Questions about the concordat

In addition to the notes below, see two articles by Prof. Roseli Fischmann in Portuguese:  “Secularism threatened, democracy despised: the Brazil-Vatican Agreement” (Laicidade ameaçada, democracia desprezada: Acordo Brasil-Vaticano), 10 December 2008, and “Public school is no place for religion” (Escola pública não é lugar de religião), November 2009.

This concordat can be used to muzzle free speech

Article 2 guarantees “the public exercise of [Church] activities”, yet Article 7 prohibits showing any “disrespect” for them. The Church is allowed to bring its activities outside the circle of the faithful and into the public square, yet brooks no criticism by civil society in that square. Italy also has a treaty, made by Mussolini with the Vatican, which stifles free speech. Under this treaty, the Italian comedienne found herself in 2008 facing the possibility of five years in prison for “offending the honour of the sacred and inviolable person” of Benedict XVI. [1]

It imposes foreign law on Brazil

Article 3 introduces the Vatican's Canon (Church) Law into Brazil. There is the caveat that this mustn't conflict with Brazilian law and the Constitution. However, this puts the onus on Brazilians to prove that some regulation of Canon Law goes against Brazilian legal system. The concordat stipulates only that Canon Law be used in Catholic institutions, but because this includes Church-run social services, Church law can be effectively imposed on both their lay employees and their clients. In Germany this is a widespread problem, particularly acute for anyone, like gays or the divorced, whose private life does not accord with Canon Law.

Brazil pays, the Church decides

Article 5 puts Church social service organisations in a position of legal and therefore financial parity with state-run social services. In other words, the Brazilian taxpayer is expected to subsidise these Church-run social services. In Slovakia, this has meant no family planning services in Catholic hospitals. In March 2009 Brazilians saw what this could mean, when the Church tried to prevent the abortion judged by doctors as necessary to save the life of a tiny nine-year-old rape victim carrying twins.

Poor Brazilians must pay for Church opulence

 Article 6 obliges the state to “continue to cooperate to protect, value and promote” Church property. However, calling it “cultural heritage” doesn't alter the fact that the state is to pay for the conservation and maintenance of Catholic places of worship: to repair the roof and fix the plumbing. The Church is extremely wealthy and well able to afford to keep up its own property. People in the favelas could well use that money to repair their own houses.

And even though the state pays to maintain the Church records, the Church controls access to them and can block any use that is deemed not to “safeguard” (the secrecy?) of the archives or to “protect” their “religious purposes”. (Art. 6.2) You could drive a popemobile through loopholes like that.

The concordat lets Catechism into state schools

Article 11 permits Catholic religion to be taught to children as “a regular discipline in normal hours of state schools in primary education”. That's the way it started in Poland, as well, twenty years ago. A Polish bishop has admitted that the first step was to get catechism into state schools and taught on a voluntary basis, next to have it funded by the taxpayer and then to make it count on the grade average. Now a further step has been announced. Beginning in autumn 2009 for many students, even non-Catholics, catechism will, in practice, be compulsory.

First steps towards giving the Vatican control over Brazilan marrige law?

Article 12 even appears to lay the groundwork for the eventual introduction of marriage according to Canon (Church) Law, with no possibility of divorce. This was ensured by the concordats of Mussolini's Italy and Franco's Spain, and even by the concordats in force today in the Dominican Republic (Article 16) and Malta (which has a whole concordat concerning marriage). According to the Brazilian concordat, “Brazilian legislation concerning the acceptance of foreign judgments” is to apply, not to foreign criminals, but to Brazilians who have married within their own country! This opens the door to enforcing the rulings of the Apostolic Signature, the Vatican's “marriage court” of last instance, which, of course, follows Canon Law. But why should Brazilian citizens let their marriages be governed by the laws of a foreign country?

And certainly not by a country whose courts have been found wanting. In 2001 the European Court of Human Rights ruled that the procedures of the Roman Rota (Rota Romana), the ecclesiastical appeals court responsible for marriage-annulment applications, failed to reach the standards required for a fair trial. Why should Brazilian citizens be subject to foreign courts that do not follow the modern standards of evidence demanded in Brazil?

Church tax immunity will rob the Brazilian treasury

Article 15 guarantees the Church the tax status of a charity. However, other countries show how this can be exploited to enable the Church to undercut commercial competitors. In Italy erecting a little shrine within the walls of a cinema, holiday resort, shop, restaurant or hotel allows the Catholic Church to escape paying 90% of what it owes to the state for its commercial activities. (“Property tax relief for the Church: EU takes Italy to court”, La Repubblica, 25 June 2007)

Church exempt from labour laws — and from liability for paedophile priests

Article 16 removes priests, monks and nuns from the jurisdiction of Brazilian labour laws. This means no collective bargaining and no need for the Church to comply with national pay scales. However, given their vows of poverty this is hardly a real issue. This clause appears to have a more ominous significance. For it means that the diocese cannot be regarded as the employer of its clerics or the order of its monks and nuns.

This prevents the Church from being held responsible for abusive priests, as it was in a key decison reached in 2011 in England. That was when  the English High court ruled that the relationship between a priest and his bishop is sufficiently close as to impose responsibility. (Damage limitation, part 2: English Catholic Church said priests are self-employed and thus it’s not responsible for victim compensation)

In Brazil the Church has a special need for this legal protection. The country's stark differences between rich and poor have made it a paradise for priests who prey on vilnerable children. In 2005 Brazil's clerical abuse scandal was first aired in the media and pursued in the courts. A Vatican report that year concluded that one priest in ten was involved in cases of sexual misconduct, including abuse of women and children. The following year saw the beginning of the secret concordat negotiations. In the face of evidence that poor and fatherless Brazilian children were particularly targeted by abusive priests, the Vatican's answer, in Article 16, was to try to protect the Church, not the children.

The Church helps write Brazilian laws

Article 18 sets up consultations between the Bishops and Government officials to frame laws to implement the sometimes vague wording of the concordat. This led in 1993 to the formation of a Joint Commission (Comissão Paritária) like the ones in Portugual and Poland. The Polish Joint Commission holds secret meetings between Church and state officials, where the bishops, by their own admission, put pressure on the Polish Government.

Is a second concordat smuggled into the text?

Article 20 states that the latest concordat is to be “established under” the previous concordat — the earlier one for the military that was never ratified by Congress. This appears to be an attempt to quietly bring in two concordats at once. This is important, as the cautious military concordat contained the possibility of being cancelled, while Article 19 of the latest one makes this virtually impossible. It requires that any differences regarding the concordat “are to be settled by direct diplomatic negotiations”. However, that means there's no appeal to the Constitution and no redress through Brazilian courts. Brazil would have to negotiate with the Vatican and seek its agreement. One country actually tried this. In 2006 a Hungarian cabinet minister went to the Vatican to try to renegotiate the Finance Concordat. He found that no one had time to talk to him. Concordats are for keeps.

Note

1. Richard Owen, “Comedian Sabina Guzzanti ‘insulted Pope’ in ‘poofter devils’ gag”, The Times, 12 September 2008. Now behind a paywall, but reposted (among others) at http://clericalwhispers.blogspot.no/2008/09/comedian-sabina-guzzanti-insulted-pope.html