ARGUMENTS AGAINST ARGUMENTS
by Viacheslav Sergeevich Polosin, candidate of political sciences, State Duma expert
Nezavisimaia gazeta, 23 August 1997
The pathos of the article by Ivan Rodin and Maxim Shevchenko is expressed in the title of their material: "The president's veto seems solidly argued." I cannot agree with this affirmation. I shall give my arguments.
3I wish to note that Boris Yeltsin as president of the Supreme Soviet of the RSFSR and president of Russia in 1990-1991 made a great contribution to the liberation of millions of believers from the years-old discrimination and began the process of religious revival. Under his leaders the law of 1990 was adopted "On Freedom of Religious Confessions," and the resolution of the soviet on celebration of Christmas, etc. Unfortunately, subsequently many good gestures of the president toward Russian believers came to naught because of the absence of educated specialists in his circle and generally because of the absence of a state policy on religion. The situation regarding the new law is a good example of this.
On 21 July 1997 the president sent a letter to parliament in which he satated that he had decided to veto the law adopted by the State Duma on 23 June and approved by the Federation Council on 4 July, "On Freedom of Conscience and Religious Association" (subsequently called the "law") and he laid out the basics of his position.
1. The president affirms that the law "contradicts the bases of the constitution structure of the Russian federatin and other provisions of the Russian consitution as well as generally recognized principles and standards of international law, in particular articles 2, 6, 13-19, 28, 29, 30, 54, 55, 59, and 62 of the constitution of the Russian federation, argicle 18 and 19 of the Universal Declaration of Human Rights" and others. However the president did not cite any concrete articles of the law that vioate the enumerated articles of the Russian constitution. For example, artle 2 of the constitution says: "The recognition, observation, and defense of human and civil rights and freedoms is the state's obligation." Where is the law is it said that the state refuses such an obligation? Actually isn't the law itself an act of implementation of this obligation? Moreover, point 1 of article 3 of the law contains a detailed definition of the terms freedom of conscience and religious provession in which the boundaries of these freedoms are wider than in international legal acts. The law guarantees "freedom to choose and disseminate" convictions, which is not contained in international acts. Obviously the president has in view some other standards of the constitution, but why then does he cite this article, whose contridiction it is impossible to demonstrate? A simple listing in the letter of the numbers of articles of the Russian constitution which supposedly are contradicted by the law, without any arguments, cannot be considered as demonstration of a contradiction.
2. The president's letter also affirms that point 2, article 7, articles 9 and 11, point 5, article 27 of the law "introduce discriminatiory rules of registration and reregistration of religious organizations of confessions that have been founded in Russia," although no arguments are put forward. The special procedure for registration of religious organizations is based on the provisions of the civil code of the Russian federation, pertaining to the specifics in corresponding federal laws. Besides, even the resolution of the Europarliament "On Sects" of 29 February 1996 "calls the governments of member states not to grant the status of religious organization automatically and in cases that concern sects which are engaged in illegal or criminal actions to consider the possibility of depriving them of the status of religious association that would give them tax privileges and certain juridical protection." The current procedure is the same for all believers of any religions, so that eliminates the presence of discrimination (i.e. granting or infringing rights on the basis of attitude toward religion).
3. The president's letter affirms that provisions of point 4, article 3, articles 6-9, point 4 of article 11, point 2 of article 20 of the law "contain a restriction of the rights of Russian citizens, primarily those living outside the borders of the Russian federation, and also of person who are not citizens of the Russian federation." However the definition of a religious group (art. 7) permits persons who are not citizens of the Russian federation to exercise the right to freedom of religious profession in the way that is required by international legal acts: article 18 of the Universal Declaration of Human Rights and analogous rights (the right to have, to change, and to profess convictions, individually and corporately, in private or public). Thus point 3 of article 7 of the law says: "Religious groups have the right to conduct worship services, religious rites, and ceremonies." Although it is necessary to recognize that the text of the law contains an internal contradiction between articles 6 and 7, inasmuch as the term "religious association" in article 6 pertains only to citizens of the Russian federation. This contradiction, of course, would have to be removed.
Actually in the law citizens of the Russian federation have preeminence over persons who do not have Russian citizenship: only they may be claimants at the time of receiving the judicial possibility of legal entity (which does not exclude participation of foreign citizens and persons without citizenship in the activity of these organizations in any form). As evidence of the violation of this standard of the constitution the president of the Russian federation cites part 3 of article 62 of the constitution in the following form: "foreign citizens and persons without citizenship. . .enjoy the rights secured by the constitution of the Russian federation on an equality with citizens of Russia." But the final phrase is omitted which follows the quoted text: "except in cases established by federal law."
The law as adopted is federal and the lawmaker thus has the right granted by the constitution of the Russian federation to establish exceptions from the standard of equality of citizens of the Russian federations and persons not having Russian citizenship. For example, the law "On Mass Media" which is recognized as one of the most democratic in Russia forbids foreign citizens to be founders of means of mass communication. Foreigners do not participate in political elections, cannot occupy government posts, and do not serve in the army. The decree of the president No. 2146 of 16 Dec 1993 restricts the right of foreigners to labor "in order to . . . secure a prior right of citizens to occupy vacant positions."
In the current situation the legislature restricted the right of persons who do not have Russian citizenship only with regard to their personal infolvement in civil property and legal relations, which can accompany organized religious activity, but it did not restrict the extent of their rights to freedom of religious professions, as it is defined in international acts. Thus it is possible to agree or disagree with the legislature on the practical advisability of the standard it created, but this matter has noting to do with the extent of the right to freedom of conscience and freedom of religious profession and it does not contradict the constitution.
Point 3 of article 8 of the law, according to the president of Russia, grants the right of corporate confession and dissemination of faith in the form of religious organization only to citizens who life permanently in one locality. However point 3, article 8 only indicates the external signs of religious organizations for their classification in governmental rolls and it does not establish territorial boundaries of the activity and in no way interferes in the internal structure of a religious association. Besides, there is an interpretation of the text of the law that was deliberately removed: point 3 of article 8 deals only with local religious organizations; citizens living in any regions of the Russian federation may profess and disseminate their religious convictions in the form of regional religious organizations.
4. The president's letter affirms that the law violates the constitutional principle of equality of religious associations before the law, although it does not give any evidence. The text of the letter of the head of state contains an error. The words "as well as articel 19 of the Universal Declaratin..." in no way agrees with a single verb so that the president's interpretation of the essence of the law is impossible.
Article 19 of the Universal Declaration of Human Rights, cited by the president, gives the right to free dissemination and receipt of information and the president puts the words "(including religious)" in quotation marks. It seems that information can be of any contents, including religous, but the term "information" is functionally distinguished from such terms as, for example "profession of faith" or "religious doctrine," by the requirement of objectivity, lack of bias, etc. How can this agree with religious preaching that is based on faith in miracles, in the approaching end of the world, and having ethical imperative, didactic intention, and qualitatively different goals? Thus in international law and in the Russian constituion these humas rights are separated into different standards and are contained in diverse articles that do not intersect one another.
5. The Russian president also affirms that "representations of foreign religious organizations may be established only under Russian religious organizatins," which contradicts a number of article of the Russian constitution by placing foreign religious organizations in dependence upon Russian religious organizations.
However article 13 deals only with the rights of Russian religious organizations, insofar as the rights of foreign citizens and foreign organizations are not regulated by Russian law. This would be a profound interference in the internal affairs of other states. The law gives the right to any Russian religious organization to have within itself a representation of its foreign fellowbelievers or partners, but it does not by any means restrict the rights of members of foreign religious organizations to petition the consulate of the Russian federation in their own counmtry and to make a request along with a statement of their intentions. The law does not contain any provisions that place foreign religious organizations in dependence upon Russian religious organizations.
The president's claim that article 13 of the law violates "the principle of the separation of religious associations from the state secured in article 15 of the constitution of the Russian federation" is given without any argumentation. But it is even more amazing that in the letter of the head of state there is an error, testivying that lawyers with the appropriate qualifications did not work on the text of the letter: the principle of the separation of religious associations from the state is secured not in article 15 of the constitution as the letter of the president states but in article 14 of the constitution.
6. The president claims that point 1 of article 9 of the law violates the constitution inasmuch as "the decision of a centralized religious organizatino on the question of certifying the existence of a religious group actually is equated in its legal status with the decision of an agency of local administration." However even here there is a distorted account of the text of the law inasmuch s the Russian president omits and does not consider in his interpretation the words "ofthe same religious provession." And the entire sense of the standard is contained in these words: the certification of the centralized religious organization about the membership of the newly created organization of the same demonimation in its structure merely confirms the identity of the religious profession of the newly creation organization with one already existing and recognized by the state for at least fifteen years, which obviates the need for duplicating the state's confirmation "of the same confession." The decision of the agency of local administration about legal status coresponds not with the decision of the centralized religious organization but with the decision of the agencies of justice which earlier has registered the centralized religious organization of the same denomination.
7. The president of Russia considers that the "preamble of the federal law secures the inequality of religions," creating a "hierarchy of religions." Howver the equality of religions cannot exist either in society or in law. This is not required by the constitution of Russia nor by international legal acts. Religious is a specific form of world view and includes a varied complex of rules, regulating morality, culture, and family and daily human life. How could various religious be legislatively equated?
The principle of equality of religious associations before the law is not violated, inasmuch as a) the preamble is not a regulatory standard and does not provide for any kind of privileges or restrictions, and b) the preamble to the law does not contradict point 3 article 3 of the law but forms with it a single whole: the facts of the past are taken into account and guarantee rights in the present.
8. The president of the Russian federation affirms that the "principle of equality of religious associations before the law is also violated by the privision of p. 5, article 8, and point 1 article 9 of the law: the recognitions by the state of a religious organization as all-Russian or local is placed in dependence upon the length of time of the existence of the organizations themselves." This expresses a misunderstanding: the lengths of time are identical and obligatory for all and their extent may be disputed on the basis of practical advisibility, but they do not violate the principle of equality before the law. The very principle of state classification of religious organizations based on reference to their external indicators also does not cause any privileges or restrictions.
Besides the president affirms that religious associations that have existed less than 15 years supposedly must be liquidated. But according to the constitution of Russia the law cannot have retroactive effect and the law does not require the liquidation of already registered religious associations simply because its established a longer length of time for state recognition of religious status. The only basis for liquidation in legal procedures can be the violation of the standards of the law, committed after it comes into effect.
9. The president of the Russian federation considers that point 5 of article 8 of the law contradicts article 51 of the civil code of the Russian federation inasmuch as the state registration is placed in dependence upon the decision of the government of Russia, which "is an interference of the state in the activity of religious associations."
Actually, there is a certain technical disagreement with the civil code of Russia in part with regard to the mention of the requirement of a decision by the government when, according to the code, the decision is made by the agency of justice. However it is obvious that this is not any interference of the state in the activity of religious association inasmuch as it is a matter of the internal allocation of the functions within a single system of executive authority, which does not entail a violation of the constitution procedure: this is only a matter of technical juridical shortcoming. There are many such shortcomings in others laws and in the president's decrees and in the government's resolutions: we are still at the beginning of the path to a legal state.
What is most amazing is that the chief shortcoming of the law, which technically arose as a consequence of a disjuncture among amendments and text, remained unnoticed by the president of Russia. This deals with the fifteen-year probationary term for a religious group required for its receiving the status of a religious organization. Actually this deals with the confirmation of new religions. A religion that is absolutely unknown to society and separated from the state can hide within itself any dangers for human psychology and health. However this probationary term must agree with the decision of the Europarliament regarding new teachings, discipline and cult, and not to the formal existence of one or another group.
Because of the disjuncture of amendments it turned out that dangerous sectarians can get out from under the law in the guise of public associations, and normal believers who do not wish to be a part of centralized religious structures or who want to leave them are deprived of their property and must exist for fifteen years in a precarious existence. It is easy to correct this mistake: it is sufficient to change the wording by making the term of probation apply not to a formal association but to any new religion regardless of how it has existed, and then the possibility of discrimination disappears.
One wants to hope that the president of Russia, in the complicated situation into which his advisors have put him, will be able to discover the solomonic solution that will permit the retention of the mechanism worked out in detail by the State Duma for separating religious organizations from pseudoreligious and extremist groups and reach agreement with the lawmakers on the question of eliminating discrimination of believers who are changing their convictions or their jurisdiction.