The draft law seeks to amend the Ukrainian law “On the freedom of conscience and religious organizations” in certain respects. The full text of the existing law can be read at (link). By far the most important change is the addition of the following sentence to Article 5 (separation of church and state): “Activities of religious organizations that are affiliated with the centers of influence of a religious organization (association), the governing center (control) of which is located outside of Ukraine in a state that carries out armed aggression against Ukraine, are not allowed.” [“Не допускається діяльність релігійних організацій, які афілійовані із центрами впливу релігійної організації (об'єднання), керівний центр (управління) якої знаходиться за межами України в державі, яка здійснює збройну агресію проти України.”]
Another important change relates to Article 16 (termination of activity of a religious organization). The following ground for termination is added: “In the cases provided for by this Law, the activity of a religious organization may be terminated in a court of law at the request of the central executive body that implements state policy in the field of religion, or the prosecutor.” There are also amendments to Article 30 which list the responsibilities of “the central body of executive power implementing state policy in the field of religion.” This central body is the State Service of Ukraine for Ethnopolitics and Freedom of Conscience, which formerly reported to the Ministry of Culture but now reports directly to the Cabinet of Ministers. One of the responsibilities which the draft law adds is the following: “Conducting a theological examination of the activity of religious organizations to identify subordination in canonical and organizational issues with the centers of influence of a religious organization (association), the governing center (control) of which is located outside of Ukraine in a state that carries out armed aggression against Ukraine.”
The draft law also has an amendment to Article 4, Section 2, of the existing law, “On state registration of legal entities, natural persons - entrepreneurs and public organizations.” (Full text at link) The existing form of the paragraph to be amended is the following: “State registration of natural persons - entrepreneurs on the basis of documents, as well as state registration of legal entities, public organizations that do not have the status of a legal entity, on the basis of documents submitted in electronic form, is carried out regardless of their location.” This is amended to read as follows: “State registration of natural persons - entrepreneurs and legal entities-- religious organizations on the basis of documents submitted in paper or electronic form, as well as state registration of legal entities, public organizations that do not have the status of a legal entity, on the basis of documents submitted in electronic form, is carried out regardless of their location.” [new language in bold] The reason for this amendment is not clear.
In considering this draft law, I was personally disappointed in its lack of clarity. I was expecting a carefully drafted law that would artfully protect the security interests of Ukraine while guaranteeing the religious rights of believers. Instead, the draft law in its proposed amendment of Article 5 simply tracks part of the language of the December I decision by the National Security and Defense Council of Ukraine.
A well-drafted statute would at least define some of the ambiguous words used. The most important word is “affiliated” as used in the phrase “religious organizations that are affiliated with the centers of influence of a religious organization (association), the governing center (control) of which is located” in an aggressor state. It is extremely important to note that the phrase “governing center” relates to and modifies the phrase “centers of influence.” It does not relate to or modify “religious organizations” in Ukraine. Thus, applying this language to the Ukrainian Orthodox Church (UOC), the question under the draft statute is not whether the UOC legal entities have a “governing center” in Russia. Rather, if it is contended that the Moscow Patriarchate is a “center of influence,” the question would be whether the Moscow Patriarchate has its “governing center” in Russia – which is obviously true and would not be an issue in contention. Accordingly, the issue for the UOC legal entities would be reduced to the disputed question of whether UOC legal entities are “affiliated” with the Moscow Patriarchate.
The word “affiliated” can refer to many types of relationships, some of which may be very strong and some very weak. If this draft law were properly drafted, it would limit the prohibited relationships to ones that pose genuine security risks to Ukraine. The draft law simply does not do this. The decision of December 1 mandated that the draft law be “in accordance with the norms of international law in the field of freedom of conscience.” In my opinion it is very doubtful that this draft law complies with this mandate. However, one can still hope that the Rada during the legislative process will finalize a law that will receive international respect and not condemnation.
Peter Anderson, Seattle USA
