Critique of the draft law by Wiener Akademikerbund

This is the second in a four-part series on the new Islam Law. Previously: Part 1.

Introduction to Part 2

by Elisabeth Sabaditsch-Wolff

In order to understand the process of lawmaking in Austria, here is a short and very simplified overview:

The government presents a draft law, which is then forwarded to Parliament and discussed in committee. There are usually one to two hearings before the law — sometimes after being amended — goes to a plenary session and is then voted into law.

Before the government votes on the draft law, it is usually preceded by more or less lengthy discussions which include those affected by the law. In the case of the new draft law on Islam, the initial discussions, lasting nearly two years, aimed at comprising “Austrians as well as Muslims from all walks of life.” This is blatantly false, however, since the Wiener Akademikerbund (WAB) was excluded from any deliberations.

Nevertheless, as soon as the initial law was presented in draft form, anyone, including the WAB, was permitted to comment officially on the Law, before it was voted on by the government. The WAB seized this opportunity and presented a lengthy paper with a scathing analysis of the failings of this law (Islamgesetz 1912, Änderung in German only, all comments and critique presented to Parliament).

Below is the Commentary on the Draft Law by the Wiener Akademikerbund as translated by Rembrandt Clancy. The original German version is available here. Following the WAB paper is a news article from an Austrian daily that is relevant to the deficiencies of the proposed Islam Law.

Wiener Akademikerbund
A-11080 Wien, Schlösselgasse 11/I www.wienerakademikerbund.at

Commentary on the Draft of a Federal Law Amending the Islam Law of 1912

For some years, the Wiener Akademikerbund has been comprehensively and systematically engaged both with the doctrines of Islam, its constitution [Verfaßtheit], legal foundation and development in Austria, and with the effects of its implementation and its expansion, especially in Europe. The Wiener Akademikerbund considers itself called upon to accept the invitation to participate in the process of assessment and consultation which was issued as the draft was being published on 2 October 2014.

Contents:

1.		Synopsis
2.		Background
3.		Initial situation prior to the implementation of the project for a new Islam Act. The constitution [Verfaßtheit] of real Islam in Austria.
4.		The necessity for a new Islam Act. Support for the legislative project and identification with the “spirit of the law”, as it is expressed in the draft at hand.
5.		Rationale for the indispensability of the measures to be taken in connection with the three central reform points of the draft.
6.		The draft’s central structural error and its far-reaching consequences.
7.		Proposal for the direction to be taken in repairing the cited defect.
8.		Important technical details by which the draft should be improved and/or supplemented.

1. Synopsis

The more than 100-year history of Islam legislation in Austria began in 1912 with an act of tolerance unique in the world, and with an “outstretched hand”. Since then, many deficiencies and imperfections have slipped in through dealings with the “real Islam”. Today, there is reason to assume that the Islamic Religious Community in Austria has no valid legal basis. And a proliferation of non-transparent mosque organizations is taking the principle of religious freedom to the point of absurdity.

The project to renew the Islam Act is overdue and most necessary. The Wiener Akademikerbund identifies with the “spirit of the law” which undergirds this project. Longstanding demands of the Wiener Akademikerbund are reflected in the draft text: disclosure of the tenets of the faith, a ban on financing and radical influence from foreign sources, as well as the dissolving of the religious operations of the associations that are exempt from any supervision or responsibility.

The draft, however, has a serious legal defect that is likely to undo all the intentions of the project. The defect is the result of complex causes and is, at first glance, barely recognizable. It will be analyzed in minute detail in the present commentary. A specific suggestion for a remedy will indicate a way out of the dilemma. Additionally, detailed suggestions for improvement and reform will be made, which are suited to increase the likelihood of accomplishing the goals of the planned Islam law.

2. Background

Without knowing the history of the origin and development of the concrete legal issues, it is no more possible to understand the need for a new Islam law than it is to grasp the strengths and weaknesses of the draft that is now before us.

After the final repulse of the Ottoman expansion in the Balkans by the European forces of the Austro-Hungarian Habsburg monarchy, Bosnia and Herzegovina were made protectorates of Austria by the Berlin Congress of 1878. Not until 1909 were they accepted into the Austro-Hungarian monarchy. In 1910, this acceptance was formalized by a special status conferred by Emperor Franz Joseph. The monarchy was affording the land a respectable economic prosperity, and was at pains to preserve the religious peace as well as the social structures frequently linked with the Muslim elites. As a special mark of equality, Islam was therefore to be awarded the status of a legally recognized religious community throughout the entire empire. This took place “with the agreement of both Houses of the Imperial Assembly” in the Islam Act of July 15, 1912.

Recognition as a religious society [Religionsgesellschaft] in the sense of Article XV of the Staatsgrundgesetz [Constitution] of 1867 was granted to the adherents of Islam — restricted, however, to the “Hanafite Rite.” This group had the “right of collective practice of religion” restricted to recognized churches and religious societies. “The external legal relationships of the adherents of Islam” are to be settled by statute, once “the foundation and existence of at least one religious community [Kultusgemeinde] has been achieved” (§1). The “doctrines of Islam, its institutions [Einrichtungen] and customs, shall enjoy… protection unless they are in contradiction to the laws of the state.” (§6)

The law was definitely regarded and enacted as a transitional solution and emergency measure in the face of the verified, temporarily tolerated incapacity of the adherents of Islam to conform to the requirements for approval of recognized religious societies. This follows unquestionably from the text and protocols of the parliamentary commission appointed to evaluate the justification and reasonableness of a law exclusive to Islam. The commission invokes the general regulation on admission of a recognized religious society, which had been standardized in the Recognition Act of 1874 and which is valid to the present day. The commission makes reference to the fact that adherents of Islam in Austria at that time were not in a position to satisfy the following requirements of the law:

—		“that establishment and existence of at least one religious community according to the requirements of this law is assured.” (§1 (2))
—		that the religious community can itself provide or raise in a lawful manner the financing for “requisite institutions of worship, a reputable spiritual director and regulated religious instruction.” (§5)
—		that only Austrian citizens be appointed to the executive board of religious communities.
—		that only Austrian citizens with at least secondary school certificate be appointed as spiritual directors. (§10)
		[Act of 20 May, 1874, ‘On the Statutory Recognition of Religious Societies”]

Before consideration of further developments, the following should be noted: Contrary to representations that the deviations from the requirements of the Recognition Act were eliminated after a limited transitional phase, these deviations in the realm of organized Islam have hardly decreased, but have — to some degree significantly — increased in the last centuries, and especially in the years of this century. The financing of religious operations “from outside,” especially from foreign sources, has increased exponentially. There is no question, in many cases, of limiting the choice of members of the board and spiritual leaders to Austrian citizens. And the required educational and/or training standard is likewise, in many instances, in default.

The Recognition Act further requires that “religious education, worship service, chosen constitution and chosen name must contain nothing illegal or morally offensive.” (§ 1 (1)) The Parliamentary Expert Commission expressly declared that it was aware that substantial elements of the doctrine of Islam would contravene the laws of Austria. In this regard, it mentioned, inter alia, the right of retaliation and polygamy. However, the commission recommended acceptance of the act, because it assumed that the strength and enforceability of the laws, and the limited number of adherents of Islam (some few thousand in Transleithania and Cisleithania were mentioned), would make a danger to order in Austria unlikely.

Furthermore, no Islamic organisation in Austria (other than the Shi’ite confessional community SHIA and the Alevi religious society ALEVI) has complied with the necessity for disclosure of the fundamentals of their faith, as imperatively advised pursuant to §§1 (1) and §6 (2) of the Recognition Act, in order that the conformity to law of the doctrines and customs of Islamic societies could have been validated.

Finally, it must be noted that, following the passing of the Islam Act of 1912 — and until the present day (!) — not one single religious community has been legally founded, and is therefore not operative even now, in accordance with articles §1, §4, §5 and §6 of the Recognition Act and within the meaning of §1 of the Islam Act.

Rather, the further development of Islamic life in Austria is characterized by the following milestones:

At the instigation of Islamic activist and scholar Sayid Ramadan — son of the founder of the Muslim Brotherhood and himself a high-ranking functionary of that body — who was visiting Austria for this purpose, the Muslim Social Service (MSD), was founded in 1962 as an association in the form of a legal person.

It was from among its members that an application was filed in 1971 for approval of the first Islamic community, which was approved by administrative decision of the educational authority as the first Islamic religious community in Vienna. This decision was invalidated under ruling V11/87 of the Constitutional Court in 1988, with the reasoning that the Islam Act provides for the creation of a religious community by statute. Since then, no other application for approval of a religious community has been filed, and no such community exists today.

In 1988, an [Islam] Regulation (VO 466/88) was enacted in accordance with §1 of the Islam Act, in which, with regard to the “external legal relations of the legally recognized religious society,” it is prescribed:

—		that the latter is to bear the designation “Islamic Religious Community in Austria”
		and
—		what elements the constitution of the Islamic Religious Community must exhibit (§2)

As early as the preceding year, on 10 October1987, the Constitutional Court had found that the restriction of the recognition of Islam, as a religious society, to the Hanafite rite was unconstitutional. Accordingly, in 1988, a change was made in the Islam Act, according to which the restriction of recognition to the “Hanafite rite” was dropped, so that henceforth, the adherents of all denominations of Islam were recognized as a religious society, and they are to this day.

A group from the Muslim Brotherhood-dominated Muslim Social Association, which had already been informally calling itself “Islamic Faith Community” for some years with no juridical underpinning as a legal personality, seized the moment. It simply maintained that it had been the subject to which the Islam Regulation 466/1988 referred and — with the recognition by the constitutional court in 1988 — had received an exclusive claim to represent all Muslims in Austria.

Against the background of a dubious election, it was constituted as the IGGiÖ

(Islamic Religious Community in Austria) as early as August 1988, and has since then been functioning as the political representative of Islam, i.e., as interlocutor with representatives of the state and of other religious societies and/or churches, as a public relations device for Islamic objectives and demands and as a framework for the organization and establishment of Islamic religious instruction in Austrian schools.

To this day, the IGGiÖ does not maintain a single religious community in the meaning of the Islam Act. It neither owns nor runs a single mosque or prayer room and maintains no religious establishment, no matter how it is defined, in which believing Muslims could fulfill their (everyday) religious obligations.

So critics are probably correct in asserting, that the IGGiÖ was never legally established, because the Islam Act regards the proof of existence of at least one religious community as a temporal pre-condition for the regulation of the “external legal relations of Islam” (§ 1).

For the purpose of maintaining the above-mentioned functions of a religious establishment — which as noted are not exercised at all by the IGGiÖ, — countless so-called mosque and religious associations have been founded under the Associations Act. These are, in many cases, financed and controlled by foreign establishments. A great number (ca. 40) are managed by ATIB (Turkish Islamic Union for Cultural and Social Cooperation in Austria) and its branch organizations, all of which are subordinate to the religious authority of the Turkish state, Diyanet, from whence the entire religious establishment, down to a unified, centrally composed, uniform Friday sermon, is directed. Other organizations are conducted as “Bosnian mosques”, “Chechen mosques,” “Pakistani mosques,” or Arabic mosques,” etc. and are varied elements of corresponding nets of influence. The number of mosque associations in Austria at this time can be estimated at around 440.

This situation is blatantly illegal. Article XV of the StGG [the Constitution] states that the exercise of corporative religious freedom must be carried out in the context of churches and recognized religious societies. To be sure, the original plan, in the context of the Associations Act of 1953 forbidding any religious practice within the associations, was dropped, in order to enable a common religious exercise at a lower threshold of permission than the recognized religious societies, but this consideration was dropped, at the latest, with the enacting of the law Concerning the Legal Status of Confessional Communities of 1998 [Bekenntnisgemeinschaftengesetz], which is understood as a special Law of Associations for the purpose of religious activity.

To obscure the illegal situation, the IGGiÖ stated in its 2009 constitution that the “enfranchised members of each of the mosques or professional associations, which have an Islamic background and which are recognized and registered by the IGGiÖ”, are qualified to nominate delegates for the elections of the IGGiÖ (Article 20 (2) a)). The members of these kinds of establishments are, however, in no sense members of the IGGiÖ, and are connected with it only very indirectly through their affiliation with their associations — whether they want to be or not. A mosque, which “teaches and promulgates the doctrine of Islam according to one of the schools of Islamic jurisprudence which are spread throughout the world”, is a valid mosque, recognized by the IGGiÖ (Art. 20 (3) a)).

It is conceded that these mosques are managed within the legal form of “support associations” (Art. 20 (3) d)).

On the other hand, every association which considers itself an “aid association of the IGGiÖ“ is recognized by the IGGiÖ as a “professional association.”

The structure is such that the associations have the option of being connected to the IGGiÖ in the casual manner described above and of dissolving the connection at any time without the particular support association or professional association losing its character as a legal personality, and therefore also without the risk of losing the capacity to manage a religious concern and/or a mosque or other religiously dedicated infrastructure.

Of the 440 Austrian mosques and cultural associations, ca. 180 can be assigned to the IGGiÖ in the noted loose form of a mosque operator or an aid association. However, even in the case of these 180 institutions, the IGGiÖ has no formal or actual responsibility for their religious operation, let alone an appropriate right of access or accountability for corresponding public activity.

This situation — already extraordinarily unsatisfactory and legally untenable, as described above — was further exacerbated in its degree of deficiency by the next historically significant event in the saga of the religious-legal framework of Islam in Austria. With its decision of 1 December 2009, the Constitutional Court eliminated the “exclusive claim” of the IGGiÖ, i.e., it declared as unconstitutional the Regulation of 2 August 1988, whereby the “adherents of Islam” (meaning “all adherents of Islam”) would have the designation “Islamic Religious Community in Austria”. The result was that other religious communities could also be constituted as recognized religious societies in accordance with the Islam Act.

This brief legal-historical outline demonstrates that the legal framework of Islam in Austria is in many respects unsatisfactory, inherently contradictory, unsusceptible of legal judgment; and above all, it is extraordinarily deficient in respect of the task of creating a smooth relationship between state and religion; and it is deficient in its focus on the interests of the population, its transparency and its legal certainty; as well as deficient in the preservation of both religious peace and the existing cultural niveau.

3. The initial situation prior to implementation of a new Islam Act: The constitution [Verfaßtheit] of the real Islam in Austria.

To outline the requirements and necessary characteristics of a new Islam Act, it is important to summarize the status quo of Islamic reality in Austria.

The initial situation of the real constitution [Realverfassung] of Islam, and its implementation in the context of individual and corporate religious freedom, can be characterized by the following constellation:

On a kind of official level, there is the IGGiÖ (Islamic Religious Community in Austria), which originally had a sole claim to represent all Muslims. This was removed by the Constitutional Court in 2009. The IGGiÖ represents “Islam” at the political level, as well as in bodies in which the so-called inter-religious dialogue is pursued; it is the interlocutor for media and other religious communities; it organizes and operates religious instruction, which is the obligation of a legally recognized religious society; it oversees the care of Muslims in public institutions (army, schools, hospitals, universities, etc.) and is a beneficiary of numerous public, financial benefits and project funding. The IGGiÖ does not maintain mosques of its own and eschews any actual religious activity. With regard to performing Islamic rituals, it has no actual contact with the Muslims of Austria and is therefore not an official part of the increasing entrenchment and spread of Islam “at the grassroots level”. Therefore, it apparently has nothing to do with what critics describe as the systematic Islamization of society. The IGGiÖ has never published membership lists or even given the number of its members. It is possible the latter amounts to only several dozen functionaries. There is, at any rate, reason to assume that the membership does not exceed several hundred. Considering the whole arrangement, the question must be asked: whom or what does the IGGiÖ really represent?

At the material level, there are a great many so-called cultural and mosque associations where the actual, real life of Islam is carried out in Austria. Many of these associations manage larger or smaller mosques or prayer rooms. No small number of these establishments is run in combination with food businesses, hairdressers, cafés or video stores, as befits the Islamic tradition of comprehensive bundling of the most diverse public life functions by [means of] mosque complexes. Worship services interweave closely in time and place with political discussions and agitations, but also with the processes of satisfying everyday needs. Friday prayers and sermons take place here, fatwas (religious-political legal opinions) are read out; and all the ritual and liturgical activities that determine the everyday life of pious Muslims are accomplished. There is consumption, social occasions are celebrated and Islamic customs are carried out (from “handling” halal products to circumcision). By now, there are about 440 such mosque associations in Austria. Several of them are connected with the IGGiÖ as supporting associations or charitable societies, but the majority have no formal connection to the IGGiÖ and in many cases no substantial connection at all.

In connection with the mounting public concern about the growing radical Islamic threat potential and the apparent connections of Austrian institutions with the sympathizers and recruiting mechanism of extremist organizations such as ISIS, aka the Islamic State (IS), the president of the IGGiÖ was asked what possibilities he might see of counteracting the radicalization of the Islamic biotope. This radicalization was also addressed in reference to such associations connected to the IGGiÖ in the manner described above. In his reply, President Dr. Fuat Sanac confirmed the real constitution [Realverfaßtheit] of Islam in Austria, as it is portrayed above, and confirmed and trenchantly described the consequences resulting therefrom by delineating the behavior of the dominant exponents of radically led mosque associations in Austria: “For them, we are infidels. They do not talk with us, they do not even acknowledge us, they do not invite us; and when we invite them, they do not come.” (30 August 2014 interview in Profil, titled “So What Can I Do?”) It may seem incredible that these are the words of a functionary who has the capacity to take responsibility for the associations under discussion or who exerts influence on them.

4. The necessity for a new Islam Act. Support for the legislative project and identification with the “spirit of the law”, as it is expressed in the draft at hand.

In regard to the real constitution [Realverfassung] of Islam in Austria, it is evident that there is pressing need for reform.

The new Islam Act would be an important contribution toward safeguarding religious peace in Austria; toward minimizing potential conflicts which arise from the coexistence of differing religions with claims to configuring culture; toward ensuring legal certainty for the authorities and the public in dealings with Islam; toward providing a balanced equilibrium between the rights and obligations of Islamic religious societies; and toward adapting the real constitution [Realverfassung] of the practice of the Islamic faith to the context of regulations in the Austrian constitutional state.

In the context of this position paper, the Wiener Akademikerbund would like to express its emphatic support for this important project. It must on no account fall victim to stifling threats, — be they of national or international origin — or to irrational political fears or to technico-legal or legislative deficiencies.

The “spirit of the law,” i.e., the spirit which contains the intentions of the present draft proposal, must be welcomed without reserve. This spirit of the law is oriented toward the principles of the primacy of state laws and of social norms vis-à-vis religious “laws” or commandments; it is oriented toward the primacy of transparency; toward the responsibility of religious communities for the content of their teachings and the actions of their members and for the content of dialogue or its assumptions.

It is in this sense that the criticism of opponents of the draft law and its spirit should be repudiated, a criticism which rejects an explicit emphasis on the precedence of the rule of law over Islamic norms as discrimination against adherents of Islam. A group of critics from the realm of academe (Prof. Potz et al.) speaks of unacceptable discrimination. Muslim Youth [Muslimische Jugend] even claim to see in the draft an attempt to make Muslims second-class citizens. In a flyer distributed in Austrian schools, they polemicize: “Enjoy your last moments as equal citizens in Austria.” At the head of the application of international pressure is the document from a UNO body to the responsible federal minister with the warning that a ban on Islamic sharia could violate human rights.

Actually, declaring the precedence of the laws of the country over religious “laws” and norms is nothing new and is already stated in the Islam Act of 1912 (§6). The Recognition Act of 1874 also requires the primacy of government law explicitly for all recognized religious societies ((§1 (1)), so there can be no question of discrimination of any kind against Muslims.

However, it is justifiable, in confronting this question of the special nature of Islam, to require a very explicit form of stipulation and honing of the standard without harming the principle of equality in the process, as will be established below.

It is also for this reason that this organisation, as an interested party, welcomes the “spirit of the law”, because the draft contains three especially important requirements, which the Wiener Akademikerbund — in its concern for the maintenance of religious peace and the cultural level which distinguishes our society — has for years inserted into the discussion. The measures associated with these requirements belong to core elements of the reform attempt. Their successful enactment will decide, for good or ill, the entire legislative project. It concerns:

a.		Disclosure of the tenets of faith, with the view of enforcing the right of the people to be informed on teaching content, opinions and goals of all religious communities; and to safeguard every kind of meaningful dialogue among religions or between the state and religious societies (intended in § 6 (1) 5) of the Draft).
b.		Banning the financing of religious enterprises pursuant to the requirements of independent financial viability of every Austrian religious society (within the meaning of §6 of the Recognition Act, or §2 of the Orthodox Act), as well as setting the goal of minimizing the radicalizing influence of extra-Austrian states and organizations, which are not founded on the basis of human rights (intended in §6 (2) of the draft).
c.		Restriction of collective religious practice of Muslims to state-recognized religious societies, and therewith the necessity of dissolving associations in which Islamic religious life avoids any transparency toward the public and any access by responsible governmental authorities (attempted but not realized in §3 (4) of the draft).

5. Rationale for the indispensability of the measures relating to the [above mentioned] three central reform points of the draft.

In regard to a): Disclosure of the tenets of faith. The draft justifiably demands a “description of the doctrine, including texts from essential sources of the faith (Koran) with their content rendered in German…” (§6 (1) 5)

Officers of the Islamic religious community are more than 100 years overdue in their obligation to provide this disclosure. There is without doubt no other way to determine what in the content of Islamic beliefs under certain circumstances contradicts governmental laws, on which basis the Islam Act of 1912 excludes the protection of doctrine. It is a right of non-Muslim citizens and a duty of the state to require of Muslims resident here that they distance themselves from elements of their faith which are incompatible with the law; and indeed, not in the context of a meaningless general formula, but as part of specific textual references. Only this will create trust and legal certainty.

The reproach of critics that such a requirement would constitute an expression of a “generalized suspicion” or an unjustified mistrust misses the mark. The assessment that Islam has elements which are not compatible with a secular state is no “suspicion” but in every sense a documented certainty. This is not the subjective opinion of outside “Islam critics,” but of all the typical representatives of Islam. A long line of influential greats of Islamic theology and law could be adduced here — from Ibn Taymiyah to Sayyid Qutb and Maududi. But first a quote from an outstanding representative of Islam, from the land that was the occasion for the enactment of the Islam Act of 1912 and which, so to speak, constitutes the starting point of objective reflection. Regarded as a moderate representative of Islam, respected by all and much revered, the former president of Bosnia-Herzegovina (1990-1995, or 2000), Alija Izetbegovic, advocated in his theoretical magnum opus, “Islamic Declaration,” the goal of a “synthesis of religion and politics” and aspired to the “Islamization of secular Muslims”:

“There is an incompatibility of Islam with every other faith and social order… There can be no peace and coexistence between the ‘Islamic faith’ and non-Islamic societies and political institutions… Islam clearly excludes the right and possibility of activities by a foreign ideology in its territory. Therefore, lay principles are out of the question, for the state shall be the expression of religion and support its moral concepts.”

The assumption — certainly justified — that there are many individual Muslims in Austria who still do not identify with this statement, does not change the fact that there are numerous imperatives and quasi-legal norms in the religious texts of Islam, which are not at all religious, but are of a political and/or legal nature (retaliation, physical punishments, a ban on apostasy, marriage and inheritance law, instructions on jihad and dealings with “infidels”).

The supreme Islamic authority on the question of human rights, itself confirms this. In 1990, the Organisation of the Islamic Conference (OIC), a supranational association presently consisting of 57 Islamic states, passed the so-called “Cairo Declaration of Human Rights. Article 24 states:

“All the rights and freedoms stipulated in this Declaration are subject to the Islamic Sharia”.

And Article 25:

“The Islamic Sharia is the only source of reference for the explanation or clarification of any of the articles of this Declaration”.

We must be permitted to ask Islamic religious societies in Austria whether representative declarations of this kind correspond to their own conception of their doctrine. And certainly it must be considered a minimum constitutional standard to ask for a possible distinction between religious and political precepts and to require a exposition of the trajectory of this approach. If nothing else, it will be the task of those in positions of political responsibility to bring all those involved — Muslims and non-Muslims — to understand that the full programme of Islam, inclusive of its political and legal concepts, cannot be implemented in Austria; not in principle, not permanently. It is in this manner that the point raised here concerning the draft of the Islam Act in preparation can contribute to a consequential safeguarding of religious freedom.

Finally, it is necessary to investigate an alleged secondary aspect of the requirement to disclose the Statement of Faith, one which makes the disclosure of doctrine likewise indispensable. In Austria there are persons who have been convicted of “Vilification of Religious Teachings” pursuant to § 188 of the Strafgesetzbuch [criminal code, StGB], because they uttered Islam-critical statements. It must be asked how one can “vilify” a teaching which consistently remains undisclosed and for which there is no legally objectivised exposition. To standardise the issue of “exposition of the teaching” means also to achieve legal certainty on this question.

Therefore the organisation (Wiener Akademikerbund), which is participating here in this consultation procedure, supports the intent behind § 6 (5) of the present Draft, but suggests several important supplements crucial to the realisation of the sought-after objectives specified herein (see Point 8 of this Statement).

In regard to: b) The prohibition of the financing of recognised Islamic religious societies and their religious communities from foreign sources. (§ 6 (2))

This rule, too, by no means carries a novel meaning. The requirement to ensure the existence of one religious community under § 1 of the Islam Act of 1912 must be understood to mean that the required funds are raised from the financial resources of the members of the community, and therefore the provision excludes a substantial financial support or endowment coming from foreign sources. The underlying wish for the religious society to be independent follows clearly from the restrictive provision relating to the employment of religious officials (§ 2). An analogous provision is also found in the Recognition of Religious Societies Act [1874]; in particular, § 5 relates to the wish for financial autarky, and there is a provision pertaining to the wish to have civic status for functionaries (§ 9) and spiritual directors [Seelsorger].

Against the critics of this provision, the reproach must be made, that they are certainly not concerned about the welfare of Austrian religious societies and with the free religious practice of Austrian Muslims, but about enhancing the interests of outsiders. It is clearly a guiding principle of the Austrian legislation on religion to achieve or permit a balanced correspondence between the number of believers in a religious society and the worshipping apparatus which they bring to their facilities. The purpose is to secure an autonomous participation of the faith communities and their representatives in religious discourse and in public life. This applies basically to all churches and religious societies.

Here too, an intensified and explicit highlighting of Islamic societies is objectively justified in view of evaluating the unequal conditions existing from the outset. Reference has already been made to the fact that the amounts of financial gratuities to Islamic communities or organisations have in no way lessened over time in terms of an acceptable transitional situation; but, quite the contrary, they have increased drastically in importance. More important than the mere amounts or the absolute values of the (considerable) contributions, however, is the circumstance that in all known cases of foreign financial support of Islamic institutions, an exertion of influence, in terms of both substance and design, is bound up with the transfer of financial contributions. All empirical evidence shows that these conditions are always accompanied by a radicalisation of the Islamic self-understanding in the target regions concerned. In the last few years, the Islamic states of the Arabic Gulf region have launched amounts in the billions and thereby without exception brought about a strengthening of the radical Salafist variety of Islam, most notably in many European countries.

To remain with the already quoted source material which occasioned the Austrian Islam Act of 1912, we may cite in this regard the impressive example of Bosnia Herzegovina. A person visiting the capital of Sarajevo after the fall of the former Yugoslavia at the end of the Bosnian war in the 1990s of the last century would have been unable to detect a pronounced Islamic self-consciousness. But in the wake of the Bosnian War, mujahedin fighters were smuggled into the country from Arab states engaged in the financing of war. Several thousand of these fighters remained in the country after the end of the war and married Bosnian women. The “Red Crescent”, the relief agency financed predominantly by Saudi Arabia, taking advantage of the indigence of the population, paid substantial allowances to women for wearing the head scarf and paid children to attend the Koran schools. It was also Saudi Arabia which reconstructed several thousand old mosque buildings in the country and built new ones. With the financing of schools and other infrastructural facilities, Saudi Arabia quickly won influence over the management of religion in the Islamic community and over the situation in the universities. Even personnel policy relating to Islamic religious officials and the filling of the positions for leading Muftis and Imams was henceforth decisively determined by Salafism and Wahhabism. Today the overwhelming number of women in Sarajevo wear the headscarf; and presently, Friday prayers in many parts of the city bring the traffic to a standstill, because the praying individuals throw themselves in large numbers beside their vehicles so they can perform their obligation to ritual prayer with no ifs, ands, or buts. As a result of generous appropriations from Saudi Arabia, Bosnia Herzegovina has in only one and a half decades gone from a secular state to a decidedly radical-traditionalist looking Islamic society.

Curiously, the very people who energetically refuse to tolerate any “interference in the internal affairs of a religious society” by (their own) state, are also the ones who consider that same kind of influence an expression of freedom and self-determination if it comes from a state in the Islamic orient.

For purposes of Austrian law and the provision introduced here of forbidding “foreign financing”, the principle must apply, that when it comes to the will of a foreign power to exercise ideological-religious influence, that has nothing to do with a legal right worthy of protection within the meaning of the defence of civil liberties. The Austrian state is therefore well advised to prevent the foreign financing of Islamic institutions. Against the intentions of the critics, who also speak in this respect of “discrimination” or even of “unconstitutionality”, it is to be objected that even the high-level, supra-national contractual document of the European Convention on Human Rights, both the product and foundation of the Council of Europe, provides for the possibility of a state using legislative means to limit the political activity of foreign persons and thereby their exertion of influence. This is also applicable by analogy to foreign religious instruction which is ultimately politically motivated.

The Wiener Akademikerbund supports the ruling pursuant to § 6 (2), but here too they would like to offer an essential proposal for a supplement (see Point 8 of this Statement).

In regard to: c) The restriction of collective religious practice of Muslims to state-recognised religious societies.

A guiding principle of all the legislation on religion is to establish a satisfactory degree of congruence between the rights and obligations of those who are the subjects of the right to freedom of religion. At the same time the framework of the religious legislation refers exclusively to the collective (or corporative) dimension of religious freedom. The individual exercise of freedom of religion follows informally and finds its limits exclusively and sufficiently in the regulatory framework of the general legislation (family law and criminal law). On the other hand, the exercise of corporative religious freedom follows from community-oriented actions under the influence of a religious imperative. In the context of this communal action, steps are regularly taken, which have considerable relevance for the state community and for the societal and cultural fabric. Legal transactions are undertaken, the actions of members are determined or co-operatively determined, and — whether through mission, propaganda, practice of ritual customs, or through the sharing in political or social decision-making procedures — cultural and societally formative actions are taken which retroact on the state or legal framework. For all these areas, mechanisms are required, by which the responsibility for religiously determined actions can also be assigned to the effects of those actions. This in turn assumes the definition and availability of juridical entities by which and within which religious communities can develop their faith life without harming or disadvantaging either the members or non-members of their community. Precisely that is within the remit of religious legislation.

Austrian religious law has been achieving this task in a remarkably satisfactory way from the time of its formation and development after the enactment of the Staatsgrundgesetz (Constitution) in 1867 — whilst definitely taking into conscious consideration the specificities of the various churches and faith communities — and consequently it has laid the groundwork for religious peace in the country. However, the significant exception to this is the absence of a functionally capable, regulatory framework for the development and manifestation of the collective faith life of Muslims. For Islam, the existence of a church with its internally regulated modalities of dogmatising faith content, the existence of office assignment within an ordained priesthood, of the shaping of organisation and hierarchy as well as the existence of the binding specification of liturgical proceedings, all these are for Islam completely alien. The Islam Act which has been in force to the present, and its implementation are far from doing justice to the peculiarities of Islam which relate to the existence of the aforementioned characteristics. Within the sphere of Islam, the principle of establishing a satisfactory level of congruence between the rights and obligations of those subject to the right of religious freedom in Austria has not been fulfilled. The result of this shortcoming is the aforementioned real constitution [Realverfaßtheit] of Islam in Austria, under which an amalgam of recognised faith societies belonging to a confessional community, plus a multitude of rampantly emerging associations, makes any assigning of the unsurveyable actions of the Islamic community to their respective effects on the state and society impossible.

This state of affairs is not just unsatisfactory, but in several respects it is unconstitutional and illegal. The new Islam Act therefore pursues the objective of bringing this situation to an end and of securing the lasting adaptation of the real Islam in Austria to the conditions of the secular constitutional state. One instrument for fulfilling this task is the intentional termination of the proliferation of institutions by dissolving Islamic “mosque and cultural associations” and transferring their religious operations to the responsibility of recognised religious societies and their religious communities.

The Draft of the Act provides for this instrument with the wording of § 3 (4):

“The Chancellor shall combine the dissolving of those associations, whose purpose consists in dissemination of the religious doctrine of the religious society concerned, with the administrative decision under para 3 (on the acquisition of legal personality of an Islamic religious society, annotation.)”.

§ 23 (3) is intended to ensure that the provision for the disbandment of associations shall be exercised with regard to already existing religious societies.

The aim of the statement as it is presented in this document is to express as clearly as possible that the above mentioned objective of disbandment of rampantly proliferating institutions, which are circumventing the element of responsibility, can under no circumstances be achieved by means of dissolving Islamic “mosques and cultural associations” using the legislation at hand. This claim is to be demonstrated from what follows.

6. The Central Design Flaw of the Draft and its Far-Reaching Consequences

The aspect of the formal execution of the draft law addressed herein necessarily makes the spirit of the act incapable of implementation and practically all of the important objectives of this project will in practice be thwarted. This effect is not discernible “with the naked eye” and can be made visible only by means of a concentrated overview of all the relevant passages in the Act, along with their historical development. The presentation of the “background of this legislative project”, which is now to be engaged, serves to prepare for this objective,

a)		The long title of the Islam Act of 1912 reads: “Act pertaining to the Recognition of the Adherents of Islam as Religious Community”. The Draft for the new Islam Act provides for this long title to remain unchanged, but the text of Article I, §§ 1 to 8 and Article II of the old Act is to be completely replaced by the text contained in five sections and 25 paragraphs of the Draft.
b)		Article I of the old Islam Act of 1912 provides that:   “The adherents of Islam according to the Hanafite rite shall be granted… recognition as a religious society.” § 1 of the new (proposed) Islam Act specifies that:   “Islamic religious societies… are recognised religious societies…. They are corporate bodies.”
c)		The following events intervene between the quoted passages of the “old” and the “new” Islam Acts: —   the verdict by the Constitutional Court, 11.574/1987, pursuant to which the restriction [of Islam] to the “Hanafite rite” is annulled, —   the Regulation 466/1988 by which the “adherents to Islam” shall bear the designation of “Islamic Religious Community in Austria”, as well as —   the verdict of the Constitutional Court, B1214/2009, by which the claim of the IGGiÖ to exclusive power to represent [all Muslims] is nullified.
d)		Consequently the new Islam Act speaks (in the plural) of “Islamic religious societies” as legal persons. These constitute the subject of standardisation under this Act. By contrast, under the old Islam Act it was “the adherents” to whom the status of a religious society was granted and who were the subject of legal standardisation; an emphasis which was both semantically and ontologically consistent, given the original restriction to the Hanafite rite. In reality, the adherents to Hanafite Islam are members belonging to the category of concrete religious societies. With the removal of the wording “according to Hanafite rite”, the significance of an identity of “adherents” with a concrete religious society is lost. A religious society of adherents of all denominations does not exist, has never existed anywhere and cannot exist. The wording “adherents of Islam as religious society” can be brought to expression in a legally standardised sense only if the doctrines of Islam as such are legally recognised; that is, the totality of the doctrines of all denominations.
e)		As a consequence of the legal changes pertaining to Islam listed under point c), the Draft for the new Islam Act develops into a set of regulations which fail to suggest in a single passage that the Act purports a general legal recognition of the doctrine of Islam as such. On the contrary, the (proposed) law (particularly § 4 [§ 6] (1) 5) is to be understood as meaning, that it recognises the term “doctrine” only in relation to a concrete religious society (yet to be established), of which there can be, and are, several subsequent to the nullification of the IGGiÖ’s claim to sole representation [of all Muslims].
f)		From all of the above mentioned points, especially point (e), it follows with logical necessity, and without doubt, that it is already impossible to disband associations, because these societies hold to a deposit of faith, addressed in the Islam Act as such. But as the Act set its out, a disbanding is possible only with reference to the deposit of faith of a concrete religious society.
g)		It follows from all of the foregoing, that any such disbandment can occur only if the state can provide evidence that the deposit of faith of an association is identical with the deposit of faith of a recognised religious society, or that it is at least clearly associated with it. The argument in this document is that such evidence is absolutely unobtainable by legal means.

The deductions and assertions made here have far-reaching consequences. It may also elude everyday understanding that it could be impossible to transfer knowledge generally available in the literature into a legally meaningful form. To make this difficulty conceivable, a thought experiment of a realistic, concrete case may be presented briefly.

Suppose an association characterises itself as “Salafist Mosque and Cultural Association” (in fact the “mosque map” of Professor Edan Aslan designates eight associations bearing a self identity of this kind in Vienna alone). Suppose further that the state wishes to prove that there is an identity between the doctrine of this association and that of the IGGiÖ, with the view of disbanding the former. To localise Salafism by way of content, it would probably be confirmed first of all that the latter is a territorially unbound variant of Wahhabism. There follows the objection that the Wahhabis would be unthinkable without the explicit involvement of the House of Saud. Should this objection be dispelled, the state might maintain that Ibn Wahhab had made reference to Ibn Hanbal, who after all was the founder of a Sunni law school, and the Sunni doctrine is a component of the deposit of faith of the IGGiÖ. Against this it would probably be objected irrefutably that nowhere in his writings did Ibn Hanbal employ the concept of a “Sunni law school” and that he lived and worked centuries prior to the first claim of the existence of a Sunni Islam. Rather, Ibn Hanbal saw himself as a student of the legal scholar Al Jafar, who is regarded as the founder of the Shiite doctrine. But the latter for his part used the term “Sunna” (custom of acting), whereas the term “Shia” (party, community) is found in the Koran and is also significant for the Sunni, etc.

It is unthinkable and almost absurd to think that a proceeding, which aims at a proof of identity as it is understood here, or at assignability of religious doctrine, could emerge beyond even the first steps of the proceeding. The method of jurists is nominalistic and it must be so; whereas the attempt to grasp the essence of a religion must be structured ontologically. Any such proceeding put forward with a view to achieving this objective must therefore be doomed to failure.

The result of this situation is that every association wishing to escape elimination will manage to successfully claim without major problems, that from a doctrinal standpoint it stands nowhere near the IGGiÖ (or any other religious society). Hence, on the basis of the proposed law, the above noted proliferation of a multitude of “mosques and cultural associations” can in no way be disbanded or channelled into organised religious communities. All existing mosque-associations, whose relation to the IGGiÖ has been sparse to non-existent to date, can in the future continue their operations without restriction. To do so, they need only lay claim to a certain variety of Islam (law school or the like) as a basis of faith. Out of a deficient situation, which up to now has operated in a grey area of illegality, would emerge a statutory, legal constellation effectively cemented “for all time”.

The two-sector model — an IGGiÖ Potemkin village, without any real religious operation, but using all the privileges of a recognised religious society, as well as an unmanageably complex sector of proliferating associations — would be promoted to the recognised norm of the real constitution (Realverfassung) of Islam in Austria.

But this would have fatal results for the basic intentions behind the concrete legislative project and for the essential component of its approach to reform. The standardisation of the public-regulatory ground principles of this Act would remain entirely inconsequential.

The disclosure of the basic statement of faith would be a trivial finger exercise for an IGGiÖ which bears no real relation to the faith life of Muslims. And the prohibition against financing from foreign sources would not touch this religious society.

On the other hand, there is no legal foundation of any kind whatsoever for the examination of (ideological) content represented within the IGGiÖ, hence also none for the examination of its “doctrine”, as long as no report of any kind exists pertaining to the accusation of the commission of a concrete criminal offence. Similarly there is no leverage for prohibiting an association from engaging in particular forms of fundraising, hence also no means of prohibiting the procuring of financial capital from abroad.

In summary, it must be noted that the legislative implementation, in terms of the basic aspect of it presented here, does not do justice to the spirit of the law, and therefore a corresponding remedy is urgently needed. If this is not forthcoming, the danger exists that not only important objectives of the legislative project will not be achieved, but its future development could also undermine the foundations of religious peace in Austria.

7. Suggestion for the Directional Thrust in the Remedy of the Addressed Deficiencies

A remedy for the identified weakness, understood in terms of the implementation of the spirit of the law and in respect of the realisation of the objectives intended by the project, is presumably to be achieved through varied legislative paths. But the selected path should in any case be distinguished by a high degree of simplicity, transparency and legal certainty in the implementation and realisation of the legislative project; and distinguished also by fairness to all parties and by unambiguously taking into account other legal standards. Furthermore, the path should make clear a firm foundation for the authorities charged with implementation, and also for the responsible political decision makers.

The simultaneous implementation of the following measures could meet one standard:

1.		Revision of the Law on Associations: By this is meant, standardisation of a general prohibition on the exercise of corporate freedom of religion or the management of a religious establishment based on the legal structure of an association. At the same time a measure must be adopted which also ensures that those religious communities, which do not satisfy the requirements for the approval of a legally recognised religion, can exercise their rights in the context of the general freedom of religion. Therefore:
2.		Revision of the Act concerning the Legal Personality of Religious Confessional Communities [Bekenntnisgemeinschaftengesetz: BGBl. I Nr. 19/1998] This law — as a law on special associations, since the law encompasses this category — should enable a low-threshold access to the utilisation of corporative freedom of religion. In addition, the obligation for proof of a prescribed minimum number of members (presently 300) should be removed. At the same time the Act pertaining to a prohibition of foreign financing of societies approved by this law, should be supplemented in a way analogous to the corresponding standardisation in the Islam Act. In this way, the fact that this regulation is not limited to Islamic communities could be given expression. In order to be certain of accomplishing the task to be solved here, an adaptation of § 1 must be made, which excludes legally recognised associations of religious adherents from the choice of legal structure.
3.		Supplement to the Draft of the proposed Islam Act. This law should be supplemented by an introductory provision, which, based on the introduction of Article I of the “old” Islam Act, is directed at all adherents of Islam, regardless of their denomination. These should first of all be invited to participate in the building up of the common good and in the cultivation of the constitutional quality of the Republic of Austria and to contribute to the preservation of the cultural foundations, which make for a worthwhile life and a prosperous polity in Austria. In addition, they should be invited to make use of the opportunity of entering into a religious community of a legally constituted religious society or a confessional community, or to establish such entities. Finally it should be pointed out explicitly in § 3 (4), that (corresponding to the Law on Associations) all Islamic associations, which operate a religious establishment, or more specifically, which are collectively actualised within the framework of the prescribed ritual acts in Islam, are dissolved (§ 23).

7. Important technical details in which the draft text should be improved and/or supplemented

—		§ 2 (2) Restricting the protection of doctrine would be undertaken not only through conflicting laws, but also through generally acknowledged concepts of custom and morality. The limitation should extend to the “customs” discussed here.
—		§ 4 (1) Evidence of prerequisites for the acquisition of legal status would also have to be established upon request at any time where existing societies are concerned.
—		§ 4 (3) must be amended and should say: “There must be a basic positive attitude toward society and the state, including its laws, and especially toward existing fundamental rights and freedoms in Austria.”
—		§ 5 (2) Among the grounds for invalidation of legal personality under this paragraph, a persistent infraction of § 6 (2) (prohibition of financing from foreign sources) should be explicitly incorporated.
—		§ 6 (3) [§ 6 (1) 3] It should be decreed that only physical persons may be authorized to belong to the membership of a recognized Islamic society.
—		§ 6 (1) 4 The right of withdrawal, especially, must be made explicit among the rights and obligations of members.
—		§ 6 (1) 5 The obligation to present the doctrine should extend not only to a German-language version of the Koran, but also to a translation of the “Hadiths” (Ahadith) and a German-language disclosure of the Sira (biography of Mohammed). All three elements comprise the doctrine, according to Islamic understanding. The requirement of disclosure/exposition should also definitely include the concept of “customs”, which appears in § 2 (2) and § 11 (4), as well as reference to the concept of “traditions” (§ 6 (7)).
—		§ 6 (2) Prohibition against raising funds from foreign sources must extend not only to defrayal of “usual activities” but definitely to the endowment of foundations and especially the financing or partial financing of mosque buildings and other structures or facilities of the general infrastructure. The power to issue statutory instruments to guarantee supervision would be especially helpful.
—		§ 9 Naming law. Under (1) [3], the verb “used” [verwendet] must be replaced by the verb “borne” [geführt]. The mere “use” of a name by a third party — for instance in the sense of designating a particular facility — must not be prohibited.
—		§ 9 (2) Here there is a comprehensive protection of all terminology, which the name (including arguably the entire religious concept) may yield. This would make possible an exclusive legal right of control over words which could possibly forbid critics from using concepts like “sharia” or “jihad.” In any case the ambiguity of this passage would allow such an inference. This passage must be stricken and not replaced.
—		§ 11 (1) The possibility of supporting members of the armed forces if they are members of an Islamic religious society, and allowing the state to bear the material and personal costs for it (§ 11 (3)), is tantamount to drastically disadvantaging other religious societies and must be stricken and not replaced.
—		§ 11 (2) defines the necessary personal capabilities which a caregiver belonging to members of Islamic religious societies, who are in the armed services and hospitals etc., must demonstrate. However, there exists no standard for where and how these capabilities are to be monitored. Ultimate control by the religious society itself, which is then empowered to issue an authorization, is in any case too little. Rather, the respective office and competent enforcement authority of this law should be assigned a subsidiary authority, or an authority of second instance.
—		§ 11 (4) The “traditional customs” and “religious commandments” discussed here must, within the meaning of §§ 2 (2) and 6 (10) 5, be disclosed and/or delineated, since otherwise a general authorization is given to circumvent the paragraphs mentioned.
—		§ 12 The obligation to consider “internal dietary requirements of religious societies” should by no means extend to public schools, the mention of which should be removed from § 12 (2), so as not to contribute to premature socializing for the formation of parallel societies. It should be remarked in general that the production of products according to halal specifications should certainly not be aided and abetted by the surrender of a corresponding Austrian norm, because it would lend impetus to segregation and the creation of a two-class society.
—		§ 13 The explicit naming of Islamic holidays presumes the finalization of an exposition of religious doctrine and can therefore not be the object of the law. The singling out of the Shi’ite holidays is discrimination against the Shi’ites, since they, represented by the confessional community SHIA, have emphatically stated that they do not consider themselves represented by any of the presently recognized religious societies. Nevertheless, the listing of holidays outlined above could be understood as an inadmissible usurpation of the Shi’ites through the use of what are, for them, alien institutions.
—		§ 15 The concept developed here of the creation and state financing of Islamic theological study facilities represents a serious discrimination against other religious societies which are already managing such facilities without being supported by the state in any way. It must therefore be stricken from the legal text and not replaced.
—		§ 16 The emergence of separate Islamic cemeteries approved in these paragraphs is not appropriate to furthering integration of Muslims into Austrian civil society. Exclusive, faith-related cemeteries are not compatible with Austrian tradition. General and temporally unlimited assurance of a categorical protection against dissolution of the cemetery and unearthing of individuals strains the limits of practicality. Regulation of specific subject matter should therefore go in the direction of defining criteria according to which burial in common cemeteries, with consideration for ritual requirements, can be guaranteed.
—		§ 23 Considering the questionable circumstances under which the IGGiÖ was founded and the extreme likelihood that its status as a recognized religious society never reached conformity with the law (see the statements in Chapter 2 of this position paper); and furthermore, considering the certain fact that the IGGiÖ has never offered proof of the criteria for admission laid down in this law, and probably is still unable to offer it today, it must be seen as a serious mistake to classify the IGGiÖ without qualification as a “religious society in accordance with this federal law” and thereby virtually make it untouchable. An explicit naming of existing societies in this law should be eschewed in order to avoid discrimination against other already existing communities, or against communities interested in a facility, who now or in the future, may wish to qualify as legally recognized religious societies. As an alternative to the regulation proposed here, there could be consideration to giving the existing recognized religious societies of Islam a grace period of 6 months, within which they would have to produce evidence of a fulfillment of the criteria for admission according to §§ 4 and 6, and failure to comply within the grace period would cause withdrawal of status.
—		In general terms, a more exact and detailed regulation of enforcement authority is required, so that the authorities concerned with implementation receive a self-sustaining justification for taking action.

Vienna, on 7th November

Signed:

Dr. Franz Fiedler		Prof. Dr. Charles Bohatsch		Mag. Christian Zeitz
Honorary President		President		Islam, Agent-in-Charge

The content of the commentary is admittedly very technical and dry, but the Austrian daily KURIER gave a perfect example of the problematic situation of mosques vs. religious communities in Austria. Many thanks to JLH for the translation:

Muslims Concerned About Small Mosques

About half of all Islam organizations in Austria do not belong to the religious community.

Many Muslims in Austria are worried. A passage in the draft for the new Islam Act concerns the founding of so-called religious communities. Founding one requires at least 300 members. This hurdle would present a problem for the smaller organizations. Should they — as feared in many quarters — have to re-constitute themselves, up to 35 neighborhood mosques in Vienna alone would be far from meeting the minimum requirement. To say nothing of rural areas.

Immediately, soothing statements issue from the Ministry for Integration. For organizations belonging to the Islamic Religious Community (IGGiÖ), nothing will change.

There is uncertainty at present about the “Arabic-Austrian Cultural Union.” The organization has a small mosque in Jean-Jaures-Hof in Favoriten, regards itself primarily as a social and cultural meeting point for Muslims in the immediate area. A classic neighborhood mosque, financed by private donations. Normally 60 to 70 people attend when prayer is led without remuneration by Imam Hosni Hasan — a theologian and architect who, for lack of alternatives works as a taxi driver in Vienna. The group has only six registered members. As many other Muslims, the faithful here fear that religiously active organizations (with fewer than 300 members) will have to be newly constituted, or forced to change their statutes.

“This will lead to the formation of sports or cultural clubs, where prayer is unofficial,” opines Omar Al-Rawi of the initiative of some Muslim Austrian women. The Vienna SPÖ spokesman for urban development fears this would be the end for many small mosques and notes: “We talk about Vienna as the ‘city of short streets.’ Neighborhood mosques are part of the local amenities for people. Why must they accept a longer trip? Especially when there is immediate resistance anywhere a larger mosque is planned.”

Vienna’s only African Mosque — the Ar-Rasheed Mosque in Brigittenau — is far from 300 members. “80 people at most come to prayer,” estimates secretary Olayigbade Abass.

250 “Wildcat” Organizations

The office of Minister for Integration Sebastian Kurz (VP), attempts to dispel the anxieties. “It is not necessary to have a religious group to run a mosque. Religious teachings may only be propagated by religious communities — for example the IGGiÖ. Groups that wish to be religiously active must be a part of the system.”

Organizations already belonging to the IGGiÖ have nothing to fear “independent of their number of members.” At this time, that apples to only half of all Muslim organizations in Austria. Only 250 of 500 country-wide belong to a religious community. Those who continue to decline to belong will have to change their statues or be dissolved by the Ministry of the Interior.

The office of Cultural Minister Josef Ostermayer (SP), who with Kurz is responsible for the draft of the Islam Act, explains: “The IGGiÖ has repeatedly said that it has no proper handle on organizations which are especially radical. The new Islam Act will offer this possibility.” That is to say: Religious societies are concerned with all matters of faith; social and cultural activities can be pursued in other appropriate organizations.

The founding of a religious community (exactly as in the Israelite Act) requires 300 members. As a special legal entity, such a group has more autonomy vis-à-vis the religious community than conventional organizations.

Foreign Financing

Another point in the Islam Act which causes concern among Muslims and is questioned by constitutional attorneys is the prohibition of foreign financing for mosques. (Donations are allowed, but the running costs are to be financed in Austria.) The aim is to prevent external influences. IGGiÖ president, Fuat Sanac believes this damages the principle of equality. Of ca. 500 Muslim organizations, perhaps 65 are financed by Atib — the extended arm of the Turkish religious authority, as well as the Islamic Center in Floridsdorf financed by Saudi Arabia — the largest mosque in Austria.

In this case, they are hoping for intervention by the legislature, since the new law “could mean the end.” “We are dependent on donations from abroad. We have no members and are a mosque open to everyone,” says the director, Hashim Mahrougi. The question arises “whether the state of Austria would be willing to finance the administration of our mosque. If so, we can do without the donations from abroad.” The draft law, says Mahrougi, places Muslims in Austria under suspicion that there is a danger from their houses of worship, just because they are supported from abroad.”

General Secretary of Atib, Seifet Yilmaz, is critical. Without foreign financing of the imams, “one would have to do without excellently trained religious pedagogues… The quality of religious practice and religious instruction would suffer.” And if the salaries of the imams were left to the 65 local organizations, they could be closed immediately.

Coming up in Part 3: Austrian Muslims react to the proposed Islam Law