to give full effect to the principles enunciated in the Universal Declaration of Human Rights.” (3) “Every legislature should, in particular, observe the limitations on its powers (emphasis added) referred to below. The failure to refer specifically to other limitations, or to enumerate particular rights is not to be construed as in any sense minimizing their importance.”

This “Rule of Law” as adopted by the International Congress of Jurists is consonant with the Principle of Subsidiarity. The All India Catholic Union (and specially its President) and the legal eagles who aid and abet its undesirable activities should seriously spend time studying the Social Doctrine of the Catholic Church. This might help it to become a true instrument for social progress rather than a “trade union” of disgruntled elements who sow dissent and division within the Catholic Church.

Averthanus L. D’Souza