North Macedonian Secularism to the Test in Times of COVID-19

Dorjana Bojanovska Popovska

Central European University, Budapest

The North Macedonian constitution is a liberal constitution. It includes a broad protection of rights, including equality before the law (Article 9), freedom of belief, conscience and thought (Article 16) its manifestation (Article 19), etc. Article 19 further entrenches the institutional separation between the state and faith organizations, specifically between the five largest faith organizations and the government, thus instituting a non-establishment regime.

Religious organizations in North Macedonia have been financially impacted by the ongoing pandemic. The Macedonian Orthodox Church publicly admitted that they faced financial hardship, due to an expected loss of revenue during the Easter weekend (17 and 19 April). The head (Reis) of the Islamic Faith Community had a different approach. He publicly stated that government officials already agreed on providing monetary aid. However, he claimed that “the aid” was lost in the bureaucratic machinery. He threatened the government by stating that if they failed to provide monetary assistance he would disregard the government recommendations and call the faithful to prayer - undermining the  fight against the pandemic.

Two government decisions viewed as a response to the statements made above, called into question the nature of the secular state. The first was the decision to enact an ordinance approving financial aid to religious higher education institutions. The ordinance calls into question the implementation of the non-financing principle. The second was a decision not to limit the operation of churches for Easter mass and communion: it raised the issue of the limits of church autonomy and the manifestation of belief in times of public health crises.

This post will analyze these two decisions from a constitutional law perspective, answering if and how they undermine the principle of secularism. I argue that the ordinance bears no error in law, nor does it directly question the efficacy of the secular state. Conversely, the second decision tests the limits of state sovereignty and the political effect of interpreting constitutional secularism: this makes the principle of secularism weak and dependent on the ideological understanding of the governing party in power.

“Problematic” state financing

One day after the Reis’ statement, the Government decided to allocate by ordinance “funds for the realization of study programs for the year 2020” to both the Orthodox University of Theology “Saint Cyril of Ohrid” and the Faculty of Islam Studies. The Orthodox University of Theology was allocated 4,500,000 Den (72,770 Euros), the Faculty of Islam Studies 3,000,000 Den (48,500  Euros). The ordinance stated that the funds were allocated to pay for expenses of the 2020 study programs that cannot be covered by the budget of the universities. The ordinance implemented a previous decision adopted on 19 February approving funds to be distributed to these two universities on a quarterly base.

The ordinance must not be interpreted as allowing direct financing of religious institutions, something that Article 19 of the North Macedonian Constitution in conjunction with Article 32 of the Law of the legal status of churches, faith organizations and religious groups clearly prohibit. The basis for the ordinance was the 2008 Law on Higher Education, which permits state funding for all higher education institutions established as non-profit educational institutions. Both the Orthodox University of Theology “Saint Cyril of Ohrid” established by the Macedonian Orthodox Church and the Faculty of Islam Studies established by the Muslim Faith Community have such status. Furthermore, in 2008 the Orthodox University of Theology was accredited and incorporated into the largest state University ”Saint Cyril and Methodius,” as an associate member. Thus, the funds were allocated based on a religiously neutral law which allow for state funding for all public-private non-profit institutions. The fact that these institutions happen to be religious is also not problematic. State funding of religious educational institutions is available in almost all constitutionally secular states, especially in Europe; the rationale for this being that certain social functions having significant social role deserve state support.

There is nothing facially controversial about the government decision and the ordinance. So, why does it pose questions about the “health” of the secular state? First, the funds were approved one day after the controversial statement of the Reis, creating the perception that instead of penalizing such speech, religious organizations were rewarded. Second, it created a perception that the ordinance was enacted as an alternative avenue for state financing of religious institutions to assist them through financial hardships. Third, it poses a question whether the allocation of funds for these purposes is a priority during this public health crisis, especially considering that government funding was considerably cut in other sectors. In context, these are legitimate concerns. They also reveal a perpetual distrust towards the government, perhaps always prevalent in Macedonian society and further reinforced by the experience of steady decline towards illiberal democracy between 2006 and 2016.

Undermining the constitution and rule by law (instead of rule of law) can be considered a common practice in the North Macedonian context. This has caused suspicion within the citizenry. However, the context in which the decision transpired, even though correct in law, has created distrust through a perception of a link between politics and the undermining of secularism.

Manifestation of religion and belief vs. public health

A few days before the Easter weekend, the Prime Minister of the government declared that churches will be allowed to function during the holiday, while correspondingly calling on citizens’ to stay home. This also caused outrage due to the fact that there is a declared state of emergency and the economy is currently operating under restrictions, freedom of movement of all citizens is severely limited, yet the government is unable to close churches. Doesn’t such inaction, in the anticipation of Easter mass and communion, presents a clear public health risk? The Prime Minister elaborated: churches cannot be closed by the state even in a state of emergency. This implies that freedom of religion under the Macedonian legal regime is an absolute right.

The Prime Minister’s statement could be justified under Article 54 of the Constitution, which states that certain rights that cannot be limited in times of a declared state of emergency. Among the enumerated rights is freedom of belief, conscience, thought, public expression of thought and religion. It is a common feature in constitutions to include freedom of religion (forum internum) as a guaranteed right in a state of a declared emergency. The protection and absolute nature of forum internum is recognized on an international level. The North Macedonian Constitution implements a rather rare provision, which includes “expression” or manifestation of religion (forum externum) as an absolute right. This gives a higher level of protection of freedom of religion and belief than the minimum standards established by international conventions (such as the ECHR or the ICCPR). On the other hand, Article 8 of the Law of the legal status of churches, faith organizations and religious groups, in line with Article 9 ECHR, establishes a lower standard of protection than the Constitution because it allows ordinary legislation in ordinary times to limit religious manifestation if certain conditions are met. As per the ECHR, “[the] manifestation of religion and belief can be limited by law if it is necessary in the interest of “public safety, order, health and morals or the protection of the rights and liberty of others”. The distinction between forum internum and forum externum is not reflected in the North Macedonian Constitution.

So, is the government prevented from limiting the operation of religious buildings in a state of emergency, more specifically in public-health crisis? Articles of the Constitution should not to be interpreted in isolation; rather they should be interpreted in conjunction with other relevant articles. Thus, when interpreting Article 54 we must understand if it envisions both an individual and collective dimension of religious expression. This is unlike Article 19 which explicitly protects and includes both dimensions. Furthermore, Article 54 must be read in conjunction with Article 21, which clearly establishes a limitation of peaceful assembly in a state of emergency. Therefore, even though individual religious manifestations cannot be limited, a limitation of collective gatherings and consequently collective religious expression can be limited in a state of declared emergency. The government failed to adopt such interpretation; instead it enacted a 4-day long curfew.

The state imposed limitations on citizens while correspondingly refraining from imposing limits on the complete autonomy of churches. Churches remained open and citizens attended mass before and after the curfew. Without any additional guidelines, communion was held and believers visited churches sharing a single spoon. The constitution is not to blame, as it was a political decision whose lasting impact on the health crises still remains to be seen.

Dorjana Bojanovska Popovska is a SJD Candidate in Comparative Constitutional Law, Central European University, Budapest

Suggested citation: Dorjana Bojanovska Popovska, “North Macedonian secularism to the test in times of COVID – 19” IACL-AIDC Blog (date) https://blog-iacl-aidc.org/2020-posts/2020/6/4/north-macedonian-secularism-to-the-test-in-times-of-covid-19