Reproducing the Status Quo: New Church Construction Law Consolidates Discriminatory State Policies and Confiscates Citizenship Rights of Future Generations
August 31, 2016
The Egyptian Initiative for Personal Rights expresses its deep concern about the House of Representatives’ rushed approval of the law regulating the construction and renovation of churches. The law was passed only three days after the government submitted the bill to the House and without any societal debate. The Egyptian Initiative for Personal Rights warns that the law will erode fundamental constitutional rights, depriving future generations of their liberties and rights.
The process of the adoption of the law was deeply problematic, EIPR said. Government representatives held discussions in near secrecy with only a small handful of select church representatives while many real stakeholders were excluded from the process. . Legal experts, civil society representatives, and even members of parliament were marginalized. The secrecy suggests that the bill was issued simply to fulfil the formal requirement set forth in Article 235 of the constitution on general and interim provisions, with no real aspiration to realize the spirit and objective of the constitutional requirement.
The secretive process also violates citizens’ right to know. The government acted as if the law concerned only leaders of the three major churches, but a law this momentous is of concern to all citizens, not only Christians and certainly not only the clergy, EIPR said.
The EIPR had reached out to members of parliament over the last weeks urging them to reject the bill or introduce fundamental amendments to the draft. The organization also launched a campaign, “Closed on Security Grounds” which highlighted the difficulties of church construction and the link to the spread of sectarian violence. The campaign documented numerous cases of sectarian violence related to church construction and proposed standards the law should meet to defuse such crises. But these attempts to contribute to the debate on the law fell on deaf ears given a style of governance that circumscribes genuine civil society and all civic and democratic institutions, seeing them as state enemies instead of partners to be consulted in a discussion of the nation’s future.
“The state’s role should be limited to respecting and promoting the right to build, to ensure freedom of worship,” said Ishak Ibrahim, EIPR’s freedom of religion and belief officer. “But the law gives the executive authority broad discretion to violate the right to build and repair churches. It gives the security apparatus a say in the granting of permits and allows it to monitor activities and any modifications to religious buildings.”
Ibrahim added, “The law is filled with landmines that will not only impede the construction of churches, but also the renovation and expansion of existing churches. The House of Representatives should have assumed its responsibility to initiate a serious discussion of the law, not rubber stamp the government’s bill.”
Sectarian logic and persistent discrimination: a reading of the provisions of the law
According to international human rights conventions, which under Article 93 of the constitution are an integral component of Egyptian legislation, and other constitutional principles, all citizens should be able to freely build houses of worship. Conditions for the construction of houses of worship should be limited to general construction codes in force in every region, without enacting a specific law to regulate the right of worship. At the very least, a law regulating the construction of houses of worship should treat all citizens equally regardless of religion and make no distinctions between religions. A special law to regulate the construction of churches already sends a discriminatory message that the state distinguishes Christian citizens from Muslim citizens. While the state permits the construction of mosques based on compliance with building codes and subordination to the Ministry of Endowments, it imposes additional conditions on churches, most significantly the need to obtain a permit from the competent governor approving the practice of religious rites at a specific location.
The constitutional requirement to issue a specific law regulating the construction of churches, should not render that law any different in its objectives from the law regulating the construction of mosques, and it should be based on standards guaranteeing equality and non-discrimination. One law should not permit construction while the other places obstacles to construction and renovation.
In addition, the law rests on the false assumption that Christian religious rites must be practiced in a church, which allows confusion between a prayer meeting or a religious celebration in a public or private place and prayers and worship in houses of worship. There is a distinction between the practice of religious rites, a right guaranteed to every citizen as an individual or a group that can be exercised in any place, and the construction of houses of worship and churches regulated by law. The right of individuals and groups to celebrate and observe religious occasions should not be restricted on the grounds that the site of the celebration is not a house of worship. The freedom to assemble for religious purposes, in homes or public places and without a permit, must be guaranteed. Freedom of assembly is a constitutional right also enshrined in international human rights conventions.
This discriminatory logic pervades the various provisions of the law in question and even its very language. For example, the law uses the term ‘the Christian sect’ to refer to Christian citizens. This phrasing is derogatory and has political and social connotations that run counter to constitutional rights of citizenship. The use of the term ‘sect’ reflects the state’s preferred way of dealing with Coptic citizens: as subjects who are members of a uniform religious sect represented by the church and the person of the pope. This paradigm has long been criticized as inimical to the values of citizenship.
Article 1 of the law, which defines the terms used in the law, starts with the definition of a church as “an independent building topped by one or more domes in which prayer and religious rites of the Christian sects are practiced regularly in traditional form. It is composed of one or more floors and one or more roofs, provided the building is surrounded with a wall if the plot of land exceeds 300 meters.” The provision then defines the components of a church as four, and only four, elements: the altar, nave, baptismal chamber, and bell tower. The provision goes on to define church annex, service building, place of retreat, place for preparing the sacrament, religious leader, competent governor, and religious sect.
Problematic aspects of this article include the requirement for a wall around any church sitting on an area of land greater than 300 meters. This should depend on the needs of every church and the area in which it is located. The definitions of the components of a church are also unnecessary and could allow the executive authority to interfere in the form and composition of a church, which infringes on the independence of the Christian religious establishment. The law should have allowed each church to define its own components based on the nature of the church, its needs, the desires of members and the confession, and the local environment.
Article 2 states, “The area of the church seeking a permit for construction and the church annex shall be proportionate to the number and need of citizens of the Christian sect in the area in which it is to be built, while considering rates of population growth. The church may include more than one altar and more than one nave, baptismal chamber, and bell tower.”
This article links the size of the church to the number of Christians in the area and their needs, which is a two-pronged restriction on the construction of churches. First, the reference to the number of Christians violates the constitution, which in Article 64 provides for freedom of worship for adherents of Abrahamic religions regardless of their number. (This is setting aside our principled objection to the constitutional provision which limits the right to build houses of worship to adherents of Abrahamic religions, in clear disregard for the religious diversity of Egyptians, who include adherents of religions and confessions not officially recognized as revealed religions, such as Bahais.) Moreover, the constitution makes no mention of a specific required number. There is obviously no single, fixed standard for proportionality, which will differ from one region to the next depending on whether it is the security establishment or the church that defines it. Second, the article sets an additional restriction—necessity—but does not define standards to judge it. Does the existence of one church in a particular area, for example, mean there is no need for a new church? Does the existence of multiple Christian confessions in one area affect the determination of need? And crucially, the law does not identify the person responsible for determining need.
Article 3 states, “The legal representative of the sect shall submit to the competent governor an application for the necessary legal approvals to conduct any works that require a permit. The administrative body must give the applicant an item indicating receipt of the application on the day of submission. The application shall be supported with ownership documentation and documentation explaining the nature of the works requested, their location, and their boundaries. In all cases, no application shall be accepted without the aforementioned documentation.”
In this article, the legislator does not specify the nature of the required legal approvals for which the sect’s legal representative must apply or which bodies will be consulted for such approvals.
Article 4 states, “The legal representative of the sect may apply to the competent governor to obtain the necessary legal approvals to demolish and rebuild a church constructed with a license or brought into compliance with the provisions of this law by following the procedures set forth herein.”
With this article, the law requires Christians seeking a permit to demolish and rebuild or repair an existing church to follow the same procedures for constructing an entirely new church. This condition not only restricts the right of worship, it infringes on rulings issued by Egyptian courts, most significantly the ruling of the first circuit of the
Administrative Court in case no. 7635/10JY, issued on February 26, 2013, which concerns permits for the demolition and reconstruction of existing churches. That ruling overturned a presidential decree authorizing governors to grant licenses for the demolition and reconstruction of existing churches, on the grounds that the power to grant such permits was not within the remit of the president, who could therefore not delegate it to governors.
The Administrative Court ruling noted that churches are subject to two types of permits: a permit to engage in religious activity and a regular building permit like all other buildings. The ruling reasoned that if a church has already obtained an operating permit from the president, it need not obtain it a second time for reconstruction, renovation, or expansion. The president’s authority to delegate this power to governors is thus without legal basis. Renovations are subject only to general building code permits, granted by the local administration, and this holds true for mosques, churches, or buildings designated for any other activity.
Article 5 sets forth how the governor should process applications. It requires the governor “to rule on the application, after confirming that all conditions are met, within four months from the date of application, provided the response states cause in the case of denial.”
The article neglects to address the procedures subsequent to a denial of the application or whether a failure to respond within the deadline constitutes tacit approval of the application. The explanatory memorandum that the Ministry of Legal Affairs attached to the bill for the House, however, sheds further light on the article, defining several grounds on which the governor may deny an application: “The competent governor shall examine the application in light of his authorities to preserve public security and safety and oversee utilities and protect their security, as well as uphold the freedom to practice religious rites.” The explanatory memorandum thus prioritizes the preservation of security over the right of worship. This clause could be interpreted to mean that if there are objections to the presence of a church that could spark unrest, the governor has the right to deny the church a permit. In other words, a religious majority in a particular area can control the worship practices of a minority religious community.
Also noteworthy is that the law sets forth no sanctions for officials who consistently refuse to grant construction and renovation permits to churches.
Article 7 states, “The purpose of a licensed church or licensed church annex may not be converted to any other purpose. If prayer and religious rites cease to be practiced in it, any conduct other than this is invalid.”
While this article seems geared to preserve churches and their annexes, it also usurps the right of local church member and leaders to make decisions about the future of the church and its annex buildings. For example, if church parishioners find another location for a church annex that is better equipped or a more suitable size and want to use the old annex for a different activity or sell it to use the proceeds to support church activities, this article precludes it and compels them to maintain the old annex unused.
Articles 8, 9, and 10 deal with legalizing the status of active but unlicensed churches, service buildings and places of retreat used for prayer and the provision of religious services to Christians. Article 8 provides for the formation of a committee of ministers, competent bodies, and a representative of the sect to examine the status of such buildings and propose solutions to legalize their status, but it does not identify the ‘competent bodies’ or set a deadline for the formation of the committee, though it does require applications to be submitted to the committee within one year of the date the law enters into force. Nor did the law set a timetable for the operation of the committee or a deadline for its decisions on applications for legal status. It also does not specify the procedures to be followed in the event of a dispute between the sect’s representative and committee members over the interpretation of conditions that must be met by the building or in the case of applications denied despite meeting the necessary conditions.
Article 9 sets forth five conditions that an existing church building must meet before consideration of its application for legal status:
- “Proof of the building’s structural integrity”: this condition cannot be met by hundreds of churches built decades ago with the knowledge of state authorities. Though they are dilapidated, they continue to host prayer services. Dozens of applications for the demolition and restoration of these structures have been submitted, but the competent bodies have refused to grant the necessary permits. This condition is also not met by “house churches,” which are located in rural areas and built of mud brick, for example.
- “Construction of the building in accordance with approved construction codes”: this condition is similarly an obstacle for the legalization of churches located in villages and informal areas, which do not comply with construction codes and are not within zoned urban areas.
- “Compliance with rules and regulations regulated by state defense affairs”: the meaning of this condition is inscrutable, as is its relationship to permits for churches that already exist.
- Compliance with “Laws regulating public and private state property”
- “Submitting the application within a year after the law enters into force”: the committee will not consider applications filed after this date.”
These conditions subvert the very purpose for which they were formulated, excluding from consideration for legal status hundreds of functioning churches. The law instead should have provided for the submission of a list of existing churches to be granted permits unconditionally, without the need for a supervisory government committee.
In conclusion, the Egyptian Initiative for Personal Rights reiterates that the law in its current form perpetuates the status quo, which is governed by obsolete legal codes from the 19th and early 20th century, like the Hamayouni decree and the Ezabi Pasha code, that create obstacles to the construction of churches. The law will therefore not serve its most basic purpose of addressing the roots of sectarian tensions and eliminating long-standing state discrimination.
Issuing the law is not the end goal. On the contrary, the law was intended as a means to guarantee worship and religious practice for Christians. What makes the current situation even more serious is that previously unofficial, unlawful security and administrative practices have now been codified in a flawed law that infringes basic constitutional rights and deprives future generations of their rights and is sadly likely to last for a longer period of timing, given the difficulty to amend it.