Is the Church obliged?

15-12-2011 09:04 AM

Magdy Malak

In a move that shocked mainstream Christians, the Supreme Administrative Court last Saturday issued a ruling compelling Pope Shenouda III—as head of the Coptic Orthodox Church—to allow the remarriage of Copts who had been divorced through civil courts but not through the Church. In its legal reasoning the court said the religious leader—in this case the Pope—should not be exercising his authority independently from the judicial authority. The matter brought to a head the discrepancy between Church law which allows divorce only in case of adultery, and the 1938 personal status code for Orthodox Copts upon which civil courts base their rulings. The 1938 code stipulates lenient grounds for divorce, ranging from ill-treatment and absence of a spouse to physical or mental sickness.

No power on earth
The new ruling came as a result of the pope contesting an older ruling of March 2006. Pope Shenouda III had then commented that no power on earth can force the church to go contrary to the teachings of the Bible, and these clearly state that there can be no divorce except in case of adultery, a principle which is non-existent in civil law. The administrative court ruling was based upon the Egyptian Constitution which stipulates that every citizen has the right to marry and form a family.
At the time Munssif Naguib, the pope’s lawyer, had commented that the number of divorcees reportedly seeking remarriage is exaggerated; some claim they are anywhere between 50,000 and 100,000 while the actual number of cases before the Coptic patriarchate does not exceed a few thousand.
In October 2006, however, a report issued by the commissioners of the Supreme Administrative Court demanded that it should issue a final ruling to annul the primary ruling. The report explained that marriage is a sacrament in the Church, can only be contracted according to religious rites and rituals which must be conducted through a priest, and thus the Church alone had the right to grant marriage annulments and remarriage permits. Nothing, the report declared, should force the Church to go against its beliefs.

No civil servant
Lawyer Naguib Gabraïl told Watani that he believes civil courts should be concerned with administrative not religious rulings which ought to be the speciality of religious authorities. Moreover, he said, the ruling concerned an individual case, that of the plaintiff Atef Kyrillos, not a general issue. The Church, he said, still has the legal option of demanding that the enforcement of ruling be suspended, and appealing to the “judiciary of cancellation” for annulling the ruling. This is a legal step stipulated in the bylaws of the supreme administrative court in case any of its rulings should cause ‘gross damage’, Gabraïl said.
“The pope is not a civil servant,” Gabraïl remarked. As such, he explained, the pope is not subject to general authorities. He cannot be penalised with imprisonment and dismissal from office for refraining to execute a court order, as any civil servant may.
As for lawyer Ramsis Raouf al-Naggar, he also insists that the judiciary should have nothing to do with church rituals and rites. It is the priest who conducts the marriage sacrament not the judge, he says. And as far as personal freedom in marriage is concerned, Naggar told Watani, the option of civil marriage is available for everyone. So what sense could there be in obtaining a civil divorce then insisting on a church marriage?
From a human rights perspective, member of the National Council for Human Rights Hafez Abu-Saeda, expressed a wish that the Coptic Orthodox Melli Council (Coptic Community Council) would find a solution to the problem of the severely restricted divorce and remarriage in Church, of which so many people suffer. “These people should have equal rights with others on a humanitarian level”, Abu-Saeda said.
On the other hand, Rev Rifaat Fikry of the Evangelical Church commented that, as a principle, it is not right that rulings would be issued contradictory to the Church’s belief in which case, he said, the Church would be under an obligation to refrain from executing the ruling.

There has been a dire demand to pass the personal status law for non-Muslims, which has been sanctioned by all the Christian sects in Egypt, and first presented to the authorities in 1980. The law, once applied, will ensure that judicial rulings conform to biblical teachings which stipulate adultery as the only grounds for divorce, and remarriage permits are thus granted to the divorced party who was wronged. The draft law broadens the concept of adultery to include implicit adultery in addition to practical adultery as grounds for divorce. It is hoped that this would put an end to the problems which arise from the discrepancy between the current law and the Church’s policy.
Since 1955 Egyptian courts have applied the personal status law for non-Muslims which was taken after a personal status code issued by the Melli Council in 1938. The code, which stipulated several reasons for divorce, was issued at a time widely regarded as an era of weakness in the Coptic Church which nevertheless consistently opposed the code on grounds that it went against the teachings of the Bible. The renaissance of the Coptic Church began in 1959 at the hands of Pope Kyrillos VI, who demanded the amendment of the 1938 code. But it was Pope Shenouda III who issued a papal decree in 1971 denying remarriage permits for couples who divorced through the civil courts, unless the divorce was based on adultery.

Pope Shenouda III had, since he became pope, called for unifying the legislation of personal status affairs for all Christian sects in Egypt. The result was that the representatives of these sects have all agreed on the draft Family Law, which lists the grounds for divorce and draws nine conditions for the nullification of a marriage. This draft law was presented to the authorities several times since 1980 yet was never placed on the Parliament’s agenda. Christians can still obtain a divorce from the court but cannot obtain a marriage permit from the Church.
In an interview conducted last December Pope Shenouda III told Watani “The Bible says: ‘What God has united let no man put asunder.’ The Coptic Church has a viewpoint that, if a marriage is built upon cheating, such as one party concealing from the other some physical or mental disability, the marriage should be annulled. In this context, the need for a medical check-up prior to marriage cannot be sufficiently underscored. If the bride was forced into a marriage she does not desire as is sometimes the case in rural communities, the marriage in invalid, and should consequently be annulled. As to divorce, it is permitted only in case of adultery or conversion.”

…And the Church says:
“We cannot go against our conscience”
Victor Salama

Pope Shenouda III said the ruling was not binding to the Church since it goes against the teachings of the Holy Bible and is based on the 1938 code which the Church rejects. “We cannot go against our conscience and violate biblical teachings,” he said. The Pope said he hoped the government would hasten to place the draft law for personal status affairs of Christians before Parliament to put an end to the discrepancy between Church and court rulings.
Bishop Ermiya, the Pope’s secretary stressed that the Holy Bible is the only ‘Constitution’ for Christians and the Church, while Anba Bissanti, bishop of Helwan and Maasara, expressed surprise at the ruling. “It not only violates the principles of Christianity,” he told Watani “but also violates Islamic teachings which stipulate that ‘people of the Book’ must be judged according to their religion.” The Church will disregard this ruling as it has done with other rulings which went against our belief, he said, especially bearing in mind that the Egyptian Constitution stipulates freedom of belief for everyone.

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