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Instead of Equality…

Iago Khvichia
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On 27 January 2014, the Government of Georgia issued Decree #117 on the adoption of “The Rule for the Implementation of Several Measures for Partial Compensation of Damages Caused by the Soviet Totalitarian Regime to Religious Associations in Georgia.”

Trying to determine plans and hopes that underlie the authoring of this normative act does not seem easy, nor is it simple to predict what result the enactment of this document will have because the second article of the decree, which sets forth the main aims of the act, contains three conflicting provisions:

  1. The government aims to partially compensate that material and moral damage which certain religious associations sustained during the Soviet regime.
  2. Religious associations and communities registered in Georgia do not have any legal connection to religious associations having suffered from the Soviet regime.
  3. The government confirms that the accurate amount of the above mentioned damage is not known and, therefore, the compensation of the damage will be implemented symbolically.

Such wording will raise doubts among believers (meaning believers in God as well as in the government) that all this lacks the adequate sincerity and is being done for some ulterior motive.

Our aim, however, is not to examine the spiritual attitude of the government towards a specific issue; in fact, government officials are not required to have any such attitude under Georgian law. It is more important to discuss the possible consequences that the enactment of this decree may have.

The key declared motive behind passing this decree is the expression of equal attitudes towards different religious organizations on the part of the state (the decree says that it was drafted to meet the requirements of Article 38 of the Constitution of Georgia, which establishes the principle of equality for all citizens).

But we must necessarily raise one flawed question: between whom are we trying to achieve equality?

The question is flawed because equality cannot rest with just one person or organization – equality is a broad, universal notion and can, therefore, only exist with everyone.

However, since in this particular case one religious association – the Apostolic Autocephalous Orthodox Church of Georgia – enjoyed an advantage over other religious entities before the issuance of this decree, we must assume that the aim of the authors of the decree is to elevate other religious associations to a similar rank. This, naturally, is a quite legitimate aim.

The superiority of the Apostolic Autocephalous Orthodox Church of Georgia is not, however, determined by government decree or any other legal act of the same level, but is ensured by the highest legal document in the country – the constitutional agreement. Consequently, we should treat the idea of achieving absolute equality between different religious associations through such a decree with, at best, cautious optimism.

This idea comes to pose many problems when it comes to the decree’s scope of regulation. In particular, the decree extends only to those Islamic, Judaic, Roman Catholic and Armenian Apostolic religious associations that had been registered as legal entities in public law before the decree was adopted.

The problem with this is twofold:

1. The decree lists those organizations to be covered, but it does not include all religious associations existing in the country. This is, in fact, natural because it would be impossible to list all religious associations. Even if it were possible to do this in a specific period of time, the number of religious associations (or even religions) often changes and thus no such list would be adequate.

2. The decree only applies to those religious organizations that were registered as legal entities in public law before the decree was adopted. However, it is well known that before the enactment of this decree, the registration of religious associations was not a mandatory requirement; this was an absolutely voluntary process (any person had the right to establish a religious organization as a legal entity in public law) that was not associated with obtaining any benefit. Consequently, registered religious associations do not represent more qualified or more experienced religious organizations with higher merits than non-registered religious organizations. Religious associations were not provided with any official information in advance that they would obtain certain benefits (the possibility of funding) in future if they were to register. Consequently, after the adoption of the decree, we have a situation where there are some religious organizations that, absolutely voluntarily, have registered as legal entities in public law, and other similar organizations that, absolutely legally, did not do the same, but intended to do so in the future. The conclusion is simple: the state must not act in such a manner (or must only do so in exceptional circumstances) that the introduction of privileges or restrictions is unpredictable and the subjects of these privileges or restrictions are revealed only through arbitrary selection.

I will also say here that the Apostolic Autocephalous Orthodox Church of Georgia has not been registered as a legal entity in public law by the National Agency of Public Registry (this does not, however, mean that it is not a legal entity in public law). Such a requirement only exists towards other religious entities.

Given this reasoning, it seems likely that any cautious optimism we had about achieving equality among religious associations as a result of this decree will turn into, at best, cautious pessimism.

Let’s now discuss what would happen in an instance where several similar religious associations have registered and each have claims for receiving funding.

At first glance, the decree seems to provide a clear answer to this issue:

1. The damages caused by the Soviet regime will be compensated to religious organizations that have a denominational inheritance of a religious organization or community that suffered.

2. If more than one religious association is registered under the name of that religious association/denomination which suffered damages during the Soviet regime, in order to receive funding these associations shall, before 1 May 2014, undertake one of the measures listed below:

a) reorganize into a single legal entity in public law that will be eligible for compensation:

b) establish a coordination council comprised of representatives of all religious associations of the same denomination that will be authorized to interact with the state on behalf of its denomination and receive compensation;

c) certify, in writing, the authority of an association to act as a representative of the relevant denomination with the government and to receive compensation.”

It seems that the government considers the task of achieving a consensus among different religious associations to be very simple. The decree says nothing about what would happen were the individual entities to fail to agree on the distribution of compensation.

The government’s argument in such an instance would most likely be that the case will be decided by a court. To some extent, this would be fair, but the question about what normative acts a court should apply in deciding this issue will be more difficult to answer (especially in the conditions of civil law).

As regards the purpose of the compensation, i.e. what the money should be spent on, everyone is aware that the issue of spending public monies is something that is strictly regulated by legislation. In this particular case, there is the following provision:

“A religious association which receives compensation in accordance with this rule is entitled to channel this amount towards the construction or repair of a religious building, the implementation of educational or publishing activities, the conduct of religious services, the purchase of property, and the performance of any activity allowed by Georgian legislation.”

It is interesting what the final phrase – “any activity allowed by Georgian legislation” – of this norm means. In the definition of public law, this means only those activities which are explicitly specified in legislation. Since we do not have (and must not have) any such legislation, then the understanding of this phrase according to public law is senseless. What remains, therefore, is private law, which says that everything that is not prohibited by the law is acceptable. However, in this case, as is the case with the Georgian Orthodox Church, it is actually impossible to first determine the purpose of spending and then to control it.

If our aim was to offer criticism of the text of the decree, I would necessarily say that the final phrase of the provision, if understood in accordance with private law, was absolutely sufficient and did not need to be proceeded by a list of specific activities, because the last phrase covers everything.

However, our attention here is focused on the content of the decree. This gives rise to a number of questions that are difficult to answer:

  • Who will receive what amount?
  • What will this be spent on?
  • Will it reach individual believers?
  • What leverage does the government have if a religious servant does not spend this money in accordance with its purpose?
  • What will be regarded as purposeful (or un-purposeful) spending?
  • How will disputes between believers be resolved?
  • Can all this cause a rift between religious groups and who will bear responsibility for that?

The decree provides no answers to these or other questions. This is natural, because public law finds it difficult to provide answers to issues falling under private law.

It will be very difficult to choose the best way of financing from the state budget. There is no such way this could occur – instead of satisfied needs, one would get ten times more dissatisfied claims for every lari allocated from the budget and, more importantly, these claims would be legitimate.

The only way to place all religious associations in an equal condition is to stop budgetary funding to all of them.

However, this is my position and, naturally, many people, especially those who think that the state knows better than its citizens, will not share it. However, it does not require much reasoning to understand that a normative act designed to defend the interests of religious minorities, i.e. Decree #117 of the Government of Georgia, should not begin with these words:

“The government of Georgia confirms the damage, recognized in the constitutional agreement between the Georgian state and the Apostolic Autocephalous Orthodox Church of Georgia, sustained by the Apostolic Autocephalous Orthodox Church of Georgia in the 19th and 20th centuries (especially during the period from 1921 to 1990), in the period of lost state independence.”

 

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