Georgia’s New Defense Code Is Going to Discriminate Against Minority Religions
Jan-Leonid Bornstein: We have heard from you about a new legislative initiative of the Government of Georgia concerning submitting a draft of the new Defense Code In December 2022. In case of adoption the submitted version of the Draft, the law in force, which exempts (defers) Ministers of any religion from compulsory military service, will be withdrawn. What risks do you see in this new initiative?
Archil Metreveli: To be more precise, this is not even a “risk” but an “evident fact” that will be constituted if this legislative modification is adopted. Namely, initiated regulation will nullify the possibility for Ministers of minority religions, meaning all religions but the Georgian Orthodox Church, to beneficiate from the exemption for compulsory military service.
Jan-Leonid Bornstein: Could you elaborate so our readers can understand the challenges better?
Archil Metreveli: Two norms of the Georgian legislation in force ensure the exemption of Ministers from compulsory military service. First, Article 4 of the Constitutional Agreement between the State of Georgia and the Apostle Autocephalous Orthodox Church of Georgia (exclusively the Ministers of the Orthodox Church of Georgia) and second, Article 30 of the Law of Georgia on Military Duty and Military Service (the Ministers of any religion, including the Orthodox Church of Georgia).
Article 71 of the submitted draft Defense Code, which is an alternative to Article 30 of the above-cited law in force, governing the deferment of conscription into Military Service, no longer includes the so-called Ministerial Exception. Hence, according to the new draft law, no Minister of any religion previously exempted from military service will no longer be able to have the privilege of Ministerial Exception. On the other hand, Article 4 of the Constitutional Agreement of Georgia, which exempts from military service exclusively the Ministers of the Orthodox Church of Georgia, remains in force.
It is significant that according to the Constitution of Georgia (Article 4) and the Law of Georgia on Normative Acts (Article 7) the Constitutional Agreement of Georgia takes hierarchical precedence over the Laws of Georgia and, in case of adoption, also over the Defense Code. Therefore, the Ministerial Exception (which will be withdrawn for the Ministers of all religions) will not by itself annul this privilege for to the Ministers of the Orthodox Church of Georgia as it remains to be granted by a hierarchically higher normative act – the Constitutional Agreement of Georgia.
JLB: I understand. Why do you think this legislation is proposed? How is it justified?
AM: The Explanatory Note of the submitted draft states that this modification intends to eliminate the legislative gap that allows “unscrupulous” and “false” religious organizations to help individuals avoid compulsory military service. The specified purpose corresponds to the practice set by the Church of Biblical Freedom – a religious association established by the political party Girchi. The Church of Biblical Freedom, as an instrument of the political protest of Girchi against compulsory military service, grants the status of “Minister” to those citizens who do not want to perform military duty. The practice of the Church of Biblical Freedom relies precisely on the law on Military Duty and Military Service in force.
JLB: Do you think it will have any further repercussions to the Georgian legislation or legislative practice?
AM: Yes, and it already has. The amendments also have been submitted to the Law on Georgia on Non-military, Alternative Labor Service. In particular, according to the draft amendment the ground for releasing a citizen from compulsory military service and performance of non-military, alternative labor service, along with conscientious objection, will also be the status of a “Minister”. According to the Georgian Authorities, this new “Privilege” will replace the withdrawn Ministerial Exception, as this new legal regulation will apply equally to the Ministers of all religions, including the Orthodox Church of Georgia. However, this interpretation is not honest, as the Constitutional Agreement of Georgia prohibits State from conscripting Orthodox Ministers into compulsory military service, thus, it will not be necessary to extend the “privilege” of non-military, alternative labor service to them. As a result, if the submitted draft is adopted, the Orthodox Ministers will be unconditionally exempted from compulsory military service, while the Ministers of all other religions will be subject to non-military, alternative labor service.
JLB: But is that privilege, meaning full exemption from compulsory military service, a fundamental right?
AM: Our concern relates to the fundamental Right to Equality and Non-Discrimination based on religion. Evidently, the exemption of a Minister from military service (as opposed to an exemption based on conscientious objection) is not a right protected by Freedom of Religion or Belief. This privilege has been granted to them considering the public importance of their status and by the political will of the State.
Nevertheless, the fundamental Right to Equality and Non-Discrimination based on religion implies that, when there is no objective reason for different treatment, the privileges granted by the State should be extended equally to any group or individual regardless of their religious identity or practice. The submitted regulation is obvious and blunt discrimination based on religion, as it doesn’t include any objective and sensible justification for the established different treatment.
JLB: In your opinion, what would be the proper approach of the state regarding this matter?
AM: Finding answers to such questions is not difficult. The modern experience of Freedom of Religion and Democracy clearly determines that the State should not relieve its burden at the expense of the Fundamental Rights and Freedoms of individuals or groups. Thus, if the Court would find that the Church of Biblical Freedom was actually abusing the Freedom of Religion or Belief, the State should eliminate exclusively the practice of destruction and not the Right to Equality and Non-Discrimination based on religion and belief, entirely.
JLB: Thank you
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