CONCORDAT AND LEGAL CONUNDRUMS. Averthanus L. D'Souza.
The ongoing controversy about whether the government should intervene (interfere?) in the management and administration of properties belonging to the Catholic Church is being fuelled by very untenable arguments by prominent politicians whose motives are far from transparent, although they claim that they are fighting for transparency in the administration of church properties. They have used their political acumen to great advantage to themselves by making it appear that there are serious issues of lack of transparency involved. It is necessary to take a closer look at some of the arguments which they have advanced in order to see that these arguments cannot stand the test of reason - or of law. Their strategy is known in political circles as creating smokescreens or as pulling the wool over the eyes of the people. They put forward arguments which, prima facie, appear to be plausible and irrefutable; but which, on closer critical analysis, are found to be far from cohesive or convincing. Let us look at some of these: 1. The Concordat was 'repealed' by the democratically elected government of Portugal. It was asserted at a public meeting that the Concordat of 1940 between the Holy See and the government of Portugal under Salazar was 'repealed' by the subsequently elected democratic government on the ground that it was unconstitutional and violative of the democratic Constitution that came into force in Portugal in 1974. This assertion is both factually incorrect and clearly motivated. The new Concordat signed between the Holy See and the government of Portugal on 18 May, 2004 states clearly in the preamble: ". . . recognizing the Concordat of 7 May 1940, agreed between the Holy See and the Portuguese Republic, and its application has contributed to a considerable extent to strengthen their historical ties and consolidate the activity of the Catholic Church in Portugal for the benefit of the faithful and for the Portuguese community in general; . . . mindful of the need of an up-date in the light of profound changes on a national and international scale, and in particular as regards the Portuguese legal system, the new Democratic Constitution, revised provisions of European Community law and contemporary international law, and in so far as this affects the church, and the evolution of its relations with the political community . . . " Furthermore, Article 31 of the revised Concordat of 18 May 2004 very explicitly states : "Existing juridical provisions and those drawn up as the basis for the Concordat of 7 May 1940 and of the Missionary Agreement remain unaltered." It is quite obvious that the original Concordat of 7 May 1940 was "up-dated" and reconfirmed by the fresh Concordat signed on 18 May 2004. To assert, therefore, that the Concordat was "repealed" because it was unconstitutional and violative of the democratic Constitution that came into force in Portugal in 1974 is a blatant falsehood and an act of reprehensible irresponsibility. The power to "repeal" an international Agreement. Anyone with a modicum of common sense, who is even vaguely familiar with international relations will know that an International "Treaty" or an Agreement does not form part of the internal, domestic legislative competence of any country. A Treaty, (or in this case a Concordat) is an Agreement entered into between a sovereign Nation and another sovereign (in this case the Holy See, which is not, however, a political entity). Such a Treaty can be modified or abrogated with the mutual consent of both (or all) the parties which are signatories to the Treaty. Such a Treaty does not fall within the competence of the domestic legislative jurisdiction of any Nation. Such Treaties are normally subject to International Conventions. The current practice is that the participating Nations have the Treaties "ratified" by their own Legislatures. Moreover, international Treaties, (or in this case Concordats) are made between sovereign Nations. No Provincial legislature or Municipality can enter into international Agreements. Only the Nation can do so. For example, the State Government of Tamil Nadu or Karnataka cannot "repeal" the SAARC Treaty entered into between India and the South Asian Nations which are parties to the SAARC Agreement. To demand that the Goa State Legislative Assembly "repeal" the Concordat entered into between the Holy See and Portugal is to indulge in sheer poppycock. Furthermore, the new Concordat between Portugal and the Holy See was signed in May 2004. This is, therefore, exclusively a matter between Portugal and the Holy See and does not in any way affect us in Goa (or in India). The question of the Goa State Legislative Assembly even considering the Concordat of 2004 simply does not arise. It is a blatant display of ignorance to assert that "the Legislative Assembly of Goa is competent to enact new law as this is within the legislative power granted to it by the Concurrent List in the Seventh Schedule of the Constitution of India." What we are witnessing is a classic case of shrewd politicians obfuscating an issue with a view to galvanising public support for a cause which is neither legally justified nor socially necessary. Such undisguised political manipulation of common (and often, disgruntled) people who are not so well informed neither lends credence to the vested interests concerned, not does it enhance their social prestige. The question of transparency in the administration of church assets is a matter which can be (and should be) debated without dragging in extraneous (and totally unrelated) matters such as the Concordat between the Holy See and Portugal or the sex scandal in the U.S.A. and Ireland, or the administration of private temples, mosques or gurudwaras. The subject of debate should not be obfuscated as is being done by some politicians with highly questionable motives. Averthanus L. D'Souza, Dona Paula, Goa
