Two Drafts — and the Winds of Change

8 June 2017, 21:28 | Andrew Sorokowski's column | 0 |   | Code for Blog |  | 

Andrew Sorokowski

Draft Laws 4128 and 4511 have arisen in the context of a politicization of religion in conditions of the Russian war against Ukraine, and of the flurry of defections from the Ukrainian Orthodox Church of the Moscow Patriarchate.

Ukrainian Draft Laws 4128 and 4511 have caused a heated discussion in Ukraine, Russia, and beyond since they were registered in parliament last year. The Supreme Council recently declined to review them. Evidently aimed at the Moscow Patriarchate and its Ukrainian affiliate, the Ukrainian Orthodox Church (MP), they have been criticized by Russian Orthodox churchmen and their supporters in Ukraine. Are they fair? Do they follow general principles of human rights and freedom of conscience?

Draft Law 4128, introduced by prominent sociologist of religion Viktor Ielens’kyi and other members of parliament on 23 February 2016, is titled “On the Introduction of Amendments to the Law of Ukraine ‘On Freedom of Conscience and Religious Organizations.’” In particular, it proposes amendments to article 8 of the 1991 Law, on the rights of local religious organizations (communities) to determine their allegiance to religious centers or administrations. The local community (e.g., parish) can switch allegiance by amending its statute or registering a new statute. Under the proposed law, it can do this by vote of a simple majority of members at its general meeting. The members entitled to participate in such a vote are those who self-identify as such. Such self-identification is confirmed by their regular participation in the community.

Since the community is ordinarily the owner or possessor by lease of a church building, if it has changed its church allegiance, it takes its property with it.It was reported in April that the Ukrainian Orthodox Church of the Moscow Patriarchate, alarmed by the loss of parishes switching to the Ukrainian Orthodox Church of the Kyiv Patriarchate, has submitted new parish statutes for registration by certain regional (oblast’) administrations. According to these new statutes, although the religious community continues to own its buildings and other property, the right of disposal (iusdisponendi) belongs exclusively to the eparchy. Thus, a parish that changes allegiance and registers anew cannot transfer the property without written permission from the eparch. Moreover, a change in church allegiance requires a unanimous vote of parish members – including the pastor. Thus, according to analyst SerhiiZdioruk, even ifa parish should succeed in transfering its allegiance to a different religious center, it would not be able to take its church property with it. Anda parish can hardly function without a church in which to worship.https://ru.tsn.ua/ukrayina/moskovskiy-patriarhat-pridumal-kak-po-hitromu-uberechsya-ot-perehodov-veruyuschih-v-drugie-konfessii-847237.htmlDraft Law 4128 is obviously designed to counter-act this attempt on the part of the UOC-MP to stem the tide of transfers to the UOC-KP.

Is the draft law legitimate? To some foreign observers, such changes of allegiance by parishes may appear improper. To Ukrainian-Americans, they may recall the defections of Greco-Catholic parishes to the Ukrainian Autocephalous Orthodox Church in the 1920s. At that time, Greco-Catholic Bishop Constantine Bohachevsky, following the pattern of the Roman Catholic Church in the USA, asserted the property rights of his eparchy as against those of the parish councils. But the Ukrainian Orthodox maintained the tradition by which the parish council owns its own property and hires its own priest. This has remained the norm in Ukraine. Under the Law on Freedom of Conscience and Religious Organizations, the basic unit of religious life is the local religious community.  As AnatoliyBabyns’kyi has pointed out, in asserting the power of the religious centers as opposed to that of the parishes, the Moscow Patriarchate is reversing the position it took in the early 1990s, when it relied on its Ukrainian parishes to contest the right of Greco-Catholics to their former churches (“The Complexity and Duplicity of Deciphering the New Ukrainian Law on Religion,” Public Orthodoxy, May 22, 2017).

It can be argued, of course, that an individual who wants to switch his or her allegiance can do so by simply leaving one parish and joining another. That reflects the view, enshrined in international law, that vests freedom of religion primarily in the individual rather than in the group (see, for example, Universal Declaration of Human Rights article 18). While that may be an option in most Western countries, in Ukraine there is often only one religious organization with a church building in a given locality. Denying that organization the right to change its religious allegiance (without losing its church building) is in effect to deny religious liberty to its individual members.

The draft law can be criticized for its vague definition of parish membership. Unfortunately, it appears that Ukrainian parishes do not ordinarily have lists of registered parishioners. This obviously can affect the validity of general meetings and the actions taken by them. How can one determine a quorum or a majority vote? The draft law’s references to “self-identification” and to confirmation by “participation” are imprecise. An amendment specifying a procedure for registering parish membership would make the law more workable.

Draft Law 4511, “On the Special Status of Religious Organizations, the Governing Centers of Which are Located in a Country That the Supreme Council of Ukraine Has Designated as an Aggressor State,” registered with parliament by O.M. Petrenko and others on 22 April 2016,is likewise obviously intended to counter activity by the Moscow Patriarchate. It provides for special agreements between the appropriate Ukrainian authorities and such religious organizations (article 3). Under article 5, state approval of candidates for higher central and regional church offices of the given organization in Ukraine is required. It is also required for the invitation of religious leaders from abroad (article 6). If it is determined that the organization is systematically violating the law, or if its representatives are engaging in activity against the territorial integrity or sovereignty of Ukraine or collaborating with military-terrorist groups, the state body responsible for registration of religious organizations may terminate the organization’s activity (article 7).

At first sight, this law seems to violate the separation of church from state required by the Constitution of Ukraine (article 35). It also may appear to restrict freedom of religion (ibid.). But the intrusion of the state into the activity of organizations representing a hostile foreign government in time of war is hardly novel. Even in peacetime, a state may require foreign agents to register and report their activities. That some members of the UOC-MP have acted as agents of Russia is well known. In war-time, it is normal for a government to monitor and restrict the activity of enemy representatives, and even take control of enemy assets. Since Russia has invaded Ukraine without declaring war, this legislation refers to a designated“aggressor state” rather than to a formal “belligerent.” It seeks to control the personnel of a religious organization based in such a state, as well as their activity, in order to prevent it from participating in the aggression.

True, it cannot be assumed that a religious organization with its governing center in an “aggressor state” has any connection with that state’s aggression against Ukraine. This could be the basis of objections to the draft law. However, the law could easily be modified to provide for a preliminary determination that the given religious organization is in fact participating in or supporting the aggression by the state in which its governing center is located.

Draft Laws 4128 and 4511 have arisen in the context of a politicization of religion in conditions of the Russian war against Ukraine, and of the flurry of defections from the Ukrainian Orthodox Church of the Moscow Patriarchate.The Moscow Patriarchate may use its influence to close the windows on these two drafts. But it cannot shut the door on the winds of change.

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