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Chaplaincy

The general legal framework of chaplaincy services

The Portuguese Law 16/2001 on religious freedom determines in article 10/a that individuals have the right to receive ministerial assistance once required. Article 13 determines which special (...)

The Portuguese Law 16/2001 on religious freedom determines in article 10/a that individuals have the right to receive ministerial assistance once required. Article 13 determines which special situations require this ministerial assistance and give the right to the practice of acts of worship. They are, firstly, members of the armed forces, security forces or the police, and people rendering military or civil service. Secondly, people interned in hospitals, asylums, colleges, health, educational or welfare institutions or establishments, or similar. Finally, people in prisons or other places of detention.

Despite the regime of separation between state and religious communities provided for in article 41/3 of the Portuguese Constitution and on articles 2, 3 and 4 of Law 16/2001, the Portuguese state is bound to a principle of cooperation (in matters of human rights, for instance) with religious communities – see article 5 of Law 16/2001 and article 1 of the 2004 Concordat. That is why, according to article 10/3 of Law 16/2001, the state is bound to create adequate conditions for the exercise of ministerial assistance in the public institutions mentioned in the above paragraph. Any restriction to this right to ministerial assistance, due to functional or security reasons, may only be imposed by way of prior consultation by the minister of the respective religion.

By the Concordat (articles 17 and 18), the Portuguese state specifies that it guarantees the Catholic Church the free exercise of religious assistance and of relevant acts of worship to the Armed Forces and Security Forces. This assistance is assured in accordance to Canon Law norms and under the auspices of a military ordinary’s ecclesiastical jurisdiction. Is also determines that the Catholic Church has the right to the free exercise of religious assistance to individuals compulsorily interned for reasons of care, assistance, corrective education or similar, or detention in jail.

For further information:
- CORREIA, João P. M., “A assistência religiosa da Igreja católica nos estabelecimentos de saúde e reclusão em Portugal”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 151-173.
- FALCÃO, Miguel, A Assistência Religiosa nas Forças Armadas e de Segurança, col. Lusitania Canónica, Lisboa: Universidade Católica Editora, 2008.
- FERREIRA, Januário T. M., “Assistência religiosa às Forças Armadas e de segurança”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 129-135.
- LOURENÇO, Manuel Alves, “Modalidades de assistência religiosa às prisões e hospitais”. In: SATURNINO, Manuel C. G. (coord.), Relações Igreja- Estado em Portugal: Desde a vigência da Concordata de 1940, col. Lusitania Canonica (8), Lisboa: Universidade Católica, 2002, pp. 235-244.
- SEABRA, João, “Assistência religiosa nas prisões e hospitais”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 137-149.

D 22 December 2017    AHelena Vilaça AJorge Botelho Moniz

Military chaplaincy

During the Portuguese constitutional monarchy (1820-1910), religious (Catholic) assistance to the Armed Forces was offered by military chaplains. However, with the laicization programme of the (...)

During the Portuguese constitutional monarchy (1820-1910), religious (Catholic) assistance to the Armed Forces was offered by military chaplains. However, with the laicization programme of the First Republic (since 1910), the Catholic Church military chaplains were withdrawn from the military quarters and the chaplaincy was terminated.

With the Portuguese participation in World War I (1916), the republican government was pressed to accept some military (volunteer and non-paid) chaplains in the European theatres of war. In 1918, this religious assistance spread to Africa and started to include hospital assistance to war wounded. Military chaplains became military officials and, because of that, started to get paid as such. But, in the end of 1918, with the armistice, the priests that served the Armed Forces returned to their dioceses.

The Portuguese Second Republic (the New State, from 1933-1974) gradually reintroduced the Church in the Armed Forces. The Law n° 1:961, from 1937, on the recruitment and military service, established that Catholic priests and clerics would be compelled to military service, performing religious assistance roles to the Armed Forces. The Concordat of 1940, in its article 14, reinforced this principle. Besides, its article 18 even determined that military chaplains should be considered as army graduate officers, that religious assistance would not only be granted on theatres of war but also on colonial expeditions, and, more importantly, it would establish a specific military ordinary’s ecclesiastical jurisdiction (Ordinariato Castrense).

In spite of these regulations, lots of questions still emerged regarding salaries, religious assistance instruction, time of service, or the relation between military discipline and canon law. Thereat, in 1966 the Portuguese state promulgated the decree 47.188 where it proposed the structuring of religious assistance in the Armed Forces, namely due to the rise of military chaplains in Africa because of the colonial wars.

With decolonization and with the advent of the Portuguese third democracy (1974), there was a clear reduction in the number of chaplains. The decrees 310/75 and 11/79 tried to adapt the organic of the military ordinariate to the new situation. These decrees presented a broader scope of application, by determining that the military faithful of “non-catholic religions denominations” would have the right to religious assistance in the Armed Forces when “the number of military personnel justified it” (article 1/2). That idea would be reinforced by the law 11/89, on the status of military condition, establishing that religious assistance was guaranteed to the military that confessed a religion with “real expression in the country” (article 8/1). At that time, Catholicism was, at least nominally, utterly hegemonic.

This question of the extension of religious assistance has been discussed during the decade of 1990 with the decree 93/91, on the regulation of religious assistance in the Armed Forces, amended by the decree 54/97. These decrees tried to adjust military religious assistance to the new socio-religious context. They determined that the service of religious assistance in the Armed Forces could be extended, “through specific religious ministers and under conditions to be established, to the military faithful of non-Catholic religious denominations” (article 1/3).

Today, decree 251/2009 regulates the exercise of religious assistance in the Armed Forces and in security forces (the police), to the Catholic Church “in accordance with article 17 of the Concordat… and, to other religious denominations, according to article 13 of the Religious Freedom Law”. But the decree does so by “preserving the representativeness of churches and of religious communities rooted in the country”. Despite the representativeness criterion, all members of the armed and security forces, “notwithstanding their respective denomination”, have the right to religious assistance (article 3/1). All legally recognized churches and religious denominations are “free to assist members of the armed and security forces that request religious assistance”, as well as to practice their acts of worship (article 3/2). In order to do it, the churches and religious communities have to present to the Portuguese government a proposal of an agreement. That requirement is not necessary for religious institutions or communities that already have religious assistance guaranteed by specific legal norms (like the Catholic Church, through the Concordat) (article 3/4). The service of religious assistance has the following structure: a general chaplaincy, an interreligious organism that guarantees the regular exercise of assistance (it is supposed to have a chief chaplain for each denomination), and the religious assistance centers, divided between the Armed Forces and the security forces. There are also two recruitment systems for military chaplains: a volunteering regime and a contractual agreement regime (article 10/1). Civil chaplains can also be recruited, in accordance to two different systems: by an employment contract, full or part time, for a definite or indefinite period, or by a provision of services agreement, depending on how often religious assistance is needed. This is usually the case for religious minorities.

For further information:
- FALCÃO, Miguel, A Assistência Religiosa nas Forças Armadas e de Segurança, col. Lusitania Canónica, Lisboa: Universidade Católica Editora, 2008.
- FERREIRA, Januário T. M., “Assistência religiosa às Forças Armadas e de segurança”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 129-135.
- SEABRA, João, “Assistência religiosa nas prisões e hospitais”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 137-149.

D 22 December 2017    AHelena Vilaça AJorge Botelho Moniz

Hospital chaplaincy

The Hospital Status of 1968, decree 48.357, is the first legal document promulgated by the Portuguese government that gave a generic guarantee of religious assistance to sick people, when (...)

The Hospital Status of 1968, decree 48.357, is the first legal document promulgated by the Portuguese government that gave a generic guarantee of religious assistance to sick people, when requested (article 80/4) and a specific guarantee of Catholic religious assistance, also when requested (whether by Catholics or by non-Catholics), in accordance with article 17 of 1940’s Concordat. In respect to religious minorities, article 83/2 stated that “all guarantees of religious assistance should be granted to sick persons of non-Catholic denominations whenever requested”. The costs of religious assistance continued to be covered and paid in accordance with the provisions of 1965’s decree 46.301. Chaplains were, therefore, considered informally as public employees paid by the state.

The Hospitals Regulatory Act, established by the decree 48.358 of 1968, guaranteed in its article 10/3 a specific right to Catholic religious assistance by chaplains appointed according to the Concordat. Religious personnel gained a special status and started to be considered as hospital staff (article 17).

With the advent of democracy, and with the publication of the Law of the NHS - National Health Service (law 56/79), the principle of religious assistance in hospitals is omitted. In fact, there is no reference to this activity in the legal document. Religious assistance is only implicitly guaranteed through article 9/2, where the legislator states that, while using the NHS, users maintain the rights derived from their integration in certain households or communities. In this case, the expression “the community to which they belong” comprehends, even if implicitly, the religious community.

In 1980, with the decree 58/80, on the status of hospital chaplains, the Portuguese government and the Episcopal Conference of Portugal enacted a complementary legislation to the Hospitals Regulatory Act, guaranteeing to the chaplains the official status of public employees. These chaplains were to be mostly Catholics because this legal provision (article 1) mainly emphasized the ones that were appointed by the 1940’s Concordat and mentioned only Catholic religious assistance in the duties of chaplains (article 5). Henceforth every hospital was compelled to have, in its staff, a hospital chaplain (article 10).

Ten years after, because of the lack priests to fill all hospital chaplain vacancies, the Portuguese government and the Episcopal Conference of Portugal enacted the law 48/90, on the Health Bases Law, guaranteeing the right to hospital religious assistance by lay people specially prepared to fulfill that mission. Conversely to law 56/79, religious assistance was again explicitly and generically guaranteed. All users of the NHS were “entitled to get religious assistance, if they ask for it” (article 14/1/f). This guarantee would be reinforced by the decree 11/93, on the Status of the NHS. This Status established, in article 39/1, a generic guarantee of religious assistance to all users of any religious denomination, and on article 39/2 it guaranteed that specific right to all users of the Catholic denomination.

Entering the 21st century, in particular after the publication of the law 16/2001 on religious freedom and of its article 13, and of 2004’s Concordat, especially of article 18, the Portuguese government felt the need to update the legal framework of spiritual and religious assistance in the establishments of the NHS. In fact, the decree 253/2009 enacts a new rule of assistance and determines a new designation for this hospital service: “religious and spiritual assistance”. The assistance is not only religious but it is also spiritual. There is an effort of the Portuguese government towards the recognition of new or non traditional expressions of religiosity or spirituality. The government tried to “conciliate the assistance requested with the physical as well as spiritual well being of NHS users” (preamble). Another significant change is the substitution of the figure of hospital chaplains. The decree replaces them by the image of spiritual or religious assistants (article 4 or 6).

On the one hand, decree 253/2009 preserves the juridical status of public servants of the chaplains, guaranteed by the decree 58/80; on the other hand, it abrogates certain articles of 1968’s Hospital Status, in particular, those regulating religious assistance and its payment. It also abrogates decrees 58/80 and 22/90.

Decree 253/2009 is today’s most important legal document on assistance, establishing a rule of religious and spiritual assistance in the NHS. This service is supposed to be universal. There is a generic guarantee of assistance to all churches and religious communities legally recognized in the country (article 3/1). This idea is reinforced in article 3/2 when it states that “the access to spiritual and religious assistance is guaranteed to NHS users regardless of their denomination”. Furthermore, spiritual and religious assistance is still provided just under the request of NHS’s users or by their family, in particular when the first cannot do it alone (article 4/1). Nevertheless, this assistance may also be provided by the initiative of the spiritual or religious assistant of user’s church or religious community (article 4/2). This takes place only when the user, before entering the hospital unit, declares its beliefs and consents this assistance. In terms of organization form, each unit of the NHS has to guarantee the existence and the regular working of assistance, and each unit has to give administrative and logistic support (article 9). This support implies: the identification of the user requesting assistance and the articulation with its church or religious community, the provision of a specific spaces for assistance and the essential non-religious equipment for that purpose; a specific and permanent place of worship assigned to the Catholic Church, shared, if needed, with other Christian denominations, and another place of worship allocated to the users of other religious denominations (article 10). The number of spiritual and religious assistants must be adjusted to the needs of the NHS users and respect the representativeness of each religious denomination (article 11). Spiritual and religious assistants will carry out their duties under a contract of employment in public functions or under a contract for the provision of services, depending on the type and periodicity of the provided assistance and of the number of requests (article 17).

For further information:
- CORREIA, João P. M., “A assistência religiosa da Igreja católica nos estabelecimentos de saúde e reclusão em Portugal”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 151-173.
- LOURENÇO, Manuel Alves, “Modalidades de assistência religiosa às prisões e hospitais”. In: SATURNINO, Manuel C. G. (coord.), Relações Igreja- Estado em Portugal: Desde a vigência da Concordata de 1940, col Lusitania Canonica (8), Lisboa: Universidade Católica, 2002, pp. 235-244.
- SEABRA, João, “Assistência religiosa nas prisões e hospitais”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 137-149.

D 22 December 2017    AHelena Vilaça AJorge Botelho Moniz

Prison chaplaincy

In the early years of the Portuguese second democracy, we find the first guarantee of religious assistance in prisons. In fact, the decree 26.643 of 1936, on the organization of prison services, (...)

In the early years of the Portuguese second democracy, we find the first guarantee of religious assistance in prisons. In fact, the decree 26.643 of 1936, on the organization of prison services, assured moral and religious assistance to inmates in accordance with their own religion (article 285). The prison director could withdraw this right to assistance or to religious practice in case of misconduct by an inmate (article 287). Furthermore, the decree determined that all prisons should have specific facilities to perform acts of worship (article 288) and that every prison should have ministers of the religion followed by most inmates (article 289). These ministers would be appointed by the ministry of justice according to the will of the ecclesial authority. The Concordat of 1940, on article 17 would reinforce the guarantee of spiritual assistance of the Catholic Church in prisons.

With the Carnation revolution and with the advent of democracy (1974) the Portuguese government felt the need to restructure the services of prisons and of other public organisms responsible for other tutelary measures. Therefore, the state enacted the decree 265/79 (amended by the decree 49/80), granting, between articles 89 and 92, the following guarantees to inmates: freedom of religion and of worship, the right to take part in the religious manifestations of its denomination (or even of other denomination), the right to spiritual assistance from the minister of its religious community and the right to own worship objects (e.g., basic religious books or other objects related to his acts of worship). These objects could even be displayed in the inmate’s room. This right to spiritual assistance was even guaranteed to inmates in solitary confinement (article 211).

Two years later, the organic law of prison services (decree 268/81, abrogated by the decree 125/2007) created the Service of Religious Assistance (article 52) that was considered as a support service of prison’s central and special organisms. This Service had the duty to provide moral and spiritual assistance to inmates, to celebrate acts of worship and, eventually, to cooperate with the Education and Social Work services (article 60).

Despite this regulation, in 1983, the decree 79/83, on the regulation of religious assistance in prison facilities, is enacted. Its publication was due to the need to regulate in more detail the legal situation of the religious assistants of the Catholic Church who “have long provided this service” (preamble) and to define the rules of articulation with prison services. Catholic religious assistance would be provided in prisons by priests (“religious assistants”) of the Catholic Church (article 1) hierarchically dependent on the prison director (article 2).

More than two decades after the publication of the decree 79/83, and following the new legal provisions of the Concordat of 2004, in particular of its article 18, and of the Law 16/2001 on religious freedom, especially its article 13, there was a need to update the legal framework on religious assistance in prison facilities. Therefore, the Portuguese government by the decree 252/2009 enacted a new rule of spiritual and religious assistance in prison facilities.

Similar to the decree 253/2009 on spiritual and religious assistance in hospitals, the decree 252/2009 preserves the juridical status of religious assistants, guaranteed by the decree 79/83. In addition, it abrogates almost entirely the decree 79/83 but preserves the rights of religious assistants appointed under it. The decree 252/2009 establishes the current regulation on spiritual and religious assistance in prison facilities, intending to regulate the conditions for the provision of assistance to inmates. This service is universal. It guarantees the free exercise of spiritual and religious assistance to all churches and religious communities legally recognized in the country, whenever the inmate requests (article 3/1). The inmates have access to spiritual and religious assistance regardless of their denomination (article 3/2). Other legal provisions, such as the initiative of spiritual and religious assistance (article 4) or the administrative and logistical support (article 10) are ipsis verbis the same as those of decree 253/2009 on spiritual and religious assistance in hospitals. However, there is a relevant difference between the two legal documents, in particular in terms of contracts and remuneration of services. Contrary to decree on hospital assistance, the decree on prison assistance only provides for contracts for the provision of services with religious assistants, churches, and religious communities. Moreover, such contracts will only be signed by the accumulation of five conditions: i) when there is a significant number of inmates, ii) assigned to the same prison, iii) that profess the same religious belief, and iv) when the inmates frequently participate in their respective acts of worship, and v) when they request assistance (article 17).

For further information:
- CORREIA, João P. M., “A assistência religiosa da Igreja católica nos estabelecimentos de saúde e reclusão em Portugal”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 151-173.
- LOURENÇO, Manuel Alves, “Modalidades de assistência religiosa às prisões e hospitais”. In: SATURNINO, Manuel C. G. (coord.), Relações Igreja- Estado em Portugal: Desde a vigência da Concordata de 1940, col Lusitania Canonica (8), Lisboa: Universidade Católica, 2002, pp. 235-244.
- SEABRA, João, “Assistência religiosa nas prisões e hospitais”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 137-149.

D 22 December 2017    AHelena Vilaça AJorge Botelho Moniz

Religious assistance in educational centers

In Portugal, until 2009, there was no real service of religious assistance in educational centers.
In fact, the Educational Tutelary Act of 1999 (law 166/99, amended by law 4/2015), regulating (...)

In Portugal, until 2009, there was no real service of religious assistance in educational centers.

In fact, the Educational Tutelary Act of 1999 (law 166/99, amended by law 4/2015), regulating the tutelary proceedings on youngsters, under the ages of 12 and 16 and under tutelary educational processes for crimes committed, only guaranteed the respect to religious freedom and to the practice of acts of worships (articles 171 and 175).

The General and Disciplinary Rules of the Educational Centres, enacted through decree 323-D/2000, also provided those guarantees to youngsters. Article 75/1, on religious freedom, states that students can meet their religious and spiritual needs by attending religious services, contacting representatives of their denomination and having in their possession basic books for the observance and instruction of their religious creed. However, this decree did not offer any of the guarantees provided for in decree 79/83, on the regulation of religious assistance in prison facilities. In particular, the decree did not provide for an interview with a spiritual assistant, in order to confirm student’s interest and needs, nor did it provide for the parish priest’s free access to the educational facilities.

With the promulgation of decree 252/2009, on the rule of spiritual and religious assistance in prison facilities, a transitional provision on freedom of religion and worship was determined for educational centers (article 18), which provides, with adequate adaptations, for the application of the legal provisions of decree 252/2009 to educational centers, in accordance with the Educational Tutelary Act, and the General and Disciplinary Rules of the Educational Centres.

For further information:
- CORREIA, João P. M., “A assistência religiosa da Igreja católica nos estabelecimentos de saúde e reclusão em Portugal”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 151-173.
- LOURENÇO, Manuel Alves, “Modalidades de assistência religiosa às prisões e hospitais”. In: SATURNINO, Manuel C. G. (coord.), Relações Igreja- Estado em Portugal: Desde a vigência da Concordata de 1940, col. Lusitania Canonica (8), Lisboa: Universidade Católica, 2002, pp. 235-244.
- SEABRA, João, “Assistência religiosa nas prisões e hospitais”. In: SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata: Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa: Universidade Católica, 2006, pp. 137-149.

D 22 December 2017    AHelena Vilaça AJorge Botelho Moniz

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