- International standards on Freedom of Religion or Belief
1.1 According to international standards, states cannot suspend FoRB during war or emergency state. However, religious freedom can be limited as an exceptional measure, reestablish order and public security, or in the case of an epidemic as an exceptional measure and with the fulfillment of the following terms:
1. to be provided by law
2. to serve purposes of the political body in its whole (protection the security, public order, health, etc.)
3. to be nondiscriminatory in language and application
4. to strictly serve the purpose and announced period.
1.2 With reference to the Covid-19 pandemic, the World Health Organization recommends “states to maintain a fine balance between protection of health, the reduction of the negative economic and social impact and the fulfillment of human rights”.
1.3 If we understand FoRB in the normative sense, as a right that has its limits in the exercise of other rights (for example, the right to a healthy life) than the governmental measures are not in fact restrictions, but instruments to democratically harmonize multiple rights. If we take religious freedom broadly, as one of the fundamental rights of democracy, susceptible to not having limitations precisely because it stands at the base of the human rights and freedoms pyramid, the governmental measures are restrictions but are justifiable.
1.4 European states must worry more about closing churches than religious organizations, because it is the duty of the state to facilitate the exercise of rights and liberties, in the logic of liberal democracies the religious organizations being just one of the instruments by means of which free citizens freely associate with the purpose of exercising a common faith.
- What is the emergency state in terms of political science?
2.1 The modern state resulted from the dissolution of plural medieval jurisdictions (guilds, churches, feudal estates, etc.) and was founded both with military power but especially through the bureaucracy. Subsequent to that it liberalized consolidating its dimension of rule of law, separated political powers and constitutions were established. Passing from absolute monarchies to the constitutional ones or even forms of incipient republican governments was made by the gradual neutralization of the head of state, which in most cases kept attributes of the sovereignty, and in others, it kept the executive power.
2.2 This state’s spine is represented by the political neutrality and liberal separations in different areas and with different intensities: separates the government from the people, religion, art, culture and science, the state from society and is grounded on the hypothesis (in accordance with the trend of the era – birth and explosion of the number of political parties) that in most parliament legislatures you will have coalition majorities. As liberal regimes become more democratic and have the Parliament as their core, as the representative organism of the people, the head of state, being monarch or president, remains with the attributes of sovereignty, even if he cannot be considered sovereign any longer.
2.3 This monarchic position being simultaneously in the center but also on the edge of the political regime, gives the president of the modern republic the attribute of neutral and intermediary power (pouvoir neutre, Benjamin Constant), power placed not above the constitutional powers, but by its side, separated and with specific competences. This is where his competences as a mediator between state, society, and state powers begin. Being a mediator between the powers of the state, the elementary logic tells us that he cannot be part of these.
2.4 From the 19th century continental liberal constitutions we can identify principles that have been borrowed in the actual constitutions (post-war and post-communist): the representation of the people belongs exclusively to the Parliament, to the will of which depends on the Government, and the head of the state or more precisely the President of the republic has competences that tie him either to the Parliament (the voting of the state of emergency or international treaties signed lastly by the President) or to the Government (by the countersignatures of the ministers and/or of the prime minister). As such, the President of the republic, just like a secularized king, emptied of the legitimacy of the divine right, rules but does not govern.
2.5 The president as pouvoir neutre, chosen democratically directly by the people, plays a role that cannot be assumed by the Parliament. His independence to the Parliament and in equal his election directly by the people are consequences of him being detached from the particular interests of a parliamentary majority, the reason for which during the exercise of his position he can be simultaneously neither member of the Parliament nor a member of a political party. When the Parliament forces the Constitution in name of maximizing the rights and liberties or for populist public policies, the President, as a mediator authority, is the one that protects it and sends the law to the Constitutional Court. This neutral power is not in competition with the other powers which is precisely why it becomes active only during emergency situations or war.
2.6 Carl Schmitt understands the presidential position as the representation of the unity of the political will of the sovereign people, the reason for which the President can skip parliament and can go directly to the people and calling for popular consultations. The President of the republic has the duty to create political consensus on the horizon of the reason of the state itself and the protection of democracy. He must be a non-partisan, neutral arbiter, mediator, and moderator, but also to withhold from deciding. The President as a representative of the national unity of the State is in fact the opposite of the Parliament as the people representative.
2.7 In the alternative in which the president is elected by Parliament, so in fact by a parliament majority, like in Italy or Hungary, the President is either extremely loyal to the dominant party, or nonexistent and without reaction to what takes place in the Parliament. He is a ceremonial annex, stripped of the real capacity of being an arbiter and also of the power to act differently from the will of the parliament majority.
2.8 In case of the emergency state, the President’s duty is to simultaneously assume all qualities and attributes granted by the Constitution and can decree, initially by himself, and then with the agreement of the Parliament, to a certain period of time during which the political decision requires a quick reaction and cannot be subjected to the parliamentary debate but to a single authority. The authority least touched by vanity and political partisanship is the President. With eyes set on the reason of state, by decreeing the emergency state, the President has the authority to place the interests of the state above the interests of the people (that for various reasons does not agree for example to self-isolate) and assumes the executive power. The state revs its engine to the maximum to produce order and public security and leaves on a secondary level, without forgetting them, the civil rights and liberties.
2.9 Romania may be counted in as a democracy at the fine border between semi-parliamentarism and semi-presidentialism, having both a President elected directly by the people for a term that does not overlap as length to that of the Parliament, but at the same time does not really have executive powers. The competition for power between the Parliament, President, and Government make radical political decisions to not be implemented. This fact is a gain for democracy despite the fact that the Romanian political regime was not constituted with the best democratic intentions, but rather to harmonize the battle for power between different influential political actors.
- How was religious freedom restricted in Romania?
3.1 The constitutional solution chosen by Romania was the establishment of the emergency state at the request of the president of the republic with the agreement of the Parliament for two periods of 30 days each. In these periods, the government appealed to several military ordinances as the main governing instrument. The military ordinances used a legal-political language centered on restrictions mainly addressed to the Romanian Orthodox Church (which holds 59% of all religious organizations in Romania and a total of 86.45% of members) and, if we read through the lines, the main activity limited until forbidding it is the holy communion of the faithful. The state does not restrict the participation of the clergy to the Holy Mass (where all participant priests have the obligation to take communion from the same Chalice), but restricts the communion of the faithful with the same teaspoon.
3.2 The solution thought of by the Romanian authorities is not appropriate as a public policy because is not centered on social distancing as a measure to prevent the spreading of the virus, but, on the one hand on the harsh restriction to give communion to the faithful from the same Chalice and with the same teaspoon, and, on the other hand, the separation of the Church in clergy and people, a valid dichotomy theologically until one point, but incomprehensible in relation to the access of the faithful to the exercise of religious freedom. The clergy retains the privilege of communion from the same Chalice, although in the case of large parishes and monasteries we speak of 4-5 or event 10 clerics that perform mass at the same time in small altars and unavoidable without keeping the social distance of 2 meters. Instead, the faithful are restricted from participating in the Holy Mass, for using the same teaspoon, the reason that can be read through the lines.
3.3 The solution had in mind by the Romanian decision-makers transpires from a corporate mentality and not a democratic one, meaning that it prioritizes the Church (the equivalent of the clergy body) as a social corporation to the detriment of the religious freedom as an individual right. Their intention seems to have been on the one side to ensure that the mass-media does not receive other images of the faithful receiving communion from the same Chalice and teaspoon, and on the other hand to not legislate too many prohibitions to the clergy.
3.4 Moreover, just to prove that the restrictions are not targeting the priesthood, the military ordinances, although they are meant to state restrictions and limit rights, add, without any legal logic, the fact that “religious/church servants (the term does not exist in legislation) can give communion to the ill in the hospital or at their place of residence”, which obviously was valid even before the outbreak of the pandemic. Furthermore, “the communion of the faithful” is not the practice of all religious organizations.
3.5 Further on, the expression “religious/church servants” not only does not coincide with the synonym it probably targets, which is “clerical staff” (legal and not discriminatory term established by Law No. 489 of 2006 regarding religious freedom), but is deeply discriminatory because it targets only those religious organizations that have instituted sacramental priesthood (Orthodox, Catholic, Protestant Churches, etc.) and exclude from the beginning some evangelical churches or the Jews and the Muslims, where the sermon directed by the clergy can be performed, in certain situations, by other members of the community.
3.6 The restrictions in the military ordinances target in fact practices specific to the Romanian Orthodox Church, leaving the apparent impression that it gives the Romanian Orthodox Church some free space (which is to perform sermons behind closed doors), but forbidding the access of the faithful to the sermon, which is the main gesture of exercising religious freedom.
3.7 In Romania’s case the governmental positions are mediated arbitrarily by a mixture of anti-clergy (despite the fact that in democratic regimes the police force has the role to prevent and educate, the Romanian Police fined dozens of priest with the amount of 4.000 euro each for performing the memorial service with 4 to 5 people in the outdoors) and pietist ultra-conservative (the Police, neutral from a religious standpoint according to the legislation, offered to help within an agreement with the Romanian Orthodox Church, to spread the holy light in the night of the Resurrection, a gesture reserved solely to the clergy, and revoked because of the public pressure).
- Further advancement of FoRB in Eastern Europe
4.1 The topic of restricting religious freedom, a right generally understood in eastern Europe as optional and not important, despite the recent experience of the communist regime and of the recent Western pressure, becomes for the next weeks a theme to think about for the Parliament, the guarantor of citizen rights and liberties. The Romanian Parliament has the chance to censor military vices and pay attention to the language and instruments used so that this period of crisis does not leave deep scars in the democracy especially given that the ease of restrictions regarding religious life are about to happen all over Europe.
4.2 The call of US Ambassador at large for international religious freedom, Samuel Brownback, or that of Jan Figel, former Special Envoy for the Promotion of Freedom of Religion or Belief Outside of the EU regarding the release of political detainees abusively detained for religious purposes in many countries in the world, remain, for the moment, in countries such as Romania just a diplomatic speech and not concrete invitations to promote FoRB.
- Cultural approaches towards the rule of law in Romania
5.1 Even if during the actual pandemic all states have imposed general restrictions regarding the conduct of religious activities, Romania is among the few democratic regimes in which the public authorities addressed liturgical recommendations. Fascinated by its despotic power, the state forced itself in the Chalice recommending abstention from the Eucharist. It did not do so for theological reasons but from a lack of democratic culture. Both international and national legislation are extremely precise regarding the regulation of worship: citizens are empowered with religious freedom, a right set at the base of the pyramid which is the rule of law and which is exercised also by taking part in the religious ceremonies conducted according to norms established by the religious organizations, based on their autonomy towards the neutral state from a religious standpoint.
5.2 As long as for the Romanian state, the usage of the unique spoon in administering the Eucharistic in the Eastern Churches did not represent a matter of hygiene overtime (other epidemics, viruses, and seasonal flues), the discovering overnight of the potential to infect during the communion ritual is a nondemocratic approach. Why? The answer lies in the way in which the rule of law was thought and ideologically transformed in Romania by positive or negative approaches against Orthodoxy, but without relying on one of the oldest liberal and democratic rights, the religious freedom.
5.3 For recent historical reasons, the states which resulted from the incomplete dismemberment of the USSR and the transformation of the communist countries are weak states when it comes to bureaucracy and democratic culture. The legitimacy of the post-soviet and post-communist political regimes was built in most cases simultaneously with the public reconstruction of orthodoxy (e.g. the Romanian case) or even due to the positive image of the Church in society, the case of Georgia, where patriarch Elijah the 2nd is still by far the most influential Georgian public figure. When the state fails to politically legitimize itself with the constant effort to expand rights and liberties, it resorts to various forms of cultural legitimacy.
- The rule of law in the Romanian modernity
6.1 The first academic systematization of the knowledge about rule of law belongs to the British Albert Venn Dicey (1888): nobody can be punished unless the deed of which he stands accused is explicitly provided by law. Rule of law is the opposite of the discretionary and arbitrary authority of the people. The people are governed by law and only by law, while the law is not the source, but the consequence of the rights and liberties of the citizens. It is not the state that gives rights to people, but the citizens gifted with rights which mandate the state to watch for the fulfillment of the rights of the citizens. Dicey makes a precious distinction between rule of law in the Anglo-Saxon approach, which is based on the Bill of Rights and has the purpose to further extend rights and liberties, and the French and German approaches of the rule of law, neutrally connoted in the report with democracy. His distinction has had a prophetic value considering that the German rule by law hit its apogee right in the ideological foundation of the Nazi regime.
6.2 Following the experience of the 20th century, in which regimes on the course of democratization were dethroned by totalitarian regimes (the Weimar Republic is replaced by the Nazi regime), rule of law was defined eminently as a political system based on the supremacy of rights and liberties (Joseph Raz).
6.3 The preliberal meaning of rule of law was not meant to maximize individual freedoms, but to never reach tyranny. It is a tradition beginning with Magna Charta (1215) and which imposes limits to the political authority. It is the meaning that contemporary non-liberal regimes assume by even postulating a divine vision of the good, especially in the Muslim ones, where the Sharia has equal or even constitutional value. The Afghan constitution, which inaugurates the Islamic Democratic Republic, provides equal rights between men and women, but also does not allows the application of any law contrary to Islam.
6.4 Within liberal societies there is no more ruling taking in account the divine right or the natural right. The legislative body is based on the Bill of Rights, the Declaration of Human Rights, or other documents and international standards. Political liberalism completes the meaning of the rule of law: rule of law, not the rule of men. The reign of law is the opposite of the rule of men (a government of laws, not men), because the law is based on reason, while people can act according to passion. The law is objective, the man subjective. Italian political scientist Leonardo Morlino systematizes some dimensions of the notion of rule of law hierarchically: the protection of human rights, political independence of judges, the political neutrality of bureaucracy, the increased capacity of the public administration to enforce the law in a professional and transparent manner, the civil control on military forces, etc.
6.5 The Romanians begin to know the rigors of the rule of law at the middle of the 19th century, when the customary Romanian law, mostly inspired from the practice and social teachings of the Church, was replaced with the principles of imperfect liberalism, which drew its sap from the administrative law rigors, the French variant of the rule of law.
- Governing the Orthodoxy
7.1 In the case of most orthodox majority countries, orthodoxy represented in the 19th century one of the essential pillars of the nation’s founding, the reason for which states are feeling culturally tied with orthodoxy and define their connection to the majority Church not in terms of religious freedom, but as “the default Church of the nation”. The given Church, preexisting the birth of the nation, a cultural and moral guardian of the political body. The majority of the clerics believe that they are exhausting themselves as missionaries in this role as guardians of national morality and civic behavior and do not question the political regime itself. It is, otherwise, also one of the explanations for which post-communist countries do not have civic movements (such as in Poland, Catholic country) brought to life by the Orthodox Churches. These stand on one hand far from politics, in terms of critic and rationing the political decisions, not clearly stated against or in favor of some political decisions as it happens in the West, and, on the other hand, the Church is too close to politics, doing this immense service to the state, taking its place in many situation, especially in that of the moral and behavior guardian of the society.
7.2 For historic reasons, the majority of churches have the tendency to mistake their members with the entire population. From a theological standpoint, it is a gesture of spiritual maternity, but which also lies against the democratic political representation. Orthodox and protestant churches act, together with the political representatives, as an alter representative of the people. For example, a certain Church can be against LGBT marriages for theological reasons, invoking their own theological tradition, or can make it for political reasons, invoking the evil concocted within the fiber and identity of the people. In the case of the second argument, the Church can either substitute the Parliament, giving voice to the political will of the people, or can feel the dominant position of the people and fall victim to populist and theologically unfounded rhetoric.
7.3 The Romanian state was created simultaneously, in tandem and against orthodoxy: in tandem, because together they created the Romanian nation born Christian. Against orthodoxy, because it confiscated almost all social and civil duties of the Church, deeming it unworthy and irresponsible of being a partner in modernizing society. With the reforms from the middle of the 19th century, the state dismembered, in the Orthodox Church, what was the most valuable materialization of religious life in democratic societies, American or British, namely the contribution of the Church to the generation of social capital. The Romanian Orthodox Church is unlawfully accused that it never developed a social philanthropy network. In fact, beginning with the secularization of AL. Ioan Cuza (1859-1866), the state took all material resources from the Church and refused to ideologically observe and benefit from the social capital produced by the Church, in the form of the tightly knit relations of social aid at parish and family level.
7.4 Up to the year 2000, the Romanian state was afraid to use, in relation to the church, the phrase religious freedom, using instead variations of the mutual legitimization: The Romanian/national Church, dominant Church, and the partner state, etc. The Church did not develop a culture of religious freedom and of the rule of law, because it understood about its repositioning in the center of society with the fall of the communist regime not as a consequence of religious freedom and democratization, but as a cultural legitimacy received from a state. Today, in spite of the fact that entire generations of orthodox theologians studied and activated in the West, the phrase religious freedom still frightens the diocese chancelleries or theology faculties, although it is the most legitimate type of response the Church can deliver to the society, more and more routinized in the form of robotized secularism.
7.5 The secularization of the wealth of the church (1863/4) did not only mean the nationalization of the properties, but also the changing of the Church into a ceremonial annex and moral guardian of the society. It divided the Church into bishops and the rest (priests and believers). Subsequently, the politicians privileged the relations with local bishops, while the Church, as a united social body, was not even a source of social capital for the state, let alone a community mediated by religious freedom. Things are not different today, given that many politicians fill their public agendas with spiritual events speculated for electoral purposes, but do not think about the way Church serves society due to religious freedom. The false pietism shown at the celebration of the patron saints is directly proportionate with the real indifference towards the Church as the living community of people associated with the name of religious freedom.
7.6 For this reason, May 2020 government recommendations, to avoid the Eucharistic, are in fact the result of a 150-year-old manner of thinking, a way of thinking against the rule of law, meant to democratize society. During the pandemic, the Romanian state regulated the dimension of the religious life (weddings, baptisms, funerals), but did not show empathy with the faithful, by leaving cemeteries accessible to those who wanted to pray at the graves of their beloved ones. In the eyes of the state, the Church is a supplier of ceremonial public services, the reason for which the state forced itself in the Chalice, not recommending the communion of the faithful.
7.7 Even if the gesture circumscribed to the state of emergency or alert, can be, without democratic bigotry, tolerated in a short term, there is the risk of it leaving painful scars in the social weave of Romania and open new paths to even worse attempts on the freedoms and liberties.
7.8 While Germany (April 30th), France (May 18th) or the USA (May 29th), did not make worship recommendations, the constitutional control censored the anti-rule of law behavior of the authorities, reminding them that the limitations of religious freedom have to be made proportionate with the purpose of the general restrictions, whereas in Great Britain (May 15th), the government organized a task-force including the religious organizations and independent experts, to jointly establish the time to lift restrictions in the field of religious life.
7.9 The Romanian state is placed outside of the democratic dynamics of a rule of law state and forces itself in the Chalice, which does not seem to be a source of religious freedom, but a mere cultural ceremony. In Romania, the government felt the need to especially regulate religious activities, and forbade the prayer inside places of worship, placing the Christians under the disapproval of the public, making them guilty ab initio for breaking social distancing. Setting aside that this is a political-theological humiliation of the faithful (the liturgy is by definition a private religious event, reserved only to the members of the Church), the common order of the health minister and of the internal affairs minister from May 20/22 of this year (an administrative document with lesser judicial power than that of a law) also provides a total and absolutely wrong redefinition of the public space and the (not) private character of the liturgy. The order distinguishes between private and public religious services.
7.10 In reality, international standards of freedom of religion or belief, as well as Romanian legislation, establish clearly the private character of all religious activities as a direct consequence of the exercise of religious freedom and of conscience, without the interference of the state. Even if the theological projection of the liturgy is a public one, the liturgy itself is still private, like weddings, both religious events being addressed only to the invited people. The legal-political reconceptualization of the liturgy into a public event would mean that the state no longer recognizes its neutrality in matters of religious life, according to the Law No. 486/2006 regarding religious freedom, or even make recommendations regarding the liturgy, such as recently, when they recommended the abstention from the Eucharistic or from giving blessings by keeping a distance of 1 meter. Moreover, the fact that most Churches keep their doors open during a religious service to anyone willing to participate, does not change the private character of a religious manifestation in every democracy.
7.11 In equal measure, the fact that religious services are strictly private manifestations, does not mean that the social responsibility of the Church to anyone that sets foot inside the church is diminished or somehow discouraged. But, the simple questioning of the private character of religious services, is equivalent to placing the freedom of conscience of the faithful under the magnifying glass and creates a very grave precedent for the Romanian democracy. Can we expect the Romanian state to give out necessary instructions regarding the content of the preaches, as it happens in Turkey?
- Neoliberalism and anti-liberalism
8.1 The way in which religious life was restricted during the pandemic was predictable, given that the actual global political paradigm is characterized, among others, by the politic judicialization phenomenon (Pierre Rosanvallon). The growth of the power of the judges is directly proportionate with the decrease of citizen confidence in the political responsibility of the government. We know who signs a certain decision, but we do not know how that decision was made, given the many interests, bureaucracy structures, and expertise on multiple levels. Moreover, executive political decisions are more and more adjusted and calibrated not by Parliaments, but by constitutional/supreme courts. The language of citizen rights and freedoms became a very encoded and bureaucratized one, and common citizens, even those who temporarily populate parliamentary gatherings, do not have, regularly, access to the standards with which the international jurisprudence operates in different fields. In the area of religious life, states that gathered luggage of expertise and openness towards the protection and promotion of religious freedom did not encounter serious issues of radicalization and social tensions during the pandemic.
8.1 In turn, although the neoliberal pattern described above seems to extend globally, in the case of Romania, the executive decisions of the pandemic period have been ideologically inconsistent: there were, on one side, highly conservative gestures, such as the initiative of the Ministry of Interior that the state should safeguard with uniforms and police logistics the distribution of the Holy Light on Easter, which shows that the state wants to be a super-warden of tradition. On the other side, the state denounced with the Marxist tone the liturgical gestures considered all together dangerous to the health of the population, forgetting that religious manifestations are direct expressions of the private conscience and that they can only be censored similarly with non-religious ones. The decisions were not made based on the “rule of law”, which is the base of standards and international legislation compatible with democracy, but on the “rule by law”, based on some made up ideological frustrations, pro or against the Church and indifferent to the demands of religious freedom and democracy.
- What is to be done?
9.1 Replacing pro-/anti Church governmental positions with international guidelines to apply the principles of religious freedom for dignitaries, police officers, attorneys, and judges;
9.2 Branching the Romanian government to the International Alliance of Religious Freedom, an organization launched by the US Department of State and which already includes almost all post-communist countries from Europe: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Greece, Hungary, Latvia, Lithuania, Slovakia, Slovenia, Ukraine;
9.3 Collaboration with European institutions such as the Agency for Fundamental Rights of the European Commission and the Office for Democratic Institutions and Human Rights of OSCE which offers practical solutions for emergency situations, like the Covid-19 pandemic, etc.;
9.4 The introduction of the culture of freedom of religion or belief in the public administration, at least on the central level, starting from the minimal effort to religiously alphabetize at least the political decision-makers.