By contrast, not a good day for religious liberty or the rule of law in Belgium

 

 

Rick Garnett recently brought to our attention the news about a “victory for religious freedom” in Quebec. Apparently, quite the opposite occurred in Belgium yesterday, June 24, when the members of the Belgian Bishops’ Conference were conducting their monthly meeting at the residence of the Archbishop of Malines-Brussels when government officials and police unexpectedly arrived and ordered a lock-down of the premises with all present being prohibited from leaving. The reason given for the search was that it was a response to reports of sexual abuse within the archdiocese. During the lock-down and search, which lasted for about nine hours, documents and cell phones of those attending the meeting were confiscated by the state officials conducting this raid. In addition, the participants in the Bishops’ Conference Meeting were questioned by the authorities; moreover, after questioning, they were prevented from leaving the premises. The press release of the Holy See issued earlier today is HERE. Also confiscated during the raid were the files of the Belgian church’s committee that investigates sexual abuse claims. It was noted by officials of the Bishops’ Conference that the privacy rights of victims and others have been violated by the raid and the confiscation of these documents. The authorities also broke into the sepulchers of several of the former archbishops while conducting the raid. I am not sure what the deceased cardinals had to say to the investigators. The Belgian Ambassador to the Holy See was summoned to meet with Archbishop Dominique Mamberti, Secretary for Relations with States (i.e., the equivalent of the foreign minister), at the Vatican during which time grave concern about this matter was expressed to the Belgian government’s ambassador.

From the standpoint of Catholic and general legal theory, several points and questions come to mind. The first is why the Belgian authorities who clearly have a duty regarding claims of sexual abuse did not solicit the cooperation of the Belgian church before taking this problematic action? It would seem that in order to justify such tactics that were employed, there would be a need for demonstrating persistent bad faith on the part of the Church authorities in failing to cooperate with the civil authorities. Without this background, it seems that the acts of the Belgian authorities were more representative of a police state than of a democracy. Such actions may have been expected on the European continent sixty to seventy years ago, but today? The assault conducted by the authorities constitutes a threat not only to ordered liberty in general but to religious freedom in particular if the Belgian government cannot explain why such heavy handed tactics had to be relied upon to investigate any kind of credible allegation of wrongdoing.

A second item follows. Over the recent past, there has been a healthy debate within the United States about the role of international and foreign law in American constitutional law. I do not want to address many important questions which that issue raises today in this posting. I mention it because some Americans fervently hold that foreign law should be considered in domestic, i.e., American, legal proceedings. I do think that it is clear that treaty law and customary law that does not conflict with the Constitution or statutes enacted by Congress are part of American law. But again, knowing that sexual abuse issues remain a much discussed matter in American legal circles today, would some individuals be tempted to again raise the matter about whether actions by legal officers or foreign tribunals, such as what has happened in Belgium, also be considered and possibly adopted by the American legal system? Well, I suppose if you are in agreement with certain principles such as was demonstrated in the juvenile capital punishment case Roper v. Simmons, the foreign legal principles become not only palatable but desirable. On the other hand, might we recall the concerns raised by one member of the Supreme Court, Justice Scalia, who dissented from Roper and, in doing so, raised legitimate questions about which foreign legal principles are to be adopted in the United States and which are not when he said, “to invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.” Here we ought to recall that in Europe, illegally seized evidence does not violate standards of due process of EU law, but it does conflict with our Fourth Amendment protections.

Third, Belgium is a party to the International Covenant on Civil and Political Rights. Article 17(1) of this treaty specifies that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” It does not appear that Belgium has not offered an explanation why it has not honored this treaty obligation by conducting the search and seizure of the Archbishop’s residence in the manner that it did yesterday.

I wonder if other members of the Mirror of Justice have thoughts on this matter involving the Church in Belgium?

 

RJA sj