The Implementation of the 1992 Agreement in Spain

Chapter 28
The Implementation of the 1992 Agreement in Spain

Carmen Garcimartín

Background and Approval of the 1992 Agreement

The Islamic community in Spain faces a challenge common to Muslim groups in Western countries: that of adapting itself to a non-Islamic society. The accommodation of the Muslim community is usually attained by means of juridical institutions that are intended to implement religious liberty in general, both with respect to individuals and to communities. Its final aim is to achieve a presence in society and a way of life as much in accordance with Islamic principles as possible.1

A Muslim population lived in Spain from the eighth until the seventeenth century, when they were expelled from the country. There has not been a significant number of Muslims living in Spain since then, apart from the small territories pertaining to Spain in North Africa.

Spain was an officially Catholic country until the approval of the Constitution of 1978, and Islamic communities could not be recognized until then. There were some Islamic cultural centres, but they were both few and ambiguous in their links to the Islamic community. Religious liberty and equal treatment under the law were restated as principles and fundamental rights in the 1978 Constitution. They were partially developed in the Religious Freedom Act of 1980. As an outcome of these principles, Agreements with Evangelicals, Jews and Islamic communities were signed in 1992. Islamic communities came together in one entity, the Islamic Commission in Spain (CIE), which would become the body to conclude the Agreement with the Spanish Government. This Agreement, unmodified since its approval, provides the framework of the juridical status of Islam in Spain.

There are not many specific features in this Agreement additional to those governing the general status of religious denominations stated in the Religious Freedom Act. Moreover, the contents of the Agreement are quite similar – many articles even identical – to the Agreements with the Evangelicals and with the Jews. Thus, as a general approach we can say that the Agreement with the Islamic Commission of Spain was set up according to a standard scheme, to grant the Islamic communities some benefits – the same as those enjoyed by other religious denominations – rather than to recognize particular aspects of Islam. In fact, the Agreement regulates some juridical figures that are not of great concern for Muslims, like religious leaders’ status, while other items highly relevant for them, like divorce or talak, were set aside. Specific issues and their development will be examined next.

Development of the Agreement

Places of Worship and Cemeteries

Unlike the Agreement with the Catholic Church, the Agreement with the CIE defines the places of worship. The reason is that the Catholic places of worship are easily distinguishable, because Canon Law regulates their consecration as a place of worship, while non-Catholic places of worship include a wide range of concepts which demand definition in order to avoid the chances of distortion of the law.2

Mosques or places of worship must meet two requirements to be considered as such: permanence and exclusivity in their use for Islamic prayer, training or spiritual support. They can be annotated in the Registry of Religious Bodies. Although this is not compulsory it is highly recommended because of its impact on tax exemption.

There has not been any specific legislative development of this article. According to general Spanish Law, these places enjoy immunity. In the event of expropriation, the Islamic Commission of Spain must first be heard. Mosques may not be demolished unless first divested of their sacred nature. They shall also be exempt from temporary occupation and the imposition of easements.

Problems in this field arise mainly from the lack of regulation of some issues that are in the power of local authorities: the assignment of public land to build mosques or locate cemeteries, and the licence that must be obtained to open a new place of worship. The Spanish Supreme Court, overturning certain local government practice, stated that places of worship should not require the same licence required for business or trade places in order to be opened.3 However, places of worship are intended to sometimes hold a great number of people. Thus it is not unreasonable to expect compliance with certain safety standards to allow places to be open to the public. To avoid the uncertainty that this situation might cause, enactment of a statute that clearly states such requirements for opening a place of worship would be desirable.

Regarding cemeteries, there is a specific provision in the Agreement: all due measures shall be adopted to observe traditional Islamic rules about burial, graves and funeral rites, both in private Muslim cemeteries and in the plots reserved for Muslim burials in public cemeteries. This last provision is an unusual statement, taking into account the general trend towards the secularization of cemeteries, precisely to avoid any kind of discrimination because of religious beliefs.4

Religious Leaders

Since Islamic denominations have no religious hierarchy, the Agreement uses the expression ‘religious leader’ instead of ‘religious minister’, as the Islamic Community expressly requested. Nevertheless, some problems may arise from the idea of what an Islamic leader is. According to the Agreement, people devoted on a regular basis to guiding the communities, leading prayer, training and providing for Islamic spiritual support shall be considered Islamic religious leaders. Imams, that is, those members of the community that lead the common prayers, can undoubtedly be considered the equivalent of religious ministers, but the article also applies to people in management roles. It is unclear whether these people must be considered as religious ministers, given that they do not perform religious duties. Neither the Agreement with Jews nor the one with the Evangelicals consider people with management roles as religious ministers.

Regarding their juridical status, religious leaders have the same civil rights and duties as other citizens. Their condition is seldom taken into account, except in such matters important enough to be considered as implying particular juridical status.

Foreign Islamic leaders who are devoted exclusively to religious duties do not need a work certificate to obtain a legal visa in Spain. They are included in the Ordinary Social Security Scheme, under employee status, whenever they are paid for their services. The Islamic Communities assume the employer’s rights and duties. There is not, logically, any provision regarding secularized leaders or unemployment benefits.

Islamic leaders, like any other religious minister, cannot be compelled to declare details of events revealed to them in their liturgical practice or when officiating at religious services or rendering spiritual support. Unlike other Agreements, however, the Islamic one extends this rule to the provisions on professional secrecy, in consonance with the functions of Islamic leaders.

An issue regulated in the Agreement that, in fact, is not an issue any more, is the military service of Islamic leaders. Military service has become non-compulsory since the approval of the Agreement. In any event, if an Islamic leader were to be compelled to fulfil any military duty, he would be assigned to missions compatible with his religious functions, if he requests it.