The contents of this document are the sole responsibility of the author and do not necessarily represent the views of CCADD.

 

 

CCADD International Conference, Smolenice,

 25-29 August 2006

 

Is democracy possible without separation of the state

 from religious affiliations?

 

by Hugh Beach.

 

The separation of church[i] and state is a political doctrine which says that the institutions of the state or national government should be kept separate from those of religious institutions. It has been a topic of political debate throughout history. The arrangements governing the relations between religious and state institutions cover a wide spectrum, ranging between one extreme which would secularize or eliminate the church, and theocracy, in which the government is an affiliate of the church.

 

A secular government does not base its authority on any specific religious institution. However, some secular governments claim quasi-religious justifications for their powers, emphasizing the relationship mainly for ceremonial and rhetorical purposes.[ii] This is done for the general welfare and the benefit of the state. It does not necessarily favor any specific religious group, and the state does not conform to any doctrine other than its own. Some secular governments allow the state to encourage religion, for example by providing exemptions from taxation, or providing funds for education and charities, including those that are ‘faith based’, but insist the state should not establish one religion as the state religion, require religious observance, or legislate dogma.

 

The opposite end of the spectrum from secularization is theocracy, in which the state is founded upon the institution of religion, and the rule of law is based on the dictates of a religious court. Examples include Saudi Arabia, Iran and the Vatican. In such countries state affairs are managed by religious authority, or at least by its consent. In theocracies, the degree to which those who are not members of the official religion are to be protected is decided by professors of the official religion, and ordinarily the civil rights, or restrictions of rights of the unfavored group are defined in terms of that religion.[iii]

 

The separation of church and state is similar to the concept of freedom of religion, but the two ideas are not the same. For example, the citizens in a country with a state church may have complete freedom of religion. And citizens in a country without a state church may or may not enjoy the freedom to practice their religion. While many states or nations permit freedom of religious belief, no country allows completely unrestricted freedom of religious practice. National laws, when they reflect important or fundamental human rights, may prohibit acts which some citizens may claim represent the free exercise of their religious belief. Polygamy and human sacrifice are obvious examples.

 

The question to be addressed by this paper is to what extent democracy requires the separation of church and state. Many Western democratic nations place a high importance on the separation of these institutions. In the United States, for example, the First Amendment of the Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Other democracies, such as the United Kingdom, have a constitutionally established state religion, but are inclusive of citizens of other faiths. In countries like these the head of   state, or other high-ranking official figures, may be legally required to belong to a given faith. Powers to appoint high-ranking members of the state churches are also often still vested in the secular government. But these arrangements disguise the true level of separation that the nation enjoys.

 

To throw more light on the connection between the separation (or lack of it) between church and state and the proper functioning of democracy we shall examine five case studies, two of them Muslim countries - Turkey and Iran; and two of them Christian - Poland and France. They have been chosen to show widely differing degrees of entanglement between religion and politics and the ways in which democracy is enhanced or impeded in consequence. We look briefly at the recent history of Algeria to show how denial of the democratic process in order to protect the state against Islamic fundamentalism resulted in a long and bloody civil war; and how this was only resolved by measures to get both the army and the Islamists out of politics. Finally we examine England as a country still struggling after many centuries to reconcile the conflicting needs of democracy and established religion.

 

Some historical antecedents.

 

First, however, we look at some historic attitudes to this question. The Book of Samuel recounts that, when the sons of Samuel became corrupt, taking bribes and perverting justice, the elders of Israel asked Samuel to appoint a king to govern them ‘like all the nations’. Samuel was horrified and resorted to prayer. God told him to heed the voice of the people but to warn them of the consequences. Samuel did so in the following terms:

‘These will be the ways of the king who will reign over you: he will take your sons and appoint them to his chariots and to be his horsemen and to run before his chariots; and he will appoint for himself commanders of thousands and commanders of fifties, and some to plough his ground and reap his harvest and to make his implements of war and the equipment of his chariots. He will take your daughters to be perfumers and cooks and bakers. He will take the best of your fields and vineyards and olive orchards and give them to his servants. He will take the tenth of your grain and of your vineyards and give it to his officers and to his servants. He will take your menservants and your maidservants and the best of your cattle and your asses and put them to his work. He will take the tenth of your flocks, and you shall be his slaves’.

This is a classic theocratic rant on the vices of secular monarchy. But the people refused to listen to Samuel and stuck to their point. Samuel chose Saul, the best looking and far the tallest young man in the smallest tribe (Benjamin), and duly anointed him king.[iv] Under his successor David the power of the Philistines was broken and an Israelite kingdom firmly established, with a ring of states on its borders (like the Phoenicians) either subject to it or at least friendly. This was arguably the most successful chapter in the 3000 year history of the Jews. While there was undoubtedly an element of conscription for military service we do not hear of oppressive taxation or forced labour. So the move away from theocratic government, in response to democratic pressure and assented to by God, seems to have been at least in the short term a great success.

 

 

This story probably refers to events taking place around 1025 to 975 BC. We now fast-forward some 2000 years to the Middle Ages in Europe. The popular Oxford don William of Ockham[v] (1285-1347), a Franciscan friar and last of the great ‘schoolmen’,[vi] had incurred serious Papal displeasure by holding that science and philosophy were totally separate disciplines from religion and neither was admissible of proof by the other. Hence it was useless for scientific enquiry to be to be limited by theological directions from the church or Pope.  In 1324 William was summoned by Pope John XXII to his court at Avignon to answer some 50 charges of heresy. Over the next three years he defended himself vigorously but opinion moved against him. In 1328 he fled, together with other friars, to join the Emperor Ludwig IV at Pisa. Soon William, like the Emperor, was excommunicated.  He spent the last twenty years of his life at the Emperor’s court in Munich where he turned his attention to politics. In particular he examined the papal claim to ‘plenitude of power’. This held that, of the two swords, temporal and spiritual, the latter must always trump the former and the kings of this world must bow to the descendant of Saint Peter: a doctrine which made the Pope the source of all imperial power. William pondered on the powers of the original Roman Emperors, which existed before the coming of Christ, which He himself had recognised[vii], and which seemed to have been conferred directly by God on the Princes of this world, to be exercised for the benefit of those whom they ruled[viii]. He considered also the problem of a sinful or heretical Pope and decided that there were times when the Emperor could and should depose the erring Pontiff in the interests of the whole Christian community. He saw a democratically elected council of clerics and laymen as the ultimate arbiter of Christendom. His views were influential with John Wyclif (1325-1384), anti-papist reformer, and translator of the bible; with John Huss, the Bohemian reformer who died at the stake; and with Martin Luther (1483-1546) who called him ‘my beloved master’. A companion paper by Dr. Ondrej Prostrednik carries forward the story from a Lutheran perspective, with particular reference to the State of Slovakia.

 

The Thirty Years' War was fought between 1618 and 1648, principally on the territory of today's Germany but involving most of the major continental powers, and caused huge dislocation to both the economy and population of central Europe. The resulting deaths from conflict, famine and disease may have been as high as one fifth of the population of Germany, much of it caused by the cruelty and greed of mercenary soldiers. It was from the outset a religious conflict between Protestants and Catholics. It was brought an end by the Treaty of Westphalia, in which it was agreed that each prince would have the right to determine the religion of his own state, (Lutheranism or Catholicism) - the principle of cuius regio, eius religio.[ix] This was furiously attacked by the Vatican. Pope Innocent X condemned the Treaty as being ‘null, void, invalid, iniquitous, unjust, damnable, reprobate, inane, empty of meaning and effect for all time’.[x] In fact the Treaty turned out to be a turning point in the history of Europe. It ensured that subsequent wars were not about issues of religion, but rather revolved around issues of state. And it incorporated four principles widely regarded as the foundations of the modern political system: 1 - The principle of the sovereignty of nation-states and the concomitant fundamental right of political self-determination; 2 - the principle of (legal) equality between nation-states; 3 - the principle of internationally binding treaties between states; and 4 - the principle of non-intervention of one state in the internal affairs of other states. These are the governing principles of the Charter of the United Nations.

As a last historical reference, we consider the philosopher Baruch Spinoza (1633-77), a thinker so far ahead of his time that scientists today, from string theorists to neurobiologists, count themselves among his progeny.  He was born into a community of Jews who had fled the Spanish-Portuguese Inquisition to live in Amsterdam. Spinoza argued that no group or religion could rightly claim infallible knowledge of the Creator’s partiality to its beliefs and practices. In 1656 his community excommunicated Spinoza and at the age of twenty-three he became the most famous heretic in Judaism. For the rest of his life he stayed in or near the city, earning a living by grinding lenses. He completed his magnum opus, the Ethics, the year before he died, having spent much of his time studying the varieties of religious intolerance.  His reaction was to try to think his way out of all sectarian thinking. He understood the powerful tendency in all of us towards a view of the truth that favours the circumstances into which we happen to have been born. Against this we have no defence other than the relentless application of reason. Each of us has been endowed with reason and it is both our right and responsibility to exercise it. Ceding this faculty to others, to the authorities of either the church or the state, is neither a rational nor an ethical option. Which is why, for Spinoza, democracy was the most superior form of government, because only democracy can preserve and augment the rights of individuals. The state, in helping each person to preserve his life and well-being, can legitimately demand sacrifices from us, but it can never relieve us of the responsibility to justify our beliefs in the light of evidence. He argued that a government that impedes the development of the sciences subverts the very grounds for state legitimacy, which is to provide physical safety so that we can realize our full potential. And this is why he argued so strenuously against the influence of clerics in government. Statecraft infused with religion not only dissolves the justification for the state but is intrinsically unstable, since it must insist on its version of the truth against all others. 

Like William of Ockham, Spinoza’s project of radical rationality was to have practical consequences. John Locke (1632-1704) was an exact contemporary of Spinoza’s. Locke spent five formative years in Amsterdam, in exile because of the political troubles of his patron, the Earl of Shaftesbury. Though Spinoza was already dead, Locke must have met people who talked about him. Locke’s library not only included all of Spinoza’s important works, but also works in which Spinoza had been discussed and condemned. Locke emerged from his years in Amsterdam a far more egalitarian thinker, having decisively moved in the direction of Spinoza. He now accepted, as he had not before, the fundamental egalitarian claim that the legitimacy of the state’s power derives from the consent of the governed. He had clearly been influenced by Spinoza’s ideas on tolerance, freedom and democracy. The Declaration of Independence, first drafted by Thomas Jefferson, softly echoes Spinoza. If we can hear Locke’s influence in the phrase ‘life, liberty and the pursuit of happiness,’ (a variation on Adam Smith’s ‘life, liberty and pursuit of property’), we can also catch the sound of Spinoza addressing us in Jefferson’s appeal to the ‘laws of nature and of nature’s God.’ This is the language of Spinoza’s universalist religion, which makes no reference to revelation, but rather to ethical truths that can be discovered through human reason. [xi]                 

These four examples have all argued for the practical benefit of keeping political power out of the hands of prelates. We now examine this thesis in the light of some present instances involving both Islam and Christianity. I have set out the five case studies in Annexes so that readers can pick and mix more readily. You may feel that you already know enough about some of the countries, that you are not much interested in others or that there just too much reading anyway. But I hope you will at least scan them, because there is matter in all of them to cause concern. Here I offer some general reflections.

The title of this essay puts the question: ‘Is democracy possible without the separation of the state from religious affiliations?’  As a highly simplified model one can regard any state system as a triangular one, in which the leadership, the people and the church form three poles with the executive at the centre holding all together. In a healthy state the system exists not for the benefit of the leadership, the church or the executive per se but for the people. Hence the strength of Spinoza’s view that democracy is the best form of government, because only democracy can preserve and augment the rights of individuals. These three poles of the state have somehow to be held not only in their proper positions, and without excessive power in any one, but also in a posture of some tension between them. Excessive power in the hands of the leadership amounts to tyranny, dictatorship or warlordism. Excessive power in the hands of the people leads to mob rule or anarchy. Both of these are disastrous. Excessive power in the hands of the Church, or the fusion of the Church with the leadership, leads to priestly rule or theocracy and Spinoza was right about that too. Hence the danger of ‘religious affiliation’ between church and state referred to in my title. This is not in any way to deny that religion can have a good effect upon the state and its laws, provided that this is exercised through the people by democratic process. What is proscribed is too close a relationship between church and state at leadership level, short-circuiting democracy, and all the more so when that coupling is entrenched in the Constitution.  

Iran (Annex A) is the most egregious instance of fusion between the leadership of church and state. While having the outward forms of democracy, in the shape of an elected parliament and President, its functioning is totally subverted by the position of ‘Supreme Leader’, supported by an intricate web of clerical committees (Assembly of Experts, Council of Guardians, Expediency Council) which leaves all effective power in the hands of the Leader and his close allies. It has much in common with other one-party systems, most notably the former Soviet Union. Such systems normally lead both to ruthless suppression of dissent and a dismal record of human rights abuses at home, together with a militaristic foreign policy and the mischievous encouragement of ideological subversion abroad (in the interests of Communism, Shi’a Islam or whatever). As was the case with the Soviet Union, this system, while outwardly robust, is inherently a bad one, fraught with internal tensions. But, buoyed up as it is by oil wealth there seems no likely prospect in Iran of imminent collapse.

Turkey and France both make a great point of being secular states and this is a great strength. But both are deeply conflicted internally. In Turkey (Annex C) ironically enough, it is the army that regards itself as guardian of Kemalism, Atatűrk’s concept of a secular state. To this end it has carried out four military coups since 1960.  The last of these, the so-called ‘Post-modern Coup’ in February 1997, overthrew the coalition government of Necmettin Erbakan precisely in order to resist the Islamic tendency of his government. There is an obvious danger that the new Chief of Staff, General Yasar Bukanit, may feel tempted to intervene against the Islamist government of Recep Tayyip Erdogan. But this is a dangerous game to play. In Algeria in 1992 the army stepped in to prevent Islamic parties from winning a democratic election. A violent insurgency followed claiming 100,000 lives over the next seven years. According to the Archbishop of Algiers, this clash of civilisations was resolved by dialogue. ‘Society resisted and defeated the extremist interpretation. It is trying with difficulty to re-establish civil concord among the currents of thought because it knows there is no other way’. By 2000 the worst of the violence was over. The Islamist parties had either tacitly abandoned the ideal of an Islamic state or reconciled it with democratic principles. They no longer advocated fundamentalist positions on Islamic law and began to accept equality of the sexes, including women's right to work outside the home and take part in public life. Fundamentalism was now confined to one particular sect called Salafists. So constructive debate on reform between the main political groupings - including Islamists - had become possible. Thousands of Islamic guerrillas gave themselves up.  With the improved security situation, the army saw that it must withdraw from its dominant political position. The re-election of President Bouteflika in April 2004 was peaceful and relatively free and the army stayed in the background. A Charter for Peace and National Reconciliation has just come into force, bringing the civil war to a formal end. It provides money for families of disappeared people and of rebels killed in the fighting, and offers an amnesty to many of those jailed for the killings - provided they were not responsible for massacres, rapes or bombings in public places. It also protects former government death squads from prosecution. Some 40,000 people have applied for amnesty or compensation. But killings continue and there are fears that unless the government allows the Islamists more scope for the kind of state that they desire violence will return. Heaven forbid that Turkey falls into such a condition.

 

In France (Annex D) the problem is quite different. The secularist system, known as Laïcité, designed to keep at bay the Roman Catholic Church, is having to cope with the demands of a large immigrant Muslim population for freer expression of its religious tenets.  And a political system that emphasizes integration rather than multi-culturalism is running into serious problems because the liberty espoused by the state is running aground on the rocks of manifest inequity, both in economic terms and the quality of life in urban banlieues where people of foreign origin tend to live. The government’s response has been to issue a dress code, coupled with stringent measures to keep unrest under control. In the short term it may be that the government must concentrate on economic measures to bring down unemployment and improve conditions of life in the immigrant ghettoes of the great cities. In the longer term they will have to look more deeply into the question of freedom for religious practice - not only in the realm of clothing and adornment but equally of education and worship. For France this will be a tough call.   At a deeper level still France has to come to terms with political Islam as a global phenomenon. It has made a good start by distancing itself from the Americans’ ‘War on Terror’. When it assumes leadership of the United Nations mandated international force in South Lebanon it will find itself confronting Hizbollah head on. Good luck!

 

In Poland (Annex B) the relationship between Church and State is based, according to the Constitution, on the principle of respect for their autonomy, mutual independence and cooperation for the common good. Unlike in France, however, the special position of the Roman Catholic Church is recognized, welcomed and in some ways celebrated. There are said to be more statues of the Pope John Paul II than there used to be of Lenin.  In May, when Pope Benedict XVI paid homage to his predecessor with a visit to Poland, the Poles responded by modestly covering up some of the racier lingerie advertisements along the processional route. ‘What's new in Poland is that political parties want to express their Catholicism,’ according to Pawel Spiewak, a Polish sociologist and expert on right-wing politics. ‘A few years ago, a typical Pole was Catholic in his private life. Now he's expressing it openly and wants to express it as public policy. It's atypical for Europe.’ It is also highly dangerous if, after the lurch to the political right of the Kaczynski brothers, Poland turns its back on the European Union and comes to be tarred with the brushes of xenophobia and anti-Semitism. Maciej Zieba, a Dominican priest and leading social thinker puts the point admirably. Poland's place, he said, is not to lead the charge in a culture war but to show, simply, that a modernizing society and strong democracy also can have a deep Christian faith. ‘Faith is not an ideology.’ he said. ‘Faith has to inspire people, to offer them possibilities’.[xii]              

That is a good note on which to end. I cannot do so, however, without a short word about my own country, England. According to John Bright ‘England is the mother of Parliaments,’[xiii] and one could regard it as a prototype of democracy. (It is also famous for having no written Constitution). But the Church of England is an ‘Established Church’. This is a technical term, meaning that the Church has a special legal position within the state and is not simply a voluntary society in the eyes of the law. At first sight this appears to contradict the thesis that democracy requires the separation of the state from religious affiliation. But as I said at the outset, its powers may be slightly anachronistic or superficial and disguise the true level of separation that the nation enjoys.

The first British Primate, Augustine, arrived in 596 AD. In 973 his successor, Dunstan, anointed the first King of all England, Edgar I, in the first State Coronation ceremony, from which the Coronation service used for Queen Elizabeth II was directly derived. [xiv]. Since then the Church and State have been closely intertwined. The Sovereign has the title ‘Supreme Governor of the Church of England’ (chosen by Queen Elizabeth I) and is anointed and crowned by the Archbishop of Canterbury, whose duty this has usually been since the Norman Conquest. Bishops are appointed by the crown on the advice of the Prime Minister and 28 of them are included as of right in the upper house of Parliament. The Church Commissioners, who manage the church’s investments, include six holders of state office (including the Prime Minister) and are accountable to Parliament. The laws of the Church are part of the laws of England and changes to them often require the amendment of Statute Law. One in four primary schools in England are church schools. The local vicar or rector has responsibilities towards all the dwellers in his parish and even many non-believers look to the Church to provide rites of passage such as baptisms, weddings and funerals. In all these ways the Church of England could reasonably be described as a state church. Anglicanism is certainly a national religion. But in all the arguments about disestablishment, it has never been suggested that the Church hierarchy was exercising improper influence upon the secular policies of government.[xv] In other words the existence of an ‘Established Church’ does not in itself involve a degree of religious affiliation that would impede democracy.

The conclusion is simple if unsurprising. A theocratic system as in Iran, in which the apparatus of state is wholly fused with or subservient to the religious hierarchy, can totally stifle democracy. The existence of a national church, as in England, does not need to. But the lines are always shifting. Even explicitly secular states like France and Turkey are finding the problems of religious political power-seeking increasingly difficult to cope with. Poland, a young democracy, needs to be wary of tipping towards a position where the Catholic Church has undue political influence, bearing the ugly fruits of racism and anti-Semitism.  It is all a matter of degree. But in principle the thesis holds, that a functioning democracy requires a degree of fencing off from ‘religious affiliations’.  This line needs continuously defending. Interesting aspects for discussion at our meeting will include the position of the religious ‘right’ in countries such as the USA and Israel.

Annex A

Iran

Iran has a population of some 70 million, and a literacy rate of almost 80 percent. The major ethnic groups consist of Persians (51%), Azeris (24%), Gilaki and Mazandarani (8%), Kurds (7%), and Arabs (3%).[xvi] The majority of the population speaks one of the Iranian languages, including the official language which is Persian. The spread of broadcast media, central education system, and migration to larger cities means that most Iranians speak and understand this language.

 

Most Iranians are Muslims: 90% are Shi'a, which is the official state religion, and about 9% are Sunnis many of whom are Kurds.[xvii]  Zoroastrians, Jews and Christians are officially recognized and protected, and have reserved seats in Parliament. In contrast the Bahá'í faith, the largest religious minority in Iran, is not officially recognized, and has been persecuted during its existence in Iran.[xviii]

Early in World War II Britain and the USSR invaded Iran, mainly to secure Iran's oil resources and a supply corridor for themselves. They forced the Shah to abdicate in favor of his son, Mohammad Reza Pahlavi, who they hoped would be more supportive. In 1953, following the nationalization of the Anglo-Iranian Oil Company, Prime Minister Mohammed Mossadegh, having been democratically elected, tried to persuade the Shah to leave the country. The Shah refused, and formally dismissed the Prime Minister. Mossadegh also refused to leave, and when it became evident that he was going to fight, the Shah fled to Baghdad and on from there to Rome. Massive protests broke out across the nation. Anti- and pro-monarchy protestors clashed violently in the streets, leaving almost 300 dead. The military intervened and pro-Shah tank regiments stormed the capital and bombarded the prime minister's official residence. Mossadegh surrendered and was arrested on August 19, 1953. He was tried for treason, and sentenced to three years in prison.

The Americans and British handed power to Shah Mohammad Reza Pahlavi.  His rule became increasingly dictatorial in the following years, particularly the late 1970s. With strong support from the US and UK the Shah further modernized Iranian industry, but simultaneously crushed opposition from the Shi’a clergy and from advocates of democracy. Meanwhile Ayatollah Ruhollah Khomeini, for many years in exile in Turkey, Iraq and France, was gaining in popularity. Islamists, communists and liberals staged the Iranian Revolution of 1979 and the Shah fled the country, after which Khomeini succeeded in taking power and establishing an Islamic republic.

The Khomeni regime first unveiled a draft Constitution in June 1979. Apart from substituting a strong president on the Gaullist model for the monarchy, this constitution did not differ much from that in force since 1906, and gave the clerics no important role in the new state structure. Ironically it was the parties of the left that rejected this procedure and demanded a full-scale review by a constituent assembly.  An assembly of experts was convened for this purpose which revamped the constitution to establish a state dominated by the Shi’a clergy. This constitution was approved in a national referendum in December 1979, by over 98 percent of the vote according to government figures. The new system established conservative Islamic laws and unprecedented levels of direct clerical rule. The system comprises several intricately connected governing bodies, most of which are appointed. The resultant structure is so elegant that it is worth outlining in full.

The Supreme Leader of Iran, presently Ayatollah Ali Khameni, is responsible for laying out and supervising the ‘general policies of the Islamic Republic of Iran’. The Supreme Leader is Commander-in-Chief of the armed forces, controls the military intelligence and security operations and has sole power to declare war. The heads of the judiciary, state radio and television networks, the commanders of the police and military forces and six of the twelve members of the Council of Guardians are appointed by the Supreme Leader. Like the Pope, the Dalai Lama and the Chief Rabbi of Israel, the Supreme Leader is not subject to popular vote. An Assembly of Experts elects and dismisses him on the basis of qualifications and popular esteem, and is responsible for supervising him in the performance of legal duties. (But see below).

The President, now Mahmoud Ahmadinejad, is the highest state authority after the Supreme Leader. The President is elected by universal suffrage for a term of four years. Presidential candidates must be approved by the Council of Guardians prior to running. The President is responsible for implementing the Constitution and has executive powers, except for matters directly reserved to the Supreme Leader. The President appoints and supervises the Council of Ministers, coordinates government decisions, and selects government policies to be placed before the legislature. Eight Vice-Presidents serve under the President, as well as a cabinet of 21 ministers, who must all be approved by the legislature. Unlike many other states, the executive branch in Iran does not control the armed forces. Although the President appoints the Ministers of Intelligence and Defense, it is customary for the President to obtain explicit approval from the Supreme Leader for these two ministers before presenting them to the legislature for a vote of confidence.

The legislature of Iran is the unicameral Majlis, comprising 290 members elected for four-year terms. The Majlis drafts legislation, ratifies international treaties, and approves the national budget. All Majlis candidates and all legislation from the assembly must be approved by the Council of Guardians.

The Supreme Leader appoints the Head of the Judiciary, (presently Ayatollah Seyyed Mahmoud Hashemi Shahroudi), who in turn appoints the head of the Supreme Court and the chief public prosecutor.  Ever since the 1979 Revolution the judicial system has been firmly based on Sharia Islamic Law. There are several types of courts including public courts that deal with civil and criminal cases, and ‘revolutionary courts’ which deal with certain categories of offenses, including crimes against national security. The decisions of the revolutionary courts are final and cannot be appealed. A Special Clerical Court handles crimes allegedly committed by clerics. The Special Clerical Court functions independently of the regular judicial framework and is accountable only to the Supreme Leader. The Court’s rulings are final and cannot be appealed. In an Iranian court the judge acts as prosecutor, jury, and arbiter; the system is a form of the inquisitorial system. However, according to Article 168 of Iran's constitution, in certain cases involving the media a jury is allowed to be the arbiter. But the judge holds absolute power. All judges are certified in Islamic law, and most, but not all, are members of the ruling clergy.

The Council of Guardians consists of 12 jurists led by Ayatollah Ahmad Jannati. Six of its members are appointed by the Supreme Leader. The head of the judiciary, who is also appointed by the Supreme Leader, recommends the remaining six, who are officially appointed by Parliament. The Council interprets the constitution and may veto Parliament. If a law is deemed incompatible with the constitution or Islamic law it is referred back to Parliament for revision. In a controversial exercise of its authority, the Council has drawn upon a narrow interpretation of Iran's constitution to veto parliamentary candidates.

The Expediency Council has the authority to mediate disputes between Parliament and the Council of Guardians, and serves as an advisory body to the Supreme Leader, making it one of the most powerful governing bodies in the country. All members of this council are directly assigned by the Supreme Leader. Its chairman is Akhbar Hashemi Rafsanjani, also a cleric, who served as President from 1989 to 1997 and is one of Iran’s most influential politicians.

The Assembly of Experts, which meets for one week annually, comprises 86 ‘virtuous and learned’ clerics elected by adult suffrage for eight-year terms. Its chairman is Ayatollah Ali Meshkini. The Assembly elects the Supreme Leader and has the constitutional authority to remove the Supreme Leader from power at any time. Although the members of the Assembly of Experts are elected by public vote, the Council of Guardians (which is effectively appointed by the Supreme Leader) vets the candidates before the election, as it does with the presidential and parliamentary elections. This creates a closed loop of power. In practice the Assembly has never been known to challenge any of the Supreme Leader's decisions and his appointment is effectively for life[xix].

We thus return full circle. It is clear that the Iranian system is a classic Muslim theocracy. Many prominent Iranian reformists have voiced their opposition to the current election laws but have not been able to bring about any changes. One such was Abdollah Noori, the Iranian Minister of Interior for four years in President Hashemi Rafsanjani's first cabinet. He also served as Interior Minister in Mohammad Khatami's first cabinet and became a key ally of Khatami. After less than 11 months he was impeached and then removed by the fifth parliament. He was elected as the chief of the City Council of Tehran, but resigned in order to participate in the sixth parliament.  After a while he was accused of insulting Islamic values and then tried by the Special Clerical Court in Iran. He was convicted of insulting Ayatollah Khomeini, publishing anti-religious materials, disturbing public opinion, insulting officials, and advocating links with the United States. He was sentenced to five years in jail. After four years he was released, but his efforts to reform the system have got nowhere. Shirin Ebadi, the lawyer who won the 2003 Nobel Peace Prize, has been threatened with arrest unless she closes the Center for Protecting Human Rights in Tehran. The center provides free legal representation to journalists, students and dissidents who face prosecution for peaceful assembly and criticizing the government. Ms. Ebadi and the center’s lawyers have represented Iran’s leading dissident, Akbar Ganji. Most recently, Ms. Ebadi has been defending women who say they were beaten and detained by the police for demonstrating for women’s rights in June. One of the center’s co-founders, Abdolfattah Soltani, spent several months in prison last year, and in July drew a five-year sentence on charges of opposing the state and disclosing confidential information to diplomats. He is free awaiting the outcome of his appeal, but there is no timetable for the decision. In the meantime, other prominent Iranians are languishing in prison, among them, Ali Akbar Mousavi Khoini, a former member of Parliament, who was arrested in June as he prepared to take part in the women’s rights demonstration, and Ramin Jahanbegloo, one of Iran’s best-known scholars, who was arbitrarily arrested in April. [xx]

The question of how to fit the Supreme Leader and the President into the theoretical definitions of Head of state and Head of government is hardly useful. While the Supreme Leader lacks crucial attributes of a Head of state (such as the summit position in diplomatic relations) and of a Head of government (a lead role in daily government) his clear ideological leadership resembles that of a single-party leader, the Islamic religion being pre-eminent instead of a political ideology. In this he resembles the party chairman in the Soviet model.  In China the unofficial term Paramount Leader was invented for Deng Xiaoping. In Iran, both de facto and de jure the Supreme Leader's ideological and political authority is, as the title implies, supreme. No room is left for the genuine exercise of democracy.

The struggle between reformists and conservatives continues today through electoral politics, and was a central focus in the Iranian presidential election of 2005 which resulted in the election of Mahmoud Ahmadinejad. Since then, tensions between Iran and the US have got worse, particularly on Iran's nuclear programme, its declared aim to obliterate the State of Israel and its sponsorship of revolutionary movements such as Hizbullah. Ahmedinejad appears to revel in all these things. Iran is today a rising power in the Middle East. Its large market, economic output, industrial potential, and vast oil and natural gas reserves make it central to American geostrategic and energy interests. Over the past two decades, Tehran has nurtured cultural, economic, and political ties with various regional forces, increasingly so with its Shi’ite proxies in Iraq. These ties confirm Iran's regional status, just as they make it more difficult for the US to bring stability to the arc stretching from Afghanistan to Lebanon without the help of Iran.

 In the coming months, Washington will have to look for ways to deal with  Ahmedinejad. A policy of isolation and intimidation will no longer yield results and will serve to further destabilize the Middle East. Hizbullah's tenacious resistance has moreover devalued military power as a deterrent. The war has not only failed to subdue Hizbullah militarily, but has made it politically stronger. US objectives and interests would be better served by giving Iran a vested interest in stability. That means including Iran in a new regional security framework. The US should continue to demand that Iran curb its nuclear activities, abandon support of terrorism, and respect the democratic aspirations of Iranians. The difference would be that with regime change no longer a threat, Iran will be more likely to find reasons to change its course.

Annex B

Poland

Poland has a population of 39 million, 96 percent of them Roman Catholic. It is a multiparty democracy with a bicameral parliament. Executive power is shared by the prime minister, the council of ministers, and, to a lesser extent, the president.

The relationship between the Polish Catholic Church and the Polish state changed dramatically after 1989. The church's influential role in promoting opposition views, its close relationship with Solidarity, and its mediation between factions in the tumultuous 1980s brought it enhanced political power in the post-communist system. In 1989 virtually every significant public organization in Poland saw the church as a partner in its activities and decisions. One result was that when the Parliament began deliberations on a new constitution in 1990, the Bishops demanded that the document virtually abolish the separation of church and state. The new constitution was adopted in October 1997, following a national referendum on the issue. It aimed to strike a compromise between the main forces in Polish society—Roman Catholicism, liberalism and state paternalism. It is generally viewed as having served the country well, though it contains some ambiguities that are occasionally tested in a Constitutional Tribunal. The constitution ‘guarantees’ free healthcare and education, a minimum wage and a range of other social provisions, although in many cases the only route to obtain decent services in practice is by paying for them. Day students at state universities pay no charges, but students taking evening and weekend courses have to pay fees. Although the constitution also guarantees equality between the sexes, there is considerable evidence of discrimination in pay and employment. In addition, the constitution requires the government to combat unemployment and homelessness.

According to this Constitution ‘Churches and other religious organizations shall have equal rights.  … The relationship between the State and churches and other religious organisations shall be based on the principle of respect for their autonomy and the mutual independence of each in its own sphere, as well as on the principle of cooperation for the individual and the common good’.  In practice, however, the autonomy and independence of the Catholic Church has been given a clear priority. Crucifixes hang in both the upper and lower houses of parliament, as well as in many government offices. A large body of legislation has turned some aspects of Catholic doctrine into national laws and reinforced the position of the Church in social life. The first step was to legalise religious instruction in public schools, which happened nationwide at church insistence in 1990 without discussion in Parliament.  Catholic teachers are paid by the State (though the State has no say in the content of their instruction), and church representatives sat on the commission that determined which books qualified for school use. There is a law enforcing respect for ‘Christian values’ in television and radio programmes, which results in many fines being levied on programs deemed offensive. 1990 and 1992, church pressure brought three progressively tighter restrictions on birth control and abortion, although surveys showed that about 60 percent of Poles backed freedom of individual choice on that issue.

Another constitutional provision obliges the government to regulate relations with the Roman Catholic Church in a Concordat concluded with the Vatican. The Concordat was finally ratified in 1998 and duly sanctioned privileges already obtained by the Church. State authorities also provide increasingly generous assistance to the expansion of the Catholic Church. They support a large number of religious publishing houses, grant almost unlimited participation of the clergy in the public media, and sponsor activities of the Papal Theological Academy and theological seminaries. The state-run radio broadcasts Catholic mass on Sundays, and the Catholic Church is authorized to license radio and television stations on frequencies assigned to it - the only body outside the National Radio and Television Council allowed to do so. The government's educational policy has also been partly shaped by the Church. Following its recommendations the Minister of Education decided to withdraw sex education from schools. And parliament rejected a proposal to remove the grades for religious instruction from school certificates. Likewise, the Ministry of Defence has failed to respond to the complaints of soldiers who are forced to practice religion while doing their military service. 

Despite being a relatively wealthy social group, Polish clergy pay minimal income taxes, while their real earnings remain unknown. The Church has been granted numerous tax allowances, reductions and exemptions from customs duties for imported goods.  There is no control of the way such goods are used, so some of them, particularly cars, are sold in the open market for profit. The most dubious privilege is the Church's right to participate in the so-called ‘regulatory proceedings’ where claims for the restitution of property rights are decided. Such claims are often made for real property lost a long time (sometimes centuries) ago and for important public utilities such as hospitals, schools and student houses. Such property is frequently returned to the Church by arbitrary decisions, issued either by individual state officials or by the so-called ‘Property Committee’, one half of which is composed of state officials and the other half of representatives of the Episcopate. The committee's decisions are final: they are not subject to appeal to any higher authority, nor are they subject to any form of social control. In no other post-Communist country is the Church granted the return of property in such a way and on such a large scale. In the Czech Republic and in Hungary, for example, decisions on each individual claim are made by the respective parliaments. 

The strong position of the Catholic Church in Polish politics has also had adverse effects on members of sexual minorities. Recent opinion polls show that homosexuals are the least tolerated minority, even among young people. This attitude is being entrenched by prominent senior officials of the Catholic Church. These have made numerous public statements voicing prejudiced and homophobic opinions and claiming that homosexuality is a form of moral deficiency or disease. Due in part to the Church's influence, the new Polish constitution failed to proscribe discrimination on the basis of sexual orientation. The constitution explicitly defines marriage as the union of man and woman, and Polish law fails to provide for any form of legalised partnership between persons of the same sex. This penalises same-sex couples in areas like tax, pension schemes, and property inheritance. In practice, same-sex partners are not allowed to adopt children.

It is in the area of women's rights, however, and especially of violence against women, that the joint policy of Church and government is most widely seen to be at odds with the standards of the rest of Europe. Women are seen by Polish authorities mainly in the family context, as wives, minders of the sick and, above all, as reproductive units without individual freedoms and rights. Policies affecting them are presented only in the context of the family. Under Jerzy Buzek, who was Prime Minister from 1997 to 2001, a programme to halt violence and work towards equal opportunities for women was suspended; governmental subsidies of contraceptives were scrapped; and a ‘Report on the Situation of Polish Families’ was adopted by the Council of Ministers. This Report expressed concern over the divorce rate and claimed a close correlation between crime and increasing numbers of single-parent families. The authors regarded domestic violence against women as an exaggerated problem, given an inappropriately high profile by the women's press, while the issues of child abuse and incest were ignored. A section on the Vatican Family Rights Charter constituted an integral part of the Report, although the authors admit that the Charter is not a binding international document. In 1999 a further document, the ‘Pro-family Policy of the State’, in similar vein but concentrating more on demography and family health, was adopted by the Council of Ministers. Identifying an economic factor in the decline of marriages and reduction in the number of children, it proposed financial incentives such as tax deductions and affordable housing to reverse the trends. Once more, there was no mention of domestic violence. The long-term goal of this policy was clear, to promote a conservative model of society in general, and of the family in particular.

The first years of the new millennium saw considerable reinforcement of the Church's political and economic position. For example, in June 2001 the law on radio and television was amended to allow various social organisations, including churches, to be granted a broadcasting licence free of charge if they met certain conditions, including the requirement to respect Christian values. Meanwhile the Church continued to improve its economic situation, mostly by way of generous donations made by local governments, mainly in the form of landed property or building sites, whose value often amounted to millions of Polish zlotys. A new commercial TV station, controlled by the Catholic Church, has been to a large degree financed by the state-owned company, Polish Copper.

Ironically Polish religion has become more selective and superficial. A study conducted by one of the highly respected public opinion research centres and published by the quality weekly Polityka, has given an interesting picture of the religiosity of the Polish adult population. 96 per cent still claim to be believers and 57 percent say they attend mass every Sunday. Yet only 69 per cent believe in resurrection and eternal life, and only 41 per cent in the existence of Hell. The survey reveals remarkable ignorance of the principal Catholic dogmas: when asked the names of the Holy Trinity, a common answer was The Father, Joseph and Mary. Likewise, there appears to be little influence of Catholic teaching on people's attitudes to contraception (accepted by three-quarters of the population), premarital sexual contact, and the legalisation of certain forms of euthanasia. A survey conducted in 1999 by the Statistical Institute of the Catholic Church among students of secondary schools (15 to 18 years of age) showed that more than 21 per cent of young Poles were indifferent to religion, while only 10 per cent described themselves as deeply religious. According to the Catholic sociologist Wladyslaw Piwowarski from the Catholic University in Lublin: ‘Two thirds of Poles are in fact unaware heretics, who do not understand the content of Catholic faith.’ This has been taken by the Church authorities so seriously that they have decided to introduce ‘evangelisation of the unfaithful’ into school curricula.

The political and economic success of the Church has not been without significant cost. The fact that the Church is primarily seen as a political power has weakened its moral authority and lowered its social status. Within two years of the passage of the bill that restored freedom of religion, sstronger church influence in public life began to alienate parts of the population. Catholic intellectuals, who had shared opposition sympathies with the church in the communist era, had also opposed the autocratic rule of Cardinal Wyszynski. Many people had feared that compromise between the church and the communist state might yield an alliance that would in effect establish an official state church. Once their common opponent disappeared these fears revived, and spread to other parts of Polish society. In September 2001, despite the highly publicized efforts of Polish bishops to influence the results of the parliamentary elections by calling on Catholics to vote for candidates defending Christian values, the openly religious League of Polish Families received just 7.87 per cent of the vote, while a left-wing coalition won over 41 per cent of votes and over 216 seats in parliament.

The Economist Intelligence Unit, in a Country Briefing on Poland written in July 2005, said  that ‘Church and state are separate in Poland, and the Roman Catholic Church's role in public life is fairly modest’.  But the election of 2005 told a rather different story. President Lech Kaczynski’s Law and Justice Party ran on a populist reform platform, and obtained 27 percent of the vote to become the largest party in Parliament. The government than veered sharply to the right when Lech and his twin brother Jaroslaw -now Prime Minister - began to court the ultra-conservative League of Polish Families (which opposes gay rights and is widely seen as anti-semitic), and the populist Eurosceptic Polish Self-Defence Party. According to Maciej Zieba, a Dominican priest and leading social thinker, the Law and Justice Party actively wants to engage the church in politics.  Lech Kaczynski, when mayor of Warsaw two years earlier, had banned a gay-pride parade. He has put loyalists into key government commissions supervising radio and television and has declined to criticise the growing power of a conservative Catholic ultra-nationalist radio station Radio Maryja with a clearly anti-Semitic bias.  According to Polish media reports, several ministers, deputy ministers and key advisers in the Cabinet are members of Opus Dei, including education minister Roman Giertych, director of the League of Polish Families. More recently, when the German leftist satirical magazine Taz ridiculed Lech and his brother as ‘Polish new potatoes’ he grossly over-reacted, calling for a German Government investigation and apology. The Prime Minister, in his opening address, set Poland on a collision course with the European Union by declaring that he would do everything in his power to protect the country’s culture and morals from Brussels. He might have done better to concentrate on measures to tackle the unemployment rate (presently 18 percent), which would certainly include closer links with Germany.

Sources.

‘Poland. Country Report on Human Rights Practices 2005’. Released by the Bureau of Democracy, Human Rights and Labor, US State Department, 8 March 2006. See: www.state.gov/g/drl/rls/hrrpt/2005/61668.htm

Andrzej Dominiczac‘Church and State  in post communist Poland’. International Humanist News, 1 November 2002. See www.iheu.org/node/1124

‘The Polish Catholic Church and the State’ Federal Research Division of the Library of Congress, Country Studies, 2003-5. Poland,. See: http://countrystudies.us/poland/39.htm

Tom Hundley, ‘Poland digs in against the tide towards secularism’. Chicago Tribune. 23 May 2006. Page 1. See: http://www.chicagotribune.com Click on ‘Archives 1852-Present’ and then enter  May 23 2006, Tom Hundley in appropriate boxes. $3.95 to view.

Marius Janicki ‘Poland: the Pro-Government Church’. Central Europe Review, Vol 1, No. 25. 13 December 1999. See: http://www.ce-review.org/99/25/janicki25.html

Wikipedia entry on ‘History of Poland (1989-present)’. Updated 13 August 2006.   See: http://en.wikipedia.org/wiki/Republic_of_Poland_%281989-present%29#The_Twenty-first_Century  

All URLs accessed on 17th August 2006

Annex C

 

Turkey

Once the centre of the Ottoman Empire, the modern secular republic was established in 1923 by the nationalist leader Mustafa Kemal Atatürk. Since then the Turkish military has perceived itself as guardians of Kemalism, the official state ideology, even though Atatürk himself insisted separating the military from politics. The role of the military has been underlined by the two direct coups d’états in 1960 and 1980 and what later has been labelled a post modern coup, when the Prime Minister Necmettin Erbakan from the pro-Islamic Welfare Party stepped down after mounting pressure from the military in 1997. Paradoxically the military has both been an important force in Turkey’s continuous Westernization but at the same time constituted an obstacle to Turkey’s desire to join the EU. At the same time, the military enjoys a high degree of popular legitimacy, with continuous opinion polls suggesting that the military is the state institution that the Turkish people trust the most. The National Security Council is a powerful body that unites the top civilian and military leaders, and issues ‘recommendations’ to the government upon all matters vaguely defined as touching on the security of the state. It is widely seen as the institutional face of the Turkish military’s influence over politics

Nominally, 99% of the population is Muslim. Most belong to the Sunni branch of Islam but about 15-20% of the population are Alevi Muslims, a distinct Shi'a group mainly of Azeri descent.[xxi] Unlike other Muslim-majority countries, there is a strong tradition of separation of church and state in Turkey. Even though the state does not have any or promote any religion, it actively monitors the area between the religions. The constitutional rule that prohibits discrimination on religious grounds is taken very seriously. The Turkish constitution recognises freedom of religion for individuals, and the religious communities are placed under the protection of state, but the constitution explicitly states that they cannot become involved in the political process, for example by forming a religious party. Nor can any political party claim that it represents a form of religious belief.

 

But despite being officially secular, Turkey feels the need to control the way Islam is practiced by adherents. The mainstream Hanafite school of Sunni Islam is largely organised by the state, through the Department of Religious Affairs. This department is the main Islamic framework established after abolition of the Ulama and Seyh-ul-Islam of the old régime and comes directly under the Prime Minister. It control all mosques and Muslim clerics, it pays imams' wages and provides religious education in public schools. Imams are trained in Imam Hatip schools and at theology departments at universities. The department has commissions authorised to give Fatwa judgments on Islamic issues and controls what will and will not be mentioned in sermons given at mosques, especially on Fridays.

Turkish politics are in a volatile state. Ahmet Necdet Sezer, who was sworn in as President in May 2000, is the first in modern Turkish history who had been neither an active politician nor a military commander. Previously the chief justice of the constitutional court, he is regarded as a strong supporter of freedom of expression and a staunch secularist. But his term is due to end next year when parliament will choose a successor. Recep Tayyip Erdogan leader of the Islamist-based Justice and Development Party (AK), became prime minister after this party, born in the ashes of fringe religious based parties, rode a conservative wave in 2002 to form the first majority government in almost 20 years. He had a previous criminal conviction for reading an Islamist poem at a political rally, an action deemed to amount to Islamist sedition and for which he served several months in jail. Since he came into power there has been an increase in public displays of conservatism. For example, the state television network decided not to buy the rights to ‘Winnie the Pooh’ because Piglet is incompatible with traditional Turkish values. More seriously, while it is against the law for a woman in the civil service to wear a head scarf, more women are doing so in the streets and it has been claimed that a man cannot get a top job in the present government unless his wife wears one.[xxii] Much worse, a young Istanbul lawyer called Alparslan Arslan burst into a courtroom last May shouting ‘I am a soldier of Allah’. Claiming to punish the judges for upholding the ban on wearing headscarves in public institutions, he shot dead a senior judge and wounded four others before being arrested. Government ministers have repeatedly attacked the judges’ rulings and allowed a militant Islamic newspaper to identify the judges as culprits and publish their pictures.[xxiii]

Meanwhile the Turkish Lira has fallen in value by 20 percent from April to June this year and there has been a massive sell-off of Turkish assets in the past two months by international investors. In part this is due to the tightening of monetary policy in America, Europe and Japan. But there are other adverse factors including a large government debt, a growing imbalance of imports over exports and dependence on short-term capital inflows.[xxiv] Even more unsettling for investors are the uncertain prospects for membership of the European Union. The carrot of membership has encouraged changes ranging from better rights for minorities to the privatization of state owned industries. Business people fear that disruption of the EU process could stall such changes. Opinion polls show a decline in support for membership from a high point of 74 percent in 2002 to 58 percent this year. And the European Union, for its part, seems more unsure about admitting Turkey. Ankara’s refusal to open ports and airports to traffic from Cyprus is a source of difficulty. But Turkey’s human rights record vis-à-vis the Kurds and the anomaly of admitting a Muslim nation into the European Union are important factors. Underlying all this is the fear that in the forthcoming presidential and general elections the AK Party will make Erdogan its candidate to replace Sezer as President. The party might then go further in ‘using its political power to transfer the capital from secular to religious circles. It’s a real threat to the secular democratic regime.’ [xxv]

If so, it would have been precisely the democratic process that would have led to this result. The unspoken question is whether the military might once again intervene. On 1st August the government appointed a new Chief of Staff in the person of General Yasar Bukanit who is expected to adopt a stronger line towards EU membership than his predecessor General Hilmi Ozkok. Ozkok had conceded changes asked for by the EU that curtailed some of the military’s influence and increased transparency. The EU is pressing Turkey to limit the power of the generals further. Bukanit is expected to adopt a tougher line on this issue. It would be the height of irony if, after the elections in 2007, the Turkish military under Bukanit felt bound to step in once again to preserve the secular legacy of Atatürk.

Straddling the continents of Europe and Asia, and bordering Iran, Iraq and Syria,   Turkey's strategic location has given it major influence in the region and control over the entrance to the Black Sea. Secular Turkey is indispensable to Washington’s democratizing mission as a leading example of how democracy, capitalism and Islam can be compatible. The European Union depends on Turkey as a trading partner and bridge to the Islamic world. Hence the stakes could hardly be higher.  The way in which the tug-of war plays out between the Kemalist state and popular Islam remains of major concern in the West.    

Annex D

 

France [xxvi]

 

 2005 marked the 100th anniversary of the formulation of a fundamental concept in France: Laïcité. There is no exact translation in English but it roughly means state secularism. In short, it is the separation of religion and public affairs.
The French Revolution of 1789 saw the separation of Church and state in France. The majority of people had become disillusioned with the Ancien Régime and the heavy taxes it demanded. The two institutions of monarchy and church controlled many aspects of French lifestyle and culture and were seen as being too over-bearing. The Revolution brought an end to the French monarchy and from then onwards the Church was no longer part of the ruling élite; its power and wealth had been taken away.

The 1789 Declaration of the Rights of Man set out the principle that : ‘No-one should be disturbed for his opinions, even in religion, provided that their manifestation does not trouble public order as established by law.’ Religion was allowed in the private sphere, as long as it did not upset or clash with the wishes and political goals of the state. This was an active separation of church and state. In 1905, a law was passed to clarify where the state stood with regard to religion in the public sphere:

The idea of secularism remains very important to the French people. The country’s current constitution, adopted in 1958, contains a guarantee of secularism. It says that ‘France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.’ Unlike the United States, where secularism is often a dirty word, France sees this concept as non-controversial, indeed desirable. Commenting on secularism in December 2003 President Jacques Chirac said: ‘Secularism guarantees freedom of conscience. It protects the freedom to believe or not to believe. It guarantees everyone the possibility of expressing and practicing their faith, peacefully and freely, without the threat of the imposition of other convictions or beliefs….It is the neutrality of the public arena which permits the various religions to coexist harmoniously’. He went on to call French secularism ‘non-negotiable.’

In the early twentieth century there had been no need to consider religious concerns other than Catholic. In 1914, only 0.25% of the population in France was Jewish; there were few Calvinists and Lutherans and even fewer Muslims. Hence, religious diversity was not a contentious issue.[xxviii]. Jews had been present in France for centuries and European pogroms increased Jewish immigration into France at the beginning of the 20th century. They became well assimilated into French society after centuries of struggle. Mass Muslim immigration did not occur until the 1960s when many French nationals were brought into France from Algeria to help build roads and industry. France found itself with the largest Muslim population in Europe, 8 million strong, mostly from North Africa. These immigrants found it much more difficult than the European immigrants to fit into French society because their religious and cultural backgrounds were so different.

The 1905 law continued to be the only legislation concerning religious symbols in schools. However, as mass immigration brought greater numbers of other religions into France school children were affected in different ways:

In the 1990s, some Muslim girls were expelled for refusing to take off their headscarves at school. This provoked debate over continued French insistence on state secularism and on how well Muslims had been able to integrate into the French system. Head teachers wanted an official line to be taken, as they were unclear as to how far they should go in disciplining those who wore overtly religious symbols. This prompted President Chirac in 2003 to set up a commission. The chairman was Bernard Stasi, the son of Italo-Mexican immigrants, who had served as Minister for Overseas Departments in 1973-4 and from 1998 had been the French Ombudsman. His report proposed a total ban on religious symbolism in schools. It said that banning headscarves would empower Muslim girls who were often forced by their families to wear them. Also to be prohibited were Jewish skull-caps, Sikh turbans and ‘large’ Christian crosses.[xxix] Another issue picked up by the report was that French children should not be able to reject a teacher of the opposite sex or refuse to read certain texts because of religious beliefs. Bernard Stasi stressed, ‘Secularism is the separation of church and state, but it is also the respect of differences’. This reinforced the view that immigrants should adapt to the French way of life, and not the other way round, and this point of view was reflected in the report. In 2004, parliament voted 494-36 for banning overtly religious symbols in schools. One French poll said that 70% of French people were in favour of the Bill. The new law came into effect at the beginning of the 2004/05 academic year.

 

While the report concerned secularism in general, it was portrayed in the French media as a blatant expression of Islamophobia and a knee-jerk reaction to September 11th, 2001. Opposition came from the political left and ethnic minority groups. Some complained that the French government did not allow for a dual identity, while others condemned the law as blatant racism. Cardinal Ratzinger (now Pope Benedict XVI) said: ‘The law risks limiting the freedom of all religions.’ In England, the Three Faiths Forum together with the Muslim Council of Great Britain condemned France's decision. Grand Rabbi Joseph Sitruk, the Chief Rabbi in France, also opposed the law saying: ‘What an aberration it is to want to muzzle religion in the name of secularism.’ His advice to Jewish boys who wanted to continue wearing the skull-cap at school was to substitute it with a baseball cap. Muslims around the world attacked the law. The French Muslim leader, Kamal Kabtane, said that Muslims would respect the law and nothing else: ‘This will resolve nothing at all. It will only add to the confusion.’ In response to making Eid al-Adha a national school holiday, Eltuhami Ibriz, the president of Paris Muslim Council rejected it as a 'trade-off' which did not address the root of Muslim issues.

France works towards integration, not multi-culturalism. However, many people believe that the French model of a secular state is not working. It is not clear how long Jews, Christians, Muslims and Sikhs will be prepared to forgo their religious practices in order to be good French citizens, the more so if the equality sought after by the state does not translate into real life. Unemployment for the white-French population stands at 9.2 percent while that for people of foreign origin is 14 percent. French ethnic minorities are much aware of this disparity between them and white-French citizens. The riots of October 2005 reflected how these aggrieved minorities feel victimised because of their culture, their colour and their religious orientation. For these minority groups there is no space for a dual-identity that incorporates French-ness and religion. For what is the point of forgetting your religious teachings if you are not rewarded with an equal citizen status?

Sadly the real problems associated with Islam will not be solved by issuing a dress code. In French hospitals female Muslim patients have refused to be examined by male doctors. Muslims are responsible for a rapid escalation of anti-Semitism in France. There is a problem with overtly Muslim jurors and with Muslim defendants, who claim their trials are unfair because the judge is a Jew. The large minority of Frenchmen who perpetrate hate crimes against the French Republic are often disaffected Arabs, mostly from North Africa, who despise America, Jews and France itself. Not surprisingly the chauvinist politician Le Pen has been supported by up to 22 percent of French voters. Nicholas Sarkozy, the popular and efficient interior minister, and perhaps the only French politician willing to call a Muslim a Muslim, has been diligent in keeping social unrest under control, but it has been an uphill struggle.[xxx]

The French government remains steadfast when it comes to secular policies. However, with nationwide riots and minority discontent, it may yet have to look again at the French constitution itself.

Annex E

 

England

The legal and constitutional position of the Church of England is an unusual one. Outside Britain it is little understood; even within Britain many people are not at all clear on it. 

The Church of England is an Established Church. This is a technical term, meaning that the Church has a special legal position within the state and is not simply a voluntary society in the eyes of the law. A Church of England (of the Christian tradition) is said to have already existed throughout the various small kingdoms of Saxon England when St. Augustine, the first Archbishop of Canterbury, arrived in England in 596 AD on his mission, at the behest of Pope Gregory, to evangelise the English. This newly founded Catholic Church became officially regarded as the established church in England when in 973 the then Archbishop of Canterbury, St. Dunstan, anointed the first king of all-England, Edgar I, in the first state coronation ceremony. After the Norman conquest in 1066, the English Catholic Church consolidated its position within the English state and increased its influence in state affairs. The Archbishops and other senior Church figures joined the assorted noblemen in the prototype Parliaments of the late twelfth and early thirteenth centuries. In addition to this, many Bishops were wealthy land-owning aristocrats, whilst the parishes of the Church acted as units of early local administration for the wider English aristocracy in feudal times.

 The Church of England and the Church of Scotland were among those parts of the Church which split from Rome at the Reformation. The Church of Scotland adopted Calvinism and Presbyterian church government. The Church of England initially split from Rome as a result of the political needs of King Henry VIII, who was not otherwise very sympathetic to religious reform, and retained more of its Catholic character than other Protestant churches. Indeed, many Anglicans do not accept the description of their church as Protestant to this day. The Church of England retained many of its pre-Reformation powers. For example, its courts had jurisdiction over marriage, and its assemblies (the Convocations) retained the power to legislate. However, the State had now asserted its supremacy. The Church's courts could be overruled by the State's; the Church's canons were valid only within limits set by the State.

The government asserted its control by taking charge of the top appointments. It did not however incorporate the Church directly into the State's bureaucracy; instead it set up procedures for monitoring and commanding the Church's administration. Bishops were ordained as before, following election by a Church body, but now the monarch would choose who was appointed, by sending a legally binding order as to who should be elected. (It is worth noting that in some times and places the Roman Catholic Church has conceded this power to rulers.) As time passed the situation changed. The development of religious toleration led to the granting of more rights to other churches, and some of the Church's powers either lapsed or were transferred to the State. However, the residue of the Church's special status remains.

The Sovereign: The King or Queen is required to belong to the Church of England; or, at least, not to be a Roman Catholic. He or she is anointed and crowned in church by the Archbishop of Canterbury, although representatives of other religious traditions also take part. The Sovereign has the title of ‘Supreme Governor of the Church of England’, a title chosen by Queen Elizabeth I, which implies that the monarch has jurisdiction over its running, but not that he or she has spiritual authority.

The Prince of Wales, it emerged recently, may remarry under civil law. But as future Supreme Governor of the Church of England, Charles could not remarry in church. Hence the civil ceremony (which the current supreme governor, his mother the Queen, would not attend) was followed by a ‘blessing ceremony’ led by the Archbishop of Canterbury.

Bishops in parliament: Most European parliaments or ‘Estates’ originally contained representatives of the three most powerful groups in society - the Church (meaning the clergy), the nobles, and important commoners. In many countries the three met separately but in England the Church's representatives, the bishops and abbots, sat with the nobles. In England the Bishops of the Church of England, or rather some of them, are still members of the House of Lords, but due to the increase in the number of bishoprics only the 28 most  senior ones are now members.[xxxi]

Formally it is the Queen who chooses new bishops, but with the rise of parliamentary government the power passed in practice to the Prime Minister. (This is of course true of many aspects of British government; there are all sorts of things which legally are decided by the Queen but which in fact are done strictly on the Prime Minister's ‘advice’.) In the eighteenth and early nineteenth centuries, bishops had a major political role and political considerations were important in selection. In the twentieth century this has been far less significant. But because of the bishops' continuing role in the House of Lords it is still sometimes a factor. Since the 1970s a new system has been introduced whereby a Church committee forwards two names in order of preference to the Prime Minister, who normally accepts the choice but is not bound to. Thus, fossil traces of the whole history of the Church of England can be found in the process: the Church tells the Prime Minister to tell the Queen to tell the Church who to appoint. Anglican clergy, meanwhile, had been disqualified from membership of the House of Commons. The House of Commons (Removal of Clergy Disqualification) Act, 2001 removed this disqualification.

Church Commissioners: Thirty-three Church Commissioners manage the property and stock market assets of the Church of England. Six state office holders are ex-officio members of the Commission. These include the prime minister and the sport & culture minister. All the commissioners are accountable to Parliament, to which they make an annual report, as well as to the General Synod of the Church of England. The Church has assets of more than £4bn, which has its origins in money accrued by hereditary head of state Henry VIII, which was given to the church in 1704 by the then head of state. The commissioners provide a sixth of the funds the Church needs. This income pays for some pensions and missionary work, and is also used to support poorer dioceses.

Laws: As the Established Church, the Church of England is not a voluntary society with rules made by compact. Instead, its laws are part of the English legal system, and many changes to them require the amendment of statute law. In 1919 a new system was set up for passing ‘Measures’ by a special procedure. These Measures, in effect special statutes dealing only with Church matters, were to be debated by a Church Assembly and then passed into law by a single vote in each house of Parliament. In the 1970s the Church Assembly was replaced by the General Synod, but the basic procedure remains. This means that it is possible for Parliament to block a change agreed by the Church. This happened in 1928-29 when Parliament refused to agree to a new Prayer Book. Parliamentary Measures were required in the early 1990s to make it lawful for the General Synod of the Church of England to ordain women priests. In July 2006 the General Synod voted by 288 to 119 that the concept of women bishops is ‘consonant with the faith of the Church as the Church of England has received it and would be a proper development in proclaiming afresh in this generation the grace and truth of Christ’ This also will require parliamentary approval by Measure.

Since the laws of the Church are part of the laws of England, the Church's courts are part of the English legal system. In the late nineteenth and early twentieth centuries this caused considerable tension when decisions of Church courts were overturned by secular courts applying what seemed to many Anglicans to be an inappropriate legalistic approach.

The Anglican Church alone is protected from expressions of contempt for its beliefs. The common law offences of blasphemy and blasphemous libel limit free speech only when the Church of England is the subject.

Schools:  One in four primary schools and one in 16 secondary schools in England are Church of England schools, with approaching one million pupils.

Unofficial aspects: Forty-three percent of the population of England consider themselves members of the Church of England. Only slightly more than half of these ever attend their church. Some 1.7 million people come to a service at least once a month and 2.6 million on Christmas day. But the Church continues to enjoy a peculiar position in English society. Traditionally, the Church of England is seen as somehow belonging to any English person without other religious affiliation or positive non-religious identity. The Rector or Vicar (local parish priest of the Church of England) was and in many places still is a recognized local figure with duties to all his (or now her) parishioners in a way that is not true of a minister of another church. Although only a small minority regularly attend services, a much larger number of English people retain a vague Christian belief, and even many non-believers look to the Church of England to provide rites of passage such as baptisms, marriages and funerals. Any baptized English person (unless divorced) has a legal right to be married in his or her parish church, and most parish priests are glad to oblige. More controversially, any English person has a legal right to have their child baptized in the parish church, although many Anglicans are unhappy at doing so unless an explicitly Christian upbringing is intended.

In practice the British establishment is so tolerant that the government gets entangled in many faiths, not just the established church. State money, for example, now goes to a variety of religious schools — Christian, Jewish, Muslim and Sikh. But this may be a mixed blessing for the schools in question. Earlier this year, Britain’s chief school inspector urged more regulation of the private religious schools selected for funding by the government. ‘This growth in faith schools needs to be monitored by the government to ensure that pupils at all schools receive an understanding of not only their own faith but of other faiths and the wider tenets of British society.’

Disestablishment: Disestablishment means the ending of established status. In the nineteenth century, the Free or Nonconformist Churches, that is the non-Anglican Protestant churches in England, often sought the disestablishment of the Church of England. In the twentieth century, however, they have in many cases had second thoughts. With the rise of ecumenism on the one hand, and the decline of the influence of the churches in general on the other, many non-Anglican Christians feel that the Establishment gives the Churches in general a certain status in society. Perhaps even more interestingly, some non-Christian religious leaders have also chosen a position of antidisestablishmentarianism[xxxii], considering that disestablishment would advance secularism rather than religious pluralism. Thus, although the increasing religious pluralism of Britain is often advanced as an argument for disestablishment, it tends to be advanced by secularists.

The Church of England is rather like the BBC and the Bank of England in its relationship with the government and its status within the nation, all three being effectively nationalised. Unlike the Bank, however, its services are not considered essential by the majority of the population. And unlike the BBC it has a poor ‘market share.' Only just over 1 million regularly attend its services each week and this membership is ageing. It can be argued that the continued decline in the Church's attendance rates has been fostered in part by the nature of its relationship with the state. This has perhaps prevented it from appearing modern and in touch with the spiritual needs of the twenty first century. Radical figures in the Church itself, such as Colin Buchanan, the Bishop of Woolwich, and David Jenkins, the former Bishop of Durham seem to have taken this view. Against it the former Archbishop of Canterbury, Lord Carey, has argued that separating church and state in Britain would undermine social cohesion, weaken morality and could even sow the seeds of authoritarianism. He said that the sense of a higher, transcendent authority formed the basis for key British values. ‘Without that sense, our human arrogance and selfishness, our inability to distinguish adequately between what is temporarily expedient and what serves the long-term common good may all too easily get the better of us. Removing the spiritual underpinning of the state would inevitably tend to cast religion as a purely private matter, one of a range of lifestyle options, like buying organic food or living in the country, of no greater public or communal import than stamp collecting or bird watching.’[xxxiii] So even setting aside the religious or constitutional objections to an established church and a national religion of any kind, the argument over  disestablishment remains as live an issue as it was a century ago.             [14,000 words]  

 

For this abstract I am much indebted to the University of Botswsana History Department, ‘Some notes on the Church of England and ‘Establishment’ See: http://www.thuto.org/ubh/whist/chhist/ce-est1.htm#doc_top

Also The Centre for Citizenship note on ‘The Church and State in Britain’, See: http://www.centreforcitizenship.org/church1.html


 

[i] The term "church" refers here to religions and religious institutions in general and their relationship to government; in countries with religions more predominant than Christianity, the words mosque, temple, or synagogue are often substituted.

[ii] A similar instance was the unsuccessful move, led by Poland, to get some reference to Europe’s Christian heritage included in the preamble to the European Union’s Constitutional Document.

[iii] The protected Dhimmi status of Jews, Christians and Zoroastrians under Islam is a typical example.

[iv] 1 Samuel Chapter 8, 9:1,2, 10:1.

[v] Or ‘Occam’. It is a village in Surrey near the county town of Guildford.

[vi] The name derived from the church and cathedral schools, the only form of education available in the Middle Ages. All the masters and nearly all the pupils were in clerical orders. The schools were designed to teach science and philosophy and logic, but only in a way to back up the views held by Holy Writ. In the 12th and 13th centuries the problem arose that with the discovery and translation of Aristotle there were views expressed about, for example, the creation of the world that were wholly unacceptable to the church. 

[vii] Matthew 22:21.

[viii] Romans 13:1-7

[ix] To be precise it was agreed that that all parties would recognize the Peace of Augsburg of 1555, in which this principle had been enshrined.

[x] C.V. Wedgwood, The Thirty Years War, Folio Society, London, 1999, pp. 462,3.

[xi] Rebecca Newberger Goldstein. ‘Spinoza’s faith in reason’. International Herald Tribune. 31 July 2006. See also the same author’s book: Betraying Spinoza: The Renegade Jew Who Gave Us Modernity.  Schocken. May 2006.

[xii] The three quotations in this paragraph are taken from Tom Hundley, ‘Poland digs in against tide towards secularism’. Chicago Tribune, 28 May 2006. Page 1. See: http://www.chicagotribune.com Click on ‘Archives 1852-Present’ and then enter ‘May 23 2006’ and ‘Tom Hundley’ in appropriate boxes. $3.95 to view.

[xiii] John Bright (1811-89) was an English Liberal politician and reformer – also a noted orator.  He made this remark inn a speech at Birmingham   on 18 January 1865.

[xiv] The English Royal family can claim some form of genealogical continuity since King Egbert (802-839).

[xv] The abdication of King Edward VIII in 1936 was an event of great political importance, driven by a religious consideration. It came about because of the King’s determination to marry a divorcee, Wallis Simpson. The ‘Act of Settlement’ in 1701 had provided that ‘Whosoever shall hereafter come to the possession of this Crown, shall join in communion with the Church of England, as by law established.’ Because the Church of England did not recognise divorce, by declaring that all future monarchs must join in communion with the Church of England, the Act clearly made it illegal for any future ruler to enter into a marriage with a divorcee whose partner was still alive. The Archbishop of Canterbury, Cosmo Gordon Lang, was involved in the negotiations preceding the abdication and it was widely assumed that he had played a leading role in forcing the King out. But he did no more that affirm the constitutional position, and although both the King and the Prime Minister (Stanley Baldwin) knew his views in fact he was not closely involved.

[xvi] The remainder are Baluchi (2%), Lurs (2%), Turkmens (2%), Qashqai, Armenians, Persian Jews, Georgians, Assyrians, Circassians, Tats, Pashtuns and others (1%).

[xvii] The remainder are non-Muslim religious minorities, mainly Bahá'ís, Mandeans, Zoroastrians, Jews and Christians.

[xviii] United Nations Special Rapporteur of the United Nations Commission on Human Rights, reporting on March 20, 2006, says that since the 1979 revolution the situation of minorities in Iran has deteriorated

[xix] Khomeni’s appointment as Supreme Leader was explicitly for life under the Constitution.

[xx] International Herald Tribune, 15 August 2006

[xxi] The remaining 1% of the population are of other religions, mostly Christian (Greek Orthodox, Armenian Apostolic (Gregorian), Syriac Orthodox, Molokans, Roman Catholics and Protestants), Jewish, Bahá'ís and Yezidis.

[xxii] Dan Bilefsky, ‘In Turkey anxiety rises as nation’s currency falls’. International Herald Tribune, 3 July 2006. pp. 1,4.

[xxiii] The Week, 27 May 2006, page 14

[xxiv] As in Footnote ii.

[xxv] Emre Kongar, an academic and columnist for Cumhuriyet quoted in Sebnem Arsu, ‘Turkey, at EU’s door, sees conservatives gain’. International Herald Tribune, 31 July 2006. p. 3.

[xxvi] Olivier Manson provided an excellent paper for the 2005 CCADD conference entitled ‘French Läicité and Security’. This section of my paper is much indebted to his contribution.

[xxvii] France’s separation is not absolute. The government pays teachers in private religious schools for every subject except religion. Two regions of the country, Alsace and parts of Lorraine, do not follow the separation principle for historical reasons and retain taxpayer support for clergy.

[xxviii] Because of this, major Christian holidays such as Easter and Christmas continued to be state holidays and there was not an absolute break from tradition

[xxix] Small crosses and pocket-sized copies of the Qur'an were, however, permitted. The report also suggested including Yom Kippur (Jewish day of Atonement) and Eid (Muslim festival) to the list of school holidays.

[xxx] Before his tenure, the figures were really ugly: In 1999 crime in France was worse than in the U.S. By 2001, crime had increased 7.2 percent over 2000's figures; murders and attempted murders were up 35 percent; sexual assaults increased 40 percent; pick-pocketing on the Metro was up 38 percent. In 2002 there were violent clashes in Paris following Le Pen's electoral surprise; on Bastille Day, Chirac survived an assassination attempt; and in October, the mayor of Paris, Betrand Delanoe, was stabbed during an all-night rave he had organized called "Nuit Blanche." Not a small percentage of this can be laid at the feet of fanatical and angry French Muslims. See Denis Boyles, ‘Thinly veiled threats’ EuroPress Review, 12 December 2003. http://www.nationalreview.com/script/printpage.p?ref=/europress/europress200312121113.asp  accessed on 12 August 2006

[xxxi] Some of the Anglican bishops in the House of Lords are quite influential figures. For example Richard Harries, until recently Bishop of Oxford led an advisory panel on embryo cloning.

[xxxii] At 27 letters long, often quoted as the longest word in the English language.

[xxxiii] Mike Wendling, ‘English Church Leader warns against separation of Church and State.’ CNSNEWS.Com, 24 April 2002. http://www.cnsnews.com/ForeignBureaus/Archive/200204/FOR20020424d.html

Accessed on 17th August 2006