What danger the new chaplaincy law entails

The adoption of the bill on chaplaincy will aggravate discrimination against UOC believers in the army. Photo: UOJ

On November 30, 2021, the Verkhovna Rada is going to consider the bill 4626 "On the Military Chaplaincy Service" in the second reading. This is the second attempt to legislate the removal of UOC priests from the pastoral care of servicemen. Why is this happening, and what will the result of the vote on the bill mean? Let's try to figure it out.

Today, the Ukrainian Orthodox Church is the largest denomination in Ukraine, but it is stripped of the opportunity to provide pastoral care to servicemen. With the iron-cast hand of former President Poroshenko, the Church was labeled as the branch of the "aggressor state" without any reason. Under Poroshenko, bills were introduced in the Verkhovna Rada, which were rightly called "anti-church". Provisions discriminating against UOC believers were also introduced into existing laws. Poroshenko miserably lost the 2019 presidential election. His election campaign, based on the "Army, Faith, Language" slogan and his main achievement – "Tomos" on pseudo-autocephaly of the “Orthodox Church of Ukraine” did not receive any support among voters, who expressed a resounding "no" to Poroshenko personally and to all his policies.

In the first year of V. Zelensky's presidency, it seemed that his team took into account the blunders and flaws of his predecessors. But then everything changed. Gradually, seizures and illegal re-registrations of communities resumed, and the central government began to play around with Phanar, to demonstrate the OCU’s special status, if not public, then at least as a denomination close to the state. The apotheosis of the U-turn in V. Zelensky’s religious policy was the visit of Patriarch Bartholomew to Kyiv to celebrate the 30th anniversary of Ukraine's Independence, during which he was received by all the first persons of the state.

On the other hand, the current Ukrainian authorities are still afraid to return to Poroshenko's religious policy in full – its failure was too obvious. True, it can be stated that the government has increased the pressure on the UOC, but doing it somewhat sluggishly, without the zeal of the former presidency.

Probably, the authorities are confronted with an issue right now – whether to resume the "Poroshenko" policy against the UOC, because the anti-church laws adopted by the "tomos-conscious" have not been repealed. Therefore, the UOC is still in danger of losing its name, property, facing the possibility of legal prosecution of its hierarchs, etc.

Therefore, it is possible that the vote for the current bill 4626 "On the Military Chaplaincy Service" will be a marker that will show whether the government will start full-scale pressure on the Church or leave it alone. Let's see what points in the bill give us reason to think so.

What is the "chaplaincy" bill about?

First, the draft law "On the Military Chaplaincy Service" does not regulate all issues related to the functioning of this institution. It merely defines some of the terms used in the field of chaplaincy, formulates the principles of chaplaincy, the requirements for chaplains, and regulates some other points. The bill does not say anything about the following:

• rights and responsibilities of chaplains;
• rights and responsibilities of commanders of military units in relation to chaplains;
• the order of worship and requirements;
• features of chaplaincy in the active army;
• logistics of the chaplaincy service and other issues.

Regulation of all these points was provided by the previous bill 4148 "On Military Chaplaincy in the Armed Forces of Ukraine", which was introduced in the Verkhovna Rada on September 23, 2020, but it was removed from consideration. This bill also established discriminatory norms against the UOC (more on this in the article "What are the consequences of the Chaplaincy Law"), but it at least regulated the basic issues necessary for the functioning of the chaplaincy.

Even the structure of the Military Chaplaincy Service itself is not specified in Bill 4626. The text of Article 4 is a masterpiece of legal illiteracy: “The Military Chaplaincy Service is established as a separate structure within the Armed Forces of Ukraine, the National Guard of Ukraine, other military formations established under the laws of Ukraine, and the State Border Service to meet the spiritual and religious needs of their military administration, military forces, military unit, military school, institution and organization (hereinafter – the military unit)."

Not only is it a verbal abracadabra, not only does the type of this Service depend on the "complexity of the activities", but it is also not said who should create this service and in what order.

The proposal to grant the chaplain the status of a serviceman directly contradicts the Constitution of Ukraine.

Secondly, one of the main fundamental points of Bill 4626 is to endow the chaplain, i.e. a priest of a certain religious denomination, the status of a serviceman. However, this directly contradicts the Constitution of Ukraine. In the Notes to the Draft Law of Ukraine on the Military Chaplaincy Service, the Main Legal Department writes: “According to Article 35 of the Constitution of Ukraine, the church and religious organizations in Ukraine are separated from the state. This means that religious organizations or their structures cannot be part of or be part of state bodies, and persons who are ministers of the church cannot be in the service of state bodies at the same time.”

Yes, in many states chaplains are both clergy and military. For example, in the United States, they are given officer ranks and provided with military benefits and pensions, but this is not unconstitutional. However, in our case it is contrary to the Constitution. In addition, the United States is a country of case law, and the regulation of legal issues there is somewhat different than in our country. But these are already legal subtleties.

In other words, in order to adopt this bill in Ukraine, one has to change the Constitution first.

Third, the bill simply contains a huge number of inconsistencies and discrepancies with existing legislation. The Main Legal Department writes about this in its Comments, and previously the Main Scientific and Expert Department wrote in its Feedback on the bill. Here are just a few examples.

Basic laws, in particular “On the Armed Forces of Ukraine” (Article 3), "On the National Guard of Ukraine "(Article 5)," On the State Border Service of Ukraine "(Article 6), etc., which clearly define <…> the general structure and number, in particular, of the Armed Forces of Ukraine, the National Guard of Ukraine, the State Border Guard Service of Ukraine, do not provide for the formation of "separate structures", especially "Military Chaplaincy Service" with its "governing bodies".

"Determining the number of military chaplains by this bill depending on the maximum number of military formations where military chaplains will meet the spiritual and religious needs of servicemen, in our opinion, is unacceptable, because, first, military chaplains must meet the spiritual and religious needs of the amount of servicemen that cannot be determined in advance, while the satisfaction of these needs cannot be imposed. <…> Secondly, given that the ultimate number of the Armed Forces of Ukraine and other military formations, formed in accordance with the laws, is determined by the basic laws, it is unclear at the expense of what servicemen the composition of the relevant structural units will be replaced by military chaplains."

There is another example of elementary illiteracy, on top of that. This is the definition of the term "spiritual and religious needs". By the way, the very wording of the term is a tautology, but the way it is defined is just a masterpiece: "Spiritual and religious needs are the individual's perceived need for ideal intrinsic motives, personal development, and social interaction, manifested in religious views, perceptions, feelings, practices, and rituals." It's more like a joke or a mockery, because it is really mind-boggling to infer any meaning here.

Summarizing all the above, it can be asserted that Bill 4626 is legally incorrect, contrary to the Constitution and does not regulate the whole range of issues related to the activities of chaplains. Then why and what for will it be considered by the Verkhovna Rada?

Why is this bill to be considered?

The answer to this question is as follows: they want to pass Bill 4626 with the sole purpose of preventing priests of the Ukrainian Orthodox Church from pastoral guidance of servicemen and enshrining this in law.

First, the UOC is the only major Ukrainian religious organization that was not allowed to discuss Bill 4626.

Secondly, paragraph 3 of Article 7 “Requirements for a military chaplain” reads as follows: "A person who is denied access to units, military units and subdivisions of the Armed Forces of Ukraine, the National Guard of Ukraine, and other military formations established in accordance with the laws of Ukraine and the State Border Service of Ukraine cannot be a military chaplain." What are these people who are denied access to military units? These are the clergy of the UOC! This is stated in paragraph 5 of the Transitional Provisions of the Law of Ukraine "On Amendments to Article 12 of the Law of Ukraine ‘On Freedom of Conscience and Religious Organizations’ … “ of 20.12. 2018: “It is not allowed to give priorities or impose restrictions on the activities of a religious organization (association) that is part of the structure of a religious organization (association), the governing (administrative) center of which is located outside Ukraine in a state recognized by law as the one having committed military aggression against Ukraine, and / or temporarily occupied part of the territory of Ukraine, except for restricting the access of clergy, religious preachers, mentors of such religious organizations in part, units of the Armed Forces of Ukraine and other military formations of Ukraine in their locations or other restrictions provided by law.”

The drafters of the bill hid behind intricate wording the actual ban on the presence of UOC priests in the army.

It should be noted that the reference to the law on the aggressor country in the original text of Bill 4626 was removed by its drafters in the second reading in the Verkhovna Rada so that it would not be directly obvious. Nevertheless, discrimination against the UOC remained. It was simply hidden behind intricate wording and references to other laws. This is a clever job, as the Law on Freedom of Conscience and Religious Organizations does not prohibit the admission of UOC priests to military units. To find it, one needs to refer to the Law of Ukraine "On Amendments to Article 12 of the Law of Ukraine ‘On Freedom of Conscience and Religious Organizations’,", and not just to the text of amendments to Article 12, but to the Transitional Provisions.

Thirdly, Bill 4626 hides another possibility of preventing UOC priests from military chaplaincy. This is Article 9, “Quotas for Religious Representation and the Mandate for the Right to Conduct Military Chaplaincy,” which provides for the right of the executive to distribute appropriate quotas among religious organizations. As we understand, the UOC may not get these quotas.

Conclusions

As already mentioned, Bill 4626 is illiterate, defective and unconstitutional. Its main goal is to legalize the impossibility for UOC priests to carry out their pastoral ministry in the Armed Forces.

Accordingly, the adoption of this bill in the form in which it is currently available implies that the government has finally chosen the path of confrontation with the Ukrainian Orthodox Church. In this case, it should be expected that the offensive on the UOC will mount in other areas as well.

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