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Minority opinion
submitted by the working group of the SPD's parliamentary group in the
Enquete Commission on "So-called Sects and Psychogroups" with regard to
Chapter 5.5.3.2 (Rights of Corporations) and the relevant recommendation
for action in Chapter 6.2.1.2.
The Commission members Ursula Caberta y Diaz, Alfred Hartenbach, Dr
habil. Hansjörg Hemminger, Angelika Mertens, Renate Rennebach, Gisela
Schröter, Dr Bernd Steinmetz and Professor Dr Hartmut Zinser (working
group of the SPD's parliamentary group) do not agree with Chapter
5.5.3.2 (Rights of Corporations) and the relevant recommendation for
action in Chapter 6.2.1.2. In view of the future recognition of
religious communities as public corporations, they consider it necessary
to recommend the following review from the perspective of constitutional
law:
We recommend that the German Bundestag should review Art. 140 of the
German Constitution during the 14th legislative period in order to
examine whether it is appropriate to include loyalty to the legal system
and to Germany's democratic constitution as explicit criteria for the
recognition of religious communities as public corporations.
Rationale:
1. According to the wording of the German Constitution (Art. 140 in
conjunction with Article 137 (5) of the Weimar Constitution), a
religious society must at present be granted the status of a public
corporation if it "offers the guarantee of permanence on the basis of
its statutes and number of members". The judgement passed by the Federal
Administrative Court on 27 June 1997 (Ref.: 7 C 11/96, BVerwG NJW 1997,
2396) concerning the recognition of Jehovah's Witnesses shows that there
is a need for a more precise definition of this point that should
perhaps not be left to the supreme courts alone. The grounds for the
judgement go beyond the wording of the Constitution by stating that
there are further, unwritten conditions for recognition such as "loyalty
to the legal system" (ibid., p. 2397) and "furtherance of public welfare
that are tacitly assumed in the Constitution and justify support"
(ibid., p. 2398). This case -- with its judgements at successive stages
of appeal and various discussions including those in the Enquete
Commission -- has shown that these "unwritten" and "tacitly assumed"
principles are highly imprecise.
There is a need for a review from the point of view of constitutional
law to determine whether the "limits to religious freedom inherent in
the Constitution" (ibid., p. 2397) have to be stated explicitly at least
with regard to those religious societies that apply for the status of a
public corporation.
2. In the case of religious societies, public corporations are vested
with a "package of privileges" that include public authority. It is not
justifiable to
grant such privileges and public authority and rights to religious
societies whose doctrines and activities are not compatible with the
fundamental values of the German Constitution, if only in certain
substantial areas. In public law government must demand that religious
societies wishing to acquire the high status of a public corporation
show loyalty to the law and the Constitution and willingness to support
the constitutional order. Nor must the activities of religious societies
with the status of a public body "run contrary to the meaning and
purpose of the desired status as a public corporation as defined by the
constitutional ruling" (ibid., p. 2397). The government is not obliged
to grant privileges to a religious community whose activities do not
conform to the basic values of the Constitution.
3. The working group of the SPD's parliamentary group in the Enquete
Commission on "So-called Sects and Psychogroups" does not share the
opinion of the majority of the Commission according to which there are
prevailing judgements by the supreme courts on this matter that make it
unnecessary to carry out a review of constitutional law in the manner
suggested above.
On the contrary: there is only the Federal Administrative Court's
decision on the community of Jehovah's Witnesses mentioned above; we
know of no other judgements by supreme courts on the problem to be
considered here.
The lower-level courts had come to exactly the opposite decision and
were of the opinion that awarding the status of a public corporation
should not be prevented by "unwritten" requirements. Nor is the problem
assessed unanimously in pertinent literature. For the above reasons,
those responsible for constitutional legislation are called upon to
subject the requirements to be met by organisations in order to be
recognised as public corporations -- requirements which date back to the
Constitution of the Weimar Republic -- to a review based on contemporary
constitutional law. This also applies to the constitutional complaint
filed by Jehovah's Witnesses, the outcome of which is entirely open, as
the majority of the Commission's members rightly stated.
4. Since Art. 137 (5) clause 1 of the Constitution of the Weimar
Republic states that "religious societies ... (shall remain) public
corporations if they were such in the past", the suggested review only
pertains to cases in which religious societies are now applying for
public-corporation status. The traditional Churches, their legal status,
their internal rules and thus the constitutional compromise of 1848,
1919 and 1949 remain unaffected. No doubt is being expressed as to the
loyalty to the legal system and to the Constitution of the Churches with
public-corporation status and their willingness to support the
constitutional order; on the contrary, it must be said that they have
made a major contribution to establishing the German Constitution and
continue to do so. The suggested review merely takes account of the
situation that has evolved in the course of history, which is not to be
put into question by the Commission.
5. In this connection, it must also be pointed out that the suggested
review does not affect the status of those religious communities that do
not apply for recognition as a public corporation. However, the
privilege conferred with the recognition as a public corporation is of
such a quality that it must not be undermined by being generalised and
granted to all communities.
Moreover, the formulation of the requirements for recognition would also
be an unmistakable offer on the part of government to co-operate with
religious communities.
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