EMC’s Appeal to the Parliament Regarding Planned Constitutional Amendments on Freedom of Religion

In reference to the planned amendments to the Constitution of Georgia in terms of norms regulating the freedom of religion and belief, the Human Rights Education and Monitoring Center (EMC) calls on the government to bring these amendments in line with the international standards of freedom of religion.

On the basis of an official appeal submitted to the President on September 24, 2017, a third hearing to discuss draft constitutional amendments is due to take place at an extraordinary plenary session of the Parliament on September 26[1]. The Venice Commission has also presented its views on the draft[2].

According to the draft revised constitution, the grounds for restricting freedom of religion are being amended and the existing entry, which justifies restrictions on the right to freedom of speech, thought, conscience, religion and belief only to protect the rights of others (Article 19, Para. 3), is being updated to include expanded legitimate aims of restriction, and to read as follows: “[…] restrictions may only be permissible in accordance with the law, for the purposes of securing national security and public safety integral to the existence of a democratic society, preventing crime, administering of justice, or protecting the health and rights of others.”

It is noteworthy that the first conclusion of the Venice Commission also emphasized the necessity to expand the legitimate aims of restriction of the right to freedom of belief and conscience, stating that the existing framework, which recognized restrictions of manifestations of the freedom of belief and conscience only if these manifestations violated the rights of others, generates a risk that, in attempting to achieve an adequate balance between the right to freedom of belief and conscience and other interests, the scope of this right could be interpreted too narrowly and/or, conversely, – the “violation of the rights of others” could yield an overly broad interpretation. The expansion of the aims of restriction becomes all the more significant, since the rights protected under Article 19 of the current constitution are being separated and the rights to the freedom of speech, thought, belief, religion and conscience are being subordinated for regulation under various Articles of the constitution.

However, contrary to the recommendations of the Venice Commission, not only did the Parliament of Georgia not expand “the rights of others”, as well as the aims for restriction in a reasonable manner consistent with international standards, it listed unjustified legitimate aims for restriction of the freedom of religion, including the prevention of crime, administering of justice, and the protection of national security, which are not envisioned in relevant regional and international conventions and contain high risks of arbitrary restriction of the freedom of religion.

It should be noted that the Constitutional Court practice shares approaches similar to the recommendation of the Venice Commission. A broad interpretation of “the rights of others” proved inevitable in a case where the Constitutional Court had to consider “rightful resistance” as an area protected under Article 19. In this case, the Constitutional Court made it possible to avoid a narrow interpretation of the right to freedom of belief via applying a broad interpretation of “the rights of others”.

The Venice Commission’s final report[3] expressly points to the necessity to redact “national security” and “administering justice” from the list of grounds for restriction in the text of the revised constitution. The Commission draws attention to the relevant approach of the European Convention on Human Rights (ECHR) and the European Court of Human Rights, and explains that the exclusion of these grounds from the text of the ECHR should be seen as a deliberate approach so that, while interpreting the provision, the restrictions are not expanded on the basis of grounds expressly indicated in the draft revised constitution. The Venice Commission also emphasizes the fact that, in contrast to the approach adopted on the international level and against the backdrop of the constitutional stipulation of “national security” and “administering justice” as legitimate aims, the text of the draft revised constitution does not include key aims, such as “public order”.

In many cases, aims such as national security are considered among grounds for the protection of public order, public safety and the rights of others[4]. Despite the broader content of these aims, the principal approach of the key international human rights instruments[5] explicitly outlines the need to exhaustively and narrowly define the grounds for restricting freedom of religion, as opposed to other rights.

The exclusion of “national security” from the list of aims for restriction ensures the protection of religious activity from arbitrary state intervention, its association with abstract threats, and the “politically dangerous” label, which is often used to attain political objectives and combat particular religions. These trends are also brought up by the UN Special Rapporteur[7].

Ultimately, notwithstanding the risk of broad interpretation, the current scope of restrictions on freedom of religion establishes a higher standard of protection than the proposed draft. The indication of public interest as grounds for restricting the right to freedom of religion, disregarding the principles of the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), leads to a high risk of disproportionate interference in the right to freedom of religion.

Moreover, despite the Constitutional Court’s identification of the principle of secularism as being encompassed by Article 9, the Parliament has not considered an explicit declaration on the separation of church and state[8]. Under these circumstances, rather than recognizing the principle of secularism and the historical role of the Orthodox Church separately, Article 8[9] of the draft revised constitution shifts the center of gravity towards the significance of the latter. This notion additionally suggests the legislators’ objective to weaken the current standard of protection of the right to freedom of faith.

Given all of the above, the Human Rights Education and Monitoring Center (EMC) calls on the Parliament of Georgia to:

  • Remove the aims of “national security”, “preventing crime” and “administering justice” from Article 16 of the draft revised constitution in accordance with international human rights standards, including the final recommendations of the Venice Commission;
  • Ensure that the current wording of Article 8 of the draft revised constitution, as a minimum, reiterate the formulation of Article 9 of the current constitution. At the same time, it is also preferable for the text of the draft constitution to contain an explicit declaration of the constitutional guarantees of secularism as defined by the Constitutional Court of Georgia.

 

——————————————————

[1] Draft Constitutional Amendments as Adopted by the Parliament of Georgia at the Second Reading, Available at: http://info.parliament.ge/file/1/BillReviewContent/157042;
[2] Opinion on the Draft Revised Constitution Adopted by the Venice Commission, Available at:
http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD%282017%29013-e
[3] Draft Opinion on the Draft Revised Constitution as Adopted by the Parliament of Georgia at the Second Reading on 23 June 2017, Available at: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-PI(2017)006-e
[4] For instance, the European Court of Human Rights grants states the authority to “verify whether a movement or association carries on, ostensibly in pursuit of religious aims, activities which are harmful to the population”. Such a definition is sufficiently broad in order to encompass all possible legitimate aims, which may contradict the protection of the freedom of religion in practice. Nolan and K. v. Russia, Application no. 2512/04, Para. 74; Mannoussakis and Others v. Greece, para 40; Stankov and the United Macedonian Organization Ilinden v. Bulgaria, para 103; Metropolitan Church of Bessarabia and Others v. Moldova;
[5] Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, Para. 29-32; Para. 58; CCPR General Comment No. 22: Article 18; Nolan and K. v. Russia, Application no. 2512/04, Para. 73;
[6] ECHR Article 9, Para. 2; ICCPR Article 18, Para. 3;
[7] Paul M. Taylor, Freedom of Religion, UN and European Human Rights Law and Practice, p. 303;
[8] In its ruling dated as of 26 February 2016, the Constitutional Court directly pointed to the constitutional principle of secularism ensuing from Article 9, which implies the functional separation of the activity of religious institutions from that of state agencies. As per the Court’s assessment, the implementation of the confessional activities of religious organizations shall not be functionally associated with state authority, as such an association will violate the principle of secularism;
[9] Proposed amendment: “Along with the right to freedom of faith and belief, the state recognizes the special role of the Apostolic Autocephalous Orthodox Church of Georgia” (Art. 8.); Current wording: “The state declares full freedom of faith and belief, in addition, it recognizes the special role of the Orthodox Church in the history of Georgia and its independence from the state” (Art. 9).