Legal-Religious Reflections on the Religious-Political Visit
Hennadij DRUZENKO, member of work group for preparation of new edition of the Law of Ukraine “About freedom of conscience and religious organizations,” member of expert council of RISU
1. Political “Pilgrimage”
Most commentators and experts agree that Patriarch Kirill’s first visit to Ukraine carried an obvious political character. Naturally, most practical and intellectual reflections on this political visit were also political.
In any healthy political community a visit similar to Kirill’s “pilgrimage” to Ukraine would definitely become a catalyst for a lively citizen discussion and serious political discussion on why an apparent act of civilized-ideological expansion on the highest level was possible and why the Ukrainian government appeared absolutely unprepared to adequately react to it. Especially, the discussion would have encompassed the government legislative regulation of church-state mutual relations, which allowed the leader of the church, who has a lot of unredeemed sins before the Ukrainian people, practically – and it must be recognized enough, masterly – put into question the Ukrainian political nation’s right to exist, which (at least in the borders of modern Ukraine) can be only a priori multi-confessional, and thus must be religiously tolerable. It is also worth mentioning that the intellectual discussion that has begun is lively and interesting.
At the same time, one of the main conclusions which should have been made by the Ukrainian community and the government from “the pilgrimage to the circuit of Russian Orthodoxy” of the Moscow Patriarchate is the desperate obsoleteness of the current version of the Law of Ukraine “About freedom of conscience and religious organizations.” To whom would it not be troubling (and to he who is somewhat versed in Ukrainian history – frightful) to listen to the oratorical exercises of “His Holiness” about “the undivided single space of Holy Rus” and the “one people who came from the Kyiv baptism” (Words of Patriarch Kirill in the Cathedral of St. Nicholas in Horlivka 31/07/2009), and also downright intolerable passages about “schismatics” and “Uniates”; all of which showed that in Ukraine there are no effective legal instruments to react to these statements or Russian citizen Vladimir Mikhailovich Gundyayev.
A few clauses (part 5) of the current law "about freedom of conscience and religious organizations" seem to embody of the principle "What belongs to God goes to God; What belongs to Caesar goes to Caesar,” to be more specific, parts 8 and 9:
Religious organizations do not take part in the activity of political parties and do not give political parties financial support, do not nominate candidates to the organs of the state government, do no take part in agitation or financing of election campaigns of candidates to these organs. Clergymen have the right to participate in political life at the same level as all citizens.
A religious organization should not interfere in the activity of other religious organizations, in any form preach hostility, intolerance to unbelievers and believers of different religions.
due to the declarative character and lack of any sort of sanction for their violation there appeared absolutely inadequate challenges for today.
For the crime provided in part 2 art. 110 of the Criminal Code of Ukraine:
The intentional actions, taken with the goal to change the borders of the territory or state border of Ukraine on the violation of order, established by the Constitution of Ukraine, and also public appeals or distributing materials with appeals to take part in such actions, associated with enkindling of national or religious hostility.
the sermons of the Moscow Patriarch evidently did not count: Kirill І and his advisors are intelligent people, and so direct encroachments on the territorial whole and inviolability of Ukraine did not apply. And it was evident that the head of the Moscow Patriarchate, in contradiction to the political leaders of Russia, is interested in a not so exclusively political as a theocratic project, in which there is a place for a formally independent Ukraine, if its government will be under the spiritual command of Kirill himself.
The last possible legal cause – from part 2 art. 32 of the Law of Ukraine “About legal status of foreigners and persons without citizenship”:
a foreigner and a person without citizenship can be deported from the borders of Ukraine […], if the actions of this foreigner or person without citizenship […] contradict the interests of securing safety in Ukraine
also inapplicable to the Moscow Patriarch, that Ukraine is not Russia (not China, not Iran, not Israel, and so on), and the Security Service of Ukraine (to competence to which depends such an expulsion) none of the political leaders of the country decided not to give sanction for such a demarche.
Therefore, it is revealed that Ukraine is not ready to respond to the religious-political summons of the new Moscow Patriarch in the framework of the present legislative-legal instrumentation.
2. Old and New Bill
By the strange concatenation of circumstances in the spring of this year the usual reformed State Committee on Nationalities and Religions took down from the shelf a four-year-old project for a new version of the fundamental law of Ukraine in the branch of freedom of religion and church-state mutual relations. The draft law, in which I was able to take a direct part in its preparation and which in its time received approval from the Venetian Commission, like many other initiatives of Viktor Andrijovych, became a victim of political “weakness” of our president. It seemed that the document was put away forever, but no – the bill again appeared and in May and June as it partially covered the needs of the time, at least how the State Committee on Nationalities and Religions understands the needs. For the time being, it is coordinated with the “interested central organs of the executive power.”
Despite the unexpected actualization of needs in the new or rather renewed rules of the game in the sphere of church-state mutual relations, which was caused by Patriarch Kirill’s visit to Ukraine, the Ukrainian government or parliament, helpless before the challenges of the global economic crisis and at the same time seized in the election fever, can hardly find the time to review the new version of the Law “About freedom of conscience…” before the presidential elections. This does hinder the discussion of the bill in the expert environment, besides, the professional completion of the work obviously will not harm the document without changing the conceptual foundation. The desire to recall the strong and weak points of the bill, and also to try to look at something in a new way, in light of the recent visit to Ukraine of the leader of the ROC, prompted me to write this article.
3. Terminological Observations on the Bill
First and foremost a few terminological observations.
If the analyzed bill comes into effect, the coordination of terminology of the Constitution and the Law will be achieved. If the Basic Law declares “freedom of religion” (art. 35), then the profile law in the current version guarantees “freedom of conscience,” which reveals as a concept of the freedom of religion and convictions (part 1 art. 3 of the Law), uses the term “religion” as a synonym to “confession” (articles 5 and 8) and only once, in the title of section IV, suddenly resorts to the phrase “freedom of religion,” and is never explained. This without a doubt creates a terminological confusion, which can be explained historically, but can it really be justified from the view of common sense or canons of the legislative engineering. In so far as the term “freedom of religion” is one of the main conceptual categories in the proposed version of the Law, there is hope that the terminological problem mentioned above will be resolved.
The second fundamental plus of the bill is that it guarantees everyone the right to the “freedom of conscience, worldview, and religion,” and derivatives of it, and not only for “citizens,” as it is – contrary of the Constitution and fundamental international acts for human rights – written in the current version of the Law. I must admit that I do not know any cases where the legislatively fixed anachronism, which depends on the right to the freedom of conscience from the presence of Ukrainian citizenship, would truly hinder the expectation of religious practice and conviction for foreigners. But even if its like this, its presence in the current legislative norms, which are valid but do not have practical application is, on the one hand, a rifle on the wall that can go off at any time, and on the other hand, foster frank disrespect to the legislation, so far as it demonstrates that some of the instructions of written laws contradict not only a fundamental principle of the law, but also simply common sense.
4. Financing and Restriction of the Political Activity of the Church
Another notable novelty of the bill is the proposition to “legalize” the state financing of “socially beneficial projects, which religious organizations put into practice.” Today it is not a secret to anyone that the central and local government often builds churches with money from the budget. If this is not to renew the churches destroyed by the previous rulers of Ukraine, the Ukrainian SSR, this direction contradicts the principle declared in the Constitution of Ukraine separating the church from the state. With this in mind, the attempt to create a lawful base for natural cooperation between the church and state by the principle: the state is a client of a social service (for instance, care for an elderly person who needs such care) and payer for its assignment, a religious organization is an executor or co-executor, deserves all sorts of assistance.
The question of legislative designation of borders, where natural interest of religious organizations influence political and social processes for their “adjustment” on the bases of religious values develop unnaturally for the church political intrigue or downright struggle for governmental authority, dedicated in part 8 and 9 of the new version of art. 5:
8. Religious organizations and physical persons who have the right to act and act under their name, do not finance the activity of political parties or election blocs, do not nominated candidates to organs of the state government or organs of local self-government and does not carry out pre-election agitation.
9. Political parties (blocs), candidates for positions of village, city head, candidates for deputies of all levels, candidates for president of Ukraine and those who act under their names or interests are prohibited to draw from pre-election agitation of religious organizations and physical persons who act under the name of religious organizations.
The above mentioned clause of the bill is a delayed reflection on the brutal utilization of the UOC in the course of the presidential races of 2004. The visit of Patriarch Kirill, during which one of the main candidates for the highest position in the Ukrainian state in everyway possible demonstrated his support and sympathy to the primate of the Russian Orthodox Church, on which the latter expressed undisguised reciprocity, only confirming the urgency of prohibitions of religious organizations to “carry out pre-election agitation.” In contradiction to the current version, the new one provides that the “systematic violation of the claims of parts 8 and 9 of article 5” is ground for the strictest sanction, which is provided by the bill – not just deprivation of status of a legal person, but also prohibitions of the activity of religious organizations. In this regard I can express sincere regret, that the chances of the bill to become a law in this year is close to zero, as far as the rigid norm highlighted above would likely prompt at least part of the pastors to be more convinced of the eternal salvation of the souls of their faithful, and less a question of who will be the president of Ukraine for the next five years.
5. The New Classification of Religious Organizations
The bill proposes a long since polished reform of classifying the organizational-legal form, in which religious organizations can organize. The current law designates that religious organizations can organize in the form of religious communities, monasteries, religious brotherhoods, missionary associations, spiritual educational institutions, departments and centers, therefore entrusts in the basis of the classification not lawful but religious indication, in no way describing or grounding why this list does not encompass monastic orders, small and secluded monasteries, churches and other traditional forms of religious communities. In its place only three categories of religious organizations are provided for in the bill, classified by a formal-lawful indication: religious communities (unification of physical persons), religious establishments (religious organization, that were established by other religious organizations) and religious incorporations (incorporations of religious organizations).
I personally feel the more proper name is “religious association,” which was in the version of the bill from 2006 and which clearly recognized religious communities that were established directly by the faithful, as various non-entrepreneurial associations, which is covered in the Civil Code (art. 85). In today’s version “religious association” waived spaces more usual for church ears “religious communities,” however, but little substance in this changed, as far as part 5 of article 8 of the bill states:
The status of religious organizations as legal persons with private rights designated by the legislation of Ukraine. On them extend the norms of legislation regarding the non-entrepreneurial associations and institutions, if this Law does not establish something else.
This important norm introduces religious organizations in the overall context of a civil right and inherent classification of legal persons. Its direct effect (that is, of course, it if does not disappear in the definitive version) will mean that it will no longer raise any doubts or arguments regarding the applicability of most norms of Civil Code (and this more than 1300 articles) to religious organizations, and a branch law (which will be made from 30 articles) will recognize only the cases where the regulation of the status and activity of the religious organizations has some peculiarity.
6. The Status of Legal Person for Religious Unions and Religion Administrations/Centers
One more novelty that the bill proposes is the status of a legal person for religious unions (churches). If deputies vote and the president signs the proposed version, the UOC, UGCC, UOC-KP, UAOC, separate eparchies and dioceses of these churches, and other associations of religious organizations will take on the status of legal persons. Will this mean that their constant leading organs: ecclesiastical provinces, patriarchates, eparchial administrations and so on (which today act in the form of religious centers and administrations) automatically lose the status of a legal person, is so far not understood. In the version of the bill of 2006 there was a norm which gave a clear response to the posed question: “Leading and other organs of religious unions can be organized into the form of religious establishments” (part 7 art.11). Unfortunately, this clause disappeared from today’s version and is replaced by a clause 6, which is absurd in its judicial content “Religious administrations and centers, registered at the moment of acquiring the current Law, receive the same status to religious unions.” I would be gratefully if one of the authors of this pearl explained what is meant by the cited words, and also how and who plans to put this norm into practice?
Is it possible the administrative organ, for instance some eparchial department, to simply change its name to (and maybe not even change the name but automatically consider themselves) a religious union? I will try to illustrate this with a concrete example. On May 12, 2003, the head of the UAOC Metropolitan Mefodij (Kudriakov) approved two documents: The Status of the UAOC and the Status of the Patriarchate of the UAOC. In the second document it was stated that “the patriarchate of the UAOC is a religious administrative center independent in its own administration of the UAOC […]. The patriarchate is guided in its activity [in particular] status of the UAOC. […] The patriarchate presents by the order of the head of the UAOC and under his name the UAOC in its relations with other national churches, state organs, community unions, and other organizations.” Therefore any lawyer (and probably any none lawyer) understands the two different subjects of the law: 1) UAOC, which is a “National part of One, Holy Synodic and Apostolic Church, the head of which is the Lord Jesus Christ” and “jurisdiction which is spread on Orthodox Christians of Ukraine and their communities, which voluntarily belong to the UAOC” and which now acts in Ukraine without the status of a legal person and 2) the UAOC patriarchate, which is a legal person and “carries out the present leadership over eparchial consistories, parishes, monasteries, religious schools, brotherhoods and other religious organizations of the UAOC and the coordination of its activity.”
The implementation in practice of clause 6 transient clauses of the bill will mean that the UAOC Patriarchate from the moment of receiving validity of the new version of the Law “will be of the same status” as the UAOC. In addition, from this nonsense per se, arises the simple question: why were so many spears broken in the struggle for the status of a legal person for religious unions, if in the legal dimension these unions from now on will be substituted as religious administrations and centers, which will automatically “receive the same status”?
7. Fear of Real Statistics and the Question of Re-registration
This apparent shortcoming of the current version of the bill brings to mind the secret phobia of its editors. The name of this phobia is re-registration of religious organizations. During my time as a participant in the work group preparing the new version of the Law of Ukraine “About freedom of conscience and religious organizations,” I insisted that renewing the legal field in the sphere of church-state relations is a wonderful occasion to comprehend the true number of real religious organizations in the body of this or that confession.
The issue is that in the 1990s, a lot of fictitious religious communities and monasteries were registered. The main purpose of this registration was the official declaration to claim property for religious assignments, which at that time the state and the municipal government actively returned to the churches. The registration of the statute of religious organization and as a result the creation of a legal person was an indispensable (though and also insufficient) premise received from the secular authority in the unpaid use of, in the first place, churches, and also other assets. Most communities created in such a way did not lay claim to its part of the restitution property, and thus stayed as virtual religious communities, which existed only on paper.
Now, when the temptation to receive something from the state for free is practically in the past, and electronic registers allow very easily to establish how many doubles there are in the personal composition of founders of religious communities, and would not only be interesting, but also effective to find out by how much (or how many times) the number of registered statutes of religious organizations exceeds the real number of religious communities. Of course such a “inventory” will painfully impact the image, first of all, of the Orthodox churches and especially the UOC, which does not pass up any occasion to highlight that in its contingent there function almost 11.5 thousand parishes, not including the monasteries, brotherhoods, missions, and religious administrations. It is not strange that the idea of re-registering religious organizations with the adoption of the new version of the Law was met by a fierce resistance from the pretexts of intolerability of such a weight on the faithful. In reality, unpaid, strained in time for a few years re-registration of 35 thousand religious organizations is not very burdensome for the state or for the religious communities. On the other hand, not only would this measure prevents trifling with exaggerated numbers, but would also prompt collecting real data, which today do not exist in Ukraine.
How can the UOC be convinced to agree to this step? An example of a smart political compromise could become consent of UOC-KP for establishing the status of the legal persons for religious unions (Patriarch Filaret was against this, but the UOC supported it) in the changes for the obligations to re-register the statutes and make them responsible to the demands of the new law, which is obviously disadvantageous for the UOC, but advantageous to the Kyivan Patriarchate and other “traditional” churches, so far as it considerably reduces their statistical lag behind the UOC in the number parishes…
8. Other Concluding Comments
The current version of the bill “About carrying out changes to the Law of Ukraine ‘About the freedom of conscience and religious organization’” can be further and more closely analyzed, but for now this is not needed. Most of the clauses of the document that remained unchanged since 2006 I analyzed in two of my articles, and most of my colleagues, who are professionally engaged in the questions of legal regulation of church-state mutual relations in Ukraine, also more than once thoroughly analyzed the bill. It is doubtful that something more substantial can be added to the discussion regarding the fundamental clauses and conception of this document. On the other hand, it is necessary to comprehend that the chances of the current version becoming a valid law anytime soon are not much higher than the chances of the 2006 version, which was not even reviewed by the Cabinet of Ministers.
Therefore here I will only mention in passing that the bill proposes to solve the painful problems of double registration of religious organizations, assignment of the last rights to establish secular educational institutions and alongside other organizations to acquire ownership of land plots. In its place, in contradiction to the 2006 version, which proposed to transfer the functions regarding securing the execution and keeping of the legislation about freedom of worldview, religion, and religious organizations of the Ministry of Justice, the current version of the bill proposes to keep the separate central organs of the executive government in religious affairs.
I always felt and feel that such an approach is an atavism of the Soviet management model, which wished if not to rule over, then at least rigidly control religious life. At the current stage there are no needs in the special organs of the executive government, which called to guarantee the realization of “state politics in the sphere of freedom of conscience, worldview, and religion.” Of course, the mentioned “state politics” does not consist in “building a united national church in Ukraine” or analogical ambitions, but in secular state plans.
And literally a few words about “technical” errors of the bill. Most likely corresponding to the Law of Ukraine “About state registration of legal persons and physical persons – entrepreneurs” everywhere in the bill it is necessary to also talk about the “state registration,” and not simply “registration,” which now is in part 1 of art.10, part 1 of art.11, art.16 and so on. Article 3 of the bill states that “everyone, no matter their place of residence, has the right to the freedom of conscience, worldview, and religion.” Why there is such an emphasis on the place of residence is unclear, so far as the right to the freedom of conscience, worldview, and religion does not depend on such things as gender, background, social condition, skin color, and so on.
An anachronism also appears in the norm of part 1 art. 4 of the bill, which declares: “in the documents, which certify a person, attitude toward religion is not indicated.” In reality in any secular, including the obligatory state ID, no one for a long time has thought to designated someone’s religious standing (such information was absence even in Soviet passports), and thus prohibit in the legislative order the priest, bishop, or other person who works in a religious organization to have a designated person who issues his “affiliation” from this or that confession is plain nonsense.
It is not understood why in part 1 of art.15 it states “A religious organization acts on the ground of the statute (clause).” The presence in bills and statutes and clauses could have been justified, if the statutes were internal constitutions of religious organizations – of legal persons, and the clause would regulate the activity of excluded structural subdivision of religious organizations without the status of a legal person. But it is not like this, and there remains a mystery – why not refuse from unnecessary duplication of names of documents, identical by their substances, and thus from clauses as alternatives of the statute.
The questions of clauses 6 and 7 part 5 of art.15 are also called forth – why register religious organizations in the statute of order of acquisition and alienation of property, if it is recognized by the Civil Code and no special order for religious organizations exists.
In conclusion, I would like to stress one more time: the need in the resolution of a new version the fundamental law in the sphere of freedom of religion has been pressing in Ukraine a long time ago. The visit of Patriarch Kirill one more time assured that the current law does not include adequate lawful responses for the challenges of today. The present bill, which was discussed in this article, besides separate faults, is a well-worked upon document: it needs a professional “grinding machine,” but many of its fundamental approaches are worth keeping.
The chances for a resolution of the bill to be complete during the term of the current president are minimal. At the same time, even after a new president comes into office, the future fate of the document depends a lot on the position of the churches and religious organizations. If they see their interests in the changes of the rules of the game as more modern, but less habitual, the above mentioned propositions have a chance to become valid rights; if the church from now on wants to build its relations with the government on different foundations than rights (political, personal, so on), is there no sense to share the text analyzed above with the Supreme Council; and especially, not to do this from fear before the Council of Europe, which for already almost four years stresses the need to bring into effect serious reform in the national legislation in the sphere of freedom of religion?