Dr. José Camilo Cardoso
General
Director of the National Registry of Religions
Ministry
of Foreign Relations, International Trade and Worship
VI WORLD
CONGRESS ON RELIGIOUS FREEDOM
Before
starting to put forward my proposal, I want to thank the International
Religious Liberty Association (IRLA), particularly to its President, Dr. Denton
Lotz, its Secretary General, Dr. John Graz, and all its authorities for the
opportunity they have given me of participating in this 6th World
Congress on Religious Liberty held in this magnificent city. I would also like to express my appreciation
of this initiative of IRLA in giving us this excellent opportunity to exchange
information on religious freedom with acknowledged international experts, an
event which will surely improve and update our knowledge on the matter.
I will address different aspects in order to bring up
to date concepts related to religious freedom and progress on the matter in
To
understand the religious reality in
Nowadays,
the religious phenomenon is linked not only to spiritual and doctrinal matters
but also to social aspects in connection with liberty, human rights, social
justice, coexistence, and to the sphere of its relationship with the State.
Ecclesiastical
law comprises legal rules at state level, which regulate the civil relevance of
the religious fact and address the religious phenomenon within society.
This branch
of Public Law aims at analyzing the religious social fact from the legal point
of view. This analyzis involves different stages: a) analyzing what is ment by
“religious”; b) assess its social incidence or relevance; c) verify its legal
and political trascendencia; d) review its historical perspective. The first
stage is within the sphere of philosophy; the second is within the sphere of
sociology; the third within the general theory of law and political science;
and the fourth within historical science. All these sciences make their
contribution to State Ecclesiastical Law.
It is
important to make a distinction between two frameworks which often unduly
overlap. On the one hand a Confesional Religious Law created by religious
groups to regulate their inner structure, organization and activities; and, on
the other hand, a Civil or Sate Religious Law, derived from the State as the
one in charge of interpreting the citizens’ general interests, which addresses
the religious phenomenon due to its implications in social life. In view of
this, we may ask ourselves to what extent may the State have jurisdiction over
the religious social fact? In the first place, it may be stated that the
religious phenomenon should not be under the jurisdiction of a modern, lay,
pluralist and non-confesional state, since it does not have the due
jurisdiction to regulate it because the religious phenomenon is neither civil
nor political, but rather a different and autonomous category. Even so, the religious
phenomenon can certainly have a civil projection and this “political nature” in
the sense of civil nature of the religious phenomenon is the formality which is
characteristic of the State Ecclesiastical Law regarding the aforementioned
religious factor.
The religious
phenomenon, as a sociologic and cultural phenomenon, results from exercising
the right to religious freedom, but has different daily manifestations which
require a legal regulation. For instance, the aforesaid manifestations are in
connection with religious education at schools, social, welfare, cultural, and
charitable activities of the different religions, activities within the civil
sphere of law conducted by religious groups, spiritual advice to people at
large and especially to those in particular situations, such as people in the
armed forces, in healthcare centers, psychiatric institutions or prisons; the
mass media, which spread religious messages; the right to consecrate
conscientious objection, etc. These examples show that the religious phenomenon
as a spiritual dimension of the human being has a decisive influence in human
interaction.
Therefore,
the religious phenomenon, which originally belongs to the internal sphere of
the person, acquires a group, community or social character.
At this stage, I could
safely affirm that the State Ecclesiastical Law covers to essential issues: a)
religious freedom; b) the relationship State-religious confesions, whcih is
based on the following principles: 1) the principle of religious freedom; 2)
principle of laicism; 3) the principle of religious equality before the law; 4)
the principle of cooperation between the State and religious confesions; 5) the
principle of religious pluralism.
Religious
freedom should be understood as comprising two basic or fundamental liberties:
freedom of conscience, which means each individual may freely choose, change or
abandon a religious conviction in their internal sphere; and freedom of
worship, which entails exteriorizing said religious belief through acts of
worship conducted individually or collectively, aither in public or in private.
The
constitutions determine the relevance of religions and reference to them, and
the State’s position of neutrality, indiference or rejection of religions.
·
System of sacrality or sacred State:
·
System of confessionalism or confessional State: The State
adopts a religion of its own recognizing it as its official religion. By way of
example in
·
System of cooperative or autonomous recognition: The
relationships State-religion are based on autonomy and cooperation, admiting a
prevailing or preeminent religion, with links and communication between both
spheres. There is a sociological coexistence of a majority religious sector and
other religions, based on religious pluralism. As an example of this in
·
System od separation, laicism, or lay State: Total,
strict and absolute separation between the State and religions. In
·
System of atheism or
As
an introduction to the legal system of religious groups, I think it useful to
address, within the framework of relationships between the State and religious
groups, the issue of the governmental areas with jurisdiction on religious
matters in Latin American States, marking that they change from country to
country, that they have different hierarchical levels or that sometimes they
are non-existent. Therefore, the state
institutions in charge of this matter are: Argentina (Ministry of Foreign
Affairs, International Trade and Worship), Bolivia (Ministry of Foreign Affairs
and Worship), Brazil (there is no governmental area in charge), Chile (Ministry
of Justice), Colombia (Ministry of Home Affairs), Cuba (Board of Religious
Affairs), Ecuador (State Ministry of Government, Police, Justice, Worship and
Municipalities), Mexico (Department of Government), Paraguay ( Ministry of
Education and Culture), Peru (National Board of Justice - Ministry of Justice),
Uruguay (no specified body in charge) and Venezuela (Ministry of Home Affairs
and Justice).
Religious
freedom has evidenced a considerable development in these countries as a result
of historical, social, cultural, legal, and religious factors enhanced by the
phenomenon of globalization and the incidence of the international law of human
rights protected in recent constitutional reforms.
In
Latin
American countries have evidenced a very similar development with certain
peculiarities when it comes to religion and the relevant presence of the
Catholic Church which was prior and went hand in hand with the formation of
national states.
The
religious manifestations which pre-existed the Discovery of America were
exterminated or gradually disappeared due to the predominance of Catholicism
and a legal system in force in
It
may be stated that migration was the key element which determined the presence
of religions other than Catholicism in
The
immigrants’ religious tradition helped achieve cohesion and generate a feeling
of belonging to a group. When faced with
the difficult conditions to insert themselves, immigrants resorted to their
religion seeking community assistance.
Within
the framework of Christianity, immigration had a decisive influence, as is the
case of the following churches established in the country: the Anglican Church
(1825); Scottish Presbyterian Church (1829); German Evangelical Congregation in
Buenos Aires –currently the Evangelical Church of Río de la Plata- (1843);
Waldesian Church (1887); Dutch Reformed Church –currently the Argentinean
Reformed Church- (1908); Argentinean Mission of Missouri Synod –Currently the
Argentinean Lutheran Evangelical Church- (1918); United Lutheran Evangelical
Church (1920); Congregational Evangelical Church (1924); Hungarian Reformed
Evangelical Christian Church (1938); Swiss Evangelical Church in Argentina
(1944).
Also,
since early 20th century other Christian denomination settled in
The
Jewish presence in
For
instance, we could mention Sephardic Jews, who arrived from
Ashkenazi
Jews from
During the
period of national organization and definition of the institutional order in
the
The Orthodox
Church of Byzantine rite gradually settled in
The migration
flows which gradually built the orthodoxy included Syrians, Lebaneses and
Palestinians as I previously mentioned; Greeks, Russians, Belorussians,
Bulgarians, Serbs and Montenegrins, Rumanians and Albanians, among others.
Although the
Catholic Church is not the subject matter of this paper, I cannot overlook the
Arabian immigration, largely Lebanese and with a rite of its own, which
established the Maronite Church in Argentina, and the Melkite Church, which had
Arabian influence as well, and which arrived in Argentina in the late 19th
century. Other churches like the Ukrainian Catholic Church of Eastern origin
and the Armenian Catholic Church – which has recently celebrated 80 years in
Moving
on outside the sphere of orthodoxy, the
Islam
gained presence in the Argentine Republic with the arrival of Muslims from the
Eastern World (Syria, Lebanon, Palestine, Saudi Arabia, Turkey, North of Africa
–Morocco, Algeria, Tunisia, Egypt-, Western Europe and minorities from Eastern
Europe), since the late 19th century, and most notably during the
first half of the 20th century.
Buddhism
gained presence in the
From
the early decades of the 20th century to almost the middle of that
century, ministers from religions other than the Roman Catholic and Apostolic
Church were authorized to hold office by decrees of the National Executive
Power which were in effect for a limited period of time. Also, in other circumstances the religious
dignitaries gained presence in the national sphere.
I
will describe by way of example the current legislative situation in
Argentina:
The
National Constitution establishes the full exercise of the freedom of religion
or belief and its manifestation. In this
sense, the regulations establish: the right of all inhabitants, native or
foreign, to exercise the freedom of
worship (sections 14 and 20).
Since 1983, with the restoration of democracy, the
After
the 1994 Constitutional Reform, the international sphere has taken over the
constitutional field due to the inclusion of the main international treaties on
human rights. The international legal instruments on human rights dealing with
religious matters that the 1994 constitutional reform included in the
Constitution and that acquired constitutional hierarchy are: The American
Declaration of Human Rights and Duties (section 3), the Universal Declaration
of Human Rights (section 18), the American Convention of Human Rights or
Covenant of San José de Costa Rica (section 12), the International Covenant of
Civil and Political Rights (section 18), the International Covenant of
Economic, Social and Cultural Rights (section 13) and the Convention on Rights
of the Child (section 14). The rights arising from these international
legal instruments derived from religious freedom and recognised to persons,
are: the right to have a religion or not; to practice or change it; to worship
in public or in private, individually or collectively; to manifest and teach
it, to worship, to celebrate rites, to observe religious precepts, to raise
children in religion, to practice and spread religious beliefs, to exercise these
freedoms and not be subject to restrictive measures.
There
are also other two rights linked to religious freedom that are recognised and
protected by constitutional covenants: the right to assemble and demonstrate
peacefully. At the same time everyone is recognised the freedom of association
that means a voluntary association for a common purpose.
Besides
the international legal instruments of constitutional level mentioned above, we
must take into account the “Declaration on the Elimination of All Forms of
Intolerance and Discrimination Based on Religion or Beliefs” that was approved
by the General Assembly of the United Nations on
Regarding
the legal scheme of religions, a field covered by the State Ecclesiastical Law,
the Argentine legislation has distinctive features that I will pass to address.
In
the
In
1966, the
Law
24.483, enacted and passed in 1995, established a system to recognise the legal
status of the Consecrated Life Institutes and Apostolic Life associations
belonging to the Catholic Church. The legal canonical status of these
Institutes enjoy full civil recognition and the Canon Law exclusively governs
their organization and relationship with their members. They only have to be
officially recorded and must register their Statutes and authorities with a
special registry that has approximately 400 religious institutions listed
today.
In
order to obtain the recognition of the
One
of the declared goals of Law 21.745 was to guarantee the jurisdiction and
national competence to solve all matters related to non-Catholic religious
institutions.
The
religious associations applying for registration must previously obtain legal
status. In this case, the authorities subscribing the articles of association
will be legally liable, provided the
association and appointment of authorities has been formalized through a public
deed or a private instrument duly certified by a Notary Public. Otherwise, it will be deemed as a de facto association and all the members will be jointly liable for the
association’s deeds. (section 46, Civil Code).
Since
its creation in 1978, 3,700 religious entities have registered with the
National Registry of Religions. From
such number, about 2,950 are still active, while the rest have ceased in their
functions, either on request
or for non-compliance with the legal
provisions in force. Religious
institutions of different origins are registered. Most of them, approximately 70% belong to the
Evangelical field. They may be small
independent churches or religious institutions on which hundreds or thousands
of local branches depend (God Assemblies, Free Brethren and Baptist Evangelical
Convention). There are also other denominations like the
Among
other requirements, the applying religious institutions must duly produce the
following information:
a)
Name of the institution and date of
establishment or constitution in the country
b)
Domicile and the existence of chapels
and branches.
c)
Statutes (official name; principles
and purpose; object; religious authorities –appointment, ordination, functions,
mandate duration, requirements needed to be religious ministers-; civil
authorities – appointment, functions; mandate duration; way of government;
relationship between civil and religious authorities; amendment of the
Statute).
d)
Responsible authorities.
e)
Administrative and religious dependence from other institutions.
f)
Approximate number of members or
followers.
g)
Educational and training institutions
for religious personnel and the pertinent curricula.
h)
Main doctrinal grounds.
i)
Way of appointment of religious
authorities.
j)
Form of government.
k)
Permanent and regular religious activities.
The
main benefits obtained from the official registration are:
a)
To perform public religious
activities.
b)
c)
The entry, stay permit extension or
permanent residence of foreign religious ministers.
d)
Economic benefits like: 1- exemption
from the income tax in relation to the money received from the religious
activity or worship services; 2-
exemption from the minimum presumed income tax; 3- exemption from the stamp
tax; 4- exemption from the Value Added Tax; 5- exemption from internal taxes of
devotional objects used in worship; 6- exemption or payment reduction of
sanitary services for worship sites;
7- exemption from taxes and rates affecting the real estate or vehicles of religious
institutions.
e)
Ownership, management and
organization of public schools privately managed at all levels and entitlement
to state subsidies and benefits.
The
religious institutions belonging to religions with duly accredited existence in
the Argentine Republic are registered with the National Registry of Religions: former oriental churches, orthodox,
Anglican, historic protestant, Seventh day Adventist, other evangelical groups recently arrived in the country,
Mormons, Jehovah’s witnesses, Jews, Muslims, Buddhists, Hinduists, followers of
African religions, spiritualistic, etc.
The foregoing
is an overview of the legal system in for during almost 30 years for religious
institutions other than
Catholic that have had a positive relationship with the State and the Catholic
Church within the framework of their own particular reality. This regulatory system, that has been in
force for so long, has allowed a harmonic and peaceful co-existence with all
religious sectors of the Argentine community. It would be inaccurate and unfair
to interpret it otherwise.
Since 1990 many bills
and draft bills of religious nature that were proposed for discussion have not
been passed, sometimes due to the lawmakers’ lack of consensus and others, due
to the opposition of Catholic and Evangelical denomination dignitaries based on
particular reasons. The truth is that some of them alleged that the proposed
bills favoured sects and the others
claimed that such bills did not imply a true egalitarian vindication of
religious minorities. As an example, it
would be convenient to remember that the Episcopal Argentine Conference never
reached a decision concerning the last draft bills proposed because it
considered that they were not a priority. Different sectors of the Evangelical community
submitted their own draft bill for discussion, although they sustained that a
possible constitutional amendment should be mainly discussed or that the
religious equality between all the religious groups of the Argentine religious
community should be considered.
The legislative bills or draft bills on religious
matters that governmental areas, minority religious organizations or individual
undertakings submitted for discussion from time to time, were criticised
alleging that a legislative amendment was not timely and needed due to the
optimal co-existence of the religious groups, apart from the risk that would
imply the repeal of the legislation in force, affecting vested rights and
cancelling the benefits obtained from the official registration.
It
can be emphatically affirmed that in the
Chile:
In
Chile, the 1980 Constitution in force maintains the separation between Church
and State, ensuring religious freedom to all the inhabitants of the Republic,
provided it does not affect moral principles, acceptable mores and the public
order.
The
recent Law 19.638, that sets forth the requirements for the legal establishment
of churches and religious organizations, published on the Official Gazette on
The
Law establishes that religious institutions seeking the legal status of public
law must register with a Public Registry in charge of the Ministry of Justice.
To
be recorded in such Registry and get this legal status, the institutions must
be established by public deed or private instrument formalized as a public deed and signed by all the constituting
members duly identified and producing the articles of association and the statutes
that shall govern them; The Ministry of
Justice will control the fulfilment of these formal requirements and, if it
considers that the information produced is not sufficient, it will be entitled
to request any clarification, rectification, amendment or additional background
it may deem convenient within the term fixed accordingly.
After
all formal requirements have been fulfilled, the Ministry must accept the
requested official registration.
However, if any of these requirements is missing, the Ministry is
entitled to challenge the institution’s establishment within 90 days counted
since the registration date.
At
present, the Chilean legal framework, contemplates very few restrictions to the
registration and legal recognition of religious entities. The only restrictions in force are based on
two provisions, one of them is constitutional and limits the religious freedom
whenever it affects the moral principles, mores or the public order. The other is legal and is established through
Decree N° 303, regulatory of Law 19.638 and sets forth that: The persons
convicted for law infringement shall
not be entitled to sign the articles of association; the entity’s Statutes must
provide the following information: requirements for admission, permanence and
leave. Free and voluntary access, change of institution or leave; Minors must
be represented by their legal agents.
Salinas
Araneda holds that religious institutions must prove their religious nature,
that is to say, that they are the facilitators of their members’ dialogue with
the supreme being, whatever name it receives. In this way, those groups that
only promote a philosophy of life and those that, despite making references to
the supreme being, do not seek such dialogue, are excluded.
The
Chilean author adds that religious institutions also obtain legal status for
specific goals like: a) The independent establishment, maintenance and
management of training institutions devoted to theological and doctrinal
studies and educational, charitable or humanitarian bodies. B) The creation,
participation of, sponsoring and promotion of associations, corporations and
foundations for the fulfilment of their purposes and goals”. (section 8 of Law
19.638).
The
institutions mentioned above are legal persons that, based on express legal
provisions, are governed by the legislation in force and are not religious, but
legal institutions of private law.
The
third and last type of legal persons contemplated by law is the one detailed in
section 9: “The associations, corporations, foundations and other bodies
created by a church, religion or religious institution that, according to their
own legal regulations enjoy legal
religious status, are recognised as
such. Their legal existence must be accredited by the religious institutions
that have created them”. It can be well
construed that this provision includes the Canon Law and the legal regulations
of religious institutions with an equivalent regulatory framework, such as the
regulatory systems of the Orthodox, Anglican and some Protestant churches. That
is to say, legal systems with historical presence that goes back preceding the
Chilean legislation.
Colombia:
Section
19 of the 1991 Colombian Constitution guarantees the religious freedom, grants
the right to free religious practice and to spread it individually or
collectively. It also establishes that
all religions and churches are equally free before the law.
The
new Colombian Constitution eliminated the legal recognition of the State
Catholic religion and adopted the non-denominational principle or religious
freedom. This means that the State does not pronounce itself regarding
religious issues but values the
religious aspect in its social manifestation and assists religions in all
specific issues legally recognised, based on common understanding bases.
The
Colombian legal experts have construed that the constitutional reform did not
establish the principle of neutrality of the State in relation to the religious
freedom, but it confirmed the religious
freedom as a rule.
Law
133 of 1994, Freedom of Religion and Worship, sets forth individual and
collective rights, (sections 1° to 6°) and churches’ and religious communities’
rights (section 7°) in relation to the establishment of worship sites, the
exercise of the religious ministry, the
appointment of religious authorities, internal organisation and the freedom to
perform educational or charitable activities.
The
Colombian law sets forth that the limits to the religious freedom are those
established by the public order and the protection of the public security,
moral principles, health and third parties’ rights.
Although
this Law does not define the concept of churches, religions or denominational
groups, it does not include psychic or paranormal phenomena, satanism, magical
or superstitious practices and spiritualistic practices in its regulatory
framework. (section 5°).
Apart
from the recognition of their legal status, the churches, religions and
religious denominational groups registered have other additional advantages,
like the right to appoint their religious ministers, whose performance of the
ministry must be facilitated by the State. Other advantages derived from the
registration are: the right to acquire, dispose of and administrate their
property; to request and receive financial aide; to collect money among their
members and to provide their ministers with economic support.
On
the other hand, this Law establishes that churches, religions and religious
denominational groups with Ecclesiastical and State legal status have the
possibility to enter into agreements on religious matters.
Mexico:
The reform of the Mexican Constitution, made in
January 1992, was the initial step that lead to the enactment of the Act of
Religious Associations and Public Worship in July of that same year.
The
constitutional reform further recognized the right to religious freedom, and
the Act of Religious Associations and Public Worship revoked the regulations
that restricted religious freedom during most of the last century.
The
Act establishes some principles: a) The individual right to adopt, practice or
not to practice any religion; b) Principle of non-discrimination for religious
reasons; c) The right to associate with others for religious purposes; and d)
Not to be obliged to support a religious creed or practice.
The
conscientious objection, as a principle included in different international
legal instruments and in some legislation is generically restricted in section
1 of the act that sets forth: “ No one may be exempted from any duty or
obligation prescribed by law on account of the religious practice”.
In
addition, section 1 of the aforesaid act
sets forth that religious freedom is grounded on the “historical
principle of separation of the State and churches” and section 3 provides a categorical
definition of the State: “The
The
Constitution in section 130 as amended and Title II of the Act of Religious
Associations refer to the process by which churches are granted legal status.
Section 6 of the aforesaid Act states that “churches and religious groups shall
have legal status as religious associations once that have duly registered
their incorporation with the Government Secretariat”. This way, the act sets
forth the way for churches and religious groups to acquire legal status as
“religious association”, and the requirement to be registered, which is in sync
with a system of legal warranties.
The
reforms in the regulations on the matter introduced in 1992 allowed the State
to open itself to religious entities in the field of education, monastic
orders, public worship, the right of the entities to have assets of their own,
right to vote of the religious ministers, and the right of aliens to exercise
the ministry in the country.
The
reformed constitution and the Mexican Act of Religious Association fully
guarantees the right to the freedom of individual education and the creation of
education centers in churches. Churches were allowed to impart religious
education in private schools but not in state schools where, according to
constitutional dispositions, education must be kept apart from any religious
doctrine. Thus it is confirmed that in
The
new legal framework enabled to specify, apart from what has already been said,
that the religious associations arising will have the capacity to acquire, own
or manage exclusively, the necessary means for their aim, with the requisites
and limitations established by statutory law, i.e. celebration of public
worship services outside the temples; the impossibility of alleging religious
reasons to prevent access to jobs or activities beside the cases foreseen by
the law, not being compelled to render personal services or contribute with
money or species to support a religious association, or being forced to
participate in rites, ceremonies or religious worship services, or being
subject to any judicial or administrative inquisition of the expression of
religious ideas, etc.
I would like
to point out the important development in religious freedom rights that the
renewal of the Mexican legal system has brought about, thus incorporating
Peru:
Section 50 of
the Constitution in force since 1993 sets forth: “Within an autonomous and
independent regime the State acknowledges the importance of the Catholic
Church’s role in the historic, cultural and moral formation of
In
The Peruvian Constitution picks up a systematic grouping of principles and rights as the ones established in section 2: “Every person has the right to … 2) be regarded equal before the law, therefore no individual should be discriminated on origin, race, sex, language, religion, opinion or any other grounds; 3) the freedom of conscience and religion, be it individual or associated, therefore the public practice of every religion is free, as long as moral principles are not affected or the public order altered.”