Lisbon Court of Appeal, proc. 27/09.7TBHRT.L1-8, 29.09.2011

RELIGIOUS ASSOCIATION | CONCORDAT | CANON LAW | SEPARATION BETWEEN CHURCH AND STATE

 

 

              Lisbon Court of Appeal, proc. 27/09.7TBHRT.L1-8, 29.09.2011  

 

JURISDICTION: Civil

SUBJECT: Legal nature and powers of representation on behalf of association of the faithful

RAPPORTEUR: Maria Amélia Ameixoeira

RULING: The appeal is dismissed with confirmation of lower court ruling which had issued an injunction ordering the defendants to refrain from practicing any acts in representation of the association of the faithful and to surrender information and documents to the association’s new legal representatives.

DOMESTIC LAW:

Code of Civil Procedure of 1995, as amended by Decree-Law no. 52/2011, of 13 April 2011 [Articles 21, 65-A, 66, 101, 105(1), 381(1), 387, 655(1), 660(2), 668(1)(c)(d), 685-B]

Law no. 3/99, of 13 January 1999 (Law on the Organisation and Functioning of the Judicial Courts)

Portuguese Constitution [Articles 8(2), 20, 41(4), 46]

Supreme Court judgment, proc. 6824/03.0TBB.G1.S1, 25.02.2010

Supreme Court judgment, proc. 743/08.0TBABT-A.E1.S1, 17.12.2009

Supreme Court judgment, proc. 07S1444, 12.07.2007

Supreme Court judgment, proc. 07B723, 26.04.2007

Supreme Court judgment, proc. 04B4525, 27.01.2005

Supreme Court judgment, proc. 05B116, 17.02.2005

Supreme Court judgment, proc. 072890, 11.07.1985

Lisbon Court of Appeal judgment, proc. 5629/2007-8, 21.06.2007

Coimbra Court of Appeal judgment, proc. 467/08.9TBSRT.C1, 16.06.2009

Constitutional Court judgment no. 118/85

Constitutional Court judgment no. 409/87

Constitutional Court judgment no. 218/88

INTERNATIONAL LAW:

Concordat between the Holy See and the Portuguese Republic, of 18 May 2004

Concordat between the Holy See and the Portuguese Republic, of 7 May 1940

CANON LAW:

Code of Canon Law (1983)

Code of Canon Law (1917)

General Regulation of the Religious Associations of the Faithful, of 23 May 1937

Decree of the Portuguese Episcopal Conference, of 4 April 2008

FOREIGN LAW: n.a.

KEYWORDS: Religious association; Concordat; Catholic Church; association of the faithful; Diocese; canonically; Bishop; religious ends; religious community; Canon Law; Canon Legal Order; ecclesiastic authority; chapels; religious life; works of mercy; evangelisation of the poor; Church’s social doctrine; ecclesiastic assets; Ecclesiastic Decree; canonical-concordatary legal entity; Bishop’s decrees; principle of separation between Church and State; jurisdiction on ecclesiastic matters; Ecclesiastic Court; Jesus Christ; charity works; individual sanctification; evangelic precepts and advice; Church norms; religious names; Slaves of the Sacred Heart of Jesus; religious worship; prayer; penance; Eucharistic celebration; Holy Sacrament; religious activity; goals of the Church; Mother Superior; Fátima Sanctuary; spiritual assistant; Prelate; Bishop’s confirmation; Religious Institute; apostolate; Priest; Vicar General; Diocesan Prelate; Holy See; Jesus in the Blessed Sacrament; Pious Union; Church’s mission; canon; Christian doctrine; public worship; Evangelic principles; rules of the Holy Church; Santa Casa da Misericórdia; charitable purposes; non-confessionality of the State; non-interference of the State in the organisation of the Churches; Holy Gospel

COMMENTS:

1. This is one among many cases that Portuguese courts have been asked to adjudicate on the application of the Concordat regime and the delimitation of the scope of Canon Law and Civil Law. It provides a good example of legal pluralism arising from the coexistence of the State legal system with “minority legal orders” – to paraphrase MALEIHA MALIK, Minority Legal Orders in the UK: Minorities, Pluralism and the Law, London, The British Academy, 2012 – with their own normative frameworks and jurisdictional bodies. This case also allows us to see how the courts reconcile legal pluralism with the principles of Democracy and Rule of Law enshrined in the Portuguese Constitution.

 

2. At stake in this instance was an injunction requested by a Diocese (A) and an association of the faithful (B) against a Sister (D), who had been Mother Superior and representative of the association, and her nephew (C). D and C were order to refrain from practicing any acts in representation of the association and to surrender to the association’s new legal representatives inventories of assets, obligations, sources of income, etc. The injunction was issued and later confirmed by the court of first instance, which dismissed the defendants’ objections. On appeal against this decision, D and C alleged mainly that B was a private association of the faithful and that, for this reason, the Bishop had no power to appoint commissioners to replace D nor to practice any acts for the management of the association’s assets. D and C asked for the overruling of the lower court decision, with the acknowledgment that B was a private association of the faithful and that D was her sole legal representative. The appeal was dismissed by the Lisbon Court of Appeal, which concluded that B was a public association of the faithful, under the tutelage of the ecclesiastic authorities. The Court did not find that the appeal had been an act contrary to public order, as had been claimed by the Diocese and the association, but it agreed with them in concluding that the lower court had made a correct interpretation of the relevant provisions in the Code of Civil Procedure, the Law on the Organisation and Functioning of the Judicial Courts, the Portuguese Constitution, the Code of Canon Law, and the Concordat between the Holy See and the Portuguese Republic.

 

3. The main question under review was that of the legal nature (public or private) of the association of the faithful. Although it alludes to differences of opinion on the matter in the case law and in the literature, the Lisbon Court of Appeal concluded that there was no doubt that B was a public association of the faithful. Its reasoning was: (a) B had been canonically erected by Bishop’s Decree; (b) B had always pursued religious goals “proclaimed in its statutes and lived by the Sisters who were part of the religious community, in obeisance to the Evangelic principles of chastity, poverty and obeisance to the Church”; (c) the 1917 Code of Canon Law, in force at the time when B was erected, only admitted public associations of the faithful; (d) the Diocese which supervises the association always considered it a public association of the faithful and exercised its authority over it; (e) the Sisters who are part of the association always interacted with the ecclesiastic authorities in recognition of the Bishop’s authority and direction and in compliance with the Canon Law provisions applicable to the public associations of the faithful; (f) the dependency of the association vis-à-vis the Diocese, which “was always part of their relationship”, is exclusive to public associations of the faithful; (g) the association always complied with the canon precepts on the election of its representatives (except in the last election, in 2008) and always submitted to the canonical jurisdiction, both on religious and on temporal matters; (h) when she represented the association, the appellant D had asked the Bishop to issue a document acknowledging the association as a public utility religious institution, in order to benefit from a tax exemption which the 1940 Concordat only granted to ecclesiastic assets and entities. Since B is a public association of the faithful, it is subject to the authority and direction of the Bishop, “who, in special circumstances, may interfere in its life and internal organisation, appointing – as it did – a commissioner who administers it in his name on a temporary basis”. In spite of acknowledging that this type of interference by the Bishop is not subject to review by the common courts, the Lisbon Court of Appeal did not hesitate in stating that the Bishop’s Decree that appointed commissioners to replace D “could never be deemed invalid”, since “the Bishop had had grave and serious reasons to interfere”. The interference had not only been legitimate but also “justified and necessary”. For this reason, the Court concluded that the acts adopted by the commissioners in representation of the association, pursuant to the Bishop’s Decrees, were valid and had had effects in the legal system. Therefore, both the lower court and the Court of Appeal accepted that the association was represented by the two commissioners and not by D.

 

4. When reviewing the case, the Court used a significant amount of information that can be viewed as “cultural information”, even though the characterisation of the community of faithful, their norms and practices, can also be considered to be “legal information”, to the extent that these are largely derived from Canon Law provisions. The Court shows full confidence in the information presented by the Diocese and by the association, adhering to their counter-allegations and to the expert opinion that they commissioned to Saturnino da Costa Gomes, often cited verbatim by the Court. Particularly interesting is the information put forward to establish that the association pursued religious goals: (a) the request for the erection and acknowledgement of the association was made by the Bishop with the recommendation that the proponents “were serious people who truly wished to surrender to the service of God and the souls” [excerpt cited by the judgment and included in the summary prepared by the rapporteur]; (b) the request of “permit to keep the Jesus in the Blessed Sacrament at the Sisters’ chapel in Aljustrel, [which, according to the expert opinion,] «shows the close connection between the Pious Union and the Church’s mission»”; (c) the letters reiterating the vows of poverty – “we can own nothing”, “everything will go to the Diocese of Leiria” – and obeisance – “Our spirit is to lower in order to rise up to Him – Oh Lord; but we comply with the orders of those who approve us” [direct citations in the judgment]; (d) the association’s statutes, where it is established that the “«Slaves of the Sacred Heart of Jesus» is the family name of the Ladies who, of their own free will, wished to live in community and surrender to Our Lord Jesus Christ, in the person of the poor, in all Charity works”, and also that the association is “a religious community which end is, first of all, the individual sanctification by compliance with the Evangelic precepts and advice and with the Church rules; and, secondly, the evangelisation of the poor by the example and practice of the works of Mercy”; (e) the documents that attest that “the «Slaves» were part of that community, were called as Sisters and all had religious names”; (f) the fact that the Sisters had, in their homes, chapels with the Holy Sacrament, “for the exercise of religious worship, prayer, penance and Eucharistic celebration”, and that that religious activity was “proclaimed and lived by the Sisters over time, always in submission and in pursuance of the Church’s goals”. The Lisbon Court of Appeal did not hesitate in stating that the pursuance of those goals, the way of life in community and the Sisters’ activity were “manifestly religious”, adding – in a language mimicry that is worth noting – that “their life was merely instrumental (hide) to the sacred work of the Church and the religious goals thereby pursued in the spirit of the Holy Gospel”.

 

5. It is worth noting that, in this judgment, legal pluralism does not seem to create any sort of difficulty. The Court goes as far as stating that the right of access to the courts “does not require that Portuguese courts necessarily have to have jurisdiction and competence to settle all disputes, including those with connections to other orders”. This openness to the coexistence of the State legal system with other orders with their own courts is, however, justified on very narrow grounds, which make it unlikely that the same reasoning be applied to the “minority legal orders” which are at the centre of the debates on legal pluralism in Europe (i.e. the Jewish Beth Din and the very controversial Islamic Sharia Councils). Although the Court invokes the principle of separation between Church and State and the freedom of the Churches in their organisation and functioning [established in Article 41(4) of the Portuguese Constitution] to justify the lack of competence of common courts, the acknowledgment of the Canon Law order is mainly a result of the signature by the Portuguese State, “in the exercise of its sovereign right”, of two Concordats with the Holy See, in 1940 and 2004. The Court explains that the Concordats are international conventions and are therefore “in force in the Portuguese legal system with precedence over domestic law”. According to the 2004 Concordat, Portugal acknowledges the Catholic Church’s jurisdiction in ecclesiastic matters and the right to freely approve and enact any provision pertaining to the Church’s activities. “This means that the State acknowledges the Church’s right to apply Canon Law, in matters pertaining to the organisation of entities with canonical legal personality, by means of its own jurisdiction or jurisdictional bodies”. In the instant case, irrespective of whether the association is public or private, the assessment of the validity of the Bishop’s Decree which appointed the commissioners to run and represent the association is a matter which falls under the exclusive jurisdiction of the ecclesiastic courts and which is off limits to the common courts, “since it is the Portuguese State that acknowledges and accepts that specific jurisdiction”. This is also the reason why there is “no violation of the fundamental principles of the Democratic Rule of Law”. The validity of the Bishop’s Decree “is untouchable” in the Portuguese legal system and, therefore, the acts practiced pursuant to the Decree cannot be contested in the civil jurisdiction and by the common courts. The common courts are, nevertheless, competent to judge acts practiced or pertaining to canonical-concordatary associations when the domestic law is applied (an innovation brought by the 2004 Concordat, since the 1940 version gave ecclesiastic authorities the competence to apply domestic law). The lower court had no qualms in addressing the question about the legal nature of the association of the faithful, nor in assessing the association’s representatives, which – according to the Court of Appeal – is not out of the purview of the common courts, since it served merely to determine who had powers of representation on behalf of the association in the instant proceedings. The lower court’s delimitation of the scope of Canon Law and Civil Law was deemed correct by the Court of Appeal. As noted earlier, the Court of Appeal for its part did not hesitate to comment that the interference by the ecclesiastic authority had been legitimate, justified and necessary.

Patrícia Jerónimo

Cite as: JERÓNIMO, Patrícia, “[Annotation to the judgment of the] Lisbon Court of Appeal, proc. 27/09.7TBHRT.L1-8, 29.09.2011”, 2020, available at https://inclusivecourts.pt/en/jurisprudencia2/

REFERENCES IN THE LITERATURE: n.a.

 

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