Church and State Relations and Right of Religious Freedom in Andorra

CHURCH AND STATE RELATIONS AND RIGHT OF RELIGIOUS FREEDOM IN ANDORRA

EULOGI BROTO

Andorra, a small mountain country composed of two principal valleys placed at the Pyrenees between France and Spain, is a reality frequently unknown in juridical terms. This article tries to be an approach on its legislation and juridical system for investigators interested in Church and State relations1. To be able to analyse the relationships between Churches and State in Andorra and its evolution during the lasts years, it is firstly necessary to make a brief historical approach to the specific juridical features of the country. These specific features have their own characteristics among the European micro-states, and give Andorra a position that is difficult to frame in similar situations existing in other countries and in the comparative law. This specificity will allow us to talk about the “Andorran case” when analysing the Church and State relations in this country.

1 Due to the requirements of space for the articles published in the European Journal for Church and State Research, the complete article Church and State relations and right of religious freedom in Andorra will be published in two consecutive issues of the Journal. This is just the first part of the whole and complete study about the history, the system and the current legal status of the Church and State relations in Andorra, with a concrete analysis of the religious freedom in Andorra. The complete work consists of eight different chapters: I. Historical approach; II. The current Constitutional frame; III. The question of the confessionality; IV. Development laws; V. The Church and State relations in economical matters; VI. The treaty with the Holy See; VII. The question in the other European microstates; VIII. Religions at the Andorran social life. Only the three first chapters are published in this 2002 issue. The second part of the article will appear in the 2003 issue (number 10 of the European Journal for Church and State Research) containing the five last chapters mentioned, where a complete view on the concrete laws existing today in Andorra will be found. I want to thank the Journal for the complete publication of this work so this is the first complete study of the Andorran Church and State relations ever published. I also want to manifest my most sincere gratitude to Dr. NEMESI MARQUÉS, Personal Representative of the Episcopal Co-Prince for Andorra, for his collaboration and for the given attention in our personal interview maintained on March 15th 2001. 226 E. BROTO

I. HISTORICAL APPROACH 1. The Origins Popularly, there are several dates for the possible birth of Andorra between years 8052 and 819, some of them attributed to actions of the Emperors Charlemagne and Louis the Pious. It is believed that Charlemagne gave privileges and tax exemption to the inhabitants of the Valley of Andorra in 805. It has been maintained that Louis the Pious warranted the donation of this territory in 8193 to the Church of Urgell and the establishing act of its territorial limits. It is even possible that documents that ratify the cer- tainty of the content of the Valleys’ donation at the Consecration act of Urgell’s Cathedral can exist4, but it is mostly accepted that the text referred

2 The major opinion is that the authenticity of the document is very dubious. There is an interesting list of opinions to this end in BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 21-23. Some Andorran editions also find dubious this date, but not all the historical facts that they include. See FITER I ROSSELL, A., Manual Digest, Andorra la Vella, Ed. M.I. Consell General d’Andorra, 2000, 39-41. 3 The correct date is 839, because there is a mistake in the transcription in DE MARCA, P., Appendix Marcae Hispaniae (1), Paris, Muguet, F. (ed.), 1688, 762 and following: “Actus dedicationis Ecclesiae, Anno 819. Tradimus naque ipsas Parroquias de Valli Andorrensi (id est…), cum omnibus eclesis, Villis, et Vilarum eulis earum… Denique successoribus nostris (Episcopus) in sepe jam dictae Sedis Santae Mariae Matris Eclesiae dejentes, juris eorum, atque dominio subjunximus, et perpetuo mancipamus; ut pleniter Ordinet, atque disponant, et cum Dey adjutorio illis sit detinendum, et possidendum, et Dey cum tenore dispensandum, atque regendum, sine cujus piam inquietatione, seu Contradictione”. DE MARCA, P., Appendix Marcae Hispaniae (1), Paris, Muguet, F. (ed.), 1688 = edition Facsimile, Marca Hispanica: sive limes hispanicvs…, Barcelona, Base, 1972, 1490p. Also in FITER I ROSSELL, A., Manual Digest, Ed. Andorra 1748, 1.8.4 = Ed. Andorra 2000, 199-201. There exist three editions of this book: Ed. Andorra 1748 = Andorra la Vella, 1st Ed. M.I. Consell General d’Andorra, 1987 = Andorra la Vella, 2nd Ed. M.I. Consell General d’Andorra, 2000. From now on, we will refer to the «Manual Digest» following the Andorran Reprint from 2000 and its numeration in pages, and not to the order- ing of books and chapters of the original edition from 1748 anymore. Due to the repetition of this reference we will use just: FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000. 4 Apart from the aforementioned documents of the years 805 and 839, there are documents of the years 824, 836 and 860 that include the name of Andorra and that referred to the Epis- copal domination over the Valleys. In 839, at the act of the Consecration of Urgell’s Cathedral, there is the delimitation made by the Emperor LUDOVICUS PIUS through the representation of Count of Urgell, expressly authorised to this end, and this is the best-documented appearance. The documents from 824 and 836 are ratification acts of the former diocesan delimitation with dominium character signed by the same Emperor at request of the Bishops of Urgell at the cities of Thionville and Lyon respectively. See FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000, 181-231. The 860’s document includes tax and levy authorizations recognised by the Emperor to the Bishops of Urgell, see “Chartes et Diplômes de Charles le Chauve”, Bibliothèque Nationale de France, US 0.72 (6), n. 222. Published by TESSIER, G. (ed.), Recueil des actes de Charles II le Chauve, 2(861-877), Paris, Impr. Nationale, 1952, 673 p. CHURCH AND STATE IN ANDORRA 227 to the ecclesiastical delimitation and recognises the spiritual authority only, over the Andorran territory. The next indubitable documentary appearance of Andorra’s name is found in an assignment document5 of Emperor Charles the Bald6 from 843, where he gives to Count Sunifred of Urgell the Valley of Andorra, according to his expressed fidelity in the war against the Nor- mans. This text, which certainly includes a territorial donation, must have created the traditional medieval confusion between the manor rights and the property rights, and between the effective juridical lordship domain and the sovereignty on the territories. This confusion is the basis of all the fights between the Episcopal and secular authorities during the next eight centuries of Andorra’s history. Since its reconquest at the beginnings of the 8th century, Andorra is a territorial part of the County of Urgell and ecclesiastically is part of the Diocese of Urgell. Moreover, the Diocese of Urgell will become the strongest and most influential territorial organisation of all the Pyrenees during the first four centuries of the Low Middle Ages. Although there are precise proofs of dominion acts of the Count of Urgell on the Valleys of Andorra, from the 10th and 11th Centuries the dominion of the Bishops of Urgell over the Valleys grows progressively. It benefited both by the tactical disinterestedness shown by the Count of Urgell seated in Bal- aguer – away from the mountains – and by many successive and documented cessions of rights from the Counts to the Bishops and the Church of Urgell. Some examples of this are: an exchange of alodium in the widest sense documented in 988, the donation of 1007 with the subsequent Pontifical ratification, and the testamentary donation of Count Ermengol VI7 of Urgell to the Church of Urgell of all his properties and rights on the Valleys in 11338.

5 “(…) In pago Urgellensi Villa que vocatur Vallis Andorre cum suis omnibus Appen- dicibus, totum ad integrum, per hanc nostram largitionem, sicut nos habere cernebamur”, in TESSIER, G. (ed.), Recueil des actes de Charles II le Chauve, 2(861-877), Paris, Impr. Nationale, 1952, 40-41. The complete work was published in different books and during several years: TESSIER, G. (ed.), Recueil des actes de Charles II le Chauve, roi de France, commencé par Arthur Giry, continué par Maurice Prou, terminé sous la direction de M. Ferdinand Lot et Clovis Brunel, Paris, Impr. Nationale, 1943-1955: vol. I, 840-860, 1943; vol. II, 861-877, 1952; vol. III, Introduction et table, 1955. 6 Ludovicus Pius –Louis the Pius- (815 and 816) and Charles the Bald (844) defined the juridical regime of the territories of the Hispanic Mark and its inhabitants in what is considered the first “bill of rights” of the territory. Among these territories there was, of course, Andorra. See ABADAL I DE VINYALS, R., Catalunya Carolíngia II. Els diplomes carolingis a Catalunya, 1st. Part, Barcelona, Institut d’Estudis Catalans, 1926-1986. 7 The toponimics and proper names given in this article are given in the Catalan language, which was the original language of the country and today is the official language of Andorra (Article 2. 1 of the Andorran Constitution). 228 E. BROTO

Bishops of Urgell turned the Valleys since the 12th Century into an Epis- copal manor9, but not without some bust-ups because of the aforementioned dominion, legitimated at the different juridical titles presented respectively by Counts and Bishops. According to Fiter10, the cruelest war between the Counts of Urgell and Bishops of Urgell started in 1194 and finally con- solidated the Episcopal dominion over the Valleys. The Bishops gained possession over the claims of the Count of Urgell, with existing documents adhering to this situation in 1265 and, finally, in 1287. The Episcopal possession, though, would not be the only one, because the Counts of Foix demanded years later through new and cruel wars their rights on the Valleys at the second half of the 13th century. The rights were born, on one hand, from the succession of the Castellbó’s rights – which were left in will and testament to the Count of Foix in 1229 – and on the other hand, from the pretended Episco- pal promise to cede their undivided domain to the Count of Foix after their assistance in the war in 1194 against the Count of Urgell. The continuous wars between the Bishops of Urgell and the Counts of Foix over Andorra’s sovereignty during the first half of the 13th Century created a complicated system of feudal alliances where the Mitre got involved, causing great damage to Urgell’s territories. These fights were included in a context of bigger hostilities, with the interventions of the French Monarchy and of the Kings of Aragon, being linked to the desire

8 Fully included in VALLS TABERNER, F., “Privilegis i ordinacions de les Valls Pirinenques, II”, in Textes de dret català, Barcelona, Impremta de la Casa de Caritat 1915- 1920, 381-384. 9 For those who give more credence to the 843’s dominium title of Count of Urgell coming from the donation of Charles the Bald, the Episcopal overlord manor in Andorra was born from the donation, and later testamentary confirmation in 1133 on the part of Count Sunifred of Urgell, that gave his rights on the Andorran Valleys to the Diocese of Urgell. This position, though, would spoil the former lordly actuations of the Bishops in favour of the Counts of Caboet, and, thus, it has to be kept with some reserve. For further information, see FONT RIUS, J. M., “Els origens del co-senyoriu andorrà”, in Estudis sobre els drets i institucions locals en la Catalunya medieval, Col.lectànea de treballs, Barcelona, Edicions de la Universitat de Barcelona, 1985, 737-759 = Zaragoza, Ed. Instituto de Estudios Pirenaicos, 1955. Also BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 26-28, that points a previous donation in 949 by testamentary donation of Count Sunifred, and suggests that the donation of Count Ermengol in 1133 only ratifies the one from 1007. The same opinion on the donation in 1133 in PORCIOLES I COLOMER, J.M., in “La sobirania d’Andorra i el Manual Digest” in Pròleg al Manual Digest, Andorra la Vella, 1st Ed. M.I. Consell General de les Valls, 1987; where BARAUT is quoted. 10 FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000, 212-216. CHURCH AND STATE IN ANDORRA 229 for new territorial conquests and to the will to dispossess the crown of Aragon of its territories at the north part of the Pyrenees. In addition, these political features were mixed with the conflicts related to the heresy of the Albigeans. During the 11th Century, at the sight of the fights between the Counts of Urgell and Cerdanya to get the territories of Urgell, the Bishops of Urgell – in practice only Lords on Andorra – looked for defenders and military support at the House of Caboet11. It was chosen because of its relative smallness that made it politically easy to dominate, and its proven fidelity to the Church. So, the Bishops created a feudal relationship between Andorra and the County of Caboet in the 11th century12. In 1096, Caboet’s family, protectors of Andorra, documented having Andorra “under the homage to the Church of Urgell”13, and in 1110 Guillem Guitard, the Count of Caboet, expressly recognises himself as a vassal of the Bishop of Urgell. He leaves the Valley of Saint Joan and other possessions to the Church of Urgell in his will. Count Ramon of Caboet extended the feudal relationships and made donations of his domains to the Diocese of Urgell. With some resistance and modifica- tions from Arnau of Caboet towards 115914, and despite not being clear which were the respective judicial and military rights at the valleys, it is clear that Andorra’s sovereignty corresponded to the Mitre. This was due to their own good titles and the ones received from the Count of Urgell, the vassalism and the corresponding submission of the Caboet’s15 – who

11 County House with territorial domains at the south side of the Pyrenees, near Andorra’s Valleys. The ancient village of Cabó is located South of La Seu d’Urgell, siege of the Bishops of Urgell, but far north from Balaguer, siege of the Counts of Urgell, just in the old way between both cities. 12 This fact (of talking about the Bishops of Urgell’s dominion over Andorra even before the donation of Count Ermengol VI of Urgell in 1133) is an irrefutable argument. This would not mean anything else than the formal and juridical confirmation of an already existent reality, in the same way that the documents of 1265 and 1287 do. Some authors, though, dare to determine the date of the fief with the Caboets towards 1010, for instance BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 29. 13 MIRET I SANS, J., Noves i documents inèdits sobre la família senyorial de Caboet i la questió d’Andorra, Barcelona, 1918, 22. 14 Agreement with Bishop Bernard Sans of Urgell, in BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 30. 15 BAUDON DE MONY, CH., Relations politiques des Comtes de Foix avec la Catalogne jusqu’au commencement du XIV siècle, 2 vols., Paris, A. Picard et fils, 1896. BRUTAILS, J.A., “Etude critique sur les origines de la cuestion d’Andorre”, Revue des Pyrénées, 3 (1891) also Revue des Pyrénées, 4(1892), 571-580. BÉLINGUIER, B., recognises the doubts and gives the sovereignty to the Bishops in virtue of the qualified will of Guillem Guitard of 1156, in La condition juridique des vallées d’Andorre, Paris, Pedone 1970, 31. 230 E. BROTO would only be participants of the condominium and administration of the Valley. Another confusing element is the donation by Count Ermengol of Urgell to Count Arnau of Castellbó16 in 1190 of ‘Sant Vicenç’s Castle’ inside the Valley of Andorra. It was meant as a domain act of the Counts of Urgell and established certain rights in the Valley for another County House without the participation of the Bishop of Urgell17. However, at the end of the 12th century (1199), because of Arnalda of Caboet and Arnau of Castellbó’s marriage, the rights of the House of Caboet went to the Viscounty of Castellbó. This was a lineage of more strength and weight than the Caboets and traditionally opposed to the Bishop of Urgell, who nevertheless got the renewal of the vassalage by the Viscount of Castellbó in 1201. Afterwards, Arnau of Castellbó wanted his daughter Ermisenda to marry Roger Bernard, heir of the County of Foix, in the north side of the Pyrenees, today French territory. The marriage was repulsed by the Bishop as Lord, who had to assent to the marriage, because he did not want a vassal with the power, relations and great territorial domains of the House of Foix. This provoked a new war, won in 1203 by the Bishop of Urgell, Bernat of Vilamur, this time with the help of Count of Urgell Ermengol VII, against the Houses of Foix and Castellbó. The peace agreements18 between Arnau of Castellbó and his daughter with the Bishop of Urgell, dated November 1206, expressly mentioned the only sovereignty over Andorra as that of the Bishop of Urgell. These agreements were widely applicable, both before the Castellbó Family and Count Ermengol VIII of Urgell, who took part of the peace agreements, and before the County of Foix. The Bishop was kept as a sovereign associated to the Castellbó Counts for the Valley’s administration. But once Count Ermengol VIII of Urgell died, the Viscount of Castellbó planned to marry his daughter with the heir of the County of Foix, and years latter, through his will of 1229, he left all the Castellbó’s rights to his grandson Roger Bernard II, Count of Foix. Thus, dominion over the Castle of ‘Sant Vicenç’ in the Valley of Andorra (originally held 16 County House situated north to the territories of the County of Caboet, at the same distance to Andorra that La Seu d’Urgell. The Count of Urgell tried to put some military pressure in the north limits of the Bishop of Urgell’s feudal territories. 17 FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000, 218. BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 28-31. 18 All the mentioned documents of this period can be found and studied in BAUDON DE MONY, CH., Relations politiques des Comtes de Foix avec la Catalogne jusqu’au commencement du XIV siècle, 2 vols., Paris, A. Picard et fils, 1896, 427 p. and 451 p. CHURCH AND STATE IN ANDORRA 231 by the County of Urgell and ceded to the Castellbós), the feudal relationship between Andorra and the House of Caboet, and the supposedly existent promise to the House of Foix (in virtue of the given help in 1194) all coincided in the person of the Count of Foix. During the crusade against the Albigeans, when the County of Foix, in giving support to the Count of Toulouse, becomes an ally of the Count of Barcelona, Urgell and the King of Aragon, the Andorran matter stays peaceful and the Bishops peacefully kept their bare possession19. Later, Count Roger Bernat II himself gives refuge to the ‘Cathar heresy’ and after a con- frontation between the inhabitants of Castellbó and La Seu d’Urgell, he is excommunicated and an interdict is imposed to him on Andorra (both lifted in 1240). With the next Count of Foix, Roger IV (1241-1265), the Andorran matter remains peaceful in favour of the Bishops, but he leaves to his son in his will “all his rights and properties”, including Andorra. An important historical fact appears, though, at this period: the defeat of the Count of Toulouse, ally of Foix, on the part of the Kings of France. This is the reason why the Count of Foix signs a peace agreement with the King of France in 1242. His son Roger Bernat III would challenge the authority of the King of France who, to show his power, occupies Foix in 1272 and puts the Count in prison. The Count of Foix was lib- erated in 1273, but he was not given his possessions back until 1277. In this year, he rendered homage to the King of France for all the County of Foix -including the territories located at the south of ‘Pas de la Barre’, over which the Counts had rendered homage to the Kings of Aragon and Counts of Barcelona for centuries. Roger Bernat III, opposing what his father did, was worried about the Andorran matter and from the beginning fought against the Bishop of Urgell for the rendering of the feudal homage that he owed as successor of the Viscount of Castellbó. In 1275-76, he attacked the Diocese of Urgell and in 1277 he begins a quarrel of the Catalan nobility against the King of Aragon, Pere III, evidently forced by the situation and by the King of France (who keeps him dispossessed of his County). As the Catalan-Aragonese troops were unable to intervene in the matter (because of an agreement between the Count of Foix and the King of Mallorca), the King of Aragon should have recommended to the Bishop of Urgell an agreement to solve the Andorran problem, becoming himself a testimony of the agreement20 as King of Aragon and Count of Urgell,

19 BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris 1970, 33. 20 We can see the same opinion in FONT RIUS, J.M., Els origens del cosenyoriu Andorrà, Zaragoza, Instituto de Estudios Pirenaicos, 1955. 232 E. BROTO thereby its official sovereign21. Finally the Bishop, with the intention of giving stable peace to his diocese of Urgell as his main aim, is obliged to recognize a participation in the exercise of the dominion on Andorra. As the centuries passed, and given that the Royal Catalan-Aragonese22 sovereignty broke up progressively, it will tend to the harmonisation of the initial medieval condominium with the idea of sovereignty. These centuries of pretensions and hostilities between the Counts of Foix and the Bishops of Urgell were definitively solved23 with the signa- ture of two arrangements or arbitration judgments called Pariatges24, signed by the Bishop of Urgell and the Count of Foix after the 1276 war. Nowadays, the Pariatges are considered as the definitive foundations that give rise to the birth of the condominium and the later, effectively shared sovereignty on Andorra.

2. The ‘Pariatges’ The first Pariatge was signed on 7 September 1278 by Pere of Urtx, Bishop of Urgell, and Roger Bernat III, Count of Foix and Viscount of Castellbó, trying to end the differences between them regarding the exercise of the jurisdictional manor rights in Andorra. It was based on the

21 BÉLINGUIER, B., “Le régime politique et international des Valées d’Andorre”, in Les problèmes actuels des vallées d’Andorre, Paris, Pedone-Publications de l’Institut d’Etudes Politiques de Toulouse (5)1970, 100. 22 FONT I RIUS, J.M., and GUBERN, R., “Perfil esquemático de historia constitucional andorrana”, in Les problèmes actuels des vallées d’Andorre, Paris, Pedone-Publica- tions de l’Institut d’Etudes Politiques de Toulouse, 1970, footnotes in pp. 18-19 and pp. 21-23, where examples of this sovereignty during the 14th and the 15th Centuries are mentioned. Also in VALLS TABERNER, F., “Privilegis i ordinacions de les Valls Pirinenques, III”, in Textes de dret català, 2, Barcelona, Impremta de la Casa de Caritat, 1920, 447-455. 23 A first peace agreement between the Bishop of Urgell and his Chapter and the Count of Foix himself, from some years before, recognised the feudal homage’s absolution and the cession of the indivisible dominion of the Valleys. This highest point means tacitly the one and only dominion of the Valley on the part of the Bishops of Urgell during the 12th and the 13th century. See FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000, 220. 24 “Pariatge: Juridical formula that involves a sovereignty shared by two Co-Lords”, definition gave in the Diccionari d’Història de Catalunya, Barcelona, Edicions 62, 1992, 784. “Pariagium exprime l’idée de l’association parfaite et absolutament égale qui dit régner entre les parties”, GALLET, L., Les Traités de pariage dans la France Féodale, Paris, Recueil Sirey, 1935, 129. CHURCH AND STATE IN ANDORRA 233 idea of the equality in the exercise of Lord rights25. The Pariatge of 127826 included the shared participation in the payment of the questia27, the naming of the batlles28 and the veguers29, and the military service of the Andorran people to both its Lords. That is to say, it established the indivisible condominium of the exercise of the Lord attributions on legal, judicial and military services. It was ratified by Pope Martin IV on 7 October 1282. The second Pariatge was signed ten years later, in 1288, again by Pere of Urtx and Bernat III. Following the equality principles of the first Pariatge, which was confirmed and extended, the second Pariatge agrees on the naming of a notary public on the part of each Lord and the reciprocal prohibition of building fortresses without the license of the other Co-Lord. The Pope also ratified this second Pariatge30.

25 The Mitre of Urgell, owning the overlord rights on Andorra’s Valleys, gave these lands in fief in favour of the Caboet House, probably at the beginning of the 11th Cen- tury. Later on, the rights of the Caboet House passed to the Castellbó County House and from this one to the County House of Foix. France’s Crown received the right from the Kingdom of Navarra, and afterwards it passed to the French Republic. This has been the way for the legitimation of the President of the French Republic to become one of the Andorran Co-Princes. 26 The Latin original document is placed in the archive of the ‘Casa de la Vall’ (House of the Valley), in Andorra la Vella, capital of the State. Translated into Catalan in RIBERAYGUA, B., Les Valls d’Andorra, Barcelona, Bosch, 1946; translated into French in BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 269- 275; translated into English in LEARY, L.G., Andorra the Hidden Republic, London, Ed. T. F. Unwin, 1912, and New York, Ed. McBride, Nast & Co., 1912; and translated into German in PIESOLD, W., Andorra mi zwölf Abbildungen, Heidelberg, Berlin, Ed. Vowinckel, 1936, 55, texts in the annex.. 27 Tribute that was collected in an alternative and successive way by each lord annually – the odd years to the Count of Foix and the even years to the Bishop of Urgell; this tribute has prevailed during the 20th Century as a ceremony in which the Andorran people recognise their links with the Co-Princes. 28 A kind of magistrate. 29 They exercise the judicial authority, both in civil and penal jurisdictions, and they were designated one by each Lord. See VIDAL I GUITART, J.M., Història d’Andorra, Barcelona, Antalbe, 1984, 108-110 and 136-145. Also in VIDAL I GUITART, J.M., Instituciones políticas y sociales en Andorra, Madrid, Consejo Superior de Investigaciones Científicas. Instituto Francisco de Vitoria, 1949. With the centuries they evolved to a sort of Co-Prince representatives. 30 There are authors who value only a Papal ratification that would have taken place in 1288, sanctioning the Pontiff in this date both Pariatges together, with the second one being just a complement to the first one. 234 E. BROTO

Both Pariatges are considered to be the most fundamental documents of Andorra’s history because of the establishment of the juridical beginning of the indivisible condominium between the Bishop of Urgell and the Count of Foix, which is the shared sovereignty that has risen up to our days. They also fix the tributes paid by the Andorrans, organized the administration of Justice31, the Curial staff and the military benefits; they do the groundwork for what will become the modern Andorran State, and with little reforms, they survived until the current Constitu- tion came into force. They were not conceived as the central rule of the legal system of the Principality, but they acquired practical importance in the settlement of the equality system and the shared manor between the Co-Lords. Consequently, they were and are still seen as the fundamental sources of the Andorran public and juridical-political system32. Before the Pariatges, the Concords between the Andorrans and the Bishop of Urgell (in 1162, 1179 and 1199), and with the Count of Foix in 127533, are major elements of the Andorran essence. These documents clearly show the free and peaceful disposition of its inhabitants, always trying to solve their problems through agreements and arrangements, avoiding the use of weapons34.

31 Each Co-Prince freely named one ‘Veguer’, one Permanent Delegate and the Magistrates of the Co-Prince’s Higher Court. Through the centuries, two Higher Courts existed in Andorra: the Mitre Higher Court’ and the ‘Andorra’s Higher Court in Perpignan’, one from each Co-Prince. One Notary Public, for custom, was alternately named by each Co-Prince, such as the Judge of Appeal for the ‘Batlles’ (Judges of First Instance). To study fully the institutional and justice systems in the pre-constitutional period of Andorra’s history, a very practical analysis is found in ZEMANEK, K., L’estatut Internacional d’Andorra, Andorra la Vella, Casa de la Vall, 1981, 29-43. 32 FONT I RIUS, J.M., “Els origens del co-senyoriu andorrà”, in Estudis sobre els drets i institucions locals en la Catalunya medieval, Col.lectànea de treballs, Barcelona, Edicions de la Universitat de Barcelona, 1985, 748: “They represent the highest point or stage in the process to the establishment of a regulating juridical statute of the peculiar Andor- ran manor, and they determine the precedent or starting point for the current situation”. FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000: “Fundamental stone where the principal government of the Valleys is built”. 33 See MARQUES, N., La reforma de les institucions d’Andorra (1975-1981), aspectes interns i internacionals, Lleida, Virgili i Pagès, 1989, 225-226 and 241-293. Also FONT I RIUS, J.M. and GUBERN, R., “Perfil esquemático de historia constitucional andorrana”, 13, in Les problèmes actuels des vallées d’Andorre, Paris, Pedone-Publications de l’Institut d’Etudes Politiques de Toulouse, 1970; and BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 31. 34 This feature has continued until the 20th century and I think that the successful vision of its inhabitants has been the best element to maintain the neutrality during the last eight centuries, an essential fact for the later international recognition of Andorra without direct pretensions of annexation from the foreign parts. CHURCH AND STATE IN ANDORRA 235

3. The later evolution Despite numerous pretensions of the Kings of Aragon35 during the 14th and 15th centuries – because since the 11th century Andorra was officially considered as a territory of the Catalan-Aragonese Crown36 – the Andorran political situation continued its consolidation in the regime of indivisible manor of the Bishop of Urgell and the Count of Foix until 1589. That year, Henry IV, from the Royal House of Navarra37 and Count of Foix, succeeded to the throne of France, and his rights on Andorra passed to the Crown of France through the Viscounty of Bearn, which included the County of Foix. Just in virtue of being Count of Foix38, the King of France could also become Co-Prince of Andorra, a title which he could not have received just by being the King of France39. The fact that one of the Co-Lords of Andorra was a King gave a further prestige to his acts, and meant that the Valleys became an enclave with a status of difficult definition40.

35 Both for the succession and rights of the Counts of Barcelona and of the County of Urgell, and for the fact that the Treaty of Corbeil of 1258 itself established that the Diocese of Urgell and all its territories depended on the King of Aragon and not on the King of France. 36 This is also proved by the fact that the law and the language in Andorra have always been the Catalan ones – except for their own Andorran customs and local usage –, and how the shield of Andorra has the arms of Aragon together with the Foix’s ones. There are authors who have considered that the Pariatges do not hold the contents of the sovereignty’s attributions but only a feudal dominion, which has to be submitted to the sovereignty of the King of the territory where the manor is placed, with Andorra then being under Aragonese sovereignty. There is a complete exposition in FONT I RIUS, J.M., and GUBERN, R., “Perfil esquemático de historia constitucional andorrana”, 17-25, in Les problèmes actuels des vallées d’Andorre, Paris, Pedone-Publications de l’Institut d’Etudes Politiques de Toulouse, 1970. 37 The rights of the House of Navarra over Andorra came also from the Kingdom of Aragon, as in the 15th century the King of Aragon was also King of Navarra, until Joan’s II death, when by his will and through the marriage of his daughter Eleanor of Aragon with the Count Gaston IV of Foix, Bigorre and Grally, their heir, the grandson of the King, became King of Navarra. 38 See FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000, 603. 39 The decrees of the French Co-Prince were made since the end of 1979, and until the Constitution took effect, in a very special paper only with the Arms of the Counts of Foix, and with the Title “President of the French Republic/Co-Prince of Andorra”, according to ZEMANEK, K., in L’Estatut Internacional d’Andorra, Andorra la Vella, Casa de la Vall, 1981, 24. 40 FONT I RIUS, J.M., and GUBERN, R., “Perfil esquemático de historia constitucional andorrana”, 23, footnote 2, in Les problèmes actuels des vallées d’Andorre, Paris, Pedone- Publications de l’Institut d’Etudes Politiques de Toulouse, 1970, compare this situation to the one in the County of Charolais in Bourgogne. 236 E. BROTO

Meanwhile, the internal life in Andorra continued its own evolution, and in 1419 the Land’s Council41 was created, another fundamental institution in Andorran history. Conceived as an organ of representation and administration for the Valley, it meant a certain democratisation and an incipient way to channel the Andorran people’s intervention in the country’s political life. The creation of the Council shows the democratic character of the Andorran people and means the birth of eminently popular organs together with the Government of both Co-Lords, which have also defined the typical Andorran character. This institution moved the co-principality towards the current “democratic constitutional monar- chies”. Being the precedent of the current Assembly, the Council supposes that in the 15th Century the canonical idea of Parish is used for the first time as a territorial and a political civil unit and through it, it will be possible to have access to and participate in the Land’s Council. Since the 18th century, the Council has been fundamental for the internal protection of the Andorran essence, and made use of State conceptions and government practices. The Council valued the independence and neutrality of the Valleys in the face of their two big neighbours, and also structured the Law and their own identities42. Also at the end of the 17th century and the beginning of the 18th century, the Bishop of Urgell started to use the title of “Princeps Supremus Vallis Andorre”43. As there were two Lords having and using the titles of King and Prince, the next step to identify the old domain with the idea of sovereignty was a matter of time. After the separation episodes in relation to France during the Revolution44, Napoleon accepted the authority to take part again in the matters of the Valley as of 1806.

41 Catalan original named: ‘Consell de la Terra’. 42 The importance of the Manual Digest from 1758 especially rests on the fact that it was ordered by the Council, which tacitly gives them an official and legislative character, becoming another of the fundamental texts of Andorra’s history. There are some authors who have given it the character of being a list of the Andorran fundamental principles, both historical and juridical. 43 ANTHONY, R. establishes the date in 1715: notice in FONT I RIUS, J.M., and GUBERN, R., “Perfil esquemático de historia constitucional andorrana”, in Les problèmes actuels des vallées d’Andorre, Paris, Pedone-Publications de l’Institut d’Etudes Politiques de Toulouse, 1970, 24. BÉLINGUIER, B., advances its using until 1633 in La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 236. Nowadays, it is officially used and shared by the Bishop of Urgell and the President of the French Republic as Heads of the State of Andorra. 44 In 1793, the French Convention declares as extinguished its fief on Andorra’s Valleys and renounces the questia. The maintenance of the co-sovereignty has always CHURCH AND STATE IN ANDORRA 237

Andorra overcame the war period between the Spanish and the French in 1814, keeping its particular status and being able to maintain neutrality and integrity. It began to develop the idea of being a small republic45 (that had its popular legitimation at the Council), which proved that it was a distinguished and peculiar territory, without a concrete statute, but a territory itself different from its neighbours. Once this territory was established, the notion of being a Country was the next obvious step, notwithstanding the governing Co-Lords and their nationality, and valuing the Council’s will to maintain and control Andorra at its own interests, differentiated from their neighbours’ interests. This conviction of being a Country penetrated the heart of the Andor- rans and in the Council, which managed the country with assistance from the Bishop of Urgell and the French State, and even from the Spanish Kings, depending on the latest interest of Andorra at each time. The notion of Andorra as a separate country was also being gradually accepted in the disputes that both neighbours had at this regard46. The Bishop of Urgell felt legitimised in his rights, as the French rights were perpetuated. Besides, his proximity to Andorra facilitated that he could act as the only sovereign been considered basic for the perpetuation of the neutrality and the freedom of Andorra. This moved the Andorran people to address the French authorities in trying to keep their co-principality. After several steps, both in the Ariège Department and in Paris, on March 27, 1806, Napoleon I accepts and orders the re-establishment of the former political and administrative situation. Again, as it was before the French Revolution, the French Head of State, considered the successor of the Count of Foix, became Co-Prince of Andorra. Spanish authors have questioned frequently the legitimacy of the French Republic and its President to succeed to a personal and noble feudal Title (such as Count of Foix) and become Co-Prince of Andorra. The French authors have used the documents from Henry IV in 1607 and from Louis XIII in 1620 to assure that the Andorra’s Co-Prince Title was not kept up as the personal inheritance of the King and Count of Foix, but was transferred to the national domain of France (See BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris 1970, Pedone, 52). Nowadays, the Constitution from 1993 completely legitimises this attribution as the democratic national will of the Andorrans in referendum. 45 See FONT I RIUS, J.M., and GUBERN, R., “Perfil esquemático de historia constitucional andorrana”, 27, footnote 4, in Les problèmes actuels des vallées d’Andorre, París, Ed. Pedone-Publications de l’Institut d’Etudes Politiques de Toulouse, 1970; also in BÉLIN- GUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone 1970, 58-59, footnotes 41-45; and LEARY L.G., Andorra the Hidden Republic, London, Ed. T. F. Unwin, 1912, 191. 46 BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 40-42. 238 E. BROTO in many occasions, taking profit of the respective fears of both France and Spain to re-think Andorra’s statutes in any meaningful way. These two countries did not know how to position themselves after the extinction of the feudal rights in their territories (for France, during the Revolution, and in Spain, the year 1811). In 186647, the Bishop of Urgell transformed the Land’s Council into the General Council of Andorra’s Valleys48, with more open ways of popular participation and a bigger juridical ambit of action with better structures. The Council became composed of four members of each Parish, chosen by suffrage out of the “heads of the house”49. The For- eign Office Minister of Napoleon III, “Coprince souverain de la vallée d’Andorre”, confirmed this reform in April 186850. The second half of the 19th century and the beginning of the 20th century were difficult and violent, because of the ‘Carlists’ wars in Spain, the entry of modern and liberal winds, the new economic interests, the diverse popular quarrels, and the continuous confrontations amongst the two Co-Princes coupled with Spanish pressure51. The agitated situation moved Andorra initially towards France, without renouncing the sovereign position of the Bishop, which was claimed in several occasions by the Andorran people, such as in the 1880’s quarrel. The situation remained stable until the 20th century52 with the same-shared sovereignty scheme but with the institution of a Council reinforced in its functions. During the years of the Republic and the Spanish civil war, despite the exile of the Bishop of Urgell in Italy, both Co-Princes maintained the

47 Known as a ‘Decret de Nova Reforma’ (New Reform Decree), it was given by the Bishop of Urgell in attribution of his own temporal authority. It was dated April 22nd 1866, and established the new organisation of the current General Council. The reform of the Land’s Council of 1866 had as an end to “avoid the most serious abuses and damages” produced by the non-fulfilment of the law, local custom and usage of the Valleys. It reformed the administrative organisation of the country improving the provisions that affected to the voting rights in the General Council and in the Parishes, and also established other provisions of general interest. 48 Catalan original named: ‘Consell General de les Valls d’Andorra’. 49 More or less the same meaning as Pater Familias. 50 See Archives form French Ariège Department, 1.Z.16. (Archives départementales de l’Ariège). 51 To study the tensions on Andorra between Spain and France, see MARQUÉS, N., La reforma de las instituciones de Andorra (1975-1981), Lleida, Virgili & Pagés, 1989, 241- 293. 52 All the documents that we mention next can be consulted in MARQUÉS, N., Lleis i resolucions dels Coprínceps i dels seus delegats (1900-1979), Andorra la Vella, Pagés Editors, 1980. CHURCH AND STATE IN ANDORRA 239 common government of Andorra and took decisions in agreement53. This is the way they introduced ‘universal’ suffrage for men over 25 in 1933. After the military crisis in 1944 between the forces of both Co- Princes54, the Andorran life and matters were normalised following the traditional formula of the shared co-sovereignty. In 1946, the universal suffrage for men came back to Andorra after being abolished by the ‘Veguer’55 of the Major-General Pétain in 1941. During the 1970’s, the rights of active and passive suffrage were also recognised for women. The Andorran will of being modern supposed that during the 1960’s they began to talk about the need of more autonomy for Andorra and about the concretion of its juridical position. Therefore, on 15 January 1981, the ‘Reform process of the institutions’ started and meant the birth of the ‘Andorran Government’ by the following year. On 29 March 198956, the Law of the Rights of the Human Person is approved, which in article 1 establishes that “fundamental rights of the persons, such as they are defined at the Universal Declaration of the Human Rights of 1948, are included in the legal system of the Principality”. The 946/1990 Resolution of the European Council dated May 11, 1990 “referred to Andorra’s situation” and recommended to both Co- Princes and the General Council that a written Constitution should be presented to the country that could be voted by referendum. With the

53 The naming of Colonel Baluard as an extraordinary commissioner that entered Andorra with 600 French gendarmes to guarantee the public peace and order and the Andorra’s territorial integrity, and who later became the representative of both Co-Princes, must be the most outstanding. During the Second World War, the paper of the Bishop of Urgell impeded the occupation of Andorra by German troops after France’s occupation. Therefore, the existence of both Co-Princes will be the key to keep the integrity, the neutrality and the independence of Andorra. 54 Once, the incursion of French military troops began without the knowledge and agreement of the Episcopal Co-Prince. It is still one of the darker and more unknown moments of Andorra’s history. Episcopal troops were requested from Spain; see BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 67. 55 See footnote 29 above. 56 Published in the Official Gazette of the Principality of Andorra (BOPA) on 10 April 1989. For further information about the Human Rights evolution in Andorra, see PANIAGUA REDONDO, R., “Andorra Naciones Unidas y los derechos humanos”, in Andorra en el ámbito jurídico europeo, XVI Jornadas de la Asociación Española de Profesores de Derecho Internacional; Madrid, Marcial Pons-Jefatura del Estado Andorrano. Copríncipe Episcopal, 1996, 52. 240 E. BROTO next Resolution 947, it established contacts with Andorra and the participation of the country in the activities of the European Council57. On 14 March 1993, the Andorran people approved by an overwhelming majority58 the first Constitution in the history of Andorra, which confirms the country as a parliamentary co-principality, an international State, independent and democratic, and abiding by the Rule of Law. Both Co-Princes are the Heads of the State in a complete equality and the sovereignty resides with the Andorran people59. On 28 July 1993, Andorra was admitted as a member of the United Nations. Andorra joined on 22 January 1996 the European Convention of Human Rights and Fundamental Freedoms of 1950.

II. THE CURRENT CONSTITUTIONAL FRAMEWORK As the basic rule of the current Andorran political and juridical system, as well as the basis also for the list of the fundamental rights and public liberties recognised in the country, we have to place the valid Andorran Constitution from 1993. The Constitution of 1993 is the first of Andorra’s history, a history that until then did not have an exactly written Law, but rather had been ruled by the particular customs and the autochthonous traditions60 and as supplementary law it applied the Catalan Law with some elements of the Roman and Canonical Classic Laws61. The social and historical reality of the country shows a strong and deep feeling of independence. However,

57 To find the complete text VALLS, À., “Apèndix documental”, in La nova Constitució d’Andorra, Andorra la Vella, Premsa andorrana, 1993, 59. 58 The Constitution was the object of a plebiscite, and was approved by the Andorran people on 14 March 1993 with a majority of 74.2% of all votes, representing 75.7% of the 9.123 registered voters. 59 About the constituent process and the relations to this end between all three parts from 1990 to 1993, see VALLS, À., La nova Constitució d’Andorra, Andorra la Vella, Ed. Premsa andorrana, 1993. 60 The particular customs, privileges and the own traditions are basically included in the ‘Manual Digest’ from 1748 and in the ‘Andorran Politar’ from 1763. 61 This juridical system has never been questioned by anyone in its application: nor by French authors, see for instance BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 9, or BRUTAILS, A.J., La coutume d’Andorra, Paris, Leroux 1904 = Andorra la Vella, Casal i Vall, 1965; and neither by Spanish authors, see for instance DE PORCIOLES I COLOMER, J.M., “Els pariatges, el condomini polític d’Andorra i el Manual Digest” in FITER I ROSSELL, Manual Digest, Ed. Andorra 2000. CHURCH AND STATE IN ANDORRA 241 at the same time, a very curious system of traditional private Law consoli- dated. The Catalan Law, which lost the support of a national legislator due to the historical developments in Spain62, survives in the Andorran territory. Besides, the influence and supplementary nature of the Canon Law and the Roman Law create a peculiar own space, keeping Medieval Common Law in force in Andorra, which was abandoned by the rest of European States centuries ago. The respect and importance of their history and usage and of their local customs and traditions is clear, both in the introduction and in the articles 2, 11, 43, 44, 79, 80 and 84 of the current Constitution. The Constitution was negotiated by the representatives of the Communes63, the Episcopal Co-Prince and the French Co-Prince, and was approved by referendum of the Andorran people. The open and modern Andorran Constitution is similar in its schemes to the ones of their neighbours, mainly the Spanish, but because of the specific features of its territory and its population, there are many divergences that are necessary to analyse. From the constitutional provisions, we have to point out the several articles that are referred or related to the religious freedom and the Church and State relations, transcribing and commenting them.

1. The Constitution of 199364 a. From TITLE I: THE ANDORRAN SOVEREIGNTY (arts. 1 to 3) Art. 1.2: “The Constitution proclaims that the action of the Andorran State is inspired by the principles of respect and promotion of liberty, equality, justice, tolerance, defence of human rights and dignity of the person”. Art. 1.4: “The political system of Andorra is a parliamentary Co-principality”. It is necessary to understand that, as Andorra’s tradition and history establishes and article 43.2 of the Constitution countersigns, the

62 At the beginning of the 18th century, Andorra was faced with economical and institutional upheaval, mainly as a result of domestic conflicts in neighbouring Spain. After the succession war, Spain dismantled the Catalan institutions and threatened to apply the “Nova Planta” decree of 1714 to all third states exporting goods to Spain, which meant that all products imported in Spain would be subject to a tax equivalent to 10% of their value. The decree introduced a new tax system in Spain and meant the end of the tax exemptions granted to the Andorrans. 63 Minor local entities in Andorra. See commentary to the article 1.5 of the Andor- ran Constitution in our text above. 64 Approved by referendum on March 14th 1993 and ratified by the Co-Princes on April 28th 1993. The Constitution entered in force on 4 May 1993. 242 E. BROTO

Co-Princes are, by personal and exclusive position, the Bishop of Urgell and the President of the French Republic (from their naming65 as Bishop or President). It is not necessary to deny the identification in Andorra’s history between spiritual and temporal power in the figure of the Epis- copal Co-Prince, and the tensions that it has provoked with the other Co- Prince who is also President of a country settled in the deepest laicism66. Art. 1.5: “Andorra is composed of the Parishes of Canillo, Encamp, Ordino, La Massana, Andorra la Vella, Sant Julià de Lòria and Escaldes-Engordany”. The Andorran administrative Law keeps the territorial division from its canonical origins. Ecclesiastically and from the civil point of view, Andorra is divided into the seven Parishes that article 1.5 names. The last one of them, Les Escaldes-Engordany, was founded in 197867. Canonically, the Parishes contain twenty-four aggregates and constitute a Vicariate forane inside the Diocese of Urgell. The parochial structure stems from the ecclesiastical order to the administrative and civil territorial order of the country. Since the beginning it derived the political order through the participation of the Parishes in the Land’s Council, and Parishes have been the participation

65 Although they receive their Titles ex officio and in a personal way because of the holding of their Episcopal or Presidential offices, the article 43.2 asks them to swear or promise to exercise their functions according to the Constitution. 66 TIMSIT, G., Professor of the University of Paris I (Panthéon-Sorbonne) exposes that: “The word laicism does not exist in the political vocabulary of European countries other than France, which might suggest that the model that it describes does not have any real existence either. And indeed, neither the word nor the principle has appeared or been consecrated in the very recent Charter of Fundamental Rights. The model of separation today becomes a method of management of religious diversity that is ‘nearly synonymous with pluralism’ and which is shared by nearly all European countries. ‘The main element of laicism and which marks its historical contribution to civilization and to democracy, is today found practically everywhere in Europe: complete freedom for individuals to choose their belief or not to have any, complete dissociation which France was effectively the first and for a long time the only country to proclaim between religious affiliation and citizenship, respect by the public authority of the freedom of religious communities on the basis of the equality of religions and equality among them’. The situation today is therefore very similar and common to all European countries, namely, one of recognition of diversity and acceptance of plural citizenship that is now enshrined in law”, at the United Nations Expert Group Meeting on Managing Diversity in the Civil Service, celebrated in the United Nations Headquarters, New York, May 3rd, 2001. 67 The six first Parishes date from the 9th Century and have been maintained since then. They already appear as such at the Consecration Act of the Cathedral of La Seu d’Urgell from 839 – or 819, depending on the authors. CHURCH AND STATE IN ANDORRA 243 channels to the public affairs of the country because of its representation. Born from the canonical universitas personarum68, the Parish is seen as the “corporation of the individual people that are aware of the general interests”69 and has become the Andorran’s basic aggregation. In the civil field, this institution has been supplied with derived organic and institutional structures that lay the foundation for new territorial division institutions: the ‘communes’, the ‘quarts’ and the ‘veïnats’ (neighbourhoods). Art. 3.3: “The universally recognised principles of international public law are incorporated into the legal system of Andorra”. Art. 3.4: “The treaties and international agreements take effect in the legal system from the moment of their publication in the ‘Official Gazette of the Principality of Andorra’ and cannot be amended or repealed by law”. Article 3.3 contains a general clause of political convenience, but with some lack of definition, although at this level it would be necessary to study the international agreements that in matters of human and civil rights Andorra will join and sign. It is also important to make reference to the article 5 of the same Andorran Constitution which establishes that “the Universal Declaration of Human Rights is valid in Andorra.” The respect of human rights is considered a political requirement to be able to obtain the International recognition as a State. Given the Andorran interest to obtain a quick70 international recognition, they included redundantly in articles 3.3 and 5 of the Constitution references to both the “principles of International Public Law internationally recognised” and the “Human Rights and the rights of the person” (that in fact are an important part of the public principles internationally recognised). b. From TITLE II: OF THE RIGHTS AND LIBERTIES (arts. 4 to 42) Art. 6.1: “All persons are equal before the law. No one may be discriminated against on grounds of birth, race, sex, origin, religion, opinions or any other personal or social condition”.

68 CIC 515 §1: “A parish is a certain community of Christ’s faithful stably established within a particular Church…”. Although nowadays the practice is closer to a mere territorial division, its character of being the faithful community, a community itself, is undeniable in its foundations and has raised the current Code. This idea of community has legitimated the democratic representation of the Andorrans in their civil life. 69 VIDAL I GUITART, J.M., Institucions polítiques i socials a Andorra, Collection Andorra històrica i literària 4, Andorra la Vella, Promocions Literàries, 1984, 157. 70 PANIAGUA, R., uses the term ‘haste’. Cfr. “Andorra: Naciones Unidas y los Derechos Humanos”, in Andorra en el ámbito jurídico europeo, XVI Jornadas de la Asociación Española de Profesores de Derecho Internacional; Madrid, Marcial Pons-Jefatura del Estado Andorrano. Copríncipe Episcopal, 1996, 50. 244 E. BROTO

Art. 6.2: “Public authorities shall create the conditions such that the equality and the liberty of the individuals may be real and effective”. Article 6 consecrates the individual equality principle of the Andorran legal system, equality of rights and duties from a personal point of view. Referring to the equality principle, there is no mention to the possible collective titularities of this right. This collective equality is basic in asso- ciative and meeting matters, questions solved by articles 16 and 17, but it is also fundamental in religious and worship freedoms, yet the article 11 does not include collective elements. In the light of the article 3 of the Constitution, we could say that the collective titularity of this collective right of religious freedom is accepted in the Andorran set of rules, but it is curious that it does not appear expressly included in the articles referred to religious freedom. Art. 8.1: “The Constitution recognises the right to life and fully protects it in its different phases”. Art. 8.2: “All persons have the right to physical and moral integrity. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Art. 8.3: “The death penalty is prohibited”. This article obeys the Catholic principles of absolute protection of human life, and becomes a terminological way to avoid the using of terms like ‘abortion’ or ‘euthanasia’, but its evident aim is to impose a constitutional prohibition on these practices. This article was one part of the “ethical block” of the Constitution, which was one of the most difficult to negotiate at the moment of the definitive fixation of the current Constitution text, because of the different positions of the Episcopal representation and the French and communal representations. Art. 11.1: “The Constitution guarantees the freedom of ideas, religion and cult, and no one is bound to state or disclose his or her ideology, religion or beliefs”. Art. 11.2: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in the interests of public safety, order, health or morals, or for the protection of the fundamental rights and freedoms of others”. This is the highest consecration of religious freedom. As was mentioned above, the Constitution always recognises the individual rights but not the collective ones, following the model of the French CHURCH AND STATE IN ANDORRA 245

Constitution71 and not the Spanish Constitution72. The objective protection is wide (ideological, religious and cult), but the subjective protections is clear for the individuals, but it is only through this one that the collectives are protected. There is no special protection given to collectives, which is absolutely indispensable to safeguard the ‘individual’ cult. The individual freedom in religious matters has the maximum protection, and the only limits of respecting the public order established are the Laws and the rights and liberties of the other individuals, a usual clause which exists in comparative European Law73. Art. 11.3: “The Constitution guarantees the Roman Catholic Church free and public exercise of its activities and the preservation of the relations of special co-operation with the State in accordance with the Andorran tradition. The Constitution recognises the full legal capacity of the bodies of the Roman Catholic Church which have legal status in accordance with their own rules”. Although they are regulated by the same 11th article, the religious freedom and the relationship between the Catholic Church and the Andor- ran State has an independent and separate treatment and content. The recognition of the presence of the Catholic Church in the Constitutional text could be understood in the light of the Spanish “cooperationism”74, but the truth is that it goes further. The mention of the Catholic Church exists because its presence is historically a part of the own Andorran essence and identity, and it has been one of the keys for the current

71 Art. 1: France is an indivisible, secular, democratic and social Republic. It ensures the equality of all citizens before the law, without distinction as to origin, race or religion. It respects all beliefs. Original: “La France est une République indivisible, laïque, démoc- ratique et sociale. Elle assure l’égalité devant la loi de tous les citoyens sans distinction d’origine, de race ou de religion. Elle respecte toutes les croyances”. 72 Art. 16.1: Freedom of ideology, religion and worship of individuals and communities is guaranteed without any limitation in their demonstrations other than the necessary actions to protect the public order granted by the law. 2. No one may be obliged to make a declaration on his/her ideology, religion or beliefs. Original: “Art. 16. 1) Se garantiza la libertad ideológica, religiosa y de culto de los individuos y las comu- nidades sin más limitación, en sus manifestaciones, que la necesaria para el manten- imiento del orden público protegido por la ley. 2) Nadie podrá ser obligado a declarar sobre su ideología, religión o creencias”. 73 See article 9.2 of the European Convention for Human Rights. 74 Art. 16.3: No confession has an official State character. The public powers shall take into account the religious beliefs of Spanish society and maintain the appropriate relations of co-operation, with the Catholic Church and other denominations. Original: “Art. 16. 3) Ninguna confesión tendrá carácter estatal. Los poderes públicos tendrán en cuenta las creencias religiosas de la sociedad española y mantendrán las consiguientes relaciones de cooperación con la Iglesia Católica y las demás confesiones”. 246 E. BROTO independence and status as an international sovereign State. But on the other hand, there is a co-operation clause that regards only the Catholic Church. Thus, a generic collaboration is not foreseen in religious matters with religions other than the Catholic Church. The second paragraph of article 11.3 supposes the acceptance of the canonical norms of juridical personality and the automatic obtaining of the civil personality once groupings obtain canonical personality without any other controls from the State. This provision allows the public and free exercise of their activities; however, it is predictable that this feature will be further developed by a later Law or by the content of the future Concordat between Andorra and the Holy See. A hypothetical obligation of inscription in a State register will be neither essential nor constitutive, but only declarative and necessary to publicize effects. It is necessary to mention that at this point in time an agreement between Andorra and the Holy See is being negotiated. It was not negotiated at the beginning of Andorran constitutional life, opposing what France and Spain did, because of diplomatic distrusts from the Holy See: they were not sure about Andorra’s obtaining international legal recognition. Although the most logical thing would have been to negotiate it years ago, it did not happen, and every single agreement that will be reached in the future will be delayed, especially because of the very important role that the Bishop of Urgell and the Catholic Church have had historically, and they still have, in Andorran life. The freedom regarding confessions other than the Catholic one for the public manifestation of their worships is not included, and beyond the provisions of the articles 3 and 5, the religious liberty of some collectives could be questioned, although this freedom and exercise could be included at the sum of the individual freedoms. Up until today, there are not any reported problems referred to this matter. The reason is that, in a small country with a bit more than 67.000 inhabitants and not all of them nationals75, the possible practices of the ‘new religious movements’, and especially the sects, are viewed with reservation.

75 Current Andorran population statistics by number of inhabitants and their nationality:

Year Andorran Spanish French Portuguese Other Total 2000 23697 26750 4283 6748 4366 65844 2001 24654 26251 4270 6708 4451 66334 2002 25467 26073 4334 6729 4556 67159 CHURCH AND STATE IN ANDORRA 247

Even though there is no clause of Catholic confessionalism, neither is there a clear affirmation of the non-confessionality of the State. This point will be analysed in a future section. Art.12: “Freedoms of expression, of communication and of information are guaranteed. The law shall regulate the right of reply, the right of correction and professional secrecy. Preliminary censorship or any other means of ideological control on the part of the public authorities shall be prohibited”. This article allows religious proselytism without any kind of limitation, although the public practices are still limited by the Law to protect the public security, the public peace and order, the public health and morals, and the fundamental freedoms of other people, according to article 11.2 of the Consti- tution. Foreign missionaries are active in Andorra and operate without restriction. For example, the Church of Jesus Christ of the Latter-Day Saints and The Jehovah’s Witnesses proselytise door to door. Art.13.1: “The civil status of persons and forms of marriage shall be regulated by law. The civil effects of Canon Law marriage shall be recognised”. Art. 13.2 “The public authorities shall promote a policy of protection of the family, which is the basic foundation of society”. Art. 13.3. “Both spouses have the same rights and duties. All children are equal before the law, regardless of their parentage”. This is another of the articles that were part of the so-called “ethical block” of difficult negotiation. It includes, for the first time in Andorra’s history, the mention of the civil marriage. The new civil marriage will not be obligatory, since the inhabitants still have the possibility to celebrate canonical marriage that will also have immediate and full civil effects. Developed later by the qualified Law of Marriage, and with some provisions in the Law of the Civil Registry, it means that in the Andorran civil state system only the civil marriage, the canonical marriage and the foreign marriages appropriate to the loci celebrationis Law are accepted. There are not any civil effects foreseen for the marriages of other religions or churches different from the Roman Catholic. It is necessary to point out that the civil marriage, suitable for the Andorran historical tradition, is very close to the canonical marriage provisions, but is celebrated by a civil Authority. Certainly divorce is allowed, but the provisions on the capacity and on the consent are, in some cases, a transcription of the Code of Canon Law (CIC) matrimonial provisions. Given the contents of the qualified Law of Mar- riage and the Law of the Registry Office, there will never be interpretation problems at the moment of recognising fully the civil effects in the Judge- ments of the Ecclesiastical Tribunals for the State, in a matrimonial system of individual freedom of election and “Latin” mentality. 248 E. BROTO

The Registry Office Law from 1996 means that the State starts the registered control of its citizens, which until that moment was only made by the canonical and parishes registers. Art. 16: “The right to meet and assemble for any lawful purpose shall be respected. The exercise of the right of assembly requires that the authorities be notified in advance, and shall not prevent the free movement of goods and people”. There is not any qualified treatment at the meetings with a religious character. The religious statements and public meetings, either religious or not, have all the limitations that the article establishes. Since the article 39.2 recognises this right only for foreigners who are legal residents in Andorra, and since the 11th article about religious freedom does not mention its collective-side titularity, or the meeting right that comes from it, we have to think that the religious meetings of aliens who are not legal residents in Andorra are illegal and not covered by the Andorran juridical frame. Art. 17: “The right to associate for a lawful purpose shall be recognised. A law shall establish a Registry of the associations which may be constituted”. This article is developed by a posterior Law and does not mention special treatment for associations of religious character of any kind. Perhaps it does not fit with the constitutional recognition provisions of the full legal capacity of the Catholic juridical persons. Art. 20.1: “All persons have the right to education, which shall be oriented towards the dignity and full development of the human personality, thus strengthening the respect for freedom and the fundamental rights”. Art. 20.2: “Freedom of teaching and of establishing teaching centres shall be recognised”. Art. 20.3: “Parents have the right to decide the type of education for their children. They also have the right to moral or religious instruction for their children in accordance with their own convictions”. Religious education is protected at its two most outstanding spheres: the freedom for the creation of centres, therefore, with their own ideology, and the right of the parents to choose the kind of education that they want for their children at a moral and religious level. The specific features of the Andorran educational system are explained at the point dedicated to the development laws, since this constitutional article has obtained a large amount of complementary regulation. It is necessary to point out here that the system only establishes the obligation CHURCH AND STATE IN ANDORRA 249 for public schools to offer education in Catholic religion until the age of 16. But it is optional for the pupils to choose this education, and an alternative subject is scheduled for those who freely do not want to follow the classes in religion. There is no education foreseen in any other religion at public schools, so it will be difficult for these centres to fulfill the provisions of the article 20.3 of the Constitution if the parents choose a different religion for their children. The right is guaranteed through private centres that can offer a different religious education. Art. 34: “The State shall guarantee the conservation, promotion and diffusion of the historical, cultural and artistic heritage of Andorra”. This feature is still being negotiated with the Holy See with regard to all the matters referred to the conservation and diffusion of the canonical historic inheritance. From the budget of the State, it is necessary to allocate an amount for the conservation and restoration of the historic inheritance, even though the Catholic Church is the owner of much of these properties. As the Bishop is one of the Co-Princes, and because Andorra has been kept apart from the political and social movements that took place in neighbouring states, there has never been a process of nationalisation or expropriation of the ecclesiastical properties in the country. Art. 39.1: “The rights and freedoms recognised in chapters III and IV of this Title bind immediately all public authorities as directly enforceable law. Their contents cannot be limited by law and are protected by the Courts”. Art. 39.2: “Aliens legally resident in Andorra can freely exercise the rights and freedoms of chapter II of this Title (…)”. This article recognises the link to the legality of the public authority that cannot obviate the fundamental human rights in its actions, which are controlled by the Courts. Regarding foreigners, only legal residents are able to exercise these rights and freedoms, which means a first limitation for many matters, and a very delicate one for the features related to the religious and worship freedoms – public and private exercise – and its derived rights in articles 16, 17 and 20. Art. 40: “The exercise of the rights recognised in this Title may only be regulated by law. The rights of chapters III and IV shall be regulated by means of Qualified Laws”. The provision of this article is a requirement with regard to the form and the Parliamentary processing of the Laws, and there have not been regulations developed on all its contents. Chapters III and IV of the 250 E. BROTO

Constitution refer to the rights included in articles 8 to 26, and from those, there is only regulation related to religious matters in the articles 13 (marriage), 17 (association) and 20 (education). There is no special or global Law about religious freedom for developing the questions foreseen in article 11 (religious freedom and co-operation), nor on meetings and demonstrations (art. 16), which include matters such as religious processions, community prays, cults in collective way, etc. c. From TITLE III: ABOUT THE CO-PRINCES (articles 43rd to 49th) Art. 43.1: “In accordance with the institutional tradition of Andorra, the Co- princes are, jointly and indivisibly, the Head of the State and they assume its highest representation”. Art. 43.2: “The Co-princes, an institution which dates from the Pariatges and their historical evolution, are in their personal and exclusive right, the Bishop of Urgell and the President of the French Republic. Their powers are equal and derive from the present Constitution. Each of them swears or affirms to exercise their functions in accordance with the present Constitution”. The Bishop of Urgell, Head of the Diocesan Church where Andorra is canonically placed, is, apart from maximum authority of the Andor- ran Catholic Church, the Head of the State in his own right. This right has been heartily defended in front of the pretensions of unique potestas concerning temporal and secular matters developing mostly from the French – and also from the Aragonese –, which intended to leave him just authority on the spiritual matters. At some point in time, the Spanish also have had pretensions, including the regalists’ practices and the right to name the Bishop of Urgell held by the Spanish Crown, and also by its invocation as the successors of the Kings of Aragon and Counts of Barcelona. Andorra’s position without the presence of both Co-Princes, and especially without the Episcopal one, is inconceivable and would undo the essence of the country. The presence of the Episcopal Co-Prince76 is co-substantial to Andorra’s history, and it is the differential and constitutive element of the Andorran juridical peculiarity. Histori- cally it has been the best guarantee of the country’s independence and for the survival of Andorra as a unit, independent from the political events taking place in the two neighbouring countries, because it is not subjected to the temporal affairs of these territories.

76 For further historical information about the Episcopal Co-Prince, see ROBINAT ELIAS, J., Estudio de una peculiar figura jurídica: el Obispo de Urgel, Copríncipe de Andorra, Santiago de Compostela, Universidade de Santiago de Compostela, Servicio de Publicacións e Intercambio Científico, 1991, 219 p. CHURCH AND STATE IN ANDORRA 251

Both Co-Princes are such because of their own peculiar statute, with the obligation of maintaining the Principality’s Laws and its inseparable condition of being a free State. They are a guarantee for Andorra’s freedom, essence and traditions, and they are not foreign “governors” that can subordinate the country to the destinies or interests of other territories, and that will allow us to say that Andorra “is still the oldest State in Europe”77. Andorra is the last European territory where a Bishop kept the temporal power besides the spiritual one, and it is the only country in Europe where a catholic authority is also Head of the State (apart from the Vatican City). The current Constitution78 has respected the position and major importance of the Co-Princes in Andorra’s history, and has expressly established their indivisible condition as Heads of the State79. Although some of its authorities’ mechanisms have been modernised, making them compatible with the Council and its representation of the population, many of the prerogatives have remained, among which can be highlighted their participation and decisions at international negotiations and the decision of naming 50% of the Judges of the Constitutional Tribunal and 40% of the members of the Higher Court of Justice (Consell Supe- rior de Justícia). The main articles referring to Co-Princes are: Art. 44.1: “The Co-princes are the symbol and guarantee of the permanence and continuity of Andorra as well as of its independence and the maintenance of the spirit of parity in the traditional balanced relation with the neighbouring States. They proclaim the consent of the Andorran State to honour its international obligations in accordance with the Constitution”. Art. 44.2: “The Co-princes arbitrate and moderate the functioning of the public authorities and of the institutions, and are regularly informed of the

77 Expression of VILAR P., quoted by DE PORCIOLES I COLOMER, J.M., “Els pariatges, el condomini polític d’Andorra i el Manual Digest” in FITER I ROSSELL, Manual Digest, Ed. Andorra 2000, 50. It is necessary also to value the traditional regime of the ‘Republic of San Marino’ that can be arguable since the 4th Century, although its borders were not defined until the Papal Bull from 27 June 1463. 78 About the Co-Princes and the current Constitution, see ROBINAT ELIAS, J., “El copríncipe episcopal y la Constitución andorrana de 1993”, Anuario de Derecho Eclesiás- tico del Estado, Madrid, Editoriales de Derecho Reunidas, Editorial de la Universidad Complutense de Madrid 1995, 373-383.. 79 Nowadays the two Coprinces are: Coprince Episcopal and Bishop of Urgell, Joan Enric Vives i Sicília, since May 12, 2003; French Coprince, Jacques Chirac, since May 17, 1995. 252 E. BROTO

affairs of the State by their own initiative, or that of the Syndic General or the Head of Government”. Art. 44.3: “Except for the cases provided for in this Constitution, the Co-princes are immune from suit. The acts of the Co-princes are under the responsibility of those who countersign them”. Art. 46.1: “The Co-princes may perform the following acts of their free will: a) The combined exercise of the prerogative of grace80. b) The creation and structuring of the services considered to be necessary for the performing of their institutional functions, the appointment of the holders of these services and their accreditation to all effects. c) The appointment of the members of the Higher Council of Justice, in accordance with article 89.2 of the Constitution. d) The appointment of the members of the Constitutional Court, in accordance with article 96.1 of the Constitution. e) The requirement of a preliminary judgment of unconstitutionality of the laws. f) The requirement of a judgment about the unconstitutionality of international treaties, prior to their ratification. g) The lodging of conflict before the Constitutional Court in relation to their constitutional functions, under the provisions of articles 98 and 103 of the Constitution. h) The granting of the agreement for the adoption of the text of an international treaty, in accordance with the provisions of article 66, before its parliamentary approval.” - Art. 46.2: “The acts derived from articles 45 and 46 are exercised by the Co-princes personally, except for the faculties provided for in letters e), f), g), and h) of this article, which may be performed by delegation”. - Art. 66.1: “The Co-princes participate in the negotiation of the treaties affecting the relations with the neighbouring States when dealing with the matters enumerated in letters b) and g) of article 64.1”. - Art. 66.2: “The Andorran delegation with the task of negotiating the treaties mentioned in the previous paragraph, shall be composed of the members appointed by the Government and by a member appointed by each Co-prince”. - Art. 66.3: “The adoption of the text of treaties shall require the agreement of the members appointed by the Government and of the members appointed by the Co-princes”.

80 His individual exercise for one of the two Co-Princes has been a source of problems in Andorra’s history between the using Co-Prince and the Andorran citizens. Most of the time the Co-Prince using individually the prerogative of grace has been the Bishop of Urgell. CHURCH AND STATE IN ANDORRA 253

2. Treaty of good neighbourhood, friendship and co-operation between the Principality of Andorra, the French Republic and the Kingdom of Spain dated November 4, 199381 Although it is not a part of the Constitutional text, the so-called “Treaty of good neighbourhood” is an international agreement between Andorra, France and Spain that, due to the importance of its content, we could say is part of the country’s basic juridical sources. It is considered to be the fundamental text for obtaining the International recognition of Andorra as an International State abiding the Rule of Law. It contains the basic principles of independence, sovereignty, unity and integrity of Andorra in front of its big neighbours. It means the recognition of Andorra as a State declarated by France and Spain before the whole International community. In fact, it also means the renuncia- tion of both countries to their pretensions on Andorra, pretensions that have drawn a peculiar and intense history during the last centuries and

81 Treaty of good neighbourhood between Andorra, France and Spain: “Taking into account the particular geographical situation of the Principality of Andorra, and worried about the respect of their historical traditions (…): Art. 1. The French Republic and the Kingdom of Spain recognize the Principality of Andorra as a sovereign State. Art. 2. The French Republic and the Kingdom of Spain establish, respectively, diplomatic relationships with the Principality of Andorra (…) they help the participation of the Principate in the International Organisations and Conferences and also Andorra’s access to the International Conventions. Art. 3. The French Republic and the Kingdom of Spain respect the sovereignty and the independence of the Principality of Andorra and also the wholeness and integrity of its territory. (…). Art. 6. In case the Principality of Andorra does not assure the protection of its interests and its diplomatic representation before third States where the Principality of Andorra wants to maintain relations, or at the International Conferences and Organisations where it wants to participate, the Principality of Andorra requests, either to the French Republic or the Spanish Kingdom to attend these interests in accordance with the provisions of the Convention of Vienna about diplomatic relationships. The modalities of this representation and of this protection, which will be assured according to a balance’s principle between the French Republic and the Spanish Kingdom, will be determined in the specific agreements. Art. 7. At the States where the Principality of Andorra does not have a Consular representation, and under reserves of the provisions of the International Public Law that rule the diplomatic and consular relationships, the Andorran citizens will be able to address, when necessary, both to a Consulate of the French Republic or to a Consulate of the Spanish Kingdom, as far as both of them coexist.” 254 E. BROTO that have been faced with an exquisite “savoir faire” on the part of the Andorran people. Articles 6 and 7 foresee that France and Spain facilitate the diplomatic and consular representation to Andorra and at international conferences through their own representations. During the eight years of the treaty’s life, Andorra has never asked for this representation from any of the two neighbouring States, in a clear willingness to keep its independence at the international relationships during its first period of being a State member of the United Nations. Andorra has preferred not to have diplomatic representation at certain events or even before some States, rather than giving the image of ceding this international sovereignty’s exercise to any other State. It has tried to avoid wrong interpretations from third states about Andorra’s position as a sovereign and independent State as regards to France and Spain.

III. THE QUESTION OF THE CONFESSIONALITY 1. Historically In the 18th Century, the Council ordered Dr. Antoni Fiter i Rossell to develop a compilation to fix the usage, local customs and privileges of Andorra82. The “Manual Digest” of 1748 analyses and tries to fix the institutional organisation, the protocol, the Law, the history and many other accessory juridical matters of Andorra. There also was drafted the “Màximes for the correct government of Andorra”, a kind of regulae iuris about how to manage the country’s life and safeguard it. The fact that it was demanded and used by the Council conferred on it a certain official character and the value of becoming a juridical base for the country. In this context, the “Manual Digest” contains a certain analysis of the Religion in Andorra, and from its affirmations it is possible to extract some ideas about the Church and the State relationship at that period. The separation of Church and State was imperceptible, because one of the sovereigns was the Bishop of the Diocese of Urgell, to which the country belongs. The first Book of the “Manual Digest” from 1748 is about history, domain and government in Andorra, and in chapter 13 the religion of the Valleys is analysed. It is said that: “The Catholic Religion is the

82 He titles “About Andorra’s neutral Valleys. Where it is told about its Antiquity, Government and Religion, about its privileges, usage, Pre-eminencies and Prerogatives”. CHURCH AND STATE IN ANDORRA 255

Crown of the Valley of Andorra that since its second foundation, has been professed in all its purity”83. The entire chapter exposes the position of Andorran religion (Catholic) as one of the superior elements of the Principality, where it has always been guaranteed its purity, continuity and fidelity to the Apostolic See84. Analysing the tax aspects of the Church, Fiter established with a certain pride that “the High tithes85 which are paid on wheat and straw are not a lower proof of the Catholic Roman Religion, which in the Valleys has been professed (…), but another sign of the great Catholic religion, which has always been professed in the Valleys since the times of the antiquity”86. The “Conclusion and appendix to the present chapter” contains a Christian exhortation and an exaltation that Andorra has been maintained because of the fulfillment of the Laws of God by the Andorrans, and because of His intervention and help. It indicates to the new gener- ations that “the hope of the future Valleys’ conservation by its inhabitants is guaranteed and will go through the piety and the religion of God”87. The 6th and last book88 of the “Manual Digest”, contains the “Maxi- mas Chistianas de Verdadera Politica, y Solida prudencia, las mes utiles per la conservacio del estat delas Valls de Andorra”89 (Christian Principles of

83 FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000, 238. Original: “Corona de las Valls d’Andorra es la Religió Catolica Romana que desde Sa Segona fundacio en tota sa puresa han professat”. 84 “Esta Santa Religio, Catolica, Apostolica Romana, sola unica, y Verdadera es la que se ha profesat en nostras Valls ab la major puresa, sens mescla de ningun error (…); essent tambe cert e indubitable que, y esta Santa religio se Obserbaba enellas, ya en temps dels Reys Godos (…) sempre y en tot temps han estadas las Valls tant Zelosas dela Con- servacio dela puresa de Sa Santa Religio (…) Catolica Religio Romana”. FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000, 239-240. 85 Tithe, from Latin decima. A tenth part of one’s annual income contributed voluntarily or due as a tax, especially for the support of the clergy or church; prebend. 86 “Las Crescudas ‘decimas’ que se pagan en ellas del blat, y palla” són “Proba no menos dela Religio Catholica Romana, que en las Valls se ha profesat (…) i un altre senyal de la gran religio catholica, que sempre desde temps dela antiguitat se ha profesat en las valls”. FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000, 243-244. 87 “L’esperança de la conservació de les Valls pels seus moradors està posada i passarà per la pietat i religió de Déu”. FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000, 249-250. 88 We find the ‘Màximes’ and their comments in FITER I ROSSELL, A., Manual Digest, Ed. Andorra 2000, 573-618. 89 Màximes related to the Church and State relations: Màxima 1: “Suma Veneracio ala Excellencia, y Magestat de Deu al qual de pressisa 256 E. BROTO truthful politics, solid prudence, the most useful for the conservation of the Andorran Valleys), where the future members of the Council and the Andorran citizens are asked to venerate God and to exercise the constant cult of the Catholic Religion always keeping communion with Rome. The application of Law has to be done according to the Law of God (“Lley de Deu”) and the protection of the ecclesiastical buildings, temples and ministries is another of its imperative provisions. Other Màximes include classic canonical principles such as the rectitude of intentions, integrity and discretion, the request of the grace of God by the Councillors and the love of justice (5-7 and 14). Prevention, the Pax Christiana (19), respect to the tradition and the old Laws (22), tolerance (28), dissimulation (30) and equity (31) are other common principles of Canon Law included in the Màximes for the good government. Curiously, the Màxima 5290 forbids the establishment in the Valley of institutes of consecrated life, which seems to be understood as an expressed position of respect and priority towards diocesan life because of the Episcopal Co-Prince. This Màxima establishes in fine that the Valley cannot recognize any other Lords than its two Co-Princes and neither pay taxes to anyone else. The last of the Màximes is meant as a guide of confessional behaviour for the governors of the Valleys: “To try to govern and make grow in the

Obligacio se deu servir ab lo degut Culto, com atant gran Princep, y Sobera Monarcade tot lo Criat”. (Greatest veneration to the Excellency and Majesty of God, to whom it is an obligation to serve with the due cult, both as a great Prince and as the Sovereign Monarch of the whole Creation). Màxima 2: “Sumo Cuidado al Culto dela Religio Catholica Romana, y en buscar entotas las Cosas primer la honra de Deu”. (Greatest care to the cult of the Roman Catholic religion and to look for the honour of God as the first thing among everything we do). Màxima 3: “No tractar ni resoldre Cosa contra la lley de Deu, sia perlo que sia”. (Not to treat or resolve any matters against the Law of God, whatever it is). Màxima 4: “Mostrarse lo Concell, y Comu delas Valls, insigne protector dels temples, y ministres de Deu”. (The Council and the Communes of the Valleys are the distinguished protectors of the Temples and Ministries of God). Màxima 55: “Finalment Procurar regne, y floresca enlas Valls Pietat y Religio al Culto de Deu, la Justicia la Pau, y la abundancia”. (Finally, to try that the piety and cult to the religion of God, the justice, the peace and the abundance reign and bloom in the Valleys). 90 “Interesarse usque ad efussionem sanguinis junt ab los Srs. Princeps; perque enlas Valls no se Conegan altre Sr, que dits Señors; que no se paguen Censos, y lluismes en ningun domini, ni se admetia findacio, no Cassa de Religiosos, majorment de aquells, que directa o indirectament poden tenir propis”. CHURCH AND STATE IN ANDORRA 257

Valleys the Piety and the Cult in the religion of God, and the justice, the peace and the abundance”91. Therefore, we see that during the Middle Ages and until the 18th century, Andorra showed itself as a confessional Catholic country, and not only by disposition of one of its sovereigns, a Bishop of the Church, but by specific statement and free conviction of its inhabitants. Curiously, the other Co-Prince is also sovereign of a country consisting of Catholicism, Protestantism and laicism, and when he managed to name his representatives in Andorra from the Protestant religion, it provoked popular quarrels such as the one that took place in 188092. After the religion wars in Europe, Andorra’s position in favour of the Catholic Church was unques- tionable, both formally and spiritually. During the 20th century, all the authors that studied this aspect of the country commonly accepted the question of the Catholic confessionality of Andorra. In 1970, Descheemaeker93 and Bélinger94 also share the same point of view.

2. Nowadays The rights to the ideological, religious and cult freedoms are definitely included in the article 11 of the Constitution. Apart from protecting the individual religious freedom for all the citizens, this article also incorpo- rates a special reference to the relationships between the Andorran State and the Catholic Church, which show the peculiar links that, from ancient times, have tied the Mitre of Urgell and the Valleys. We cannot forget that the Bishop of Urgell is still Co-Prince of Andorra and Head of the State.

91 “Procurar regne, y floresca enlas Valls Pietat y Religio al Culto de Deu, la Justicia la Pau, y la abundancia”. 92 See BÉLINGUIER, B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 58. 93 “L’Andorre est, si l’on peut dire en partie, une ‘théocratie’ avec la suzeraineté temporelle de l’evêque d’Urgel qui détient, en plus le monopole de l’autorité religieuse (catholicisme, seule religion reconnue, état-civil aux mains de l’Eglise, privilège de juridiction des curés et vicaires en Andorre qui relèvent de l’officialité)” DESCHEEMAEKER, J., “L’Andorre et les ‘Etats exigus’ d’Europe“, in Les problemes actuels des Vallées d’Andorre, Paris, Ed. Pedone-Publications de l’Institut d’Etudes Politiques de Toulouse, 1970, 190. 94 “La religion qui est aussi pour ainsi dire une coutume: l’Andorre dont l’un des coprinces est un Evêque, ne connaît que la religion catholique qui est religion d’État.” BÉLINGUIER B., La condition juridique des vallées d’Andorre, Paris, Pedone, 1970, 11. 258 E. BROTO

The economic maintenance and the particular treatment of questions such as the education, the legal recognition and the marriage make it possible to think about “certain” confessionality95 in Andorra, without forgetting the formal personal identification between Catholic authority and the maximum representation of the State. As it has been exposed, the Constitution includes the religious freedom and does not mention any official State’s religion, but the connection of the Catholic Church to the foundations of the State is clear. In our 21st Century, away from the religious wars that shook Europe during the 16th and 17th century, to base the study of the individual religious freedom on theories about the formal confessionality or the laicism of the States must be a position completely left behind. The principle “quius regio eius religio” that has laid a great part of the Church and State doctrine in Europe does not have any sense as applied in a free, modern and democratic society. It is not necessary to study the Church and State relations exclusively from the point of view of the mutual identification, but also from the treatment that the State gives to the right of religious freedom to its people and to all Churches and Religions, independently from the States having or not their own or traditional confession, usually

95 This polemic is not unique of Andorra: Canada has some similar discussions on confessionality and education that can be seen in the Parliament of Quebec: “Essentially, this chapter repeats the arguments put forward during the hearings for maintaining confessional schools or replacing them with secular institutions. Despite their differences, both sides seem to agree on the importance of transmitting values through the school system. Based on this observation, this chapter poses a series of questions in an effort to refocus the debate and move away from traditional, polarized positions. WHAT WE HEARD: The issue of confessionality was brought up by many who spoke at the public hearings. Roughly speaking, half of the participants were in favour of maintaining confessionality and half were against. Many did not specify whether they were referring to the system, to the status of individual schools or to religious education but more often spoke in broad, general terms. According to those in favour of abolishing the confessional system, the separation of Church and State implies that public schools must be secular and that the State must not subsidize any religion. They reasoned that the education system is part of Québec’s blueprint for itself as a society. It must therefore serve the interests of the population as a whole and not depend only on parents’ decisions. These participants felt that parents are not well-informed and that consultations on the issue of confessionality were carried out by people with an interest in maintaining the status quo. The proponents of secularisation recognize the importance of transmitting values and cultural heritage and of spirituality and religion, mainly Christianity. They suggest replacing moral and religious education courses with a course that would cover all of these aspects”. CHURCH AND STATE IN ANDORRA 259 for historical reasons. So, once the absolute individual religious freedom that exists in Andorra is recognised, we will not analyse the laicism or confessionality of the Andorran State, but will talk about “the Andorran speciality”. The system guarantees in a whole way the individual religious freedom, and because of its historical peculiarities, keeps very qualified relations to the Roman Catholic Church, but without it becoming the religion of the State. The separation, independence and the non-intervention of the Andor- ran Government and its Departments in religious matters stems from the Constitution and it is expressly represented in the legislation developed later, such as in the Stated Purpose of the Registry Office Law that recognises the Ecclesiastical authority “completely autonomous in its sphere”. The clarity of the provisions of article 11 of the Constitution regarding to Religious freedom positions Andorra nowadays as a country with the maximum guarantee and respect for the Human fundamental Rights and Freedoms in religious matters96. Although there is not any laicism declaration, neither is there a Catholic confessionality declaration. However, if we had to talk about confessionality or laicism in classical terms, we could find arguments towards each side: the first and most

96 The Department of State of the United States of America, in its Annual Report on Human Rights in the World, says about Andorra that: “The Principality of Andorra is a constitutional parliamentary democracy. Two Princes with joint authority representing secular and religious authorities have headed the Principality since 1278. Under the 1993 Constitution, the two Princes – the President of France and the Spanish Bishop of”Seu d’Urgell“- serve equally as heads of state and are each represented in Andorra by a delegate. Elections were held in 1997 to choose members of the”Consell General“(the Parliament), which selects the head of government. The judiciary functions independently. (…)”. “C. Freedom of Religion: The Constitution provides for freedom of religion, and the Government respects this right in practice. The Constitution acknowledges a special relationship between the Roman Catholic Church and the State, ‘in accordance with Andorran tradition’. The Catholic Church receives no direct subsidies from the Government. Catholic religious instruction is provided in public schools to those students who elect to receive it. Recent governmental attempts to eliminate this practice met with resistance from parental groups and the Spanish Co-Prince“, Country Reports on Human Rights. Practices for 1999. By the BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOUR. U.S. DEPARTMENT OF STATE, February 2000. His brief exposition about the direct subsidies can bring the readers to partial or mistaken interpretations. We find also the wrong use of concepts like ‘Spanish Co-Prince’ or Bishop of ‘Seu d’Urgell’. The separation of functions between the Co-Princes mentioned in the sentence “two Princes representing secular and religious authorities”, was never completely accepted, and never existed in practice. 260 E. BROTO considerable one is the disappearance of the article 15.3 of the Draft from January and December 1992 in the definitive constitutional redac- tion. These drafts established that “No religion will have any national character; the State will keep relations of special collaboration with the Catholic Church according to the Andorran tradition”. The definitive article 11.3 does not pronounce the confessionality or non-confessionality of the State, and concretes the guarantee to the Catholic Church for the free and public exercise of its activities, recognises the canonical juridical persons and foresees the same special collaboration. The representatives of the Episcopal Co-Prince were the ones who evidently requested this modification and it is now part of the fundamental Andor- ran Law. So, it seems that it is the activity of a Catholic authority, which impedes a position of non-confessionality in the Andorran Constitution, a situation that could mean a tacit Catholic confessionality, since moreover, the Catholic religion is the only one that is expressly guaranteed in its public exercise of activities. There is neither a reference to any other religions or a general clause for ‘the others churches or religions’ at any of the Constitutions’ articles or the rest of the Andorran juridical system. We could think of some hidden confessionality, because laicism is not expressly established in the Constitution and because no Andorran Laws referred to other confessions or churches when the religious freedom is involved. If we talk about non-confessionality as the freedom and respect towards the Human Rights in everything referred to freedoms of belief, ideology and religion, it supposes that Andorra has the most absolute protection97. Also if we talk about non-confessionality as the complete separation and independence of civil and religious structures of the States, we must value that this separation of functions is effective in Andorra and its Laws98, being possible to affirm that Andorra is a non-confessional State. The musings about the confessionality of the States came from the manifestation of a sovereign as Head and Lord of the State that derives – and sometimes leads – his religion for the national subjects. When sovereignty rests in the will of the people, this sovereignty must be

97 LLAMAZARES FERNANDEZ, D., Derecho de la libertad de conciencia, Madrid, Civitas, 1997, 93. 98 Stated purpose I.7 of the Law of the civil Registry Office: “The ecclesiastical authority, totally autonomous in its sphere, as a head of the perfect society that the Church is, will remain only responsible of the register of the facts, the acts and the rites that the Canon Law prescribes, including the canonical marriage, whose validity is recognised by the Constitution“. CHURCH AND STATE IN ANDORRA 261 applicable to the schemes of confessionality and laicism to discover if there is really a full freedom and equality among these citizens. Instead of talking about the confessionality or non-confessionality of the States, we should talk about the equality or non-equality among the freedoms of its citizens and of all Churches inside each State. Andorra fully respects all the individual freedoms and the right to the religious freedom, but the neutrality of the State before all Churches and Religions is not full, although it must be understood and accepted according to the immediate historical antecedents. If to talk about State non-confessionality it is necessary to demand the neutrality criteria99 as a “frame for the fulfilment of the freedom of consciousness”, then this non-confessionality would not be so clear in Andorra. Evidently, when valuing all these features, it is necessary to look at the situation and historical antecedents of each country, without unnec- essarily creating drastic fractures that can create tension at the social order for not being well accepted. Therefore, the step that Andorra has taken in the last few decades concerning the recognition of the absolute religious freedom of its inhabitants is considerable and absolutely suitable to the International principles of protection of the Human Rights. Moreover, to pretend that a total overcoming of its history is possible would have been neither prudent nor corresponding to the Andorran reality. Although it is possible to improve the protection of the religious freedom for communities and Churches other than the Roman Catholic Church, we have to conclude that the current Andorran juridical system fully guarantees the individual exercise of religious rights. The next Chapters: IV. Development laws – with a complete view on the concrete laws related to religious freedom existing in Andorra-, V. The Church and State relations in economical matters, VI. The treaty with the Holy See, VII. The question in the other European microstates, and VIII. Religions at the Andorran social life, will appear in the issue number 10 of the European Journal for Church and State Research (2003).

99 LLAMAZARES FERNANDEZ, D., Derecho de la libertad de conciencia, Madrid, Civitas, 1997, 85-105.