Secularism as separation and neutrality: A redefinition of Concepts by the Constitutional Court of Peru

Enlil Iván Herrera Pérez - 25th February 2019

Last month, the Constitutional Court of Peru issued a judgment in the case 00007-2014-PA/TC, which concerned an application for amparo (constitutional relief) in favour of a teacher. The case began when the teacher was transferred to a different school against her will. The case concerned issues that reached beyond a standard labour dispute: it raised issues concerning the public financing and services provided to parochial schools in the light of the principle of secularism, and the correct interpretation of Article 50º of the Political Constitution of Peru,which provides that the State “recognises the Catholic Church as an important element (…) and lends the church its cooperation”.

The teacher, Darlyn Roxana Jurado Garay, brought the case against the parochial school “San Agustin” and the Educational Management Unit of the district of Zarumilla. The teacher worked at the San Agustin as a public sector employee, but at the end of the year 2012 the parochial school (‘the school’) informed her that that she had to be moved to another workplace because the school “had lost confidence in her”. She contended that she was arbitrarily dismissed and that this violated her constitutional rights to work, to dignity and due process.

The school argued that Jurado Garay was employed not by the school but by the State, and that the school enjoyed autonomy over school administration. The school supported its argument by reference to an International Covenant signed by the Vatican and the Peruvian State.

In Peru, the separation of church and state has long been “blurred”. Peru has had twelve Constitutions (the first one from 1823 and the last one from 1993), and nine of them recognized the Catholic Religion as the official religion, seven of which prohibited the exercise of other religions, and only the last three ones established religious freedom, although they still “recognised” the Catholic Religion.

The first paragraph of article 50º of the Political Constitution of Peru provides that: “Within an independent and autonomous system, the State recognizes the Catholic Church as an important element in the historical, cultural, and moral formation of Peru, and lends the church its cooperation. The State respects other denominations and may establish forms of collaboration with them”. Under that provision, the State has been entering into agreements and treaties with the Holy See, and thus, establishing some benefits specifically in favour of the Catholic Church. One of those agreements focuses on the parochial schools, which enjoy public funding and are staffed by public sector employees, but are administered and managed by the Catholic Church.

Considering the particular regime of secularism established in the Constitution and the agreements between the Catholic Church and Peru, the Constitutional Court reinterpreted the concept of State secularism as requiring that two rules be complied with: “[1] the rule of separation between the State and religious organisations (..) and [2] the rule of neutrality of the State toward religion”.

The first one, called “secularism as separation” implies that (a) the State is impeded from “any kind of public institutionalisation of any church of religious organisation” and that (b) the State must distance itself from the doctrinal discourse of religious faiths.

The second rule, called “secularism as neutrality” comprises “the kind of treatment that the State can maintain with [religious organisations]”, in that sense the State is forbidden (a) to improve or worsen the position of one church over the other ones, and (b) to make any positive or negative assessment about the “truth” of any of them.

The question then is, how should we understand the article 50º when it says “the State recognises the Catholic Church and lends (…) its cooperation”? Considering the principle of secularism, the Court stated that article 50º has to be read “without establishing any privileged status for the Catholic Church for the purposes of state cooperation”, otherwise the State would be violating the principles of equality and secularism.

The Court therefore ruled in favour of the applicant, holding that there had been a violation of the right to work, and declaring void the dismissal. However, while holding that public financing to parochial schools is unconstitutional, the Court did not order the reinstatement of the applicant to the parochial school, but her relocation to another public school with the same conditions of her original work.

Author profile

Enlil Iván Herrera Pérez is a lawyer from Peru with an interest in legal philosophy and general theory of law. He graduated with public congratulations from the Universidad Privada de Tacna, Peru. He is member of the International Legal Institute of Turin, Italy. And also, he is CEO of Ius Novum Law Research Institute, Tacna – Peru.

Citations

Enlil Iván Herrera Pérez, “Secularism as separation and neutrality: A redefinition of Concepts by the Constitutional Court of Peru” (OxHRH Blog,  25 February 2018), <http://ohrh.law.ox.ac.uk/secularism-as-separation-and-neutrality:-a-redefinition-of-concepts-by-the-constitutional-court-of-peru> [date of access].

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