Rik Torfs, Belgium

• Citation: Vol. 19 No. 2
• Publication year: 2005

ESSAYS

THE PERMISSIBLE SCOPE OF LEGAL LIMITATIONS ON THE FREEDOM OF RELIGION OR BELIEF IN BELGIUM

Rik Torfs^*

The title of this Essay should inspire confidence. Religious freedom is the norm, restrictions are the exception. That is how religious freedom usually is perceived in a modern democratic society. And yet religious freedom is never fully achieved. Even if sometimes restrictions are unavoidable, they always constitute a danger, as any restriction inevitably results in less freedom.

After a short overview concerning the hierarchy of norms in Belgium, I shall deal with limitations of religious freedom on three different levels. The first level deals with solemn principles and main ideas, including both the international framework and constitutional law. The second level goes into the viewpoint of the ordinary legislator and tries to elucidate the question whether, and to what extent, ordinary legislation limits religious freedom. Finally, the last level concerns the more elusive domain of concrete policy, of administrative practice at a lower level. It is often the place where the main principles of the system and so called common sense cross paths.

Important case law will not be analysed on its own, but along the lines of the three main levels.

A. HIERARCHY OF NORMS

Belgium has a monistic view of the law. Because of this, the highest norm making authorities are those of the international level.

The Universal Declaration of Human Rights (1948) is perceived as a declaration of principles. It has no direct legal consequences and has no force of law.¹Consequently, the Universal Declaration can not be invoked before civil or administrative courts.²

The European Convention on Human Rights (1950) enjoys a direct vertical application in Belgium.³It contains individual fundamental rights that can be invoked by both Belgian citizens and foreigners. This means that a Belgian judge has the obligation not to apply legislative norms finding themselves into contradiction with international treaties directly applicable in Belgium. The Cour de Cassation ruled in this sense in 1971.⁴The decision was a real breakthrough, as Belgium had a solid tradition of not controlling the constitutionality of legislative norms. This tradition evaporated, starting with the acceptance of the enforceable superiority enjoyed by certain international treaties.

Internally, there are three levels of norm making authorities. From high to low they are: the constituent level, the legislative level and the executive level.

As already mentioned, the constitutionality and the legality of all norms can be reviewed by courts or tribunals or by administrative agencies, with but one exception: the Constitution itself. This control is rather recent in Belgium.

The Court of Arbitration, a constitutional court, was created during the

1980 constitutional revision. The establishment of a constitutional court was an important innovation in Belgian constitutional law. Since 1849, the Cour de Cassation set out the principle that in view of the trust the constituent assembly had put in the legislature, it was not up to the legislature itself. This principle survived for a long time.

Even in 1980, the innate mistrust of a "government by judges" did not disappear entirely. It led originally to a strict limitation of the Court's jurisdiction to conflicts of competence between legislatures. This was even reflected in the name given to the Court, Court of Arbitration.

Only at the third state reform in 1988-1989, its jurisdiction was extended. Besides the judicial review of conflicts of competence, the Court became competent to review the compliance of legislative norms (federal statutes, decrees and ordinances of communities and regions) with three constitutionally guaranteed fundamental rights: the principles of equality and non- discrimination and the right to and freedom of education.⁵

The current situation is clear. When fundamental rights and freedoms are concerned, the courts and tribunals will test the legality of a norm of the Constitution in the light of international treaties to which Belgium has adhered.

B. RESTRICTIONS ON THE LEVEL OF PRINCIPLES

1. Description⁶

Practically speaking, two documents dominate the Belgian discussion on religious freedom and its restrictions, namely the European Convention on Human Rights (1950), and the Belgian Constitution (1831, often changed since then, but never fundamentally reconstituted with regard to religious freedom).

Article 9 of the European Convention explains the principle of religious freedom in its first paragraph, while the second one formulates possible grounds for restrictions: "Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

The European Convention is very important in Belgium. It has precedence over all earlier and future legislation.⁷Given its direct applicability, the norms of the European Convention intervene more and more in court decisions, sometimes as a major element of the discussions, sometimes as a side argument that should not remain untouched. The strength and weakness of the European Convention has often been discussed, including the question whether it shows too much respect for parts of national legislation that can be historically explained, without however complying fully with modern human rights standards. Here, I will not discuss this question directly, yet it will be brought to the surface occasionally, when dealing with typical "Belgian" problems.

The second document of great relevance is the Belgian Constitution of

1831, which followed immediately after Belgian independence and the breakdown of the United Kingdom of the Netherlands in 1830.⁸The Belgian Constitution, in its day, was very progressive and was held as an example for many other countries, which is very surprising indeed for a product labeled made in Belgium. In any case, the quality of the 1831 Constitution⁹explains its survival up until today, albeit with many changes which however concern much more the structure of the state than the catalogue of rights and liberties, the latter remaining almost unchanged.

The Constitution contains four articles with regard to religious freedom, some of them accommodating explicitly or implicitly some restrictions.¹⁰

Freedom of worship and its free and public practice are guaranteed under Article 19 of the Constitution, with an exception allowing the punishment of criminal offences committed in the exercise of these freedoms. The negative counterpart of Article 19 is contained in Article 20: no person may be forced to participate in any way in the acts of worship or rites of any religion or to respect its days of rest. Article 21 stresses that the State has no right to interfere with the appointment or induction of the ministers of any religion, or to forbid them to correspond with their Church authorities or to publish the latter's acts, subject to the ordinary rules of liability concerning the use of press and publications. This Article is generally interpreted as an affirmation of freedom of internal organisation. It contains at the same time an exception to this principle by providing that civil marriage must always precede the religious marriage ceremony, except in specific cases established by law.¹¹

Finally, Article 181 states that the salaries and pensions of the ministers of religion should be borne on the state budget.

At first glance this constitutional framework reveals some restrictions of religious freedom: (1) Article 19 deals with criminal offences committed in the exercise of religious freedom; (2) Article 21 stipulates that civil marriage must always precede any religious ceremony; (3) Article 181, by proposing the payment of salaries and pensions, implicitly creates a distinction between religious groups whose ministers are paid, and religious groups receiving no financial support at all.¹²

However, the last point is only linked to religious freedom insofar some form of unequal treatment between religious groups can or should be seen as violating religious freedom. Once again, this question of paramount importance will be at stake in the last part of this analysis, where political and administrative questions will be dealt with.

Meanwhile, the restrictions as mentioned in the Constitution can be characterised as follows: they deal much more with a demarcation of competences than with a clash of rights or values. Roughly summarised, the constitutional framework as it was perceived in 1831, looks as follows. Both Church (implicitly quite often the Roman Catholic Church) and State are mutually independent. They are masters in their own fields. Regular penal law is applicable to all, but any form of balancing of religious freedom with other fundamental rights remains untouched. And finally, the church has to pay a (small?) price for its autonomy and independence: civil marriage must always precede the religious ceremony.

One could say that the picture offered is far from being complicated. Several problems, emerging today were seemingly unknown in 1831, including the idea of a clash of values between a religious group and the democratic state. Obviously a religious group endangering public safety, public order, health or morals, the rights and freedoms of others was not perceived as an imminent problem. No clash of values was expected, just, to some extent, a competition of powers.

The discussion concerning marriage is a clear illustration of this mindset. From a perspective of doctrinal purity promoting mutual independence of church and state, civil marriage necessarily preceding any religious ceremony is hard to defend. Yet, loosing control over marriage registers was politically not acceptable for the young state...