FREE TRANSLATION OF AN ARTICLE IN THE DERNIERE HEURE
More Jehovah, more justice…
Jacques lost all contact with his family
BRUSSELS Qualified a religion by the ones, cult/sect by the others, Jehovah’s Witnesses and their practices remain surrounded by a halo of mystery. Jacques , who lives in Liège, about fifty years old, knows all about it. The man belonged to a congregation for 17 years. In 2002, he was excluded from it because his attitude with regard to the community was considered to be worrying by the hierarchy. This affair might have gone no further.
However, when a member is excluded, he is excluded from contact of any kind with those who are still part of the community. There may be no physical or even verbal contact with him. Undoubtedly a manner of evacuating any risk of subversion. Jacques from one day to the next could no longer see any member of his family who were all always part of the community.
This affair was brought before the courts by Jacques. He assigned the congregation for discrimination and attack on his private life. He was
not the first to attacke the Jehovah’s Witnesses thus. The consequence of exit is always to the advantage of the Witnesses in the name of freedom of worship.
Jacques claimed that he had obtained his personal data file in which the congregation publicly recognized the discriminatory character of his exclusion but especially of its consequences. He obtained a non suit in first instance because, for the Court, discrimination was not established since the rule was the same for everyone.
The man was furious and appealed. The Court of Appeal of Liege has now made its judgement public. It once more decided on a non suit of Jacques’ request by estimating that it was up to him to prove discrimination but for the first time, in its considerations, the Court of Appeal of Liege considered that the instructions with regard to excluded members and followers who wish to leave the community constitute a discrimination.
The Court also noted that moral pressures placed on members to isolate someone excluded could be considered as likely to be a breach of freedom of worship.
Even if Jacques did not obtain direct profit in his lawsuit, this judgement of the Court of Appeal is all the same a victory because it is the first time that the doubtful practices of the Jehovah’s Witnesses are thus approached by a Court. A door has thus been half-opened for all those who as Jacques were victims of the manoeuvres of Jehovah who count all the same more than 25.000 members in Belgium. Michaël Kaibeck
Comments by a qualified translator:
The appealing plaintiff was a member of the Asbl Congrégation chrétienne des témoins de Jéhovah in Esneux. In 2002 he was disfellowshipped from this community. He holds that the instructions given to the current members not to associate with disfellowshipped members have disastrous consequences inasmuch as he is shunned by all members of the Congregation, including his family, who are only allowed minimal relationship with him.
According to him, this behaviour violates the law against discrimination. He henceforth asks the judicial power to order its cessation under penalty of damages and constrain the respondent to publish the decision in various press organs, under penalty of damages.
The first judge held that there was no discrimination in the legal sense inasmuch as all the persons disfellowshipped from the community of Jehovah’s Witnesses were in the same situation and the appealing plaintiff did not actually complain about his disfellowshipping but about its consequences – which motivates the appeal.
On the Disfellowshipping Decision
The appealing plaintiff does not question the disfellowshipping procedure as part of the respondent’s rules. Neither the motives for disfellowshipping which have been retained – and allegedly were not communicated – nor the disfellowshipping procedure as it was worked out – the appealing plaintiff argues for violation of the defender’s rights and the lack of an impartial court – will be discussed in the present procedure.
The issue is not about the provisional or final character of the sanction either. That the member can be reinstated but has to make amends is not questioned.
On the Application of the Law Against Discrimination to the Present Case
The respondent holds that the
Of course freedom of worship and religion are definitely not to be questioned. However this freedom may have limits, as to its internal organisation, when it imposes on the adepts specific obligations which may run against the respect of other basic democratic principles. So would it be, to provide an extreme example which nonetheless did exist in ancient times and other places, of a worship which would require human sacrifices in violation of the article 2 of the European Convention of Human Rights.
The very references quoted by the respondent in this respect, for instance the European Court ruling concerning the Metropolitan Church of Bessarabia (conclusions, p. 20) ruling out “the State’s assessment as to the legitimity of religious beliefs or their modes of expression” do not apply to the present case. What is questioned is neither a religious belief nor its mode of expression but what could be termed an “order arrangement” aimed at protecting the belief itself and its modes of expression. For it cannot be held that abstaining to associate with a disfellowshipped member is a “belief” or its “mode of expression”.
It follows that the present law applies if, in the consequences that the members of a religious community draw from a precept of their religion, they commit a legally prohibited discrimination. If, for instance, a Jehovah’s Witness company leader refuses to recruit a worker because the latter would not share his convictions, or dismisses a worker who has been disfellowshipped from the congregation.
On the Alleged Discrimination
A. As a matter of fact, what is questioned is not a discrimination resulting of disfellowshipping a member because his acts would not conform to the rules, but the alleged incitation on other members to cut him out of relationship because of his state as a disfellowshipped person, due to the prejudiciable consequences of this cutting out for the disfellowshipped person.
Whereas it is up to any association, religious or secular, to determine, in a completely free way, the rules of admission into and exclusion from membership, those rules cannot break the democratic principles of the wider civil society to which the members of any religious group belong.
The appealing plaintiff complains, essentially, about the instructions given to the members of the Congregation of Jehovah’s Witnesses to avoid as far as possible any contact with a disfellowshipped member. He explains that the consequences of disfellowshipping – severing social ties even within the family of the disfellowshipped person – are all the more serious because members are encouraged to avoid contact with the outer world; so that, after a few years, the only regular social relationships are exclusively between adepts. The disfellowshipped person is henceforth denied any alternative social environment as soon as s/he is disfellowshipped.
The respondent justifies the sanction by the need to apply Biblical teachings and insists that it is up to family members to decide the attitude to take. It aims at protecting the “cleanness of the Congregation” from “corrupting influences” (doc. 13 of the appealing plaintiff’s file).
The Court considers that the respondent tones down its actual stance: various documents submitted to the consideration of the Court show that moral pressure is exerted on other adepts inasmuch as they are advised to suppress, not only spiritual contact – which is understandable – but also social and familial relationships, which should be limited to the indispensable minimum. The moral pressure is essentially grounded on the fact that, if a congregation member exceeds such a minimum, s/he may be disfellowshipped too.
In such circumstances, freedom may not be respected anymore: if the pressure is too high, the adept who wishes to leave the congregation may be morally prevented to do so, as s/he has to choose between two morally prejudiciable situations: either keep on upholding principles which s/he does not believe anymore and preserve his familial and social private life, or leave the community and be rejected by his/her family and acquaintances.
To that extent, the instructions given – in spite of the respondent’s claims, they are no mere “reflections” – may, in abstracto, create a discrimination.
However, the judge cannot rule from generalities. The person subject to trial must prove that he was personally the victim of a specific discrimination.
B. The legal bases for the action of the appealing plaintiff are article 2, § 1 of the law, namely direct discrimination, and § 4 and 7 of the same law (p. 11 of his conclusions).
Article 2 § 1 represses any “direct” discrimination – the specific objective criteria mentioned by the law were modified by the judgement of the – if the difference of treatment lacks an objective and reasonable justification.
The Court considers that, in the present case, the alleged discrimination is not “direct” and, even if it were, it is grounded on a justification the objectivity and reasonableness of which exists inasmuch as the appealing plaintiff fails to demonstrate the lack thereof in his argument. For the discrimination which the appealing plaintiff complains about does not result directly from his being disfellowshipped, which he does not question, but from the instructions related to the disfellowshipping measure. Were it not for the latter, such instructions would not have been given. Which is more, the prejudice he complains about does not result directly from the very instructions but from their application by the adepts and the sanctions they would be subject to should they follow them too loosely.
Moreover, it is “normal,” in a measure however difficult to quantify, that the adepts’ attitude changes toward one of their former fellow believers who has renounced, partly or totally, the acknowledged precepts which are the basis for their faith. Whatever the motive of the disfellowshipping decision, it necessarily causes a severing of the religious bond and a distancing in social relationships. That family relationships suffer from it is unavoidable. Objectively, this modification of social relationships seems to be justified.
Is it justified in a reasonable way? It must be pointed out that the appealing plaintiff who complains today about the consequences of his being disfellowshipped forgets a bit too easily that for fifteen years he applied the same instructions without any scruple. Besides, the texts submitted to the Court suggest that the duty of assistance and education on behalf of family members is maintained. Additionally, it sounds pretty logical that the disfellowshipped person doesn’t share anymore into spiritual exercises. Finally, the respondent justifies its instructions by the need to help the adept of his error, a motivation which is not devoid of relevance.
The Court also notes that the appealing plaintiff doesn’t demonstrate in any way that, in his case, the pressure which might have been exerted due to the respondent’s instructions have influenced the will of his friends, acquaintances and family members in such a way that they would have lost their free will and couldn’t help following, as constraining obligations, the invitation to limit their relationship with him. As a matter of fact, they too may appeal to freedom of worship and the need to follow the instructions which they have been given, in order to conform to their faith.
As to the other legal dispositions appealed to, the Court notes that § 4 dash 5 has been cancelled by the October 6, 2004 decision of the Arbitration Court, and that § 7 must be assessed under the reservation that the alleged discriminatory behaviour lacks objective and reasonable justification, which has not been demonstrated according to the afore analysis.
contributed by Paul B. in Malta