The 1921 Constitution VS The 1978 Constitution - Vol 4 - Religion and Belief

This article could not possibly have a better introduction than the words of Noe Zhordania from his letter ("Noe Zhordania: The National Question Among Us"): "As long as the religious question was tied to other questions, as long as the state recognized it as its own question, protecting one and persecuting another, there was constant struggle and enmity on this ground. Only where religion was separated from the state and declared the private affair of believers did this struggle cease, and in its place began religious propaganda—without police, without weapons, through free speech.";

Of course, the theory and philosophy of the Social Democrats had—and still have—a tremendous influence on the 1921 Constitution. This philosophy finds its development in issues such as "religion" or what can be considered a religion, which religion can be considered a religion and which cannot, how many believers must exist for a religion to be considered a religion, etc. The most important aspect of these issues, however, remains the attitude of our first 1921 Constitution toward religion;

Article 31 of the 1921 Constitution divided the issue of religion into several parts. The first part concerned freedom of conscience.
"Every citizen enjoys full freedom of conscience." Freedom of conscience is an interesting issue: why was it placed before the issue of religion/belief? However, if we resort to modern interpretations, conscience is more akin to the freedom of personal choice and is the right to the right to choose. The Convention for the Protection of Human Rights and Fundamental Freedoms and subsequent case law indicate the following: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance." Article 18 of the UN International Covenant on Civil and Political Rights repeats the same: "Everyone shall have the right to freedom of thought, conscience and religion." On the one hand, freedom of conscience allows a person to choose their worldview regarding religion; on the other hand, it is the choice to profess any religion and/or reject it.

The modern Constitutional Court of Georgia also discusses this in the following manner: "The complex nature of freedom of belief and its multifaceted, indefinite content should not turn into an insurmountable obstacle to its proportional restriction in order to protect the relevant public interests. That is, such a nature of the right should not become a basis for the abuse of this right; people should not become their own legislators, they should not solely decide what corresponds to their conscience and belief, and obey only those laws which, in their opinion, are proper.";

Conscience is an attribute essential to the individuality of an individual, which accompanies them. Individuality should not create a foundation where, based on this worldview, one demands that not only their environment but the environment of all other persons be arranged in the same way, crossing the line where the individual's individuality becomes an encroachment on the environment of another individual! Because a right that exists for an individual means that they are also endowed with responsibilities and obligations. If only a right exists, then responsibility will not exist; and a right existing without responsibility, gutted of the obligation of "respect for the rights of others," leads to subjugation, which strips "the individual of their individuality.";

The subsequent part of the 1921 Constitution concerning religion reads: "The persecution of a citizen and the restriction of their political or civil rights on account of religion or belief is prohibited." This is such a simple hypothesis that I believe it requires no further explanation.It is interesting that the 1921 Constitution further continues as follows: "Everyone may profess the religion of their choice, change their religion, or belong to no cult whatsoever." The 1921 Constitution recognized absolute freedom in the matter of religion, including allowing that an individual might wish to change their religion, or that a person has the right to be an atheist and/or agnostic, where it is completely irrelevant to the person whether "something" exists or not. This is a natural human right! The 1921 Constitution protected this as well. Modern law goes further and indicates that "the negative aspect of freedom to manifest one's religion or beliefs implies also that an individual cannot be compelled to reveal his religion or beliefs; nor can he be compelled to act in such a way as to allow conclusions to be drawn as to whether he holds such beliefs or not. The State is precluded from interfering with an individual's freedom of conscience by inquiring about his religious beliefs or compelling him to manifest them" (ECHR: Alexandridis v. Greece, § 38; Dimitras and Others v. Greece, § 78);

Article 31 of the 1921 Constitution additionally specifies that "No one may refuse to fulfill civic and political duties under the pretext of religion and belief, except in cases defined by a separate law." The "defined by a separate law" implies the following example: when a religion forbids a person from going to war or taking up arms, and the person refuses mandatory military service due to their beliefs (conscientious objection). Yes, in such cases, an exception must exist. However, fulfilling civic duties means that a person does not have, and should not have, the right to demand that the established order be tailored to them, because "this should not be an expression of their exclusivity." As you notice in this article, as in everything else, the law does not view religion as an absolute concept, and wherever freedom exists, responsibility inevitably exists as well. The duty with which an individual is burdened is just as important for the law as granting a right to the individual. "People should not become their own legislators," because in such a case, there is no agreement on the rules of common life, and a lack of agreement inevitably causes confrontation in society. The next part of Article 31 of the 1921 Constitution states: "Acts of a religious nature have no influence whatsoever on civic rights and status." This was a norm directed more at the state than at the individual. That is, whether a person is baptized or unbaptized should bear no consequences for the state, and this is exactly how it should be. In a state governed by the rule of law, the person and their choice regarding faith are valued, not the "choice" itself! It should be considered that 1921 is merely 3 years after the fall of an empire, an empire that stood on force and religion, and putting religion in the service of the state caused the violence perpetrated by the Russian Empire. The 1921 Constitution rather sets a rule for itself that "no religious act of any kind affects rights." For a proper understanding of the issue, it is necessary to explain that when the state does not grant superiority to any religion, it thereby allows the dominant religion to develop within the state on its own. In such a case, this religion becomes self-sufficient; it possesses its own property and its own congregation, it has its own income and its own development plan—meaning it "expects" nothing from the state.;

If a religious group does not expect, nor rely on, "funding and/or various privileges from the state," what becomes important to it is not "who governs the state," but rather "by what values the state is governed." Accordingly, the separation of state and religion must be the goal of this religion itself, when it is not governed by the state, but as a group within society expresses its position, regardless of whether it is liked or not! Most importantly, it relies, of course, on "universal human ideals"—ideals such as: torture is impermissible; violence is impermissible; the occupation of another's country is evil; and the protection of human rights is an obligation of the state. Included in the moral aspect of the religious group is also the obligation to "protect the faith of the other, the different, including their lack of faith, if they are persecuted by the state because of this faith"! All these thoughts, in a brief form, were undoubtedly embedded in the 1921 Constitution because "the Court has made it clear that freedom of thought, conscience and religion is also a precious asset for atheists, agnostics, sceptics and the unconcerned" (European Court: Kokkinakis v. Greece, § 31).Article 141 of the 1921 Constitution indicated that "The State and the Church are separated and independent." It should be explained that this progressive secular idea was not a novelty for European constitutions in 1921, however, it was a novelty for Georgian law. Separation implies the independence of one from the other and vice versa, because if any of them subordinates to the other, dictatorship begins, which could even take the form of state atheism. Such is the nature of faith: when it does not become a subject of the individual environment and private space, it inevitably forms as a public subject about which everyone must think in the same way, and subsequently, the state differentiates individuals based on their religious affiliation.;

The modern Constitutional Court of Georgia also indicates that "the purpose of recognizing the special role of the Church in the history of Georgia is not to consolidate the religious privileges of Orthodoxy, and granting certain rights to the Church does not imply preventing other religious organizations from enjoying the same rights." Additionally, "any religious organization in Georgia has an equal right to the Georgian Church to use its own symbolism, terminology, and liturgical production without any permission" (Ruling of the Constitutional Court of Georgia of November 22, 2002, N2/18/206 in the case "Citizen Zurab Aroshvili vs. the Parliament of Georgia"). The Constitutional Court additionally indicates/develops a very important thought regarding what the recognition of the special role of the Church means. "One of the expressions of recognizing the special role of the Orthodox Church is its independence from the state." The independence of the Church is more important for its own existence than increasing its dependence, because "the independence of a religious organization is an inseparable part of freedom of religion and is vital for the existence of the idea of a democratic state." Article 143 of 1921 indicated that "No religion holds superiority." Granting superiority from the state is a privilege, and a privilege inevitably generates obligations towards the grantor of the privilege. The state established this for itself in relation to its citizens, and among them, it established a sort of agreement that, for example, among the Orthodox, Catholics, Protestants, and Muslims living in Georgia in 1921, no one is superior—neither towards each other nor for the state. The goal was by no means to diminish the authority of the Georgian Church; on the contrary, precisely because of its immense contribution, it was independent of the state as a self-sufficient entity.;

Article 144 of 1921 further indicated that "Expenditure from the state treasury and from the funds of local self-governments for the needs of religious affairs is prohibited." This provision alone shows how important independence and self-sufficiency were for the 1921 Constitution. This constitutional provision resonates with the decision of the Constitutional Court of Georgia, which states that "the purpose of recognizing the special role of the Church in the history of Georgia is not to portray the superiority of Orthodoxy as a religious faith compared to other religions. Granting a certain right to the Church does not imply hindering the use of the same right by other religious organizations." Furthermore, "the recognition of the special role of the Church is linked to its historical merit and does not serve to create a privileged legal status for the Orthodox Christian religion in the present. The historical merit rendered cannot be considered as a source of legitimacy for a privilege" (The decision of the Constitutional Court of Georgia, which found unconstitutional, in relation to Article 14 of the Constitution of Georgia, the normative content of the words "Georgian Apostolic Autocephalous Orthodox" in paragraph 1 of Article 63 of the Law of Georgia "On State Property," which envisaged the possibility of transferring state property into ownership free of charge exclusively to the Georgian Apostolic Autocephalous Orthodox Church). It can be said that a kind of restoration of the rule established by the 1921 Constitution occurred with this decision. Furthermore, it is noteworthy that the law does not try to destroy anyone's place in the past; however, in the present, "the independence of the Church is more important than its privilege.";

As for the 1978 Constitution of the Georgian SSR, its Article 50 indicated that "Citizens of the Georgian SSR are guaranteed freedom of conscience, that is, the right to profess any religion or to profess not to belong to any religion, to perform religious cults, or to conduct atheist propaganda. Incitement of hostility and hatred in connection with religious beliefs is prohibited. The Church in the Georgian SSR is separated from the state, and the school from the Church." Despite this provision, it is very difficult to find, for example, the Soviet court interpreting the right of conscience on as grand a scale as the 1921 Constitution. While the 1921 Constitution said "Every citizen enjoys full freedom of conscience," the 1978 Constitution equated conscience solely with the result of the choice—"that is, the right to profess any religion." The right of choice itself, which is what conscience means, was ignored. The attitude of the authorities of that time toward religion is universally known; it was used as a constitutional norm that "a person may conduct atheist propaganda," when this cannot be an independent article because atheism is not a religion, nor can it be one. Propagandizing a choice means that some have the right to practice a religious cult but do not have the right to propaganda, whereas only "atheism" has the right to propaganda. Consequently, even here, the Soviet Union implemented a differentiation of the right to conscience;

Conscience is an internal state; its external manifestation is only a result. The 1978 Constitution considers the result more important than the choice, because choice is unacceptable for the 1978 Constitution. It is necessary to point out that until 1978, such a provision is not found in any Soviet constitution after Georgia was annexed. The right specified in the 1921 Constitution was broader; it was written into the 1978 Constitution 57 years late and in a truncated form. The 1921 Constitution, in its legal content, is further ahead even today than the 1978 Constitution was. Only on October 1, 1990, would the Supreme Soviet of the USSR pass the law "On Freedom of Conscience and Religious Organizations," which granted legal status to churches. For example, to show how unacceptable any belief other than communism was to the communists, it is enough to note that "in the early 80s, the Georgian Church had only 45 functioning churches.";

Even in the context of constitutions, the 1978 Soviet Constitution gave the individual no right to hold any kind of belief; on the contrary, the 1978 Constitution recognized atheism as a belief and allowed its propaganda, whereas the 1921 Constitution preached equality for all, which was not even reflected in the 1978 Constitution. It suffices to say that the 1978 Constitution does not even contain an article similar to the one in the 1921 Constitution: "The persecution of a citizen and the restriction of their political or civil rights on account of religion or belief is prohibited.";