Public Policy in Ukraine During Wartime: The Freedom of Religion v. National Defense Needs

Sergiy Panasyuk

Charles University, Prague

The full-scale Russian military invasion on 24 February 2022 radically changed the attitude of Ukrainians toward Russians from recent “brothers” and neighbors to absolute enemies. In the attempt to disengage from anything affiliated with Russia – argued by the necessity of national security – the Ukrainian authorities took several steps to ban all Russian-related religious organizations in Ukraine.

In this post, I argue that despite the war and the ongoing martial law regime, basic democratic principles, such as the principle of the separation of church and state, should continue to be adhered to by any authority. Moreover, Ukrainian legislation already contained the necessary legal tools to ban religious organizations where necessary to deal with violations of national law. Thus, introducing a new additional – and wide-reaching – restriction seems both unnecessary and can violate democratic principles.

If Ukraine is serious about joining the European Union, any such governmental decisions should be carefully analyzed. If not, Ukraine runs a real risk of winning the war but losing democracy and continuing to create new stumbling blocks for EU membership.

The Unnecessary Law

As per the Constitution of Ukraine, the church and religious organizations should be separated from the State (Art. 35), Ukraine should promote the religious identity of all national minorities of Ukraine (Art. 11), there can be no restrictions based on religious beliefs (Art. 24), and everyone has the right to practice any personal religion, to profess any religion, and to pursue religious activities (Art. 35).

On the other hand, the Constitution also prescribes that religious rights may be limited by law to protect the public order, health and morality of the population, or to protect the rights and freedoms of other persons (Art. 35). Such restrictions were already implemented in Articles 15 and 16 of the Law on Freedom of Conscience and Religious Organizations before the military invasion and before further steps were taken to ban Russian-related religious organizations. That law is sufficient to regulate the relations between religious organizations and the state without imposing additional legislative restrictions. If any religious organization or its representatives violated the law, Ukraine already had all legal instruments and institutions necessary to ban such organizations, irrespective of where the center of that religious organization is located.

The first governmental step to impose a novel legal approach and ban all religious organizations associated with Russia was the decision of the National Security and Defense Council of Ukraine (hereinafter – the Defense Council), which was approved and enacted by a presidential decree on 1 December 2022. President Volodymyr Zelenskiy called this measure a guarantee of Ukraine's “spiritual independence”. The decision of the Defense Council instructed the Cabinet of Ministers of Ukraine to draft and submit to the Ukrainian Parliament a draft law on making it impossible for religious organizations affiliated with centers of influence in the Russian Federation to operate in Ukraine. But such instructions are not in the sphere of the Defense Council’s competence, because it is only a consultative body for the President. In fact, the Defense Council violated the subordination of governmental bodies' structure, the separation of powers, and other constitutional principles. Following Article 6 of the Ukrainian Constitution, the State power in Ukraine should be exercised considering the division into three independent branches, ie, the legislative branch, the judicial branch, and the executive branch – the latter of which is headed by the Prime Minister. The Defense Council is a coordinating body under the President of Ukraine, and it can coordinate the actions of the bodies of the executive branch but not instruct them what to do –  especially not in relation to law drafting, considering that the President also can file draft laws (Article 93 of the Ukrainian Constitution).

The second step was the Cabinet of Ministers’ legislative proposal (draft law), released on 19 January 2023 and supported by the All-Ukrainian Council of Churches and Religious Organizations.

The draft law prescribed legal modifications to the Law “On Freedom of Conscience and Religious Organizations” which include: “The activity of religious organizations that are affiliated with the centers of influence of a religious organization (association), the management center of which is located outside of Ukraine in a state that carries out armed aggression against Ukraine, is not allowed”.

According to the argumentation of the explanatory note to the draft law, its goal is to make it impossible for religious organizations to operate in Ukraine if their management center is outside of Ukraine, in a state that is undertaking armed aggression against Ukraine. The main argument for doing this – as set out in the Defense Council decision – was that, after considering the activities of religious organizations on the territory of Ukraine under the conditions of the military aggression of the Russian Federation against Ukraine,  the step proposed in the draft law will ensure spiritual independence, prevent a split in society on religious grounds, and promote the consolidation of Ukrainian society and protect national interests.

In my opinion, such restrictions can limit rights, freedoms, and equality because the reason for such restrictions is not particular illegal actions but mere affiliation with the aggressor. There is no doubt that the above limitations were aimed in the first instance at banning the Ukrainian Orthodox Church, which is affiliated with the Russian Orthodox Church. But, in my opinion, this widespread ban is problematic as it impacts all religious organizations. This is especially so because the Constitutional Court of Ukraine has declared that religious organizations have to mention in their official titles the name of the organization (management center), which is located in a country recognized by law as an aggressor.

That Court decision means that the geographic and political affiliations of all religious organizations should be known and clear. But that should not automatically be treated as guilt and lead to a ban without a judicial decision that the law has been violated.

In accordance with the official letter of 11 June 2022, the Ukrainian Orthodox Church decided to break all contact with the Patriarch of Moscow and the Russian Orthodox Church. Following the conclusion of an official governmental and religious examination, it was found that the said statement did not lead to the severance of the ecclesiastical-canonical connection of the Ukrainian Orthodox Church with the Russian Orthodox Church. In this case, it is absolutely clear that the Ukrainian Orthodox Church violated the law by lying. But the violation is not in the mere affiliation with the Russian Orthodox Church; it is in the lying.

Instead of conclusions

It is obvious that wartime influences state policy, and that legislative provisions that were typical for peacetime may not be appropriate in times of military aggression. But should the government block the activity of organizations not because of their illegal actions and proven support of aggression but because of mere affiliation with the aggressor country?

Let's suppose that all members of the Ukrainian Orthodox Church, which is affiliated with the Russian Orthodox Church, are Russian agents or support Russian aggression. Let's imagine that the logic of the Ukrainian government to block all religious organizations directly affiliated with the Russian Federation will be accepted by the Ukrainian Constitutional Court and the international community as necessary. Even then, other questions would still remain. For example, if the Ukrainian authorities already suspected illegal activities on the part of religious organizations affiliated with Russia, why could they not use the legal provisions already in place to deal with those illegal activities? Ukraine must continue to adhere to basic democratic principles, including the principle of the separation of church and state.

Sergiy Panasyuk is a Lecturer at the Department of Constitutional Law of Charles University, Prague; a professor at Ukrainian-American Concordia University and European University, (Kyiv, Ukraine); a Visiting Fellow at Cologne/Bonn Academy in Exile (CBA) (Cologne/Bonn, Germany); former academic consultant of a Judge of the Constitutional Court of Ukraine (2017-2022).

Suggested Citation: Sergiy Panasyuk, ‘Public Policy in Ukraine During Wartime: The Freedom of Religion v. National Defense Needs’ IACL-AIDC Blog (19 September 2023) https://blog-iacl-aidc.org/2023-posts/2023/9/18/public-policy-in-ukraine-during-wartime-the-freedom-of-religion-v-national-defense-needs.