Gennadiy DRUZENKO, director of the Center of European Law, legal councilor of the Parliamentary Committee on European Integration (Rzeszow, Poland)
Against the background of the gas and political crises, with which the year 2006 rushed into our life, a traditional summing up of the past year was somehow forgotten. However, Ukrainians live not by gas alone, and, therefore, let us try and analyze, according to established tradition, things which took place in the field of church- state relations in 2005.
In my opinion, we should single out the following events from among the most important ones:
1. Liquidation of Ukraine’s National Committee on Religious Matters
2. Attempts of the top management of Ukraine to promote the role of Ecumenical Patriarch Bartholomew in the settlement of the inter-Orthodox conflict in Ukraine
3. Attempts to introduce the course Christian Ethics in general education institutions
4. An attempt to unite the UOC-KP [Ukrainian Orthodox Church-Kyivan Patriarchate] and the UAOC [Ukrainian Autocephalous Orthodox Church], which was indirectly protected by the Secretariat of the President of Ukraine
5. Moving the seat of the head of the UGCC [Ukrainian Greek Catholic Church] from Lviv to Kyiv
As in this brief survey I will deliberately analyze church-state relations exactly from the legal point of view and, first of all, from the point of view of their compliance with the principle of freedom of religion, I will allow myself to concentrate only on one of the mentioned “events of the year,” and on a small prelude thereto. I mean the transformation of the National Committee on Religious Matters and the ecumenical public prayer on occasion of the inauguration of the new president of Ukraine. From the legal point of view, these events, in my opinion, are symbolic and, at the same time, the most substantial for legal analysis.
Actually, as far as church-state relations are concerned, the year 2005 began on 24 January with the ecumenical public prayer on the occasion of the inauguration of the new president of Ukraine in St. Sophia’s of Kyiv. Even that event, which was quite tempting from the dogmatic and canonical point of view, indicated a certain heredity of the new regime with regard to understanding the paradigm of church-state relations demonstrated by the old regime. The president, actually, gave two choices to the church hierarchs (at least the Orthodox ones): to indirectly confirm their disloyalty to the new regime or to pray jointly with adherents of other denominations and “schismatics” (the UOC-KP and UAOC are considered such by the UOC [Ukrainian Orthodox Church-Moscow Patriarchate]), which is in direct contradiction to a number of current Orthodox canons, starting with number 45 of the “Ecclesiastical Canons of the Holy Apostles.”
I note that I am not an expert on canon law and not a theologian, and, therefore, I consciously, do not analyze in the canonical or dogmatic planes the actions of clergy of churches who participated in the prayer of 24 January – I just draw attention to the political and legal incorrectness of the actions of the head of the state. First of all, the very fact of a multi-denominational public prayer, which actually opened the official procedure of the inauguration of the president of Ukraine, violated the principle of separation of church from state. Secondly, having gathered in St. Sophia’s representatives of far from all religions and denominations, the president thereby violated the principle of the equality of religious organizations, because the principle of selection of religious leaders invited to St. Sophia’s remains a secret. And lastly, the president did not observe the principle of respect of traditions and internal directions of religious organizations, guaranteed by article 5 of the law of Ukraine “On freedom of conscience and religious organizations,” because such ecumenical actions by no means accord with the centuries-old traditions of at least part of the churches which participated in the prayer, as mentioned above.
Apparently, the above-described situation did not cause an irresolvable conflict between the responsibilities of the politician and statesman Viktor Yushchenko, on the one hand, and the religious beliefs of a layman and member of one of the churches Viktor Yushchenko, on the other hand. It would be sufficient for the president on the day of inauguration to privately visit a church of whatever denomination he considers himself a member of and to pray, participate in the Eucharist, confess his sins– in other words, to do everything required by his religious feeling, and, at the same time, to incorporate in the inauguration program a reception of leaders of religious associations consisting of more than, let’s say, 100 religious organizations in the presidential rooms. Such an approach would be more fitting both to a deeply religious person who respects the precepts of his church and to a big-caliber politician professing European values. But everything happened as it happened. And it soon became clear: the mentioned public prayer was only a prelude to further developments which showed at least a contradictory understanding by the new regime of the civilized principles of relations between state and church.
As the newly-elected Ukrainian leader from the beginning positioned himself as a politician caring much about spiritual matters, there is no wonder that he reformed the main state body responsible for policy on religion and church as early as in the third month of his incumbency. On 20 January 2005, the president passed a decree “Matters of the Ministry of Justice of Ukraine,” which liquidated (de facto, reduced in status) one of the last rudiments of the Soviet age, the National Committee on Religious Matters. This step by the president is to be understood as unambiguously positive and following from a European understanding of democratic standards. By the way, this is clearly stated in the preamble of the decree, which was passed, in particular, to ensure “fulfillment of Ukraine’s obligations to the Council of Europe.” At the same time, the transformation of the National Committee on Religious Matters (a central body of the executive power) into the State Department on Religious Matters (a governmental body of the state administration within the framework of the Ministry of Justice of Ukraine) finally brought its status in line with the requirements of part 2 of article 30 of the law of Ukraine “On freedom of conscience and religious organizations,” which prescribes: “the state body of Ukraine on matters of religion is established by the Cabinet of Ministers of Ukraine.” Let me recall that that body had been established and reorganized since 1995 by the president of Ukraine.
Now, as I said, despite the wording of the presidential decree, the National Committee on Religious Matters was actually not liquidated, but transformed into a respective department within the framework of the Ministry of Justice. This is seen from even a cursory comparative analysis of the capacities of the committee and the department. On the whole, the capacities are similar, except for the fact that the State Department on Religious Matters, unlike its predecessor, will not have the right and/or responsibility:
1) to bring forward, according to established procedure, proposals on matters of formation of the state policy on religion, church and religious organizations;
2) to ensure, according to the law, realization of the right of each person to the freedom of worldview and religion, observance of the principles of separation of church and religious organizations from the state and separation of school from church, formation and regulation of relations between state, church, and religious organizations;
3) to prevent the interference of state bodies and self-governing bodies and their officials in the lawful activity of religious organizations, as well as the interference of religious organizations in the activity of state bodies and self-governing bodies and associations of citizens;
4) to participate in preparation of international agreements of Ukraine on matters within its capacity, prepare proposals on conclusions and denunciations of such agreements, to conclude within its capacity international agreements of Ukraine;
5) to expound, especially, via the mass media, the meaning of state policy on religion, church, and religious organizations, as well as questions of application of the law of Ukraine on the freedom of conscience and religious organizations;
6) to organize, according to established procedure, professional training, re-training and further professional development of its employees;
7) to bring forward according to established procedure proposals on the termination or annulment of statutory-legal acts of the central bodies of the executive power, acts of the local state administration, decisions made by local bodies of self-government, officials of companies, institutions, organizations of all forms of ownership, which do not comply with the law of Ukraine on freedom of conscience and religious organizations;
8) to ensure fulfillment of tasks of mobilization training and mobilization readiness of the state within capacities established by law;
9) to ensure within its capacity implementation of the state policy on state secrets, exercise control over its keeping;
10) to represent the Cabinet of Ministers of Ukraine on its behalf in international organizations and at the moment of conclusion of international agreements of Ukraine.
Items 6, 8, and 9 of the above list can hardly be a concern of believers and religious organizations, item 2 is rather of a declarative character, and the powers mentioned in items 1, 4,5 and 10 can always be exercised on the basis of individual-legal or administrative-regulative acts of government, whereas it is a pity that the state body on matters of religions is deprived of the powers mentioned in items 3 and 7.
Nevertheless, the main result of the mentioned reformation was the legal deprivation of the state department on religions of the political and quasi-political functions of its predecessor. It is quite clear now: the minister of justice is a political figure, who, as a member of government participates in the formation of state policy, particularly, in the field of state-church relations, and the State Department on Religious Matters is a body of the executive power, which body is to ensure implementation of that policy within its capacities. It is worthwhile noting, by the way, that with the coming into effect of the constitutional reform, the minister of justice will be appointed and dismissed by the Parliament of Ukraine, the center of decision-making in the field of state-church relations will soon move from the building of the Secretariat of the President to Parliament.
While the constitutional reform is in the process of implementation, let us analyze the first results of the activity of the newly-established State Department on Religious Matters for the last year. The first thing which grabs one’s attention is the fact that the post of the head of the newly-established body is now held by a person who previously was active in a completely different field: from 05.09.2003 to 14.01.05, the present director of the State Department on Religious Matters, I.V. Bondarchuk, worked as assistant to the executive secretary of the State Committee on Securities and the Stock Market, and from 20.05.1998 to 29.12.1999 as an assistant of Prime Minister Valerii Pustovoitenko. However, this is far from being the brightest pearl in the necklace of personnel appointments of the last year. Therefore, we are not going to dwell on it.
Secondly, the budget of the State Department on Religious Matters for last year totaled 1,071,500 hryvnias [approximately $US 200,000], including 683,300 hryvnias for salaries. To compare, it is about ten times as big as the budget of the State Department on Adaptation of Law, which is also part of the Ministry of Justice. No wonder, and a pity at the same time, that the State Department on Religious Matters lacked the money to create its own web site and place there all official information on state-religious relations, which is of public interest, in particular, the latest statistics on the number of religious organizations in Ukraine in the context of their denominational identity. It is also advisable to make public at last a full list of religious buildings specifying to which religious organizations and on which conditions they were transferred.
As well as (what is more interesting and promising) to make openly accessible a full list of registered religious organizations with their location specified for each interested person to be able to see how many religious communities, monasteries, and so on exist only on paper at least in that person’s town. Hopefully, the State Department on Religious Matters will manage to fulfill this task of the current year, because transparency and objectivity of religious statistics is one of the levers of the unpoliticizing church life. For sky-high statistical indicators are not the least reason why Ukraine has 30,000 registered religious organizations, including 29,700 religious communities, that is 1 religious community per 1000 adult citizens of the country: politicians are so determined to give the church no rest in their efforts to use it for their political projects. Poland, which is by no means less religious than Ukraine, has nearly 1,200 registered religious organizations, the Russian Federation, whose population is three times as large as that of Ukraine, has only 21,664 registered religious organizations.
However, the main task, or, one can even say, the point of honor of the State Department on Religious Matters for the current year is to be the initiation and coordination of preparation of the new bill on freedom of religion and, perhaps, a special bill on restitution of former church property. In its resolution 1466 (2005) of 5. 10.2005 “On fulfillment of responsibilities and obligations by Ukraine” (the English text of the Resolution 1466 (2005) of 5.10.2005 of PARE [the Council of Europe Parliamentary Assembly] or a nonofficial Ukrainian translation thereof is available at: assembly.coe.int ), PARE once more reminded us about these two “debts” which have laid heavy on Ukraine since the time of its entering the Council of Europe and adoption of the Constitution of 1996. Hopefully, the State Department on Religious Matters will be able not to impose on religious organizations its bills, which are far from perfection, like its predecessor, but to organize a wide public-church-political discussion of the questions raised and to propose to the government to set up a special work team for development of the mentioned bills, which team is to include not only representatives of state bodies, but also noted independent professional lawyers, religious experts, and church figures.
Why is it so important to pass a new law on the freedom of religion that will create a system? Much has been written and said about this. In addition to publicly ventilated arguments, there is another one: one of the main functions of the State Department on Religious Matters is the examination by religion experts which sometimes may precede registration of the statutes of a religious organization. The current law of Ukraine “on freedom of conscience and religious organizations” does not define “religion.” Judicial practice does not fill the gap, either. At the same time, religious expert examination is made in order to define if beliefs professed by the founders of an organization, which the latter consider religious, are a religion. If, according to the opinion of the commission of religion experts, these beliefs are not a religion, the organization will be denied registration of its statutes on the grounds that it is not a religious organization. Thus, one of the forms of exercise of the basic right of a person to freedom of religion is made dependent on subjective understanding by an official or even a scholar of the term “religion,” which is not defined by law.
It is appropriate mention here that an outstanding modern Orthodox theologian and philosopher, Christos Yannaras, for example, regularly states in his works that Christianity and, especially, Orthodoxy, is not a religion, and the notions church and religion are viewed by him as antinomic. Therefore, according to the logic of the effective law on the freedom of worship, and referring to the opinion of an authoritative modern Orthodox thinker, the State Department on Religious Matters has every reason to suggest all Orthodox organizations re-register themselves as civic ones.
In closing, I can say that the Ukrainian state body on matters of religion, whose legal status underwent considerable changes last year, needs to work hard this year to convince the public that the implemented reform was not reduced in reality just to a change of name.
RISU's Ukrainian-language site posted the original of this text on 12 January 2006.