Covid-19 in Africa and Latin America. Certain forms of religious negationism favor the pandemic

by Stefano Picciaredda*

stefano.picciaredda@unifg.it

In the universe of religious worlds, reactions to the spread of the pandemic have been very different. As it has been observed,[1] there have been examples of underestimation, exploitation, or even radical denial of Covid-19 harmful effects. Interpretations based on millenarianism have also flourished. Some examples of such conceptions in Africa and Latin America, are examined in the following pages.

1. Two happenings in Cameroon

«L’archevêque garde secrète sa composition médicamenteuse, à laquelle il n’a pas encore donné un nom commercial», remarks a journalist of the DW, a German broadcast. The TV report talks about the Archbishop ofDoula, Msgr. Samuel Kleda, who choose not to reveal the composition of the herbal mixture he created, apparently  effective against Covid 19, and not to “baptize” it with a commercial name.[2] Since the spread of the news, the Archdiocese of Douala has become an address of Hope and has attracted thousands of people eager to obtain the new natural medication. In an interview with La Croix on April 28th, 2020, the prelate said he had been interested “in healing illnesses with the help of medical plants of the African pharmacopoeia for thirty years”. He started when he was the rector of a minor seminary, and continued to cultivate his passion even after his appointment as a bishop, first of Baturi and later of Douala. It is important to stress that Msgr. Kleda has never stated that he has found a treatment against Coronavirus, “because there would need serious studies to get to such a conclusion”. With a sense of responsibility, he carried on saying he had abstained from observing the symptoms of Covid 19 and from creating some treatments out of medical plants suitable to mitigate them, “and patients feel better”.[3]

The news has had a wide echo in the country and abroad. According to the correspondent of La Croix Msgr. Kleda’s recipe has raised great hopes in a country where health authorities are about to be overwhelmed by the multiplication of the number of cases”.[4] Many intellectuals and media have remarked the goodness of an “African response”. The latter has been compared to the Artemisia-based solution created by the President of Madagascar, another well-known anti-covid herbalist.[5] Meanwhile, in Cameroon, the evidence of healed or of improved patients is multiplying.  Something that should not surprise, because restorative and anti-inflammatory treatments – which have been proved not to be harmful – can certainly produce an improvement in the patient’s general conditions. This story should be related with a wider phenomenon context: some religious leaders insist on the need to abandon scientific medicine increasingly more. This is not a health-conscious movement that promotes natural care to decrease the use of allopathic medicine chemicals, rich in side effects. It is the systematic and radical request to the faithful to abandon all kinds of diagnostic means and pharmacological treatments prescribed and administered under medical control. The Christian who relies on a doctor shows a weak faith, he performs a “betrayal” towards the pastor and his ability, as an intermediary, to implement the thaumaturgical power of God: “C’est Dieu l’Unique Médecin” as Elisabeth Olangi Wosho loved to repeat. She is the founder of one of the largest awakening churches in the Congo Democratic Republic, the so called Ministère du Combat spirituel, now widespread also in Europe.[6]

In short, those who take drugs despise God and have no hopes of recovery, according to the pastors of the new churches of various denominations. This is not the case of Msgr. Kleda and of the Catholic Church of Douala, which has implanted and still maintains numerous health centers. But it is enough to take a few steps further, without moving from the second city of Cameroon, to find an example of such unscientific preaching. Franklin Ndifor, was a well-known 39-year old man from Cameroon. He was the head of the Kingship International Ministries Church and had run for the last presidential election in 2018. After the outbreak of the pandemic, he had presided over thaumaturgical prayer sessions in his Church, summoning covid-19 affected and laying his hands on them to invoke healing from God. Ndifor died on Saturday May 16th 2020, after a few days of suffering and worsening from difficulties. The coroner who examined his body ascribed death to Covid-19, and requested the intervention of sanitation and protection teams, to transport his body safely. His family locked themselves away inthe house to prevent Franklin’s body from being taken away. Meanwhile, the news, quickly circulated and attracted hundreds of faithful to the Bonaberi district. They gathered around his residence and began a spontaneous session of songs and prayers, to invoke the resurrection of the pastor. The same faithful did not let the doctors enter shouting that the pastor was not dead but “in spiritual retreat with God”,[7] and that he did not have to be buried.  During the day, the tension grew, and only in the evening, with the intervention of the troops and of special vehicles using tear gas, the authorities managed to disperse the gathering and allowed medical teams to enter the house after taking all the necessary measures for safety.[8] Journalists have reported the dismay and concern widespread among the families of the sick persons who had entrusted themselves to Ndifor. The event has attracted the attention of the international media, but many other cases took place away from the spotlight. The reality of the new churches, “neo-Pentecostal”, “of awakening”, or otherwise defined, constitutes, especially in Africa and Latin America, a galaxy in continuous development, with thousands of denominations, large and small, with a multinational extension or limited to a single suburban area. It is the so-called “Third Church”, which is, according to some observers, the image of the Christianity of the future.[9] In these churches, relationship with medicine is often characterized by distrust. “I was diagnosed with diabetes, but now that I have approached God I have discovered that diabetes is a spiritual disease. The drugs I was taking were of no use, only God heals”, said Deborah, a Congolese woman resident in Holland, to Julie Ndaya who interviewed her.[10] In sub-Saharan Africa, this kind of belief has led to dramatic consequences in the case of another pandemic, HIV-AIDS syndrome, especially when the most effective cure – the so-called tritherapy – has finally become available. Among the many witnesses, I have chosen the one dating back to a few years ago and relating to Uganda and its capital Kampala. The coordinator of the Baylor College of Medicine Children’s Foundation Uganda, who is treating over four thousand HIV-positive children and young people, already in 2010 reported the trend “among adolescents and their tutors to let their spiritual guides decide about their medical treatment against HIV / AIDS. Some of them spend every spare moment listening to the Gospel on television, reading the Bible or praying in church. Unfortunately it happens that when they realize that their ‘therapy’ is not working it is too late to go back to treatment with antiretroviral drugs “.[11]

2. Covid’s plot

With these trends, African public opinion is now strongly disoriented and frightened. The virus has started to run together with the fake news. On March 4th the authoritative weekly Jeune Afrique published a “top ten” of theories of fantasy that grew up around Sars-cov 2 and how to protect oneself from it: application of sesame oil on the body, consumption of garlic, conspiracy of pharmaceutical laboratories, virus spread via 5G network.[12] In April the editor of the weekly François Soudan returned to the news, wondering about the reasons why “these theories penetrate and influence the social media of the continent so fast, although this is the least affected, so far, by the pandemic”. For Soudan there is a twofold explanation. One is linked to the cultural peculiarities of the continent:

The disease, especially in central Africa, is often perceived as a weakness. When the pathology is transmissible, it becomes a stigma to be ashamed of. A testimony to this is the following announcement which appeared at the end of April on a Congolese website: “Following the death of his sister at the Makelekele hospital, Mr. […] specifies that the disappearance is due to a long and painful chronic disease without ties with covid 19, as people in bad faith insinuate. It is regrettable to speculate on the illness or death of a third party”. In the eyes of many Africans, coronavirus disease is a “bad death”. Its causes must be sought in curse, witchcraft, revenge, punishment and the night world.

A second reason has a more “global” vision: just like everyone else, Africans prefer

conspiracy, that makes simple things complicated, especially in the eyes of those who don’t have advanced education, an indispensable antibody against fake news about the virus. Adhering to a conspiracy theory removes the senses of impotence and dispossession that an unknown pathogen generates, for the benefit of a false impression of control, of knowledge and of being initiated into a hidden truth.

Soudan cites, as an example of conspiracy theories, elaborated “from above” the one of Donald Trump and Fox News, “according to which Covid 19 was conceived in the Wuhan P4 laboratory and then imported to the United States to bring its economy to ruin”, and the one “of the Chinese government, relaunched by the Russians, for which the virus, manufactured in the laboratory of the US Army in Fort Detrick, Maryland, was knowingly sown in Wuhan in October 2019 by CIA agents during a military sports competition, with the aim of undermining the Chinese economy”.

These theories have effectively circulated, and have been revived by authoritative personalities, at least towards the Catholic faithful. This is the case of the “Justice and Peace” Commission of the Mozambican Episcopal Conference, which, in a document of May 11th 2020, entitled Reflexão Pastoral sobre o Covid 19, denounced: “The shadow of the doubt about the origin of the virus and the possibility that it was created in laboratory for obscure and unmentionable purposes extends over the wonderful commitment of healthcare professionals around the world”.[13] The concerns are also about the “new vaccines that are appearing and the real goals they pursue”. Responsibility is identified in the pharmaceutical industries. They do not always deploy the same commitment made by health personnel, that is, by those who administer the drugs that those industries produce”. These considerations are not left isolated, like a sterile complaint, but immediately followed by an invitation to the concrete action of the faithful, which is worth reporting in full: 

The challenge: whatever is the origin of the virus causing the current pandemic, natural or artificial, the time has come to raise your voice all over the world against the pharmaceutical industry’s business on citizens’ health and to criminalize profits thus obtained. It is time to defend once and for all the dignity of every human being and the right not to be used as a guinea pig anywhere in the world. It is time to raise your voice to express well-founded suspicions about the creation of viruses in laboratory to be used as biological weapons or with the aim of achieving ever closer control over citizens. Closure of these laboratories should be demanded. It is time to live closer to nature and to trust that it can provide us with remedies against viruses, which it creates by itself to renew itself, instead of spending a lot of money on research that produces profit for the few, and poor health for many.

3. The Latin American setting

In Latin America, the phenomenon has turned to be particularly serious due to the high rates of the virus spread in some countries like Brazil. Indeed, notoriously close to the country’s main neo-Pentecostal Church, the Igreja Universal do Reino de Deu (IURD), the brazilian president has shared with them some of their positions in refusing medicine and scientific vision on that, as well as for the African case.[14] It is therefore worthy to remember IURD principles and their belief on the relationship between disease and faith. The rise of pathologies has always been interpreted as a sign of the presence of evil forces in man’s body. A place where physical and spiritual forces meet and where the figth between goodness and evil, God and devil, takes place. Indeed, as Eleonora Pagnotta remarks, “evil is the personification of the devil, who acts in the world, and every miracle, exorcism or conversion is considered a divine victory. Illness, sufferance, physical and mental diseases are caused by being possessed  by the daemon”.[15] The strength of IURD, similarly to other experiences of the neo-Pentecostal galaxy, is precisely the power of the Christian churches:  to see themselves as intermediaries between man and the divine power, in the duty of “freeing” the faithful from this “possession”. The central moment of the long worship sessions is precisely that of the exorcism, of the “live” miracle, which the faithful can witness, checking weekly the effectiveness of the community to which they have joined:

The IURD action takes the form of offering a spiritual treatment: each temple is defined by the organization itself as a “spiritual first aid”. In Iurd theology, the Holy Spirit performs healing miracles. […] To obtain the miracle it is necessary to awaken the faith of the believer through a series of acts and behaviors well defined by the Church: the economic contribution (tithing and offerings), attendance at the temple, the use of blessed water, the laying on of hands accompanied by anointing with oil. In theology, “healing” means leading people to salvation, removing them from the causes of evil, from demons. This is why patient care and exorcistic practices basically represent two sides of the same coin.[16]

As it is well known, President Jair Bolsonaro has long refused to adopt rigid containment measures, invoking conspiracy theories and asking people for spiritual resistance. His positions echoed those of the country’s best-known pastors, like the leader of the Igreja Mundial do Pòder de Deus Valdemiro Santiago (a former Iurd member), who declared that the virus constitutes a divine punishment, and of the founder and head of the IURD Edir Macedo, who states that the coronavirus – satanic work – has no power over the faithful who are not afraid of it.[17]

The closest pastor to the President and his spiritual guide, Silas Malafaia, has daily intervened against the lockdown, source, in his opinion, of social unrest that would cause many more victims than those caused by the virus. This time, however, the faithful have not let themselves be deceived. Some observers have noticed the half-empty temples – open despite the anti-gathering measures -, a situation that has forced the pastors to broadcast the sermons and conceive new systems to collect tithes. On the other hand, as Francisco Borba Ribeiro Neto, of the Catholic University of Sao Paulo, remarked in an interview, it is true that thanks to the pandemic they find themselves confronted with the reality of what the various Igrejas propose: “Fundamentalists see a world full of dangers and hidden enemies. In it, our only salvation from evil is strict adherence to norms and doctrines. The pandemic only serves to reinforce this terrifying vision of the world”.[18]

In the short and long term, however, by leaving aside the human losses they cause, this kind of visions could generate a dramatic decrease of consent and a more public awareness on both the current Brazilian presidency and the world of “maxi churches”. As the sociologist of religions Clemir Fernandes states, as a matter of fact, behindthe contrast to the containment measures, there is nothing but an economic concern. And a pastor like Malafaia “is a religious entrepreneur trying to protect his interests like everyone else”.[19] But in the Evangelical world, and in its robust parliamentary representation, there are a good number of doctors and politicians “who know a thing or two about science”, personalities who appear increasingly less willing to accept such a shamelessly irrational policy. The reality, as always, is something complex and contradictory. The IURD’s website offers an overview of research on vaccines and of Covid contrast treatments, without any criticism in the foreground, on the homepage[20]. Church leaders are currently much too warned about totally rejecting some scientific theories. On the contrary, a more nuanced attitude would be more appropriate. This is because later it may be easier to change it in a way or in another, according to the situation. 


            * Associate Professor of Contemporary History, University of Foggia (Italy)

[1] See P. Consorti, La religione e il virus, 09.03.20; C. Lupi, The Saffron Wave against Virus. The Hindu Nationalists and the Covid-21 emergency, 19.03.20; M. Introvigne, Lesson from the Shincheonji Case in South Korea: Monitoring without Scapegoating, 23.03.20. All in http://www.diresom.net

[2] Henri Fotso’s reportage for “Deutsche Welle”, 15.05.2020, in http://www.dw.com.

[3] Jean-François Channon Deenwo’s interview for “La Croix”, 28.04.2020. In www.africa.la-croix.com. See also F. Kouté, Samuel Kleda, l’archevêque de Douala, a-t-il trouvé la potion magique contre le coronavirus ?, in “Jeune Afrique”, 22.5.2020. 

[4] Cameroon has 16.157 people affected by Covid-19, and therefore is the seventh African country (on July 18th 2020). Source: European Centre for Disease Prevention and Control. For a general bibliography on Cameroon see M. DeLancey, R. Neh Mbuh, Historical Dictionary of the Republic of Cameroon, The Scarecrow Press, Lanham – Toronto – Plymouth 2010. About the crisis in the English-speaking regions see P.K. Bouopda, La crise anglophone au Cameroun, L’Harmattan, Paris 2018.

[5]  See E. Sari, Andry Rajoelina, VRP en Afrique du Covid-Organics, “Jeune Afrique”, 23.05.2020. 

[6] See J. Ndaya, «Prendre le bic ». Le combat spirituel congolais et les transformations sociales, Leiden, CEA 2008, p. 94. See also B. Meiers, Le Dieu de Maman Olangi. Ethnographie d’un combat spirituel transnational, Academia-Bruylant, Louvain-la-Neuve 2013.

[7] M. E. Kindzeka, Panic Grips Faithful After Cameroon COVID Pastor Dies, in www.voanews.com, 17.05.2020.

[8] J. Nkouam, Franklin Ndifor : des fidèles tentent de ressusciter le pasteur décédé du Covid-19. In www.bbc.com/afrique, 17.05.2020.

[9] H.J. Cox, Fire from Heaven: The Rise of Pentecostal Spirituality and the Reshaping of Religion in the Twenty-First Century, Addison-Wesley Reading (MA) 1995; P. Jenkins, The Next Christendom. The coming of global christianity, Oxford University Press, Oxford 2003. About this phenomenon see P. Schirripa, Terapie religiose. Neoliberismo, cura, cittadinanza nel pentecostalismo contemporaneo, Edizioni CISU, Roma 2012; J. Robbins, The Globalization of Pentecostal and Charismatic Christianity, in “Annual Review of Anthropology” 33, 2004, pp. 117-143; S. Picciaredda, Il cristianesimo del futuro? Cenni storici e linee di sviluppo del pentecostalismo contemporaneo, in “Mantua Humanistic Studies”, IX, 2020, pp. 215-240. 

[10] Ndaya, op. cit., p. 21.

[11] Ag. Fides, Aumentano gli adolescenti sieropositivi che abbandonano gli antiretrovirali per curarsi da sedicenti leader religiosi. Inwww.fides.org, 09.10.2010.

[12] D. Glez, Top 10 des « fake news » sur le coronavirus, « Jeune Afrique », 04.04.2020. 

[13] The paper, not signed, was published on June 9th 2020, and it’s available on www.jupax.org

[14] About spreading of Pentecostalism in Latin America and Brazil in particular, see J.-P. Bastian,. Pentecôtisme et médiation politique au Brésil, in “Revue d’histoire et philosophie religieuses”, 96/1, 2016, pp. 57-70 ; R. Chesnut, Competitive Spirits: Latin America’s New Religious Economy. Oxford Univ. Press, Oxford 2003; M. Russo, I protestanti brasiliani e la modernità, in R. Morozzo della Rocca (a cura di), La modernità e i mondi cristiani, Il Mulino, Bologna 2010.

[15] E. Pagnotta, Dal pentecostalismo al transpentecostalismo. Il caso della Iglesia Universal del Reino de Dios in Messico, Aracne, Roma 2016, p. 151.

[16] Ibidem, p. 152.

[17] Cit. from T. Milz, How evangelicals in Brazil are spinning COVID-19, in www.dw.com, 06.04.2020.

[18] Ibidem.

[19] Ibidem.

[20] www.universal.org

The “on the road” Reconciliation. A way to deal with the pandemic

by Daniela Tarantino*

mail: daniela.tarantino@unige.it


 

The current pandemic state law limits severely gatherings and participation in liturgies and sacramental devotions. The Catholic Church has worked to find ways and times to answer to the Covid-19 emergency. In order to pursue the salus animarum[1] – according to the “signs of the times” – the forms of exercise of the munera ecclesiae has been adapted[2], first of all those related to the munus sanctificandi, since they demonstrate the efforts to be close to the people of God, who demands of an ongoing “sociality” m that is wounded by the pandemic[3].

In this context, the sacrament of Reconciliation is of central importance, as it highlights the inseparable link between the formal and the substantive aspects of law, particularly in a legal system that has flexibility tools capable of applying the aequitas as a means of updating it[4]. The present circumstances made the sacrament of reconciliation even more necessary, stimulating the Church to recover ancient and exceptional forms of administration and at the same time to develop new ones. According to the norm of can. 960 of the Codex Iuris Canonici, the ordinary way of celebration of this sacrament remains the individual confession, but it is recalled that a collective absolution can be given where the imminent danger of death or a serious need occur (can. 961, CIC). This possibility is granted at the discretion of the diocesan bishop, who must take into account the criteria eventually established by the Episcopal Conference[5]. The absolution will be valid only if the penitent promises to confess his or her every single serious sins at the first opportunity (can. 962, § 1 CIC)[6]. The «Protocol on the resumption of celebrations with the people» signed on May 7th 2020 between the Episcopal Italian Conference and the Italian Government is established that from May 18th the sacrament of confession can be administered «in large and airy places», which allow «full respect for the distancing measures and the confidentiality required by the sacrament itself»: the penitent and the confessors must both wear a surgical mask[7]. This is an exception to the can. 964 § 1, which states: «The proper place to hear sacramental confessions is a church or oratory»[8]. The Episcopal Italian Conference has “promoted”, or at least not hindered, the search for “alternative” forms of carrying out to perform, to celebrate the confession, that can be useful also other future emergencies that may make the ordinary administration of the sacrament of penance difficult.

This is the case of the drive-confession, an idea conceived in a city in Maryland, in the United States, where Father Scott Holmer, a priest of the Catholic Church of St. Edward the Confessor, in the city of Bowie, began to confess the penitents faithful through the windows of their cars, parked in the church courtyard[9]. From the United States the idea spread to Europe, arriving first in Poland and then in France. In Warsaw the priest Mateusz Kielarski of the Temple of Divine Providence, as well as Father Adam Pawlowski, parish priest of Rogalin in the Poznan region[10], and in France father David de Lestapis, parish priest of the parish Saint Jean-Paul II and his vicar father Vincent Poitau did the same, positioning themselves under a tent mounted for the occasion, under which they stopped with the engine off in front of the specially prepared cages, without therefore having to move from their car interior[11].

The «on the road» confession is certainly an unprecedented method of administering the sacrament, which however maintains the simultaneous physical presence of both the penitent and the confessor. More daring is the method suggested by Mons. Reinaldo Nann, Peruvian bishop of the Prelature of Caravelí, who authorized priests to celebrate confessions by telephone, emphasizing on reconciliation as “medicine of the soul”, and therefore underlining tha the confessor is a medicus animarum as well as a iudex peccatorum[12]. Ù

In Bergamo, one of the Italian cities most affected by Covid-19, the priest Luciano Locatelli administers the sacrament of reconciliation through whatsapp, in the belief that «Jesus at the time would have done the same thing … I don’t care», said the priest, «who wants the sacrament to get right, but I share it with those who believe in the power of forgiveness to build a humanity that is worthy of the name»[13].

Although at first glance these new ways may appear daring if not even impracticable, proposals have also been made which envisage the use of digital tools for the administration of reconciliation. From a certain perspective, the use of technological tools appears impracticable given the absolute inviolability of the confessional seal (think of a video call or the presence of another person next to the penitent)[14]; but on the other hand, the violation of the seal does not operate due to the mere presence, certainly morally regrettable, of audio or video material hidden by the penitent or by a third person during the confession in order to record it, but only in the case of spreading or disclosure of the matter object of the sacrament[15].

Even the auricular confession made in places traditionally assigned to its administration does not always protect against the violation of the seal, whose absolute inviolability can be guaranteed by the awareness of both the confessor and the penitent of the sacredness of the act, which does not depend on the place where it happens neither by the way it takes place[16].

In this pandemic moment, when distance appears to be the only tool capable of curbing the spread of contagion, the virtual embrace given by the word of comfort of a priest, can represent for the faithful a relief from the afflictions that weigh on the soul, a refreshment from the anxieties that grip everyday life, a cure for wounds that mark the spirit. In particular, precisely with reference to the modalities of administration of the confession, the Church should manifest herself not only as an institution, but also «as freedom of the Spirit»[17]. Moreover, during the pandemic the use of modern technologies has supported the diffusion of sacramental grace on several occasions, and it seems appropriate that priests should also be able to carry out their function as medicus animarum using, where possible, these tools, without placing obstacles formal. This may be an additional opportunity for this crisis «to become an opportunity to look at what is truly essential for our lives»[18].


[1] About the concept of salus animarum cf. the contributions in Ius Ecclesiae, 12/2000, pp. 291-529.

[2] For further information about the concepts of munus, officium and ministerium relationship and about the theological and juridical roots of these notions, cf. S. Violi, Officium e munus tra ordinamento canonico e comunione ecclesiale, in Stato, Chiese e pluralismo confessionale Rivista telematica (www.statoechiese.it), n. 31/2019, pp. 1-32.

[3] Cf. D. Tarantino, “Eppur si muove”. La socialità del diritto canonico tra ieri e domani, in P. Consorti (a cura di), Costituzione, religione e cambiamenti nel diritto e nella società, Pisa University Press, Pisa, 2019, p. 218.

[4] On this point cf. B. J. Berkmann, La codificazione del diritto compromette la sua flessibilità? Il diritto canonico comparato con altri diritti religiosi, in Stato, Chiese e pluralismo confessionale Rivista telematica(www.statochiese.it), 28/2017, pp. 14-15.

[5] For further information on the topic, cf. lastly S. Testa Bappenheim, Does the Covid-19 pandemic authorize the derogation from the canonical rule of absolution necessaritly preceded by individual confession? (canon 961cic), in P. Consorti (edited by),Law, Religion and Covid-19 emegency,Diresom Papers, 1, Pisa, 2020, pp. 221-250.

[6] Echoing forms of reconciliation of medieval memory, the priest, if necessary, can also impart the general sacramental absolution, forewarning the diocesan bishop or in any case, if this is not practicable, informing him as soon as possible (cf. Ordo Paenitentiae, n. 32).

[7] Cf. Ministero dell’Interno, Protocollo circa la ripresa delle celebrazioni con il popolo, in www.diresom.net.

[8] Can. 964, § 1.

[9] Cf. Confessioni stile “drive in” per evitare il contagio da Coronavirus in www.commentimemorabili.it.

[10] These from the cockpit of their car can also listen to liturgical music played by employees and leaning out of the window they can confess and receive absolution from their sins (cf. Coronavirus, in Polonia confessioni in auto in modalità drive-in, in www.tg24.sky.it). On the subject cf. also Cf. Confessioni stile “drive in” per evitare il contagio da Coronavirus in www.commentimemorabili.it.

[11] Cf. T. Dhellemmes,Scoprite la “Drive Confession” di Limoges, in www.aleteia.org.

[12] Il vescovo peruviano autorizza la confessione per telefono, in www.religiondigital.com.
As is known, the analogy between the priest and the doctor finds its evangelical roots in the words of Christ quoted by Luke: «et respondens Iesus dixit ad illos: non egent qui sana sunt medico sed qui male habent. Do not come vocare iustos sed peccatores in paenitentiam» (Lk., 5, 31 s). In the wake of the evangelical teaching in the path that led to the codification of canon law, the definition of the confessor as medicus animarum has always been at the center of doctrinal reflections and conciliar deliberations (cf. D. Tarantino, Dalla riconciliazione alla guarigione. Alcune riflessioni sulla confessione come cura animarum nella teologia morale e nel diritto canonico, in www.statoechiese.it, n. 9/2017, pp. 1-18).

[13] P. Zygulski, Nella Chiesa che cambia/3, in www.settimananews.it/sacramenti/nella-chiesa-che-cambia-3/.

[14] Precisely with reference to the hypothesis, third-party registration and disclosure of what has been learned in confession, alongside what is provided for in can. 1388 § 2 («The interpreter and other persons mentioned in can. 983 § 2, who violate secrecy, are punished with just punishment, not excluding excommunication»), adds the criminal figure configured by the norms of the Congregation for the Doctrine of the Faith which establishes: «art. 4 § 2. Firmo praescripto § 1 n. 5, Congregationi pro Doctrina Fidei reservatur quoque delictum gravius quod consistit in captione quovis technico instrumento facta aut in evulgatione communicationis socialis mediis malitiose peracta rerum quae in sacramentali confessione, vera vel ficta, a confessario vel a paenitente dicuntur. Qui hoc delictum patraverit, pro gravitate criminis puniatur, non exclusa, si clericus est, dimissione vel depositione» (Congregatio Pro Doctrina Fidei, Normae de ggravioribus delictis, 21 maii 2010, in Acta Apostolicae Sedis, CII/2010, p. 423). For further information on the topic cf. D. Cito, Delicta graviora contro la Fede e i Sacramenti, in Questioni di diritto penale canonico, Città del Vaticano, LEV, 2012, pp. 31-53; C. Papale, Registrazione e divulgazione della confessione sacramentale, in C. Papale. (ed.), I delitti contro il sacramento della penitenza riservati alla Congregazione per la Dottrina della Fede, Città del Vaticano, 2016, pp. 85-102. 

[15] And so it actually happened on March 18, 1973 when seven religious denominations recorded on tape appeared on the Espresso under the title "Sin". Offered in advance to the public to stimulate their curiosity and induce him to buy the book that would have reported many others, these "confessions" had been chosen among the 112 that were published in Padua by the publisher Marsilio on 23 March (cf. G. De Rosa, Il sesso in confessionale, in La Civiltà Cattolica, 2/1973, pp. 55-60). Following this scandalous event, the Congregation for the Doctrine of the Faith intervened with a Declaratio, the content of which was confirmed by a decree of the same in 1988. In it the criminal offense was configured which in 2001 would become Captation with technical tools and dissemination through the means of communication of the contents of the confession for the purpose of malice, inserted some time later among the delicta graviora through a re-written of John Paul II (cf. G. Incitti, Il Confessore e il Sacramento della Riconciliazione. Doveri e diritti dei penitenti, in www.penitenzieria.va, pp. 20-22).

[16] The confessor who violated the obligation of the seal – which arises only from the sacramental confession, that is, from the accusation made by the faithful with the desire to obtain absolution, regardless of his obtaining – would sin both of injustice towards the penitent, who places his trust in him as a sacred minister, also illegitimately affecting his good reputation (cf. can 220 and G. Boni, Sigillo sacramentale e segreto ministeriale. La tutela tra diritto canonico e diritto secolare, in Stato, Chiese e pluralismo confessionale, Rivista telematica (www.statoechiese.it), 34/2019, p. 20); both sacrilege towards the sacrament itself (cf. E. Miragoli, Il confessore, giudice e medico, in Quaderni di diritto ecclesiale,4/1995, p. 399 ss.). The penitent, on the other hand, does not commit sin and does not fall into ecclesiastical complaints if, of his own free will and without harming others, he declares publicly out of the confession of what he confessed. At the same time he should keep silence on the content of the words that the confessor, trusting in his discretion, told him during the confession (cf. Giovanni Paolo II, Segreto della Santa Confessione, in L’Osservatore Romano, Polish edition, 5/1994, p. 21).

[17] Francesco, in A. Ivereigh, Pope Francis says pandemic can be “a place of conversion”, www.thetablet.co.uk, 8 aprile 2020. On the potential of the practical solutions offered by canon law cf. P. Consorti, Relazione di sintesi: la necessità di tornare a un diritto canonico pratico, in Il Diritto Ecclesiastico, 2016.

[18] A. Tornielli, Introduzione, in Forti nella tribolazione. La comunione della Chiesa sostegno nel tempo della prova,Dicastero per la Comunicazione della Santa Sede (edited by), Città del Vaticano 2020, p. 4, in www.liberiaeditricevaticana.va


Eastern Orthodoxy and the pandemic. Cultural approaches towards rule of law in Romania

by Cătălin Raiu

mail: raiucatalin@gmail.com

Even if during the actual pandemic all states have imposed general restrictions regarding the conduct of religious activities, Romania is among the few democratic regimes in which the public authorities addressed liturgical recommendations. Fascinated by its despotic power, the state forced itself in the Chalice recommending abstention from the Eucharist. It did not do so for theological reasons, but from lack of democratic culture. Both international and national legislation are extremely precise regarding the regulation of worship: citizens are empowered with religious freedom, a right set at the base of the pyramid which is the rule of law and which is exercised also by taking part in the religious ceremonies conducted according to norms established by the religious organizations, based on their autonomy towards the neutral state from a religious standpoint.

As long as for the Romanian state, the usage of the unique spoon in administering the Eucharistic in the Eastern Churches did not represent a matter of hygiene overtime (other epidemics, viruses and seasonal flues), the discovering over night of the potential to infect during the communion ritual is a nondemocratic approach. Why? The answer lies in the way in which the rule of law was thought and ideologically transformed in Romania by positive or negative approaches against Orthodoxy, but without relying on one of the oldest liberal and democratic rights, the religious freedom.

For recent historical reasons, the states which resulted from the incomplete dismemberment of the USSR and the transformation of the communist countries are weak states when it comes to bureaucracy and democratic culture. The legitimacy of the post-soviet and post-communist political regimes was built in most cases simultaneously with the public reconstruction of orthodoxy (e.g. the Romanian case) or even due to the positive image of the Church in society, the case of Georgia, where patriarch Elijah the 2nd is still by far the most influential Georgian public figure. When the state fails to politically legitimize itself with the constant effort to expand rights and liberties, it resorts to various forms of cultural legitimacy.

The rule of law in the Romanian modernity

The first academic systematization of the knowledge about rule of law belongs to the British Albert venn Dicey (1888): nobody can be punished unless the deed of which he stands accused is explicitly provided by law. Rule of law is the opposite of the discretionary and arbitrary authority of the people. The people are governed by law and only by law, while the law is not the source, but the consequence of the rights and liberties of the citizens. It is not the state that gives rights to people, but the citizens gifted with rights which mandate the state to watch for the fulfillment of the rights of the citizens. Dicey makes a precious distinction between rule of law in the Anglo-Saxon approach, which is based on the Bill of Rights and has the purpose to further extend rights and liberties, and the French and German approaches of the rule of law, neutrally connoted in report with democracy. His distinction has had a prophetic value considering that the German rule by law hit its apogee right in the ideological foundation of the Nazi regime.

Following the experience of the 20th century, in which regimes on the course of democratization were dethroned by totalitarian regimes (the Weimar Republic is replaced by the Nazi regime), rule of law was defined eminently as a political system based on the the supremacy of rights and liberties (Joseph Raz).

The preliberal meaning of rule of law was not meant to maximize individual freedoms, but to never reach tyranny. It is a tradition beginning with Magna Charta (1215) and which imposes limits to the political authority. It is the meaning that contemporary non-liberal regimes assume by even postulating a divine vision of the good, especially in the Muslim ones, where the Sharia has equal or even constitutional value. The Afghan constitution, which inaugurates the Islamic Democratic Republic, provides equal rights between men and women, but also does not allows the application of any law contrary to Islam.

Within liberal societies there is no more ruling taking in account the divine right or the natural right. The legislative body is based on the Bill of Rights, the Declaration of Human Rights or other documents and international standards. Political liberalism completes the meaning of the rule of law: rule of law, not rule of men. The reign of law is the opposite of the rule of men (a government of laws, not men), because the law is based on reason, while people can act according to passion. The law is objective, the man subjective. Italian political scientist Leonardo Morlino systematizes some dimensions of the notion of rule of law hierarchically: the protection of human rights, political independence of judges, political neutrality of bureaucracy, the increased capacity of the public administration to enforce the law in a professional and transparent manner, the civil control on military forces, etc.

The Romanians begin to know the rigors of the rule of law at the middle of the 19th century, when the customary Romanian law, mostly inspired from the practice and social teachings of the Church, was replaced with the principles of an imperfect liberalism, which drew its sap from the administrative law rigors, the French variant of the rule of law.

Governing the Orthodoxy

In the case of most orthodox majority countries, orthodoxy represented in the 19th century one of the essential pillars of the nation’s founding, reason for which states are feeling culturally tied with orthodoxy and define their connection to the majority Church not in terms of religious freedom, but as “the default Church of the nation”. The given Church, preexisting the birth of the nation, a cultural and moral guardian of the political body. The majority of the clerics believe that they are exhausting themselves as missionaries in this role as guardians of national morality and civic behavior and do not question the political regime itself. It is, otherwise, also one of the explanations for which post-communist countries do not have civic movements (such as in Poland, Catholic country) brought to life by the Orthodox Churches. These stand on one hand far from politics, in terms of critic and rationing the political decisions, not clearly stated against or in favor of some political decisions as it happens in the West, and, on the other hand, the Church is too close to politics, doing this immense service to the state, taking its place in many situation, especially in that of the moral and behavior guardian of the society.

For historic reasons, the majority churches have the tendency to mistake their members with the entire population. From a theological standpoint it is a gesture of spiritual maternity, but which also lies against the democratic political representation. Orthodox and protestant churches act, together with the political representatives, as an alter representative of the people. For example, a certain Church can be against LGBT marriages for theological reasons, invoking their own theological tradition, or can make it for political reasons, invoking the evil concocted within the fiber and identity of the people. In the case of the second argument, the Church can either substitute the Parliament, giving voice to the political will of the people, or can feel the dominant position of the people and fall victim to a populist and theologically unfounded rhetoric.

The Romanian state was created simultaneously, in tandem and against orthodoxy: in tandem, because together they created the Romanian nation born Christian. Against orthodoxy, because it confiscated almost all social and civil duties of the Church, deeming it unworthy and irresponsible of being a partner in modernizing society. With the reforms from the middle of the 19th century, the state dismembered, in the Orthodox Church, what was the most valuable materialization of religious life in democratic societies, American or British, namely the contribution of the Church to the generation of social capital. The Romanian Orthodox Church is unlawfully accused that it never developed a social philanthropy network. In fact, beginning with the secularization of AL. Ioan Cuza (1859-1866), the state took all material resources from the Church, and refused to ideologically observe and benefit from the social capital produced by the Church, in the form of the tightly knit relations of social aid at parish and family level.

Up to the year 2000, the Romanian state was afraid to use, in relation to the church, the phrase religious freedom, using instead variations of the mutual legitimization: The Romanian/national Church, dominant Church and the partner state, etc. The Church did not develop a culture of religious freedom and of the rule of law, because it understood about its repositioning in the center of society with the fall of the communist regime not as a consequence of religious freedom and democratization, but as a cultural legitimacy received from a state. Today, in spite of the fact that entire generations of orthodox theologians studied and activated in the West, the phrase religious freedom still frightens the diocese chancelleries or theology faculties, although it is the most legitimate type of response the Church can deliver to the society, more and more routinized in the form of robotized secularism.

The secularization of the wealth of the church (1863/4) did not only mean the nationalization of the properties, but also the changing of the Church into a ceremonial annex and moral guardian of the society. It divided the Church into bishops and the rest (priests and believers). Subsequently, the politicians privileged the relations with local bishops, while the Church, as an united social body, was not even a source of social capital for the state, let alone a community mediated by religious freedom. Things are not different today, given that many politicians fill their public agendas with spiritual events speculated for electoral purposes, but do not think about the way Church serves society due to religious freedom. The false pietism shown at the celebration of the patron saints is directly proportionate with the real indifference towards the Church as the living community of people associated in the name of religious freedom.

For this reason, May 2020 government recommendations, to avoid the Eucharistic, are in fact the result of a 150-year-old manner of thinking, a way of thinking against the rule of law, meant to democratize society. During the pandemic, the Romanian state regulated the dimension of the religious life (weddings, baptisms, funerals), but did not show empathy with the faithful, by leaving cemeteries accessible to those who wanted to pray at the graves of their beloved ones. In the eyes of the state, the Church is a supplier of ceremonial public services, reason for which the state forced itself in the Chalice, not recommending the communion of the faithful.

Even if the gesture circumscribed to the state of emergency or alert, can be, without democratic bigotry, tolerated on a short term, there is the risk of it leaving painful scars in the social weave of Romania and open new paths to even worse attempts on the freedoms and liberties.

While Germany (April 30th), France (May 18th) or USA (May 29th), did not make worship recommendations, the constitutional control censored the anti-rule of law behavior of the authorities, reminding them that the limitations of religious freedom have to be made proportionate with the purpose of the general restrictions, whereas in Great Britain (May 15th), the government organized a task-force including the religious organizations and independent experts, to jointly establish the time to lift restrictions in the field of religious life.

The Romanian state is placed outside of the democratic dynamics of a rule of law state and forces itself in the Chalice, which does not seem to be a source of religious freedom, but a mere cultural ceremony. In Romania, the government felt the need to especially regulate religious activities, and forbade the prayer inside places of worship, placing the Christians under the disapproval of the public, making them guilty ab initio for breaking social distancing. Setting aside that this is a political-theological humiliation of the faithful (the liturgy is by definition a private religious event, reserved only to the members of the Church), the common order of the health minister and of the internal affairs minister from May 20/22 of this year (an administrative document with lesser judicial power than that of a law) also provides a total and absolutely wrong redefinition of the public space and the (not) private character of the liturgy. The order distinguishes between private and public religious services.

In reality, international standards of freedom of religion or belief, as well as Romanian legislation, establish clearly the private character of all religious activities as a direct consequence of the exercise of religious freedom and of conscience, without the interference of the state. Even if the theological projection of the liturgy is a public one, the liturgy itself is still private, like the weddings, both religious events being addressed only to the invited people. The legal-political reconceptualization of the liturgy into a public event would mean that the state no longer recognizes its neutrality in matters of religious life, according to law. 486/2006 regarding religious freedom, or even make recommendations regarding the liturgy, such as recently, when they recommended the abstention from the Eucharistic or from giving blessings by keeping a distance of 1 meter. Moreover, the fact that most Churches keep their doors open during a religious service to anyone willing to participate, does not change the private character of a religious manifestation in every democracy.

In equal measure, the fact that religious services are strictly private manifestations, does not mean that the social responsibility of the Church to anyone that sets foot inside the church is diminished or somehow discouraged. But, the simple questioning of the private character of religious services, is equivalent with placing the freedom of conscience of the faithful under the magnifying glass, and creates a very grave precedent for the Romanian democracy. Can we expect the Romanian state to give out necessary instructions regarding the content of the preaches, as it happens in Turkey?

Neoliberalism and anti-liberalism

The way in which religious life was restricted during the pandemic was predictable, given that the actual global political paradigm is characterized, among others, by the politic judicialization phenomenon (Pierre Rosanvallon). The growth of the power of the judges is directly proportionate with the decrease of citizen confidence in the political responsibility of the government. We know who signs a certain decision, but we do not know how that decision was made, given the many interests, bureaucracy structures and expertise on multiple levels. Moreover, executive political decisions are more and more adjusted and calibrated not by Parliaments, but by constitutional/supreme courts. The language of citizen rights and freedoms became a very encoded and bureaucratized one, and common citizens, even those who temporarily populate parliamentary gatherings, do not have, regularly, access to the standards with which the international jurisprudence operates in different fields. In the area of religious life, states that gathered a luggage of expertise and openness towards the protection and promotion of religious freedom did not encounter serious issues of radicalization and social tensions during the pandemic.

In turn, although the neoliberal pattern described above seems to extend globally, in the case of Romania, the executive decisions of the pandemic period have been ideologically inconsistent: there were, on one side, highly conservative gestures, such as the initiative of the Ministry of Interior that the state should safeguard with uniforms and police logistics the distribution of the Holy Light on Easter, which shows that the state wants to be a super-warden of tradition. On the other side, the state denounced with Marxist tone the liturgical gestures considered all together dangerous to the health of the population, forgetting that religious manifestations are direct expressions of the private conscience and that they can only be censored similarly with non-religious ones. The decisions were not made based on the “rule of law”, which is the base of standards and international legislation compatible with democracy, but on the “rule by law”, based on some made up ideological frustrations, pro or against the Church and indifferent to the demands of religious freedom and democracy.

*PhD, lecturer at the University of Bucharest and member of the panel of experts on freedom of religion or belief at ODIHR/OSCE.

A truce for the covid. From the pandemic an opportunity for peace?

by Stefano Picciaredda*

mail: stefano.picciaredda@unifg.it


 

  1. A persuasive appeal

The pandemic has not spared the lands in war, where “worst is yet to come”. For this reason, the General Secretary of the United Nations Organization Antonio Guterres re-launched on April 3rd 2020 his appeal for a global ceasefire,[1] which received support from many religious leaders, including Pope Francis. “There should be only one fight in our world today, our shared battle against Covid 19”, added Guterres. In the appeal of March 23rd he had used similar explicit, direct and effective expressions. He recalled that “the virus does not care about nationality or ethnicity, faction or faith because it attacks all, relentlessly”.[2] Moreover, “women and children, people with disabilities, the marginalized and the displaced pay the highest price”.[3] In summary, therefore, “the fury of the virus illustrates the folly of war”.

Guterres had therefore called for an “immediate global ceasefire in all corners of the world to help create corridors for life-saving aid. To open precious windows for diplomacy. To bring hope to places among the most vulnerable to Covid 19”.

Six days later, Pope Francis, in the speech delivered at the end of the Angelus prayer, had promptly associated himself with the appeal, inviting “everyone to follow it”.[4] And he had added:

May our joint fight against the pandemic bring everyone to recognize the great need to reinforce brotherly and sisterly bonds as members of a single human family. In particular, may it inspire a renewed commitment to overcome rivalries among the leaders of nations and the parties involved. Conflicts cannot be resolved through war! Antagonism and differences must be overcome through dialogue and a constructive search for peace.[5]

These pages focus on some scenarios of sub-Saharan Africa, the continent where most of the wars currently taking place on the planet are fought. I will try to illustrate the effects of the Guterres-Bergoglio appeal in local situations, effects obtained thanks to the commitment of Catholics, and I will try to understand if this has led to a turning point for pacification and a decrease of violence. Such initiatives undoubtedly belong to Catholics, from hierarchy to associations, to the faithful, and the commitment to restore peace must be a priority concern for Christians.

Pope Francis has reiterated this on several occasions, and he himself has given an example through his action for peace in the Central African Republic and in South Sudan. The current pope also asked that the commitment to peace always have an ecumenical and possibly interreligious character, that is, Catholics could involve other confessions and other religions in the work for reconciliation. There is a long lasting tradition that has to be remembered. Such as the recent involvement of bishops and episcopal conferences in the democratization and pacification processes in Africa, started in the late 1980s.[6] The apostolic exhortation Africae Munus (2011), at the end of the second Synod for Africa in 2009, is also significantly explicit, with the subtitle On the Church in Africa in service to reconciliation, justice and peace.

The appeal also seemed to be a way of not allowing the realities of wars currently underway to slide further into oblivion, especially the ones that are more distant, gangrenous and of “low intensity”, in an era in which almost all media and public opinion attentions and concerns are focused on the trend of the pandemic, and on the economic consequences of it.

2.At war for language. The Cameroon case

The case of Cameroon helps to understand the intertwining of conflict and pandemic. For three years a civil war has been blooding the English-speaking regions in the southwest of the country. Outpatient clinics were few before the war. But many health centers have been closed, due to military attacks and to the escape of doctors. Today, people do not know where to turn if the symptoms of the infection occur, or if they get sick of any other pathology. It is estimated that at least one million Cameroonians have been forced to abandon cities and villages, and most of them have taken refuge in the forests. When the government decided to suspend humanitarian and commercial flights, due to the Covid emergency, supplies for humanitarian organizations could no longer be shipped, and the emergency has become more serious.

Guterres’ appeal obtained the accession of Southern Cameroon Defense Forces (Scdf), but not of the others armed movements in the area – there are fifteen in all! -. One of these movements, an important one, the Ambazonia Governing Council, said a ceasefire would pave the way for government troop raids. The bishops did not stand by. Since the beginning of the hostilities, they have intervened in various ways. In these pandemic times, as early as February 2020, in an open letter addressed to the President of Cameroon Paul Biya, sixteen bishops from ten countries called for “a lasting solution to Cameroon’s problems through a mediated process that includes Anglophone armed-separatist groups and non-violent civil-society leaders”.[7] Andrew Nkea Fuanya, bishop of one of the dioceses most involved in the war, Bamenda, released on April 17th a pastoral letter, Now is time for peace, where we read: “As we should have all learned, it is easy to begin a war but it is never easy to end one. We lose everything through violence, killings and burnings; but, we can gain everything by sincerely seeking justice, reconciliation and peace”. Without going into the causes of the conflict, but recognizing the reasons of it, the bishop then affirms: “Each of us has the right and a reason to react against any injustices committed, but this does not mean that we must resort to violence. Seeking peace or a cease fire is not a sign of weakness or cowardice; on the contrary, it shows maturity and proper care for the fatherland and genuine love for others”.[8]

The war, which started in 2017, has ancient roots. After the First World War the ancient German colony was assigned to France (about 80% of the territory) and the United Kingdom (the remaining 20%, the two most western regions, on the borders of eastern Nigeria). Hence the bilingualism of the country. It must be remembered that the tracing of regional and state borders was operated in Africa by European metropolitan powers, with little or no regard to the pre-existing ethnic and geographical subdivisions. Clashes began when the central government decided to “Frenchize” the two Anglophone provinces of the Southwest and Northwest. French speaking teachers went to the region, and new laws, written in French, not in accord with the Common Law system have been introduced. Subsequent protests led by teachers and lawyers were violently repressed. Then, there has been the declaration of independence of the Ambazonia, the geographical name of the two regions involved. Since then, armed militias have rapidly multiplied and clashes have begun with the regular government army.

In their February letter, bishops recall that “the violence and atrocities committed by all parties to the conflict forced 656,000 Anglophone Cameroonians from their homes, kept 800,000 children far from school (including 400,000 from Catholic schools), caused 50,000 people to flee to Nigeria, destroyed hundreds of villages and resulted in a death toll of at least two thousand people”.[9]

3.South Sudan at a crossroads

It is almost useless to explain how much Pope Francis cares about the reality of South Sudan: the fact is well known.[10] Images of Bergoglio kneeling at the feet of the two Sudanese leaders Salva Kiir and Riek Machar to implore them to make peace, at the end of a spiritual retreat convoked by the Pope himself in the Vatican, in April 2019, have gone around the world and aroused scandal. Anyway, that deliberately exaggerated gesture of submission has paid off. Peace negotiations in this young country (born in 2011) battered by a civil war preceded by years of struggles for independence, have resumed and led to an important result on the eve of the outbreak of the pandemic: on January 13th 2020 the Rome Resolution was signed, a declaration which involved all the parties in conflict, even the “minor” groups hitherto excluded, and established a “road map” for the resolution of the differences starting from a ceasefire. On February 23rd, a new government of national unity was born, with the main antagonist of President Salva Kiir, Riek Machar, his former ally, as first vice president.[11]

However, the situation on the ground remains troubled. The fighting has not stopped. South Sudan is still the country in the world with the highest share of citizenship dependent on international humanitarian aid in all, because of the war: seven million out of twelve inhabitants need the World Food Program gifts to survive. Until the end of May 2020 in South Sudan Covid has represented a threat more than a concrete reality. In the planet’s lowest average age country, there has been few cases recorded, but authorities have taken rigid measures since the month of March. They were worried not being able to cope with a large number of infections, with only one laboratory to analyze tampons, located in the capital, and just four respirators for all the country. The price of confinement has been obviously high, especially in the capital Juba, with the paralysis of the informal economy of subsistence that allows the population to live.

It is in this context that the interventions of the bishops are grafted. Among these, there is one of the witnesses of the price paid by the population to the civil war, the Tombura Yambo bishop, Msgr. Hiiboro Kussala, who spoke to combatants on several occasions. “Citizens are already traumatized by the Covid-19 pandemic, they do not need further violence”, he said to the agencies and publicly repeated. His words, addressed to the two main warring parties to resume negotiations, are simple and straightforward: “Let’s avoid clashes, fighting or violence, let’s not get involved in any conflict because of the desire for power. War does not help, instead it causes distractions and hinders development”.[12]

Missionaries that are in the country underline that the formation of a national unity government constituted a step towards new elections and a greater political stability, and that the Covid-19 epidemic did not stop this process, but it slowed it down: the appointment of local governors has been postponed and the agreement on natural resources proceeds distribution is delayed.[13]

Meanwhile, on Sunday March 22nd, the new archbishop of Juba, Stephen Ameyu Mulla, was finally able to take office, after lay and religious people protests. These groups have contested him because of his ethnic origins, triggering an investigation by the Holy See. The bishop’s inaugural speech focused on the need for reconciliation in Covid times, and protests have since ceased. But the scenario is rapidly changing. At the beginning of June the news came that Covid hit Machar and other ministers. The former overcame the crisis, but some members of the government have passed away. Rumours of President Kiir’s involvement have been disproved and he himself has appeared publicly healthy. The number of infections is growing, but it is difficult to estimate the precise quantity in the provinces far from the capital, due to the aforementioned absence of analysis laboratories. Observers predict further spread, following the return to the villages of many South Sudanese who have left the capital subjected to the lockdown. It will therefore be in the coming months that all fighters will have to decide whether to join forces in the fight against the Covid, renouncing the clashes and respecting the commitments made during the negotiation, or to make the pandemic the pretext for new attacks, with devastating consequences for the civilian population.

4.So many shadows, some light

In a press release dated April 2nd, Guterres took stock of the welcome to his appeal.[14] Paragraphs dedicated to sub-Saharan Africa list movements and armed groups that accepted the invitation to ceasefire. Unfortunately, they’re not many: some of those who blood the Darfur, and the Southern Cameroons Defense Forces, which have been mentioned. Government adhesions received from Gambia, Sierra Leone, Togo, Ivory Coast and Niger are then reported. No response and no sign of respite, however, in regions devastated by the attacks of new jihadist formations, self-proclaimed emanations of Isis, such as those that are raging in northern Mozambique. The province of Cabo Delgado has become “the stage of a mysterious and incomprehensible war”, said the bishops of the ecclesiastical province of Nampula. What is inexplicable is blind violence against innocent civilians, and attacks that have no other purpose than to sow death and destruction. “The dramatic consequences of this crisis are evident: village fires, destruction of economic and social infrastructure, frightened and hungry populations, fleeing families, confused and disoriented without knowing where to seek shelter and protection”, says the statement.[15]

To find light is necessary to go further south. On April 8, 2020, a BBC service spoke about “how corona virus inspired a gangland truce in South Africa”: “Rival gang leaders in Cape Town have stopped their endless turf wars to bring food to struggling households”.[16]

The “miracle”, in one of the African countries in which the violence of rival gangs constitutes a scourge and a serious threat to peace and security, occurred at the impulsion of a singular figure of pastor, Andie Steele-Smith, with a past in the world of finance and which now defines itself a social entrepreneur. He convinced leaders and militants of various groups in the Cape suburbs to lay down their arms and structure a food distribution service to families during confinement. “They’re the best distributors in the country. They’re used to distributing other [things]. They know everybody”, says Steele.[17] What is more significant is that he persuaded gang members to mix themselves and deliver jointly. Statements made to the media by the people involved report a success. While violence continues in many places of South Africa, data report a 75% decrease of violent crimes as a result of the lockdown in the country, the most affected by the virus in the whole Africa.

A challenge is underway on the continent. The hypotheses of a limited spread of the pandemic are unfortunately contradicted by the data. The virus has picked up speed. It took ninety-eight days to target the first one hundred thousand people, eighteen to infect another hundred thousand. However, the experience of the AIDS pandemic – a pathology obviously very different from Covid 19 – is clear: in the conflict areas the incidence of positivity grows exponentially. Will the same happen with the Covid or, on the contrary, will the concentration on the fight against the pandemic be a reason for pacification? The Mozambican experience sounds like a warning: the main Covid outbreaks in the country are precisely in the province of Cabo Delgado, devastated by jihadist attacks. Guterres’ appeal therefore has its reasons, and would deserve more attention from African religious leaders.


* Associate Professor of Contemporary History, University of Foggia.

[1] https://www.un.org/press/en/2020/sgsm20032.doc.htm

[2] https://www.un.org/press/en/2020/sgsm20018.doc.htm

[3] Ibidem

[4] See www.vatican.va/content/francesco/en/angelus

[5] Ibidem

[6] In Burundi, Rwanda and in the Democratic Republic of the Congo, the bishops’ conferences have been involved in the reconciliation and forgiveness process among the population. In Zimbabwe, a bishop mediated the dialogue between the government and the opposition in the economic crisis. The cases of Swaziland, Liberia, Ivory Coast, Nigeria, Cameroon, Angola, Guinea Bissau, Sudan, Kenya, Zambia could also be mentioned. In Malawi, the entire process of opposition to President Kamuzu Banda’s regime originated with the 1992 Lenten catechesis of Catholic bishops. A Mozambican bishop mediator in the peace process in his country said in 2003: “There is growing awareness in Africa that the Church must be an expert in resolving armed conflicts. We must intensify this awareness with the formation of the civil awareness of citizens “. On the role of an independent peacemaker of Christian origin such as the Community of Sant’Egidio see R. Morozzo della Rocca (ed.), Fare pace. La diplomazia di Sant’Egidio, San Paolo, Cinisello Balsamo (Mi) 2018.

[7] See Fides agency news: www.fides.org, 21.02.2020.

[8] Fides Ag., 22.04.2020.

[9] See the african section of the La Croix site: http://www.africa.lacroix.com.

[10] About South Sudan see D.H. Johnson, The Root Causes of Sudan’s Civil Wars. Old Wars and New Wars, James Currey, Suffolk (UK) 2016; Z. L. Ostrowski, Les deux soudans, L’Harmattan, Paris 2019.

[11] The Rome Declaration was signed with the mediation of the Community of Sant’Egidio, which had previously supported the “Council of Churches of South Sudan”, an ecumenical representative body that played a non-secondary role during impasse moments impasse in previous negotiations, that resulted in the 2017 Addis Ababa agreements. The path to peace is long and not yet finished, but the synergy between Christians has produced not only appeals and invitations, but a direct involvement in the dialogues – as promoters, mediators or facilitators, according to the moments – which represents a significant case.

[12] In www.solidarityssudan.org

[13] See www.fides.org, 14.05.2020.

[14] Update on the Secretary-General’s Appeal for a Global Ceasefire, 02.04.2020.

[15] Fides agency, 29.05.2020.

[16] https://www.bbc.com/news/av/world-africa-52205727

[17] https://www.karunavirus.org/story/647/

State of emergency and religious freedom: constitutional stress in German law (art. 4 of the Basic Law for the Federal Republic of Germany)

by Stefano Testa Bappenheim
stefano.testa-bappenheim@unicam.it

De qua agitur – I. Introduction – II. Spiritual assistance – III. Compression, not infringementIV. Health (art. 2 of the Basic Law for the Federal Republic of Germany) – V. Human dignity (art. 1 of the Basic Law for the Federal Republic of Germany) – VI. Lack of legitimacy – VII. The right of assembly (art. 8 of the Basic Law for the Federal Republic of Germany) – VIII. The arguments – IX. The comparison with supermarkets – X. The BVerfG [Federal Constitutional Court] [Federal Constitutional Court]: religious freedom can undergo compressions only if proportionate to the purpose – XI. Religious freedom between state of emergency and proportionality.

De qua agitur

The proliferation and spreading of the Covid-19 epidemic has meant that even in various European states, and not only in Italy, gatherings of people have been prohibited with the issuing of specific rules, which have also included community religious celebrations. This has resulted in a certain friction in various countries with the relative constitutional provisions for the protection of religious freedom. The case of a State that intervenes on religious functions depicts a complex and needy picture of specialists, thus calling into question the comparative ecclesiastical law which again, in the current situations, fulfilled the prophecy that saw it, for “the intermediate position within the juridical disciplines” and “the undeniable historical-political assumptions”, “not as a science in the process of exhaustion, but as a bank of evidence of the most delicate dogmatic problems”[1].

  1. Introduction

The emergency rules issued in the various states have already been the subject of an appeal. The objection of unconstitutionality for violation of religious freedom was raised in Spain before the Tribunal constitutional; in France, before the Conseil d’État, and in Italy at the TAR del Lazio, while in Germany the issue has already come before the Bundesverfassungsgericht three times, on the basis of cases developed before the administrative jurisdictions. This shows how it is a problem common to countries that are very distinct and distant according to the Habermasian articulation of the three well-known paradigms: on the one hand the “absolute” secularism (French model)[2], at the extreme,  opposing the “open-minded” one (Italian-Hispanic model[3], for various historical reasons), and, in the middle, the “neutralist” one (German-style).

This system presents a particularly complex constitutional framework for the protection of fundamental rights, conditioned partly by the emergency situation, foreseen by the constitutional rules, and partly by the principle of Verhältnismäßigkeit elaborated by the constitutional jurisprudence itself. As is known, the German Grundgesetz [Basic Law for the Federal Republic of Germany] contains, in the preamble, an explicit reference to God[4], which is moreover deeply rooted in the German cultural-historical milieu[5] (and European one in general[6]).

On the basis of the Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen (Infektionsschutzgesetz,IfSG), §§ 28 ff., the State can order restrictions and limitations also on constitutionally recognised fundamental rights, the implementation of which is then entrusted to the various Länder that act with their own regulations.

In this contribution we will address the judicial phenotypes produced in these two months, all revolving around the importance and relevance of the fundamental right of religious freedom even in conditions where its protection has been exposed to high levels of constitutional stress. Alongside the many ‘collective’ disputes, on the problem of the prohibition of religious celebrations with the presence of the faithful, however, there is also an ‘individual’ one, relating to personal spiritual assistance, which therefore, proceeding from the particular to the universal, we will address first.

2.Spiritual assistance

The intervention of the Amtsgericht of Altenburg[7], in Thuringia, was requested by a Lutheran minister of worship who wished to go to give spiritual assistance to his own parishioner, hospitalised with fever. It involved an eighty-nine year old woman, suffering from respiratory diseases considered incurable and undergoing palliative care, and the Lutheran pastor would go to visit her weekly, as a pastor with care of souls, having spiritual talks with her.

Thuringian regulatory provisions to combat coronavirus (Zweite Thüringer Verordnung über erforderliche Maßnahmen zur Eindämmung der Ausbreitung des Coronavirus SARS-CoV-2 (Version of April 7, 2020), briefly 2. ThürSARS-CoV-2-EindmaßnVO), however, have ‘sealed’ the places of treatment, preventing access even to ministers of worship, even if they were willing to comply with all the necessary health precautions to prevent contagion. The Court, questioned by the pastor, proved him right, on the assumption that his visits were not of a personal nature, but – says the sentence – constituted the exercise of a truly central element in the heart of the mission of a minister of worship[8], particularly in times of epidemic, according to the example given by Martin Luther himself on the occasion of the bubonic plague epidemic in Wittemberg, in 1527[9].

The afore-mentioned federal law on the health emergency explicitly provides that in the case of quarantine, the minister of worship engaged in the care of souls “must absolutely” always be admitted, in compliance with all the safety procedures, to visit the sick person (art. 30 paragraph 4), while ‘other persons’ (for example a psychologist, relatives, friends, etc.) “may” be accepted at the discretion of the attending physician. The judges observe that the care of souls constitutes the heart of the duties of Churches. For this reason the norm does not foresee any limitation that can be imposed on the minister of worship, to whom an absolute right is recognised, reflecting the right of religious freedom foreseen by art. 4 of the Basic Law for the Federal Republic of Germany. On these conceptual bases, the legislator of the coronavirus emergency, which has also tightened certain rules established by the Infektionsschutzgesetz, has left the rule in question unchanged.

The law is an expression of the pro-religious neutrality of the Basic Law for the Federal Republic of Germany[10], which balances the protection of collective health with the spiritual needs of those forced to quarantine, who can benefit from a relationship with the minister of worship.

This relationship between the quarantined faithful and the minister of worship cannot be subjected to any temporal limitation, and indeed must be facilitated, for example by making telephones or IT tools available.

Since federal law expressly provides for this absolute right to the spiritual assistant (without prejudice to the protection procedures: gowns, masks, gloves, etc.), it follows that the regulations of the individual Länder must comply with them, as it explicitly establishes the sentence, and therefore we can say that throughout Germany the fundamental right to spiritual assistance is recognised as immune from the effects of the quarantine, a segment of the multifaceted right to religious freedom pursuant to art. 4 of the Basic Law for the Federal Republic of Germany.

The same cannot be said, however, of the right to religious services, on which the jurisprudence, in the space of only two months, has been copious, constantly present, despite being an expression of the Courts of various and different Länder, and has already arrived three times before the Judges of Karlsruhe.

3.Compression, not infringement

A Society apostolic life of Berlin of pontifical right[11], linked to the celebration with the Extraordinary Rite[12], presented an administrative appeal against the Verordnung über erforderliche Maßnahmen zur Eindämmung der Ausbreitung des neuartigen Coronavirus SARS-CoV-2 (abbreviated to SARS-CoV-2- Eindämmungsmaßnahmenverordnung, or even SARS-CoV-2- EindmaßnV) of Berlin, which, in the context of the containment measures of Covid-19, while expressly allowing individual visits to places of worship, had at the same time prohibited religious celebrations open to the public, outdoors or indoors, as a harbinger of potentially dangerous gatherings.

The application was rejected by the Verwaltungsgericht of Berlin, as the prohibition to participate in public religious celebrations certainly constitutes a compression, but not a violation of the right to religious freedom, as it is a proportional balance with other fundamental rights, also recognised by the Basic Law for the Federal Republic of Germany, such as the right to life and physical integrity, pursuant to art. 2 paragraph II of the Basic Law for the Federal Republic of Germany.

The Basic Law for the Federal Republic of Germany, moreover, provides for a state of emergency, with the constitutionally legitimate possibility of compressing, for a limited period of time, in the face of an absolutely emergency situation, certain fundamental rights, concentrating the forces to guarantee the vital energies necessary for the survival of the State, which is the foundation, with its existence, of all guarantees and protection for all fundamental rights; the compression of the right to religious freedom is also admissible because it is partial, as both the possibility of going individually to pray in places of worship and that of attending religious services via television or via the Internet is always permitted[13].

The SVA appealed before the Berlin-Brandenburg Oberverwaltungsgericht, whose 11th Senate confirmed the day after the outcome of the first instance, placing the principle of Verhältnismäßigkeit, proportionality, as ubi consistam of its reasoning; the fact that the right to religious freedom, pursuant to art. 4 paragraphs I and II of the Basic Law for the Federal Republic of Germany, is affected by the contested measures is beyond doubt. It is in any case necessary to establish whether it is subject to compression, as deemed in the first instance judgement, or a violation or aggression, as the appellants claim[14].

For the OVG Berlin-Brandenburg, the limitation measure is not preordained in order to compress religious freedom, but this compression is the indirect result of very general measures aimed at limiting the spread of the coronavirus, i.e. measures in compliance with art. 2 paragraph II of the Basic Law for the Federal Republic of Germany, that is the protection of life and physical integrity, which are also constitutional rights that could not have been achieved otherwise.

The right to religious freedom, the Court states, has not been harmed: because there was no intention of it, because places of worship have always remained open to allow people to enter to pray, and finally because it is possible, and indeed it is seen that religious communities have made extensive use of the streaming transmission of religious services. If therefore religious celebrations continued to be celebrated and seen by the faithful, and the latter continued to be able to go to their buildings of worship for prayer, taking into account the emergency situation, we can say that the restrictive measures did not affect the substance of religious freedom, but rather its methods of organisation, which undoubtedly underwent such a forced disarticulation, though limited in scope and duration.

The Administrative Court of Appeal, then, concludes that freedom of religion can also be limited in the event of a collision with fundamental rights of third parties, or collective rights of constitutional rank, but it is, in fact, a limitation-compression, in the sense that, apart from the cases mentioned above, the right to religious freedom expands again; this orientation is shared by the VG Leipzig[15], called to judge an appeal against art. 7 letter a of the ad hoc legislation of Saxony.

4.Health protection (art. 2 of the Basic Law for the Federal Republic of Germany).

The reasoning explained by the VG Hamburg[16], which was called to pronounce on the appeal against the Verordnung zur Eindämmung der Ausbreitung des Coronavirus SARS-CoV-2 in der Freien und Hansestadt Hamburg (HmbSARS-CoV-2-EindämmungsVO), is more detailed and complex, in § 2, no. 1, a general prohibition of demonstrations and meetings, public or non-public, expressly also referring to churches, mosques, synagogues and other religious denominations: hence the appeal for violation of religious freedom pursuant to art. 4 of the Basic Law for the Federal Republic of Germany.

For the judge of Hamburg, religious freedom protected pursuant to art. 4 of the Basic Law for the Federal Republic of Germany certainly also includes participation in community religious functions, public or non-public, however religious freedom is not without limits: since art. 4, paragraphs 1 and 2, of the Basic Law for the Federal Republic of Germany does not foresee specific limits, they must be inferred from the Basic Law for the Federal Republic of Germany itself, and are the fundamental rights of third parties and those of the community.

The applicant claimed that religious freedom, i.e. art. 4 of the Basic Law for the Federal Republic of Germany, had been violated because the prevalence of art. 2 of the Basic Law for the Federal Republic of Germany had been applied to the closure of places of worship and not also to supermarkets, whose opening has continued to be allowed, but the VG Hamburg clearly refuted this topic. On the basis of scientific evidence, in fact, the risk of contagion rises exponentially when being in contact for more than 15 minutes with a sick person. In the case of the supermarket, however, as it is a place where people move about, it is very unlikely to be constantly in the vicinity of a sick person for 15 minutes, while in a religious building, on the occasion of a religious function, people remain in their places for the duration of the rite. For this reason there is a substantial difference between the danger rate of contagion in supermarkets and that in places of worship, which justifies, on the basis of the protection of the fundamental right to health and physical integrity, the compression of the right to religious freedom.

The applicants then claimed that these prohibitions would deprive them of the possibility of celebrating Easter, a central solemnity in the Christian religion and not postponed to another date, which would constitute a double injury to their fundamental right to religious freedom.

According to the VG Hamburg, however, the compression of the right to religious freedom, which certainly exists, however, was not so intolerable, concerning only a subset thereof, that is, that of community participation in religious celebrations, given that, in effect, the faithful maintain full freedom to practice their religion in a different way, with individual prayer, at home or by going individually to places of worship, and religious celebrations themselves are not denied to them in full, their streaming transmission being possible and indeed organised by the ministers of worship themselves. It is understandable that this is not a perfectly equivalent substitute, however it is suitable to compensate for the limitations imposed by the special regulations for the epidemic emergency.

5.Human dignity (art.1 of the Basic Law for the Federal Republic of Germany)

The Weimar OVG[17], which dismissed an appeal against the Zweite Thüringer Verordnung über erforderliche Maßnahmen zur Eindämmung der Ausbreitung des Coronavirus SARS-CoV-2 (2. ThürSARS-CoV-2-EindmaßnVO), prohibited, pursuant to § 3 no. 1, meetings and gatherings of more than two people, explicitly specifying how this prohibition also extended to churches, mosques, synagogues and to the buildings of worship of other religious denominations and philosophical organisations.

The applicant claimed that this prohibition, not including exceptions for religious services even at Easter, a very important Christian holiday, violated not only art. 4 of the Basic Law for the Federal Republic of Germany, but – as religious freedom is an expression of human dignity – also art. 1 of the Basic Law for the Federal Republic of Germany, which precisely protects it, so that religious freedom should be evaluated as pre-eminent with respect to other fundamental rights, given that precisely metaphysical thought – religious, atheist or philosophical in general – is a specific characteristic of man.

This new topic, namely religious freedom as a phenotype of human dignity, and therefore also protected by art. 1 of the Basic Law for the Federal Republic of Germany, is not contested by the OVG, which however develops a more pragmatic reasoning. Fundamental rights in general, and those defined by the Basic Law for the Federal Republic of Germany in particular, are not self-fulfilling, but need a state apparatus that guarantees and defends them. So, before asking if the right to religious freedom, being a phenotype of an anthropological quid peculiaris, also falls within the protection of human dignity pursuant to art. 1 of the Basic Law for the Federal Republic of Germany, and therefore prevails over art. 2 of the Basic Law for the Federal Republic of Germany which protects health and physical integrity, it is necessary and appropriate to recognise that no fundamental right can be concretely enforced without an efficient state apparatus. Therefore, in an epidemic situation, the objective contemplated by art. 2 of the Basic Law for the Federal Republic of Germany, being in the absence of protection of health and physical integrity, the epidemic could spread also affecting the state apparatus, weakening its structure and causing the collapse of the health system. The result would be to make it impossible to protect any fundamental right.

The prevalence of art. 2 of the Basic Law for the Federal Republic of Germany is not based so much on the fact that the right to health and physical integrity is genotypically more important than the other fundamental rights, as on the fact that its phenotype allows the survival of the state apparatus. In any case, the prevalence of art. 2 does not admit the violation of art. 4 of the Basic Law for the Federal Republic of Germany, which in fact has not been violated, but only suspended in its operating methods. The ministers of worship can continue to celebrate religious services, the faithful can attend them through modern digital media, and they can attend places of worship, as these modes do not contravene the general prohibition of assembly. Moreover, for decades religious confessions have also resorted, in ordinary times and conditions, to the transmission of their rites via television or via the web[18], therefore it is legitimate to believe that they themselves do not recognise the physical presence of the faithful as essential to the rite.

6.Lack of legitimacy

In Lower Saxony, an appeal was made against local provisions complaining that they prevented the celebration of Easter and Pesah fittingly. The XV Section of the VG Hannover[19] rejected the appeal with the well-known argument of compression and non-violation of art. 4 of the Basic Law for the Federal Republic of Germany, also justified pursuant to. Art. 2 of the Basic Law for the Federal Republic of Germany. However, the ruling also introduced a new topic, relating to the active procedural legitimacy, signalling the absence of the title to act for the individual faithful, given that they can go individually to places of worship and can attend religious services broadcast via web or via television. They cannot participate personally, but this limit depends on the absence of celebrations offered by the religious denominations themselves, which have been forbidden from celebrating community religious functions, and who would be entitled to take legal action in this regard.

7. The right of assembly (art. 8 of the Basic Law for the Federal Republic of Germany).

Another interesting perspective is outlined by the VGH Hessen[20], which shifts the issue out of the perimeter of religious freedom. The appeal was filed against the Vierte Verordnung zur Bekämpfung des Corona-Virus, which, pursuant to § 1, prohibits community celebrations in churches, mosques, synagogues and in the buildings of worship of other religious denominations, but allows these buildings to remain open i.e. recognises the right of all religious communities to  practice “alternative forms” of religious  celebrations and rites, which do not require gatherings of people, suggesting “the transmission of religious services via the Internet”.

The Administrative Court recognises the exceptional limitation of the fundamental right of religious freedom, which however it considers proportional to the prevailing protection pursuant to art. 2 of the Basic Law for the Federal Republic of Germany but observes some peculiarities. First, it signals the lack of active legitimacy of the applicant, given that he is a Roman Catholic from the diocese of Limburg, whose Bishop had decreed the suspension of all community religious functions even before the Land law was issued. Secondly, it considers the possible violation of art. 8 of the Basic Law for the Federal Republic of Germany, which generally protects the freedom of assembly, with respect to which religious celebrations are a type. Gatherings, it goes without saying, are banned to prevent contagion.

8. The arguments

The latter orientation is also partially adopted by the Verwaltungsgerichtshof of Bavaria[21], where the law provides for the general prohibition of meetings and assemblies, explicitly declared also applicable to churches, mosques, synagogues and places of worship of other religious denominations, except for exceptions granted by the competent civil authorities. A Roman Catholic believer brought a dispute, claiming his religious freedom pursuant to art. 4 days and art. 107 BayVf, contesting both the general prohibition, which the applicant claimed was unjustified because the community religious functions could have been organised with health checks and reservations by telephone or via app, and against the absence of an exception, admissible on the basis of the legislation itself. In his opinion, the ban on attending Sunday Mass was a violation of religious freedom, but that of attending Masses on Easter solemnities constituted a double violation.

The appeal was dismissed for lack of active legitimacy and petitum, as all 27 German dioceses have taken autonomous protection measures against the epidemic, including in almost all the suspension of the precept of Sunday Mass and, in general, of all community religious celebrations[22]. In addition, the Archdiocese of München und Freising had already suspended all Community religious celebrations on 13 March, and until 3 April, that is, before the disputed provision, and on 2 April with a general decree, pursuant to can. 29 CIC, immediately in force pursuant to can. 8 § 2 CIC[23], had extended this suspension until 19 April, that is until after Easter

9.The comparison with supermarkets

The problem raised by the prohibitions towards gatherings has also affected the Islamic communities: that of Niedersachsen challenged the legislation (Niedersächsischen Verordnung zum Schutz vor Neuinfektionen mit dem Corona-Virus) which provided for the now well-known prohibition of gatherings in churches, mosques, synagogues and in the buildings of worship of other religious denominations. The applicant association stated however that this prohibition constituted a violation of both the right to religious freedom pursuant to art. 4 of the Basic Law for the Federal Republic of Germany, expected in his case which prevented the community celebration of Ramadan, and of the fundamental right to equality, pursuant to art. 3 paragraph 1 of the Basic Law for the Federal Republic of Germany, as it instituted a categorical and absolute prohibition of assembly of all kinds for places of worship, while it allowed it – respecting the reciprocal distance of 1.5 meters – for constitutionally less protected assembly situations, such as for example, was happening for the queues in front of flower shops or car dealers, etc.

The Higher Regional Court of Lüneburg24 dismissed the appeal: firstly because the ban concerned only two Fridays of the month of fasting, therefore the right to religious freedom was only included and temporally limited and proportionate; secondly, because the prohibition involved only the expression of collective religious freedom, since the mosques were open and forms of general spiritual assistance could be exercised, pursuant to § 3 no. 13, those to persons at risk of death, pursuant to § 3 no. 12 a, outdoor religious services, respecting the minimum distance of one meter and fifty cm, pursuant to § 2 no. 2.

10.The BVerfG [Federal Constitutional Court]: religious freedom can undergo compressions only if proportionate to the purpose.

As was probably foreseeable, the matter went as far as the Bundesverfassungsgericht, before which it was raised several times: first the judges of Karlsruhe were asked for an emergency measure to annul the sentence of 7 April of the Verwaltungsgerichtshof of Hesse (see above) relating to § 1 paragraph 5 of the Vierte Verordnung zur Bekämpfung des Corona-Virus: the applicant, as we have already seen, declaring that he is a practising Catholic, complained that the V ierte Verordnung made it impossible for him to attend Mass and particular religious rites specific to the Holy Week, and considered the limitations imposed on the exercise of the fundamental right of religious freedom pursuant to art. 4 of the Basic Law for the Federal Republic of Germany to be disproportionate, and therefore unconstitutional.

The BVerfG [Federal Constitutional Court] rejected25 the application for an emergency measure, recognising it admissible but refuting it on the merits, because, it stated, if it accepted it and then reopened it for the celebration of Community Masses (but, more generally, for community religious functions of any confession religious), it would cause an enormous increase in the risk of infection, with the already reported certain consequence of an overload of the national health system, including the extreme risk of its collapse. Moreover, the Court considered the limitation proportionate pursuant to art. 2, the BVerfG [Federal Constitutional Court], given that it is temporary and limited to a set deadline.

A second request for emergency measures was presented to the BVerfG [Federal Constitutional Court] by the already well-known SVA of pontifical law in Berlin, which asked Karlsruhe to ascertain that the hypothesis of unconstitutionality of the Coronavirus-Eindämmungsverordnung was not clearly unfounded, for violation of art. 4 of the Basic Law for the Federal Republic of Germany, and to issue a suspension, pending an in-depth judgement, pursuant to art. 32 paragraph 1 of the Basic Law for the Federal Republic of Germany.

The Bundesverfassungsgericht declared26 an urgent appeal admissible but noted that granting of the ‘suspension’ could harm another constitutionally guaranteed right, namely that of health and physical integrity, pursuant to art. 2 paragraph 2 of the Basic Law for the Federal Republic of Germany, with risks that would reverberate on people (possible increase in the spread of contagion, of sick people, of the dead), and on the state apparatus, which could collapse. The Bundesverfassungsgericht recognised the compression of rights under art. 4 of the Basic Law for the Federal Republic of Germany, but considered it proportionate to the contingent necessity, given that the prohibition is temporary, subject to a pre-established deadline and any extension would require a further rigorous examination of the persistence of proportionality.

To date, the last case submitted to the Judges of Karlsruhe concerned the legislation of Lower Saxony, against which the applicant Islamic association had already unsuccessfully filed administrative appeals (see above). Before the Constitutional Court the association requested a suspension of the general prohibition without the possibility of exceptions, and presented a series of precautionary measures that would be adopted to prevent contagion27. On the basis of these elements, the BVerfG [Federal Constitutional Court] accepted the applicant’s request, cancelling the part of the ordinance of Lower Saxony which excluded a priori possible exceptions to the ban on community religious celebrations: the Court considers this ban still admissible insofar as it refers to the simultaneous reopening of all mosques, cancelling only the part in which it excludes the possibility that the Public Authority may grant exceptions to individuals and specific religious buildings, after an in-depth assessment of the circumstances conducted with the responsible Health Authority; if the religious community requesting the exception could provide guarantees that the Authorities considered such as to exclude the risk of spreading of the virus, the principle of proportionality that justifies the compression of art. 4 of the Basic Law for the Federal Republic of Germany for the benefit of art. 2 of the Basic Law for the Federal Republic of Germany would be removed28.

11.Religious freedom between state of emergency and proportionality.

All the judgements issued regarding the provisions that prohibit community religious celebrations have recognised the suffering of art. 4 of the Basic Law for the Federal Republic of Germany, also establishing at the same time that compression is possible on the basis of two constitutional parameters: the rules on the state of emergency (Notstand) and the principle of proportionality (Verhältnismäßigkeit)29.

Not introduced ab initio due to the terrible results produced by art. 48 of the Weimar Constitution, from 1968 onwards a number of framework rules relating to specific emergencies, exogenous or endogenous, were added to the Basic Law for the Federal Republic of Germany, which have the specific purpose of protecting the existence and institutional survival of the democratic and liberal system of federal government and of the individual Länder.

The emergency rules are not grouped neatly, but, having been added later to the original system, are scattered throughout the Basic Law for the Federal Republic of Germany, and, as a counterbalance, the right of resistance (Widerstandrecht) was simultaneously inserted, pursuant to art. 20 paragraph 4 of the Basic Law for the Federal Republic of Germany30.

We have, therefore, exogenous emergencies: an armed attack on the federal territory, underway or certainly imminent (state of defence, or Verteidigungsfall), pursuant to art. 115 of the Basic Law for the Federal Republic of Germany31, or very likely following an unresolved foreign policy crisis (state of tension, or Spannungsfall), pursuant to articles 80a and 12a of the Basic Law for the Federal Republic of Germany. Here the state of emergency for national defence is approved by the Bundestag with a two-thirds majority, at the request of the Federal Government. It also needs the approval of the Bundesrat and is announced by the Federal President in the Official Journal32.

The command of the Armed Forces (and conscientious objectors in civil service33, pursuant to art.12a of the Basic Law for the Federal Republic of Germany34), passes to the Chancellor. In wartime the Bundestag and Bundesrat do not stop their activity with new elections, but the powers of the Bundesverfassungsgericht are not suspended.

Then there are the cases of endogenous emergencies, which can be the threat to the existence or to the liberal and democratic fundamental order of the Bund or of a single Land, art. 9135 of the Basic Law for the Federal Republic of Germany, and the threat to public security and public order, or a natural catastrophe or disaster of another nature, which threaten a single Land, plus Länder or the Federation as a whole (art. 35 paragraphs 2 and 3 of the Basic Law for the Federal Republic of Germany36), and in these cases it is expressly provided that there may be limitations on personal freedoms.

The emergency legislation examined here can certainly be included in this second group of endogenous cases: an epidemic that affects all the Länder and that threatens to bring down the national health system, overloading it with patients, and endangering the survival of the Bund, infecting and therefore making medical and police personnel at least temporarily unavailable, i.e. the forces directly exposed on the front lines in dealing with and trying to contain the epidemic37.

Here we associate art. 1938 of the Basic Law for the Federal Republic of Germany, according to which a fundamental right can be limited with an ordinary law, or even by another type of legislation that is always based on a law, provided that this limitation is general and not specifically directed towards a single case (paragraph 1), and in no case can a fundamental right be infringed in its ontologically essential components (paragraph 2).

Then, finally, the proportionality principle (Verhältnismäßigkeitsprinzip), the result of the combined provision of art. 1 paragraph 3 and art. 20 paragraph 3 of the Basic Law for the Federal Republic of Germany, is particularly important in evaluating regulations that interfere with the fundamental rights guaranteed by the Basic Law for the Federal Republic of Germany. The interferences of the legislator, in fact, are only admissible if:

  1. they have a legitimate purpose,
  2. they are suitable for its achievement,
  3. they are the only means available to achieve it, and
  4. this achievement brings more advantages than disadvantages.

Many judgements of the administrative jurisdictions, as we have seen, balance the right to health, pursuant to art. 2 of the Basic Law for the Federal Republic of Germany, but this in itself would not be sufficient, because it would not constitute an emergency situation, and in fact the BVerfG [Federal Constitutional Court] added another element: the protection of the national health system, which, if it collapsed because it had been overwhelmed by the epidemic, could constitute one of the collapse factors of the entire system.

It therefore seems that it cannot be stated that religious freedom, and therefore art. 4 of the Basic Law for the Federal Republic of Germany, can, if not sacrificeable then at least be subordinated to other fundamental rights, thus making it de facto a fundamental but not very fundamental right, or of series b, but that all fundamental rights at the same level can be frozen and suspended in the face of a situation of emergency, envisaged by the Basic Law for the Federal Republic of Germany, provided that this suspension is proportionate, which also implies a limited duration in time. Therefore, in the very latest analysis, there would be version 2.0 of the Videant consules ne quid res publica detrimenti capiat.

*Professor of Law and Religion, University of Camerino (Italy)


[1] M. TEDESCHI, Sulla scienza del diritto ecclesiastico, Milan, 1987, p. 55; P. CONSORTI, La scienza del diritto ecclesiastico in Germania, in qdpe, 1992, pp. 119 ff.

[2] See P. CONSORTI, Dalla Francia una nuova idea di laicità per il nuovo anno, in statoechiese.it, no. 1/2018, https:// www.statoechiese.it/images/uploads/articoli_pdf/Consorti.M2_Dalla_Francia.pdf ; M. D’ARIENZO, La “religione della laicità” nella Costituzione francese, in P. BECCHI – V. PACILLO, Sull’invocazione a Dio nella Costituzione federale e nelle Carte fondamentali europee, Lugano, 2013, pp. 139 ff.; EADEM, La laicità francese secondo Nicolas Sarkozy, in DeR, 2008, pp. 257 ff.; EADEM, La laicità francese: “aperta”, “positiva” o “im-positiva”?, in statoechiese.it, 2011, https:// www.statoechiese.it/images/uploads/articoli_pdf/maria_darienzo_la_laicit_francese.pdf; P. VALDRINI, La ‘laicità positiva’. A proposito del discorso del Presidente Sarkozy al Laterano (20 dicembre 2007, in AA.VV., Le sfide del diritto, Soveria Mannelli, 2009, pp. 409 ff.; ID., Il principio di laicità nel diritto francese. Neutralità dello Stato e libertà dei cittadini, in Eph., 2015, pp. 39 ff.; P. CAVANA, Laicità, politica e religioni in Francia, in Iustitia, 1998, IV, pp. 365 ff.

[3] B. PELLISTRANDI, Catolicismo e identidad nacional en España en el siglo XIX, in P. AUBERT (edited by), Religión y sociedad en España, Madrid, 2002, pp. 91 ff.; V. CARCÉL ORTÍ, Historia de la Iglesia en la España contemporánea (siglos XIX y XX), Madrid, 2002, pp. 249 ss.; L. DIOTALLEVI, Religione, Chiesa e modernizzazione, il caso italiano, Roma, 1999, passim; E. GALLI DELLA LOGGIA, L’identità italiana, Bologna, 1998, passim; G.E. RUSCONI, La religione degli italiani – Religione civile e identità italiana, in Il Mulino, 2003, 409, pp. 832 ff.

[4] J. ENNUSCHAT, ‘Gott’ und Grundgesetz’, in NJW, 1998, pp. 953 ff.; S. TESTA BAPPENHEIM, ‘Veluti si Deus Daretur’: Dio nell’ordinamento costituzionale tedesco, in J.I. ARRIETA (edited by), Ius divinum, Venice, 2010, pp. 253 ff.; P. HÄBERLE, Gott im Verfassungsstaat?, in ID., Rechtsvergleichung im Kraftfeld des Verfassungsstaates, Berlin, 1992, p. 216; S. MÜCKL, In der Welt, nicht von der Welt. (Staats) Kirchenrechtliche Implikationen einer Entweltlichung der Kirche, in AA.VV., Theologia Iuris Canonici. Festschrift für Ludger Müller zur Vollendung des 65. Lebensjahres, Berlin, 2017, pp. 115 ff.

[5] M. THELEMANN, Als die Germanen zu Christus kamen, Stuttgart, 1934, pp. 73 ff.; W. ANDREAS, Deutschland vor der Reformation: eine Zeitenwende, Stuttgart, 1948, pp. 372 ff.; K. STADTWALD, Roman Popes and German patriots: antipapalism in the politics of the german humanist movement from Gregor Heimburg to Martin Luther, Geneva, 1996, pp. 82 ff.; F. MARTI, Il favor fidei in the ius novum, in IE, 2014, pp. 359 ff.; M. D’ARIENZO, Il contributo del pensiero riformato del XVI secolo all’ermeneutica della laicità, in AGFS, 2018, pp. 697 ff.; S. TESTA BAPPENHEIM, Cenni sulla costituzionalizzazione delle radici cristiane in Germania, in IE, 2006, pp. 755 ff.; J.I. ARRIETA, Le articolazioni delle istituzioni della Chiesa e i rapporti con le istituzioni politiche, ivi, 2008, pp. 13 ff.

[6] P. BELLINI, Respublica sub Deo. Il primato del Sacro nell’esperienza giuridica dell’Europa preumanista, Firenze, 1981, passim.

[7] AG Altenburg, judgement of 14 April 2020, no. 26/ar(bd)/24/20.

[8] See, for the general theoretical approach, P. CONSORTI – M. MORELLI, Codice dell’assistenza spirituale, Milano, 1993, passim

[9] P. CONSORTI, Introduzione, in ID. (edited by), Law, Religions and Covid-19 Emergency, Pisa, 2020, p. 9.

[10]  See F. FEDE – S. TESTA BAPPENHEIM, Dalla laïcité di Parigi alla nominatio Dei di Berlino, passando per Roma, Milano, 2007, pp. 39 ff.; J.T. MARTIN DE AGAR, Libertà religiosa, uguaglianza e laicità, in IE, 1995, pp. 199 ff.; A. MELLONI, Laïcitè, mot fallacieux, in AA.VV., Idee per una scuola laica, Rome, 2007, pp. 49 ff.; A. RICCARDI, Cos’è (diventata) la laicità: una chiave di lettura storica per comprendere il pluralismo, in AA.VV., Il filosofare per le religioni: un contributo laico al dialogo interreligioso, Soveria Mannelli, 2016, pp. 21 ff.

[11] On SVA, see S. TESTA BAPPENHEIM, La vita fraterna. Fenotipi storico- canonistici dei consacrati a Dio, Lecce, 2006, pp. 239 ff.; G.F. GHIRLANDA, Iter per l’approvazione degli istituti di vita consacrata a livello diocesano e pontificio e delle nuove norme di vita consacrata, in Periodica , 2005, pp. 621 ff.; F. PUIG, La consacrazione religiosa. Virtualità e limiti della nozione teologica, Milano, 2010, pp. 289 ff.; O. CONDORELLI, Sul principio di sussidiarietà nell’ordinamento canonico: alcune considerazioni critiche, in DE, 2003, pp. 942 ff.; L. NAVARRO, item Incardinación, in Diccionario General de Derecho Canónico, IV, Pamplona, 2012.

[12] See, for the general theoretical approach, A.S. SANCHEZ-GIL, Gli innovativi profili canonici del Motu proprio ‘Summorum Pontificum’ sull’uso della Liturgia romana anteriore alla riforma del 1970, in IE, 2007, pp. 689 ff.; J. FOSTER, Reflexiones canonicas acerca de Universae Ecclesiae, Instruccion sobre la Aplicacion de Summorum Pontificum, in IC, 2012, pp. 191 ff.; J.M. HUELS, Reconciling The Old With The New Canonical Questions On Summorum Pontificum, in The Jurist, 2008, pp. 92 ff.; C.J. GLENDINNING, The significance of the liturgical reforms prior to the second Vatican council in light of Summorum Pontificum, in SC, 2010, pp. 293 ff.; J. MIÑAMBRES, Attribuzione di facoltà e competenze alla Commissione “Ecclesia Dei”, in IE, 1991, pp. 341 ff.

[13] VG Berlin, ordinance of 7 April 2020, no. 14/L/32/20.

[14] OVG Berlin-Brandeburg, judgement of 8 April 2020, no. 11/S/21/20.

[15] VG Leipzig, judgement of 3 April 2020, no. 3/L/182/20.

[16] VG Hamburg, judgement of 9 April 2020, no. 9/E/1605/20.

[17] OVG Thüringen, judgement of 9 April 2020, no. 3/EN/238/20.

[18] See P. CONSORTI, Liturgia e diritto. Conseguenze giuridiche della riaffermazione del Magnum principium per cui la preghiera liturgica deve essere capita dal popolo, in RL, 2019, pp. 37 ff.; M.G. BELGIORNO DE STEFANO, La parrocchia prima e dopo il Concilio Vaticano II, in AA.VV., Studi in onore di P.A. D’Avack, I, Milan, 1976, pp. 206 ff.

[19] VG Hannover, judgement of 7 April 2020, no. 15/B/2112/20.

[20] VGH Hessen, judgement of 7 April 2020, no. 8/B/892/20-N.

[21] VGH München, ordinance of 9 April 2020, no. 20/NE/20704

[22] J.-P. SCHOUPPE, item Suspensión de derechos, in Diccionario General de Derecho Canónico, VII, Pamplona, 2012; E. BAURA, Atto amministrativo e limitazione dei diritti, in J.I. ARRIETA (edited by), Discrezionalità e discernimento nel governo della Chiesa, Venezia, 2008, pp. 187 ff.; C.J. ERRÁZURIZ, La dimensione giuridica della configurazione e della realizzazione della liturgia cattolica, in AA.VV., Libro de Amigos dedicado al Profesor Carlos Salinas, Santiago de Chile, 2018, pp. 137 ff.; M. DEL POZZO, Autorità ecclesiastica e diritti dei fedeli nella liturgia, in AA.VV., Diritto e norma nella liturgia, Milan, 2016, pp. 111 ff.; J. LLOBELL, Note minime sulla distinzione fra l’«atto amministrativo» e l’«atto “non amministrativo” dell’Amministrazione», in IE, 2015, pp. 625 ff.

[23] Donnerstag, 2. April 2020: Allgemeines Dekret von Kardinal Reinhard Marx, Erzbischof von München und Freising.

24 OVG Niedersachsen, ordinance of 23 april 2020, no. 13/MN/109/20.

25 BVerfG, ordinance of the Second Chamber of the First Senate, 10 April 2020, no. 1/BVQ/28/20.

26 BVerfG, ordinance of the Second Chamber of the First Senate, 10 April 2020, no. 1/BVQ/31/20.

27 That the association says it is willing to take to make Friday prayers in the mosque possible during the month of Ramadan: minimum distance of 1.5 meters between the faithful, ensured by marking out appropriate signs on the floor; maximum presence of 24 participants in a 300-person mosque; nominative invitations to individual participants with indication of the time, in order to avoid queuing outside; ritual washing before entering performed with antibacterial soap; mask requirement for faithful participants; dispenser with disinfectant at the entrance; disinfection of handles, doors, etc. after each ‘shift’ of 24 faithful; mosque with all doors wide open to ensure maximum ventilation; mandatory ban (already provided by ordinary Islamic rules, but applied with particular rigor) for sick people to participate; ritual with the only prayer of the imam, without spoken interventions of the faithful, to avoid – despite the mask – the risk of spreading the virus.

28 BVerfG, ordinance of the Second Chamber of the First Senate, 29 April 2020, no. 1/BVQ/44/20.

29 L. HIRSCHBERG, Der Grundsatz der Verhältnismäßigkeit, Göttingen, 1981, pp. 50 ff.; A. HEUSCH, Der Grundsatz der Verhältnismäßigkeit im Staatsorganisationsrecht, Berlin, 2003, pp. 37 ff.

30 H.D. JARASS – B. PIEROTH (edited by), Grundgesetz für die Bundesrepublik Deutschland: Kommentar, München, 2019, art. 20; V. EPPING – C. HILLGRUBER – P. AXER, H. RADTKE (edited by), Grundgesetz: Kommentar, München, 2020, art. 20.

31 H.D. JARASS – B. PIEROTH (edited by), Grundgesetz für die Bundesrepublik Deutschland: Kommentar, cit., Art. 115 a; V. EPPING – C. HILLGRUBER – P. AXER, H. RADTKE (edited by), Grundgesetz: Kommentar, cit., art. 115 a; A. WODITSCHKA, Das Weisungsrecht der Bundesregierung im Verteidigungsfall nach Artikel 115f Abs. 1 Nr. 2 Grundgesetz, Hamburg, 2017, pp. 41 ff.

32 See, for the general theoretical approach, F. FEDE, Il Capo dello Stato “arbitro” istituzionale, in GC, 1997, pp. 1167 ff.

33 P. CONSORTI, Il servizio civile volontario come forma di difesa della Patria, in Reg., 2005, pp. 549 ff.; M.G. BELGIORNO DE STEFANO, L’obiezione di coscienza al militare, diritto inviolabile dell’uomo e del cristiano, in AA.VV., Writings in honour of P. Gismondi, Milan, 1991, I, pp. 33 ff.; M. IMPAGLIAZZO, Guerra e religione nel Novecento, in AA.VV., Le guerre in un mondo globale, Rome, 22017, pp. 277 ff.

34 H.D. JARASS – B. PIEROTH (edited by), Grundgesetz für die Bundesrepublik Deutschland: Kommentar, cit., Art. 12 a; V. EPPING – C. HILLGRUBER – P. AXER, H. RADTKE (edited by), Grundgesetz: Kommentar, cit., art. 12 a.

35 H.D. JARASS – B. PIEROTH (edited by), Grundgesetz für die Bundesrepublik Deutschland: Kommentar, cit., Art. 91; V. EPPING – C. HILLGRUBER – P. AXER, H. RADTKE (edited by), Grundgesetz: Kommentar, cit., art. 91.

36 H.D. JARASS – B. PIEROTH (edited by), Grundgesetz für die Bundesrepublik Deutschland: Kommentar, cit., Art. 35; V. EPPING – C. HILLGRUBER – P. AXER, H. RADTKE (edited by), Grundgesetz: Kommentar, cit., art. 35.

37 J. VON KALCKREUTH, Die Sicherstellung medizinischer Versorgung in Katastrophen: Forderungen an Staat u. Ärzteschaft für Katastrophen-, Krisen- u. Verteidigungsfall, Baden-Baden, 1988, pp. 72 ff.

38 H.D. JARASS – B. PIEROTH (edited by), Grundgesetz für die Bundesrepublik Deutschland: Kommentar, cit., Art. 19; V. EPPING – C. HILLGRUBER – P. AXER, H. RADTKE (edited by), Grundgesetz: Kommentar, cit., art. 19.

Is the lockdown of churches an aggression towards freedom of religion or belief?

by Cătălin Raiu*

raiucatalin@gmail.com

1. Introduction

According to international standards, states cannot suspend FoRB during war or emergency state. However, religious freedom can be limited as an exceptional measure, to reestablish order and public security, or in the case of an epidemic as an exceptional measure and with the fulfillment of the following terms: 1. to be provided by law 2. to serve purposes of the political body in its whole (protection of security, public order, health, etc.) 3. to be nondiscriminatory in language and application 4. to strictly serve the purpose and announced period.

With reference to the Covid-19 pandemic, the World Health Organization recommends “states to maintain a fine balance between protection of health, the reduction of the negative economical and social impact and the fulfillment of human rights”.

If we understand FoRB in the normative sense, as a right that has its limits in the exercise of other rights (for example, the right to a healthy life) than the governmental measures are not in fact restrictions, but instruments to democratically harmonize multiple rights. If we take religious freedom broadly, as one of the fundamental rights of democracy, susceptible to not having limitations precisely because it stands at the base of the human rights and freedoms pyramid, the governmental measures are restrictions, but are justifiable.

European states must worry more about closing churches than religious organizations, because it is the duty of the state to facilitate the exercise of rights and liberties, in the logic of liberal democracies the religious organizations being just one of the instruments by means of which free citizens freely associate with the purpose of exercising a common faith.

2. What is the emergency state in terms of political science?

The modern state resulted from the dissolution of plural medieval jurisdictions (guilds, churches, feudal estates, etc.) and was founded both with military power but especially through bureaucracy. Subsequent to that it liberalized consolidating its dimension of rule of law, separated political powers and constitutions were established. Passing from absolute monarchies to the constitutional ones or even forms of incipient republican governments was made by the gradual neutralization of the head of state, which in most cases kept attributes of the sovereignty, and in others it kept the executive power.

This state’s spine is represented by the political neutrality and liberal separations in different areas and with different intensities: separates the government from the people, religion, art, culture and science, the state from society and is grounded on the hypothesis (in accordance with the trend of the era – birth and explosion of the number of political parties) that in most parliament legislatures you will have coalition majorities. As liberal regimes become more democratic and have the Parliament as their core, as the representative organism of the people, the head of state, being monarch or president, remains with the attributes of sovereignty, even if he cannot be considered sovereign any longer.

This monarchic position being simultaneously in the center but also on the edge of the political regime, gives the president of the modern republic the attribute of neutral and intermediary power (pouvoir neutre, Benjamin Constant), power placed not above the constitutional powers, but by its side, separated and with specific competences. This is where his competences as a mediator between state, society and state powers begin. Being a mediator between the powers of state, the elementary logic tells us that he cannot be part of these.

From the 19th century continental liberal constitutions we can identify principles that have been borrowed in the actual constitutions (post-war and post-communist): the representation of the people belongs exclusively to the Parliament, to the will of which depends the Government, and the head of the state or more precisely the President of the republic has competences that tie him either to the Parliament (the voting of the state of emergency or international treaties signed lastly by the President), or to the Government (by the countersignatures of the ministers and/or of the prime minister). As such, the President of the republic, just like a secularized king, emptied of the legitimacy of the divine right, rules but does not govern.

The president as pouvoir neutre, chosen democratically directly by the people, plays a role that cannot be assumed by the Parliament. His independence to the Parliament and in equal his election directly by the people are consequences of him being detached from the particular interests of a parliamentary majority, reason for which during the exercise of his position he cannot be simultaneously neither member of the Parliament nor member of a political party. When the Parliament forces the Constitution in name of maximizing the rights and liberties or for populist public policies, the President, as a mediator authority, is the one that protects it and sends the law to the Constitutional Court. This neutral power is not in competition with the other powers which is precisely why it becomes active only during emergency situations or war.

Carl Schmitt understands the presidential position as the representation of the unity of the political will of the sovereign people, reason for which the President can skip parliament and can go directly to the people and calling for popular consultations. The President of the republic has the duty to create political consensus in the horizon of the reason of state itself and protection of democracy. He must be non-partisan, neutral arbiter, mediator and moderator, but also to withhold from deciding. The President as a representative of the national unity of the State is in fact the opposite of the Parliament as the people representative.

In the alternative in which the president is elected by Parliament, so in fact by a parliament majority, like in Italy or Hungary, the President is either extremely loyal to the dominant party, or nonexistent and without reaction to what takes place in the Parliament. He is a ceremonial annex, stripped of the real capacity of being an arbiter and also of the power to act different to the will of the parliament majority.

In case of the emergency state, the President’s duty is to simultaneously assume all qualities and attributes granted by the Constitution and can decree, initially by himself, and then with the agreement of the Parliament, to a certain period of time during which the political decision requires a quick reaction and cannot be subjected to the parliamentary debate but to a single authority. The authority least touched by vanity and political partisanship is the President. With eyes set on reason of state, by decreeing the emergency state, the President has the authority to place the interests of the state above the interests of the people (that for various reasons does not accept for example to self isolate) and assumes the executive power. The state revs its engine to the maximum to produce order and public security and leaves on a secondary level, without forgetting them, the citizen rights and liberties.

Romania may be counted in as a democracy at the fine border between semi-parliamentarism and semi-presidentialism, having both a President elected directly by the people for a term which does not overlap as length to that of the Parliament, but at the same time does not really have executive powers. The competition for power between the Parliament, President and Government makes the radical political decisions to not be implemented. This fact is a gain for democracy despite the fact that the Romanian political regime was not constituted with the best democratic intentions, but rather to harmonize the battle for power between different influential political actors.

3. How was religious freedom restricted?

The constitutional solution chosen by Romania was the establishment of the emergency state at the request of the president of the republic with the agreement of the Parliament for two periods of 30 days each. In these periods, the government appealed to several military ordinances as the main governing instrument. The military ordinances used a legal-political language centered on restrictions mainly addressed to the Romanian Orthodox Church (which holds 59% of all religious organizations in Romania and a total of 86.45% of members) and, if we read through the lines, the main activity limited until forbidding it is the holy communion of the faithful. The state does not restrict the participation of the clergy to the Holy Mass (where all participant priests have the obligation to take communion from the same Chalice), but restricts the communion of the faithful with the same teaspoon.

The solution thought of by the Romanian authorities is not appropriate as a public policy because is not centered on social distancing as a measure to prevent the spreading of the virus, but, on the one hand on the harsh restriction to give communion to the faithful from the same Chalice and with the same teaspoon, and, on the other hand the separation of the Church in clergy and people, a valid dichotomy theologically until one point, but incomprehensible in relation to the access of the faithful to the exercise of religious freedom. The clergy retains the privilege of communion from the same Chalice, although in the case of large parishes and monasteries we speak of 4-5 or event 10 clerics that perform mass at the same time in small altars and unavoidable without keeping the social distance of 2 meters. Instead, the faithful is restricted from participating to the Holy Mass, for using the same teaspoon, reason that can be read through the lines.

The solution had in mind by the Romanian decision makers transpires from a corporate mentality and not a democratic one, meaning that it prioritizes the Church (the equivalent of the clergy body) as a social corporation to the detriment of the religious freedom as an individual right. Their intention seems to have been on the one side to ensure that the mass-media does not receive other images of the faithful receiving communion from the same Chalice and teaspoon, and on the other hand to not legislate too many prohibitions to the clergy.

Moreover, just to prove that the restrictions are not targeting the priesthood, the military ordinances, although they are meant to state restrictions and limit rights, add, without any legal logic, the fact that “religious/church servants (the term does not exist in legislation) can give communion to the ill in the hospital or at their place of residence”, which obviously was valid even before the outbreak of the pandemic. Furthermore, “the communion of the faithful” is not the practice of all religious organizations.

Further on, the expression “religious/church servants” not only does not coincide with the synonym it probably targets, which is “clerical staff” (legal and not discriminatory term established by Law No. 489 of 2006 regarding religious freedom), but is deeply discriminatory because it targets only those religious organizations that have instituted sacramental priesthood (Orthodox, Catholic, Protestant Churches, etc.) and exclude from the beginning some evangelical churches or the Jews and the Muslims, where the sermon directed by the clergy can be performed, in certain situations, by other members of the community.

The restrictions in the military ordinances target in fact practices specific to the Romanian Orthodox Church, leaving the apparent impression that it gives the Romanian Orthodox Church some free space (which is to perform sermons behind closed doors), but forbidding the access of the faithful to the sermon, which is the main gesture of exercising religious freedom.

In Romania’s case the governmental positions are mediated arbitrarily by a mixture of anti-clergy (despite the fact that in democratic regimes the police force has the role to prevent and educate, the Romanian Police fined dozens of priest with the amount of 4.000 euro each for performing the memorial service with 4 to 5 people in the outdoors) and pietist ultra-conservatorism (the Police, neutral from a religious standpoint according to the legislation, offered to help within an agreement with the Romanian Orthodox Church, to spread the holy light in the night of the Resurrection, a gesture reserved solely to the clergy, and revoked because of the public pressure).

4. Further advancement of FoRB in Eastern Europe

The topic of restricting religious freedom, a right generally understood in eastern Europe as optional and not important, despite the recent experience of the communist regime and of the recent Western pressure, becomes for the next weeks a theme to think about for the Parliament, the guarantor of citizen rights and liberties. The Romanian Parliament has the chance to censor military vices and pay attention to the language and instruments used so that this period of crisis does not leave deep scars in the democracy especially given that the ease of restrictions regarding religious life are about to happen all over Europe.

The call of US Ambassador at large for international religious freedom, Samuel Brownback, or that of Jan Figel, former Special Envoy for the Promotion of Freedom of Religion or Belief Outside of the EU regarding the release of political detainees abusively detained for religious purposes in many countries in the world, remain, for the moment, in countries such as Romania just a diplomatic speech and not concrete invitations to promote FoRB.

5. What is to be done?

– Replacing pro-/anti Church governmental positions with international guidelines to apply the principles of religious freedom for dignitaries, police officers, attorneys and judges;

– Branching the Romanian government to the International Alliance of Religious Freedom, organization launched by the US Department of State and which already includes almost all post-communist countries from Europe: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Greece, Hungary, Latvia, Lithuania, Slovakia, Slovenia, Ukraine;

– Collaboration with European institutions such as the Agency for Fundamental Rights of the European Commission and the Office for Democratic Institutions and Human Rights of OSCE which offers practical solutions for emergency situations, like the Covid-19 pandemic, etc.;

– The introduction of the culture of freedom of religion or belief in the public administration, at least on central level, starting from the minimal effort to religiously alphabetize at least the political decision makers.

* PhD, lecturer in political science at the University of Bucharest and member of the OSCE panel of experts on freedom of religion or belief.

Fraternity. A Proposal from Religions to States to Overcome the Covid-19 Emergency

by Maria Luisa Lo Giacco*

marialuisa.logiacco@uniba.it

1. Introduction

A world day of fasting and prayer was held on May 14, 2020 to free humanity from the Coronavirus pandemic. The day was organized by the Higher Committee for Human Fraternity, an interreligious organization founded in the United Arab Emirates, that has among its members representatives of the three Abrahamic religions, as well as representatives of international cultural institutions. In the heart of Abu Dhabi, the Committee has created a little town of the dialogue, the Abrahamic Family House, where it was built a synagogue, a church, a mosque and a cultural center, the one next to each other.

The Higher Committee was founded after the Pope Francis’ apostolic journey to the United Arab Emirates[1]. For the first time in history, a Catholic Pope has gone to the Arabian Peninsula, that is the cradle of the Islamic religion; it was an extraordinary event and, as the Pope himself said, it occurred on the eighth centenary of the meeting between St. Francis of Assisi and the sultan al-Malik al-Kamil[2].

Pope Francis attended the interreligious meeting organized, during the Global Conference of Human Fraternity, by the Muslim Council of Elders, an important organization of Sunni Islam. As we can read on the website of the same organization, the Muslim Council of Elders was founded on July 2014, and it aims to promote the peace within Islamic communities. According to its site, “The Council unites Muslim scholars, experts and dignitaries who are known for their wisdom, sense of justice, independence and moderateness”; they are engaged in the solution of conflicts and in spreading the values of the tolerance. The President of the Council of Elders is Ahmed Al-Tayyib, the great imam of the Al-Azhar University of Cairo[3]; in the past he had already met Pope Francis. During his apostolic journey to Egypt, on 28 April 2017, the Pope was present to an “international peace conference” organized by Al-Tayyib at the University of al-Azhar[4], and the Great Imam has been received three times in Rome by the Pope.

  • Freedom, equality and fraternity in the Abu Dhabi Declaration

The Abu Dhabi meeting ended with the signing of an important document on Human Fraternity for World Peace and Living Together; the document is remarkable also from a juridical point of view, since it is based around the three principles, freedom, equality and fraternity, that are the basis of the modern idea of democracy.

It recalls that “each individual enjoys the freedom of belief, of thought, of expression and of action”. In particular, religious freedom means dialogue, respect for the other’s faith and for his places of worship, condemnation of religious terrorism[5]. Freedom is also defined as the freedom to be different.

Equality is described like a consequence of God’s willing; to obtain the equality it is necessary to bridge the gap of gender, wealth, age and it is “crucial to establish in our societies the concept of full citizenshipand reject the discriminatory use of the term minorities”.

The Declaration remind us that the principles of freedom and equality are internationally recognized, but they will be really achieved only thanks to the principle of fraternity. The fraternity, in fact, “embraces all human beings, unites them and renders them equal” and free.

In this document, therefore, it acquires a central dimension a principle that constitutes, together with freedom and equality, the slogan of the French Revolution, the event that marked the separation of the state from religion: fraternity. Of course, from the historical point of view, the fraternité of revolutionaries is something very different from the fraternity of religions, but perhaps it is precisely the difficulty of giving a content to this principle that has made it marginal in the juridical debate. For example, the principle of fraternity is in the art. 2 of the French Constitution, but only recently, a sentence of the Constitutional Council of 6 July 2018[6], has recognized it as a principle having full constitutional value[7].

3. Fraternity/solidarity to get off the Covid-19 emergency

With the Abu Dhabi Declaration, the Catholic Church and Sunni Islam show to governments, and politics in general, a vision of society that is rebuilt starting from the principle of fraternity, a principle that has at the same time a religious and a secular meaning.

The same principle is proposed again to politics in pandemic times, and it is pointed out as the foundation for the reconstruction. On March 30, the Catholic Pontifical Academy for Life published a document with the title Pandemic and Universal Brotherhood; in it we read a reflection on the meaning of freedoms and rights. The first ones, during the emergency, turned out to be “intertwined and overlapped, for better or for worse”, but also the rights are interdependent and there is “no right that does not have a resultant corresponding duty”. The pandemic has clearly showed this interdependence but, the document notes, the interdependence does not automatically turn into solidarity. This occurs also in the relationships between the states, that can’t confront the pandemic by reasoning in terms of exclusive defense of the national interest, since a global threat requires global responses. “An emergency like that of Covid-19 is overcome with, above all, the antibodies of solidarity”.

In the same days, the Higher Committee for Human Fraternity proposed a day of prayer, fasting and charity, in order that the world will be freed from the pandemic, becoming more fraternal. The day was celebrated on 14 May 2020 and it was, obviously, a religious celebration, but it was also an event with a political meaning. Pope Francis, in the homily of the morning mass of May 14, said that the Coronavirus pandemic is not the only pandemic that affects the world, since there are others such as the hunger pandemic or the war pandemic; according to the Pope, only thanks to fraternity humanity will be able to overcome the pandemics.

During the pandemic, religions reminded politics of the value of fraternity, the revolutionary principle that underlies modern democracies. In the Italian Constitution, it can be identified in the political, economic and social solidarity referred to in the art. 2. This rule, in fact, recognizes and guarantees the fundamental rights, but it also requires the fulfillment of the mandatory duties of solidarity[8]. It is precisely the necessity to fulfill these duties that justified the compression of fundamental rights imposed by the government to face the epidemic emergency. But it is the same solidarity that, after the first phase, the cd. lockdown, must be the basis to go beyond the emergency and to plan the future.


* Associate Professor of Law and Religion at the University of Bari (Italy).

[1] Journey of 3-5 February 2019

[2] See Francis, Interreligious Meeting. Address of His Holiness,4 February 2019.

[3] Al-Azhar University is the most important religious and cultural institution of Sunni Islam. The Great Imam is considered to be the most important Sunni religious leader and his doctrinal authority is universally recognized.

[4] See the text here.

[5] About the right of religious freedom according to the Abrahamic religions, see A. Fuccillo, The “Charter of the new alliance of virtue” facing the Covid-19 emergency, 11 may 2020, in Diresom.net.

[6] Decision n. 717/718, 6 july 2018, available here.

[7] See G. Canivet, La fraternité dans le droit constitutionnel français.

[8] See F. Giuffrè, Alle radici dell’ordinamento: la solidarietà tra identità e integrazione, in Rivista dell’Associazione Italiana dei Costituzionalisti, n. 3/2019.

Riprendono anche i riti non cattolici. Per la prima volta accordi con islamici e confessioni senza intesa. Intervista al Prof. Pierluigi Consorti

di Luigi Mariano Guzzo *

Sono stati sottoscritti nel pomeriggio di ieri – 15 maggio 2020 -, a Palazzo Chigi, i Protocolli per la manifestazione del culto delle confessioni religiose diverse dalla Chiesa cattolica, anche di alcune che non hanno sottoscritto l’intesa con lo Stato italiano, ai sensi dell’art. 8 comma 3 della Costituzione italiana. Si tratta di regole che nascono dal confronto e dal dialogo condotto dal Viminale a partire dalla videoconferenza che si è tenuta il 5 maggio scorso, alla quale hanno partecipato come consulenti anche i professori Pierluigi Consorti, ordinario di Diritto e religione all’Università di Pisa, e Paolo Naso, docente di Scienza politica all’Università “La Sapienza” di Roma (leggi qui l’intervista a Consorti pubblicata su Il Regno). Le indicazioni emerse in quella sede sono state poi precisate secondo le specificità rappresentate dalle diverse religioni e, infine, vagliate da parte del Comitato tecnico-scientifico.

L’utilizzo di Protocolli concordati fra le autorità religiose e quelle sanitarie e di governo costituisce una novità della regolamentazione di questa fase emergenziale, sollecitata anche dall’attività parlamentare che, per mano dell’on. Stefano Ceccanti, ha subordinato lo svolgimento delle funzioni religiose all’adozione di protocolli sanitari, adottati di intesa con la Chiesa cattolica e con le altre confessioni religiose.

Il governo italiano ha percorso una strada a corsie parallele, siglando prima un Protocollo bilaterale concordato con la Conferenza dei vescovi cattolici (Protocollo del 7 maggio) e poi diversi Protocolli costruiti sulla base di un dialogo “multilaterale”, che – si spera – possa fare da apripista ad una nuova stagione della politica ecclesiastica italiana.

Ne discutiamo con Consorti, presidente dell’Associazione dei docenti universitari della disciplina giuridica del fenomeno religioso (Adec) e coordinatore del gruppo di ricerca “DiReSoM”. 

Gentile Professore, alla luce di una prima lettura “a caldo” – per così dire – che cosa pensa dei Protocolli sottoscritti dalle confessioni religiose diverse dalla cattolica?

Certamente, si tratta di un processo al quale bisogna guardare con favore. Possiamo dire che l’incontro del 5 maggio, che abbiamo definito “storico”, abbia portato i suoi frutti. Il metodo seguito supera quello della tradizionale bilateralità pattizia, in quanto vede seduti intorno allo stesso tavolo le diverse comunità religiose e i rappresentanti del governo alla ricerca delle soluzioni migliori in grado di bilanciare l’uguale esercizio della libertà religiosa di tutti con le prevalenti esigenze di prevenzione del contagio. Purtroppo, la Chiesa cattolica ha percorso una solitaria corsia preferenziale, ma in ogni caso vedo con molto favore l’avvio di una prassi dialogica che è mancata nella fase iniziale dell’emergenza, come negli anni passati. Direi che siamo di fronte a nuovi esperimenti di dialogo interreligioso e laico.

Mi pare che il diritto ecclesiastico italiano si stia confrontando con una nuova fonte normativa, quella dei “Protocolli sanitari concordati”, che ne pensa? 

I Protocolli di cui stiamo parlando costituiscono la soluzione ad un problema di natura pratica: quello di garantire la libertà di culto nel quadro di un’emergenza sanitaria che, di per sé, deve fare i conti con l’assenza di una disciplina legislativa chiara. All’inizio della pandemia ho avuto modo di scrivere che i giuristi devono proporre soluzioni creative. Mi sembra che questi protocolli siano una risposta creativa, in grado di rispondere a bisogni concreti tenendo conto delle differenze che caratterizzano il pluralismo religioso nazionale. Si tratta di strumenti nuovi, inediti, che non vanno interpretati secondo gli schemi tradizionali.  Non sono intese concordatarie in senso stretto, in quanto costituiscono una spontanea forma di adesione delle autorità confessionali alle regole precauzionali dettate dalla prevenzione del contagio. Non sono cioè il frutto di un’intesa fra contrapposte esigenze statali e confessionali, ma l’esito di un’analisi comune delle soluzioni che consentissero di riprendere senza troppi problemi sanitari una regolare manifestazione del culto associato. Chi ha parlato di indebita compressione della libertà religiosa da parte dello Stato ha fallito il bersaglio. Gli adattamenti che tutte le religioni stanno sperimentando non dipendono dagli obblighi statali, ma dalla necessità di contrastare la pandemia e salvare la salute e la vita delle persone.

Con le confessioni religiose diverse dalla cattolica, sono stati sottoscritti in totale sei Protocolli: 1) con le comunità ebraiche; 2) con le comunità delle chiese di Gesù Cristo e dei Santi e degli ultimi giorni; 3) con le comunità islamiche; 4) con le confessioni induista, buddista, Bahai, Sikh; 5) con le Chiese Protestante, Evangelica, Anglicana; 6) con le comunità Ortodosse. Sono stati quindi attuati alcuni raggruppamenti che sembrano funzionali a preservare le specificità religiose. Ma quali i criteri tenuti in considerazione?

Mi sembra che si sia utilizzato un criterio di “familiarità religiosa”, per cui sono state accorpate per quanto possibile esigenze simili. In linea teorica sarebbero state possibili anche altre soluzioni, ma è prevalsa un’esigenza di praticità e buon senso, che considero opportuna tenuto conto che siamo ancora in una fase emergenziale. Del resto, tutte le confessioni religiose diverse dalla cattolica si sono presentate con due tratti comuni che in parte le differenziavano dalla Chiesa cattolica. Se quest’ultima desiderava sommamente riprendere la celebrazione delle Messe, in una prima fase anche senza troppa attenzione alla precauzione, convocando il popolo in chiese che sono sempre state aperte, le altre religioni avevano già tutte chiuso i loro luoghi di culto e sospeso le attività pastorali, che intendevano riavviare solo in sicurezza. Erano in attesa di indicazioni precise in termini di rispetto dei criteri e chiedevano che si consentisse una maggiore libertà di movimento dei loro ministri di culto, o guide religiose, dato che ciascuna di queste opera in territori che coprono più comuni e talvolta in regioni diverse. 

Pur tutelando le specificità delle confessioni religiose, questi Protocolli si presentano comunque simili nei contenuti. 

Sì, e questo è un bene. Il principio di fondo è comune a tutti i Protocolli. Differenze sostanziali non sarebbero state accettabili, invece ha senso che singole specificità emergano per evitare problemi applicativi. In certi casi si tratta di semplici differenze terminologiche, ad esempio, per i protocolli siglati con le confessioni del ceppo giudaico-cristiano si parla di “funzioni religiose”, al plurale; per il protocollo con le comunità islamiche si parla di “preghiera”; per il protocollo con le religioni buddiste e induiste troviamo invece “funzione religiosa” al singolare. Altre volte si prende in esame la specificità rituale: con le confessioni cristiane è stato opportuno regolare l’amministrazione della comunione, che dal punto di vista sanitario è il rito più pericoloso, con gli islamici si è raccomandato l’osservanza della distanza interpersonale anche quando si è in ginocchio. Trovo interessante notare che laddove si fa riferimento ai responsabili dei luoghi di culto, nel protocollo con le comunità islamiche e in quello con le comunità religiose di tradizione “orientale” si specifica, tra parentesi, “uomini e donne”. L’Islam italiano quindi riconosce una posizione di responsabilità alle donne. Forse qualcuno si stupirà. 

     Ma la Chiesa cattolica è stata privilegiata, secondo Lei?

La Chiesa cattolica ha scelto di seguire una strada bilaterale, che in un certo senso descrive la sua specificità. Essa è ancora la religione della maggioranza degli italiani, e in termini culturali la Chiesa cattolica si percepisce un po’ come un’istituzione paritaria rispetto allo Stato, che a sua volta fatica a conquistare una piena laicità. Non è stata privilegiata, e penso che questo suo isolamento costituisca un problema per la sua stessa autopercezione. Del resto, il papa ha aderito alla giornata di preghiera e digiuno proposta dall’Alleanza per una fraternità universale proprio l’altro ieri. In molte piazze italiane vescovi, rabbini, imam e pastori si sono raccolti insieme. La via del dialogo comune è senz’altro vincente. Anzi, dovrebbe essere estesa alle organizzazioni atee e umaniste. 

E per le confessioni religiose che non hanno voluto (come i Testimoni di Geova) o potuto sedersi al tavolo e, quindi, non hanno sottoscritto il protocollo sanitario, che cosa avviene?

In termini di principio anche le comunità che non hanno sottoscritto questi Protocolli sono autorizzate a svolgere le loro celebrazioni osservando le medesime precauzioni sanitarie. La libertà religiosa è un diritto costituzionale che non dipende dagli accordi sottoscritti con lo Stato. Qui si tratta di fronteggiare un nemico comune, che è il virus. In ogni caso, eventuali comunità che non sono state parte di questo processo possono certamente avviare adesso un dialogo istituzionale col Viminale. Può essere l’occasione per impostare durante l’emergenza una relazione che potrà essere utile anche in seguito. 

Un’ultima domanda. È quindi proprio il Viminale l’istituzione statale preposta al dialogo con le religioni?

Al Viminale siede la Direzione centrale per gli affari di culto, che è parte del Dipartimento per l’immigrazione e le libertà civili, che da sempre si occupa di questioni religiose. Per la verità, la sede più opportuna sarebbe la Presidenza del Consiglio, che ha competenza in materia di rapporti con le confessioni religiose. Il governo però non ha molto curato la politica ecclesiastica. Da oltre due anni siamo in attesa della nomina delle Commissioni preposte a questa incombenza. L’emergenza ci mette di fronte problemi che spesso derivano dalla mancanza di adeguata manutenzione ordinaria, e questo è uno dei casi in questione. Speriamo che si provveda presto: sarebbe tutto più facile.   

(*) Assegnista di ricerca in Diritto ecclesiastico e canonico presso l’Università “Magna Graecia” di Catanzaro.

Forbidden Pilgrimages during Covid-19 Pandemic

by  Maria Luisa Lo Giacco *

mail: marialuisa.logiacco@uniba.it

  1. Pilgrimages in various religions

The pilgrimage is a universal form of worship. All world’s religions have places, which we may define “sacred”, to where believers go to pray, sometimes also to ask for healing or for protection by a disease[1].

In the Jewish tradition, pilgrimage appears as an obligation since the destruction of the Temple, that occurred in 70 A.D. by the Roman troops. In the Bible we can read that through Moses God said to his people to go to Jerusalem Temple to honour him three times a year, during the main holidays. Archaeologists recently unearthed a stretch of the ancient pilgrims’ road, which dates back over two thousand years and which connected the Siloe swimming pool to the Temple[2]. The mandatory pilgrimages ended with the destruction of the Temple, but voluntary pilgrimages continue to the present day: the believers reach Jerusalem in order to pray where the temple stood. In 2019, nearly one million Jewish pilgrims traveled towards Israel.

The pilgrimage spread among Christians, already in the early centuries. Egeria (or Eteria), a roman pilgrim, in the IV-V century described in a Diary her pilgrimage to the Holy Land. Before her, in the third century, Eusebius of Caesarea described in his books the pilgrimages of believers that wanted to see with their own eyes the places where Jesus had lived. In the same period, believers became pilgrims to Rome, visiting the places of the martyrdom of the Apostles Peter and Paul. In the Middle Ages, shrines became important not only from the religious point of view, but also from the economic and cultural one, and pilgrimage became a particularly heartfelt expression of the Christian faith. Some pilgrimage routes were drawn, for example the Via Francigena, or via Romea, and the Camino of Santiago. The spirituality of the pilgrimage has come down to our days. The twentieth century witnessed a great flowering of shrines and pilgrimages, and the Popes themselves have given an example by making pilgrimages in many parts of the world. Unesco has declared several religious itineraries as a World Heritage Site.

In the Islamic faith, pilgrimage is particularly relevant. In fact, the pilgrimage to Mecca constitutes one of the five duties of the faithful, obligations which characterize membership in the Umma. This ritual pilgrimage must be done during the sacred month (dhu al-Hijjah), though it is possible to visit Mecca all year round for a minor pilgrimage (Umrah). Among the rituals that pilgrims must do in Mecca one is closely linked to diseases: pilgrims go to the source of Zamzam, whose water is believed to be therapeutic, to drink it and take some with them when they return home. Islam also has other sacred places. The Shiites venerate some saints, and they go on pilgrimage to pray on their graves, as in the city of Karbala (Iraq). Pulau Besar, in Malaysia, holds some sacred sites that sufi pilgrims reach by ferry.

The pilgrimage is also practiced by the Hindu believers: in India the Char Dam Yatra road leads pilgrims towards four sanctuaries and it reaches the sources of the Ganges river[3]. Buddhism also has its places of pilgrimage, linked to the life of the Buddha (birth, awakening, first speech and death). In Japan, the pilgrimage route called Kumano Kodo leads to an important Shinto shrine: it has been listed in the UNESCO World Heritage Site since 2004[4].

2. Pilgrimages and the spread of Coronavirus

The Coronavirus pandemic, which affected the whole planet, involved also pilgrimages, for several reasons. During the first weeks, when the extent of the infection and its dangerousness were still not completely clear, some pilgrimages became a vehicle of infection. In Iran, during the first days of March, pilgrims in the Shiite holy city of Qom gathered in the sanctuaries and, showed their reverence for the bodies of the saints kept there, kissing and licking the doors of the sanctuaries and the walls of the tombs, as an ancient custom suggests to do.[5] In the following days Qom became one of the areas most affected by the epidemic, and Iran one of the countries of the world with the most infections.[6] In Italy chronicles report that the first 5 contagions recorded in Trentino in early March are related to a pilgrimage, since the infected people had all travelled by bus to Assisi, together with a friar later identified as the patient zero of the region.[7]

Just to avoid the risks of spreading the virus, pilgrimages, like the other acts of worship that involve gatherings of people, were immediately suspended by all religions. Particularly relevant was the decision of the Saudi authorities, under whose jurisdiction the holy places of Islam are located, to stop pilgrimages to Mecca, both the voluntary ones, and the great annual pilgrimage, which in 2019 had seen 1,800,000 pilgrims gathering from all over the world.[8] This year the Hajj should have started in late July, but the Riad government has decided to suspend it several months in advance. It is an exceptional event, although not unique in history. Over the centuries it occurred several times that an epidemic spread during a pilgrimage to Mecca.[9] In 1865 a cholera epidemic killed 15,000 of the 90,000 pilgrims, arriving then in Europe through some of them.[10] In 2014 the Saudi government has not granted entry visas for the ‘Hajj pilgrims coming from Guinea, Liberia and Serra Leone, countries that were afflicted at that time by an epidemic of Ebola.[11] In general, the risk that such a large crowd could constitute fertile ground for the spread of infectious diseases has long led, in the Saudi authorities, to the decision to impose an obligation on all pilgrims to present, when booking the trip, a certificate of vaccination against meningitis and seasonal flu, and a certificate of good health. Even in Iraq authorities stopped pilgrimages to Karbala and promoted the disinfection of the sanctuaries.[12]

In mid-March, Indian Prime Minister invited Sikh faithful not to go on pilgrimage to the Pakistani shrine of Kartarpur Sahib, closing the borders.[13] In Tunisia, the Jewish pilgrimage to Ghriba, the oldest African synagogue, which was supposed to be held in May and which traditionally gathers thousands of pilgrims from all over the world, has been cancelled.[14]

As for Catholic pilgrimages, in addition to the impossibility to visit Rome (11,000,000 visitors went to St. Peter’s in 2019), pilgrimages to the Holy Land were cancelled (in 2019 630,000 visitors), in Lourdes (about six million every year), in Santiago de Compostela (347,578 pilgrims in 2019) and in all the other shrines, more or less known. On April 24, Belgian directors of organizations treating the trips to Lourdes decided to cancel all pilgrimages, until the end of August, because of “the poor health of many pilgrims”.[15]

These numbers not only tell us how the impossibility of visiting holy sites constitutes a limitation to freedom of expression of the popular religiosity, but they also show us how the suspension of pilgrimages, and in general the blocking of religious tourism, will create a negative effect on the economy.

3.After Covid-19, will pilgrimages also change?

The decision to suspend pilgrimages, together with all other collective acts of worship, finds its justification both in Jewish law and in Islamic law. In fact, in the Talmudic tradition, in addition to the duty to protect one’s own and others’ health, there is a teaching that concerns epidemics. We read: “When pestilence is in the city, stay inside”, which means that, in the event of an epidemic, you must not leave the house. The provisions that impose quarantine are therefore considered compliant with Jewish law, and also the suspension of pilgrimages is therefore justified. It should also be remembered that compliance with state regulations is itself a religious obligation, even more when this obligation tends to protect health and life.[16]

Even Islamic law knows provisions relating to the prevention of contagion in the event of epidemics. An “hadith” of the Prophet Muhammad prescribes: ‘If there is a pestilence do not go to a land, if the land where you are is affected by a pestilence do not get out of it’.[17] On this basis, the Italian Islamic Association of Imams and Religious Guides has published recommendations.[18]
We can therefore conclude that both Judaism and Islam know quarantine in their tradition (and therefore also the suspension of pilgrimages).

The Coronavirus epidemic instead introduces a change in the meaning of pilgrimage for the Catholic Church. In fact, the popular religiosity of Catholics, precisely in cases of danger and epidemic, resorted to intercession, processions and pilgrimages. The sick seek comfort and healing in prayer. Many pilgrimages were born, and still today they are made, to ask for a healing, or to thank for the recovered health.

In the Middle Ages, the practice of incubatio spread: the sick settled in the sanctuary where they had come as pilgrims, they slept and stayed all day in prayer until they recovered. One of the most well-known sanctuaries among those where sick people go is in Lourdes, France, but there are many, and not only in Europe.

Some sanctuaries guard the memory of saints who have been venerated for centuries just as protectors from epidemics. The chronicles say that in 1624 Saint Rosalie saved the city of Palermo from the plague. Saint Roc is always depicted with a plague sign on one leg, while it is said that Saint Rita dedicated herself to the care of the plague victims.

Prayer to a patron saint has always been considered a weapon of defence against epidemics; perhaps the most effective weapon in the past, when medical science did not have the treatments and the means of disease prevention that we have today. In the early days of the pandemic in Italy, an article on saints to be invoked during the epidemics appeared in the online version of the Catholic newspaper “Avvenire”.[19]

A trace of this tradition is also in the powerful image of Pope Francis who, in a deserted Rome, went alone on foot – precisely, on pilgrimage – to venerate the image of the Madonna Salus populi romani, kept in the Basilica of Santa Maria Maggiore; then he went to pray in the church of San Marcello al Corso where an ancient crucifix is venerated because, according to the tradition, it saved Rome from a plague epidemic.[20] The two images were then brought to Saint Peter’s Square, where they were placed as background during the exceptional intercession prayer of March 27, and there they stayed during the celebrations of the Easter Triduum.

The pilgrimage has always been a typical form of religious expression, with a strong therapeutic meaning, which in the case of the coronavirus pandemic seems to have given way to the advantage of a prevailing precautionary attention, which has led to the prohibition of pilgrimages themselves. These decisions will probably change the attitude of the faithful towards these forms of prayer. It is possible that after Covid-19 the way the faithful will consider the places of popular piety will never be the same.


* Associate Professor of Law and Religion at the University of Bari (Italy). 

[1] See M.L. Lo Giacco, Pellegrini, romei e palmieri. Il pellegrinaggio fra diritto e religione, Bari, 2008; Id., Pilgrimages: Law and Culture in Multicultural Societies, in AIMS – Geosciences, 2016, n. 2, pp. 231-244.

[2] Y. Katz, New Discovery in Jerusalem’s City of David: 2,000-year-old pilgrimage road, in The Jerusalem Post, June 30, 2019 https://www.jpost.com/Magazine/Ascending-a-2000-year-old-Pilgrimage-Road-593766

[3] See informations regarding the road in https://www.hinduismtoday.com/modules/smartsection/item.php?itemid=5929

[4] https://whc.unesco.org/en/list/1142/

[5] The news, reported by the New York Post, is also on the Diresom website (https://diresom.net/2020/03/02/ranians-licking-religious-shrines-in-defiance-of-coronavirus- spread/).

[6] See P. Tamimi Arab, On Secularization and the Coronavirus in Iran, in Religious Matters in an Entangled World – Blogs, 29 march 2020 (https://diresom.net/2020/04/01/on-secularization-and-the-coronavirus -in-iran /

[7] https://www.altoadige.it/cronaca/coronavirus-trentino-in-isolazione-43-pellegrini-e-15-operatori-sanitari-1.2280336 .

[8]The decision was taken at the end of February, just at the beginning of the spread of the epidemic, and firstly concerned only pilgrims coming from infected countries. See C. Giordano, Coronavirus: Saudi Arabia bans all religious pilgrims and foreigners from virus-hit countries, in Independent, February 27, 2020; https://diresom.net/wp-content/uploads/2020/03/coronavirus-saudi-arabia-bans-all-religious-pilgrims-and-foreigners-from-virus-hit-countries-the-.pdf. Just a few days later, on March 4, 2020, the Saudi government decided to suspend pilgrimages altogether; see the news in https://diresom.net/wp-content/uploads/2020/03/coronavirus-larabia-saudita-sospende-i-pellegrinaggi.pdf

[9] See C. Gagliardi, The caution Saudi health emergency in time, in Diresom Papers, May 1, 2020. https://diresom.net/2020/05/01/saudi-arabias-caution-in-times-of -health-emergency /

[10] See M. Buitelaar, The Hajj in Times of Epidemics, in Religion and Diplomacy, April 1, 2020. https://religionanddiplomacy.org.uk/2020/04/04/the-hajj-in-times-of-epidemics/

[11] See U. Siddiqui, Epidemics, war have impacted Muslim worship throughout history, in Aljazeera.com, April 23, 2020. https://www.aljazeera.com/news/2020/04/epidemics-war-impacted-muslim-worship-history-200420210254391.html

[12] See the news in https://www.lapresse.it/esteri/iraq_il_coronavirus_blocca_il_turismo_religioso_kerbala-2521296/video/2020-03-27/

[13] https://www.newindianexpress.com/world/2020/mar/15/in-view-of-coronavirus-outbreak-pakistan-suspends-pilgrimage-to-kartarpur-sahib-2116987.html

[14] https://www.lefigaro.fr/international/coronavirus-en-tunisie-annulation-du-pelerinage-annuel-juif-de-la-ghriba-prevu-en-mai-20200421

[15] See the news in https://www.cathobel.be/2020/04/annulation-de-tous-les-pelerinages-a-lourdes-cet-ete/

[16] See E. Martinelli, Il Talmud insegna: “Se in città c’è una pestilenza, ritira i tuoi passi” (Bavà Qammà 60), in Diresom Papers, April 10, 2020,  https://diresom.net/wp-content/uploads/2020/04/martinelli_talmud_ita.diresom.pdf

[17] See V. Fronzoni, From social distance to Muslim solidarity proximity at the time of Covid-19, in Diresom Papers, April 30, 2020, https://diresom.net/wp-content/uploads/2020/04/fronzoni-muslim-social-distance.pdf

[18] The document in https://diresom.net/2020/03/05/raccomandazioni-e-istruzione-dellassociazione-islamica-italiana-degli-imam-e-delle-guide-religiose/

[19] R. Maccioni, La devozione. I santi da invocare contro l’epidemia, in Avvenire.it, March 7, 2020, https://www.avvenire.it/chiesa/pagine/santi-da-invocare-contro-l-epidemia

[20] Pope Francis’ twin prayers for an “end to the pandemic”, in Vatican News, https://www.vaticannews.va/en/pope/news/2020-03/pope-francis-mary-prayer-crucifix-coronavirus.html

The «Charter of the new alliance of virtue» facing the Covid-19 emergency

by Antonio Fuccillo

fuccilloantonio@gmail.com

1.- The «Charter of the new alliance of virtue»

Scholars and religious leaders that signed «The charter of the
new alliance of virtue» – in Abu Dhabi on December 2019 – share the statement that religious freedom belongs to the ontological status of the human being[1].  The sponsor of the Forum for Promoting Peace in Muslim societies, and especially his leader H.E. Shaykh ‘Abdallah Bin Bayyah,Chairman of the United Arab Emirates Fatwa Council and President of the Forum, suggest that Abrahamic religions can support a new wide view on religious relations offering a helpful way to overcome the barricades of intolerance. According to this statement, the Abrahamic family can live together having common and distinct theological and ethical traditions, each of which values human virtues, and each of which requires peace and mutual respect and tolerance in order to flourish. This is an important affirmation to confirm the necessity of religious cooperation to overcome differences and to aim towards tolerance and respect as mankind goals.

The Charter includes the important affirmation, that is: «another is rights that exist prior to the state and inhere in each human being by virtue of his or her existence. Such rights are typically understood as deriving from a greater-than-human source, such as God or nature, for the believer or non-believer. These rights must be acknowledged and protected by any just state. They should be understood as necessary to human dignity, as well as social flourishing. It is also mean that religious freedom occurs to the human race like a fundamental right». This is directly linked to human dignity, and in this perspective, it states that «All people, irrespective of their diverse races, religions, languages, and ethnicities, by virtue of the divine soul breathed into them, are endowed with dignity by their Omnipotent Creator». 

2.- The new borders of religious freedom, tolerance and respect.

All societies must preserve freedom of conscience and religion or belief. It is the responsibility of the State to protect religious freedom, including diversity of religions, which guarantees justice and equality among all members of society[2]. It is important to support the idea that there is no compulsion in religion.

Tolerance is the central theme of the Abu Dhabi Chart. The beliefs of others must be legally protected and culturally respected; differences should be seen as a source of enrichment, not as a conflict. These are the new borders to be torn down in terms of religious freedom.

The believers have the right to exercise their worship individually and collectively, and they have also the right to participate in the rites of their religion, and to manifest their faith. This freedom is guaranteed by the constitutions in many countries around the world, and by the most important international charters of rights (e.g. art. 9 of the ECHR). The coronavirus pandemic that has hit humanity, has led to huge compressions of the rights of the faithful all over the world. These limits to religious freedom have a deep impact to all mankind lifestyle.

 People cannot participate in collective rites and attend to worship activities, because they are potential vehicles of contagion. At the same time, many limitations have been placed on access to religious buildings, and place of worship, sometimes substituted by ceremonies carried out on the web.

The new Alliance of virtue has been inspirited by the Marrakesh Declaration, a document signed by many scholars, personalities, intellectuals and religious leaders from all over the world[3]. The Marrakesh Declaration is not simply a formal statement of principles, since it aims to give practical advice on actions to achieve social cohesion using a bottom-up model, which implies an expanded concept of citizenship and no law enforcement by the State, as the “state religion”[4]. The teachings of the religions and their rules of behaviour are decisive for this path. The method outlined by the Marrakech declaration proves valid, and on these principles the teachings of the New Alliance of Virtues are more concretely applicable and ready to overcome new challenge.

3.- Faith deprivations in Covid-19 emergency. A new challenge for religious authorities.

The impact of deprivation is very serious for the faithful of the religions. For Christians the deprivation of religious activities was then particularly suffered given the concomitance with the “holy week” and the Easter rites. All Catholics in the world will remember upset the images of the Pope in their hearts in an empty Piazza San Pietro delivering the Urbi et orbi blessing on March 27th, Palm Sunday, the Via Crucis, the Mass of the resurrection. For Muslims all over the world the pandemic limitations fall during the holy month of Ramadan. They also had to suffer many limitations in regard to the Friday’s prayer.

Religious authorities demonstrated an uncommon sensitivity in specifying alternative ritual paths to the faithful, accepting the limitations imposed by governments, well aware of the risks of spreading Covid-19. The principle of State-religions cooperation in defence of the health of citizens-faithful has been filled with new values. In that way, the Fatwa council of UAE clarifies that Al Fitr prayers should also be performed at home if mosques remain closed[5].

The religious authorities’ behaviour is even more appreciable, as the ordinances of the national and regional governments   limited people’s religious freedom, that is one of the primary rights to be protected. These restrictions also invaded matters within the competence of the ecclesiastical authorities.

In this field is really important to verify the correct balance of the constitutional values. Restrictions on stakeholder’s religious freedom are perhaps possible. In these prospective a light compression of liberty of worship is almost possible especially in relation to people’s right to health and in defence of public safety. All of these prohibitions are allowed only if it is contained within a well-defined and certainly not excessively long space-time limit, and in strict compliance with the hierarchy of sources of law.

By the way, it is clear that effective cooperation of States with religious authorities is the best way to achieve this important result.

The global pandemic indeed requires an effort from society as a whole in order to prevent the transmission of the virus.

Despite the assumption of secularism of the public sphere, the relationship between religion and law is still present in the daily practice of interpreters of principal law systems. Religious rules apply sometimes directly through the activity of religious courts, sometimes indirectly through a religiously oriented application of legal rules[6].

In this context, religions acted in a double way. From one side, in order to protect the individual and public health, religious denominations encouraged the faithful to practice autonomously and issued a worldwide suspension of all rites, observances and pilgrimages[7]. At the same time, religious leaders have turned to online platforms and apps to ensure religious services to their communities[8]. The pandemic also strengthened inter-religious dialogue as demonstrated by joint statements of religious leaders and interfaith moments of prayer[9].

It is then more than clear that the sensitivity of religions is what has made this really possible; especially in regard to the preservation of the rights of the faithful from undue invasions caused by political power.

The sufferings of the faithful for the deprivations of their right to access worship activities, was felt by many important religious leaders. The problem is most evident as many laws prevent the use of places of worship and prayer, but maybe the faithful might still be able to access them in compliance with the security protocols. There is also a difficulty to get their holy place also due to the limits of the permitted travel.

4.- The Statement of Solidarity of the New Alliance of Virtue.

Religions are withstanding the exceptional difficulty of the moment and, at the same time, inviting the faithful to demonstrate their faith through concrete acts of solidarity, as promoted by the Forum for Promoting Peace in Muslim Societies, which produced the important document called “a Statement of Solidarity of the New Alliance of Virtue”[10] shared by eminent personalities belonging to various religious denominations. It contains essential references to the unity of mankind, the solidarity and harmony of the “Abrahamic” religions in the defence of each “soul”.

It states that «In this extraordinary moment, we invite believers to reflect on a number of points: First, in the face of the blows of fate, we must contemplate human fragility and seek strength and mercy from God with the hope that God may grant us success and guidance in our efforts to overcome adversity and crisis». It also contains an important admonition to all mankind: «this virus, which does not recognise territorial boundaries or distinctions between races, or between the rich and the poor, is an opportunity for us to remind ourselves of human equality and to take to heart and remember the teaching of our Abrahamic religions that every soul—whoever that soul may be —represents all of humanity. Our religions oblige us to seek the safety, well-being, and protection of every soul from all forms of harm, whether they be epidemics, pandemics, oppression, or wars».

This document also includes the important results recently achieved on the front of inter-religious dialogue.

Faced with the pandemic emergency, the Churches responded with a great sense of responsibility in the core moment of their tradition. The recommendation to the faithful is placed in this perspective to follow up their rituals «as we are in the midst of Easter and Passover and approaching the holy month of Ramadan, we recommend following the instructions and guidance which best ensures the preservation of lives and the maintenance of the public good». The success of the fight against the disease it is up on them and their conduct.

It is necessary to use the prudence of the jurist however, to prevent that a “suspended faith” from being transformed into “forbidden faith”.

The religious freedom of individuals and groups can shape and adapt in the balance with other fundamental human rights, but it can never completely move back or worse disappear.


[1] The document is available on the website here.

[2] Fuccillo A., 2018, Legal-economic Koinè and the Religious Nomopoiesis, in «Calumet – Intercultural law and humanities review», On-line Review (www.calumet-review.it), 1-20.

[3] The document is available on the website http://www.marrakeshdeclaration.org/.

[4] Fuccillo A. (Ed.), 2016, The Marrakech Declaration. A Bridge to Religious Freedom in Muslim Countries?, Napoli: Editoriale Scientifica.

[5] UAE’s fatwa on fasting and prayers in Ramadan 1441, 19 April 2020, which rules that « the Taraweeh prayers will not be allowed in mosques during Ramadan. They could be performed individually at home, or the male family member who has the most responsibility for taking care of and making decisions about the household may lead the prayer for his family by either reciting the Quranic verses or reading from the Quran. The council warns against congregating to perform prayers, as this could endanger lives. It stresses that performing Friday prayer is not permissible during the suspension of mosque services. Instead, Muslims should perform their Dhuhr (noon) regular prayer at their homes; if the pandemic continues until the time of Eid Al Fitr, people may perform Eid Al Fitr prayer individually at their homes or in a group with their respective family members without a sermon».

[6] Fuccillo A., Sorvillo F., Decimo L., 2017, The courts and the code. legal osmosis between religion and law in the cultural framework of civil law systems, in «Stato, Chiese e pluralismo confessionale», On-line Review (www.statoechiese.it), n. 28.

[7] I.e. Holy Week rituals organised by the Catholic Church in the Vatican City were closed to public for the first time in history – https://bit.ly/3bpNZ0l -; Saudi Arabia suspended the entry of pilgrims for the Umrah – https://bit.ly/3aw1GcR -)

[8] I. e.  the Ahmadiyya Muslim Jama`at Canada launched a virtual Ramadan campaign – https://bit.ly/3bv7Ivr -).

[9] I.e. religious leaders from around the world held a virtual interfaith moment “for hope and solidarity,” organized by the NGO ‘Religions for Peace’ – https://bit.ly/3eEA7S5 -To learn more: https://bit.ly/2VODq0f.

[10] The document is available on the website here.