Protected by the German constitution

The situation in Germany is different to that in Austria: Germany lacks the conditions to pass a Law on Islam. Nevertheless, as Daniel Deckers points out, the German constitution, known as the Basic Law, provides a framework for all religions and already offers Muslims many freedoms – more than they have in countries where Islam shapes the legal system

By Daniel Deckers

In 2006, the then Minister of the Interior Wolfgang Schauble broke a taboo: with the blessing of the governing coalition partners, the CDU/CSU and SPD parties, he set up the German Islam Conference, the "first institutionalised dialogue between the German state and Muslims living in Germany," as the Minister described it on 28 September of that year when addressing the lower house of the German parliament, the Bundestag.

With this move, Schauble was venturing into new religious policy territory: not because the themes to be addressed by the conference were so controversial, but because the idea of initiating a dialogue between the government and representatives of one of the great world religions selected by that government was in itself new.

Unlike the Austrian state, which in 1912 recognised Islam – in the form of the most widespread school of religious jurisprudence in the annexed state of Bosnia – as a religious society, thereby granting it a legal personality, the Federal Republic of Germany did not have and still does not have a point of contact on the Muslim side that would satisfy German requirements for a religious society or community. Such a community would have to unite all members of a certain denomination within a specific region for the shared fulfilment of all tasks set by that denomination.

Wolfgang Schauble (photo: picture-alliance/AA/Dursun Aydemir)
Dialogue between the German state and Islam: the German Islam Conference was launched in 2006 by then Minister of the Interior Wolfgang Schauble. The objective was and is to promote dialogue between the state and Muslims

The first Muslim organisation with the status of a "public body"

However, this is the one and only provision made in Germany's Basic Law for recognising such an institution. The Basic Law, which adopted the relevant provisions of the Weimar Constitution, does not recognise Churches per se, and associations for the purpose of religious worship are covered by ordinary legal regulations. This means that this system cannot discriminate against Muslims in Germany. Even if Islam, given its structure and self-image, is scarcely able to organise itself as a full-fledged religious community in this sense, the option is, in principle, open to Muslims. Moreover, recent case law shows a pragmatic tendency to consider umbrella associations of Muslim organisations as quasi religious societies.

It remains to be seen, however, whether this tendency will also open up the possibility for associations to enjoy the same privileges as religions, namely fiscal jurisdiction and the right to employ public officials – privileges that a religious society can claim if it is recognised as a "public body" (Körperschaft öffentlichen Rechtes).

According to the Basic Law, not much is required to gain this status: Article 140 of the Basic Law in conjunction with Article 137 paragraph 5 of the Weimar Constitution stipulates that religious communities can obtain such a status "if their constitution and the number of their members offer a guarantee of permanency." In this sense, not only Churches like the Catholic Church and the Protestant Church are recognised as "public bodies", the same rights have also long been enjoyed, for example, by the Jewish community in Berlin and the Jehovah's Witnesses.

Muslim communities of faith could soon be added to this list in significant numbers – if they so wish. In 2013, for example, the German federal state of Hesse granted the Ahmadiyya Muslim Jamaat, which has some 35,000 members, the status of a "public body". It was the first Muslim organisation in the state to be thus recognised. Incidentally, the request for recognition came from the Ahmadiyya Muslim Jamaat itself. The city state of Hamburg followed suit a year later. The fact that the Co-ordination Council of Muslims in Germany (KRM) deems the understanding of Islam espoused by this organisation to be incompatible with Islam is not relevant for the federal states.

The Vienna Islamic Centre, Vienna, Austria (photo: picture-alliance/dpa)
The situation in Germany is fundamentally different from that in Austria. The Austrian Law on Islam has its roots in the Habsburg Empire, which reigned over one hundred years ago. This law was adopted after the annexation of Bosnia in order to grant legal certainty and freedom of religion to Bosnian Muslims

Guaranteed freedoms for members of all religions

The recognition of further Muslim associations or organisations as "public bodies" is not, therefore, the way to resolve difficulties relating to the co-existence of Muslims and the majority society and co-existence within the larger Muslim community.

Similarly, a Law on Islam like the one adopted by the Austrian National Council on 25 February this year would not meet these requirements either. The German federal legislature is authorised neither to circumvent the constitution by means of legislation nor to restrict the sovereignty of the federal states in this area. In addition, a federal law would not be able to overcome the institutional hurdles in the relationship between the state and Muslim organisations that result from Islam itself. This is why the Federal Government has opted once again for the German Islam Conference as a forum for dialogue.

"Islam is part of Germany and of Europe; it is part of our present and it is part of our future," Schauble said in 2006. Since then, the conference, whose members include both representatives of the state and of Muslim associations but no longer any independent figures, has formulated numerous recommendations.

According to the constitution, it is task of the federal states and municipalities to take up these recommendations and implement them, whether it be in the form of local integration agreements, or legal provisions on Islamic religious instruction as a regular subject in public schools, as is the case in North Rhine-Westphalia, or in the form of a state treaty like the one that has been concluded in Hamburg with three Muslim associations on topics such as common values, Islamic holidays and religious support in hospitals, care homes or prisons.

Yet regardless of the institutional forms Islam assumes in Germany, one thing is clear: Article 4 paragraphs 1 and 2 of the Basic Law guarantees and protects basic rights such as the freedom of faith and of conscience and the freedom to profess a religious or philosophical creed – not only as a positive and negative freedom, but also at individual, collective and corporate level.

These guaranteed freedoms apply a priori to members of all religions. This means that Muslims in Germany not only have more freedoms than in most other countries where their religion shapes the legal system, they also have more rights.

Daniel Deckers

© Frankfurter Allgemeine Zeitung/ 2015

Translated from the German by Jennifer Taylor

This is an abridged version of the original German text.