Another bill with the meaning "anti"

On May 13, 2021, on the initiative of the Cabinet of Ministers, bill 5488 "On Amendments to the Code of Ukraine on Administrative Offences and the Criminal Code of Ukraine regarding the fight against manifestations of discrimination" was submitted to the Verkhovna Rada. It proposes to introduce liability for manifestations of "intolerance" towards the LGBT community and discrimination against political or religious beliefs.

It should be noted that this bill is not clearly directed against the UOC, as, for example, bills 5258 and 5259, which in fact equated the concept of "Orthodoxy" with the concept of "Russian world" and suggests imprisonment for ten years for its propaganda. Bill 5488 is a double-edged weapon, it can be directed both against the UOC and the OCU or another religious organization. This will depend on who the authorities favour at the moment. Let's say more – if adopted and if the authorities pursue a policy of equality of all religious organizations before the law and the state (an incredible thing given the current realities), bill 5488 may even contribute to stopping the seizures of UOC churches, harassing the canonical Church in the media and other illegal actions against it. So why is this bill "anti" by its meaning?

On the legal regulation of public relations

A rule of law is a rule of conduct that is established by the state, is formulated in regulatory enactments and must be followed. At the same time, this rule should be worded in such a way as to prevent wide interpretation and the possibility of abuse of this rule. In other words, the rule should be clear, definite and unambiguous. In addition to the norms of law, there are other regulators of social relations: moral norms, traditions, customs, etc. They can be broadly interpreted or understood differently by various social groups. For example, a wedding can be held with a mass of rituals and customs and accompanied by a crowded and multi-day feast, or it can simply be an act of registration. The rule of law does not allow this, because behind the rule of law is the state with all its power apparatus, which, with the help of this apparatus, forces people to comply with this norm even if they do not want to. We repeat, the rule of law should be clear, all people should understand what this rule requires of them, and how they should behave.

If the rule of law is vague, allows for a different interpretation, if it is not clear what is a violation of it and what is not, then this all leads not to the ordering of public relations but to their greater confusion, corruption, abuse, as well as the emergence of an opportunity to use this norm for pressure or reprisals against political, ideological or other opponents.

What is the essence of bill 5488

The draft law envisages the introduction of amendments and additions to the Law of Ukraine "On the Basics of Preventing and Countering Discrimination in Ukraine", to the Criminal Code and to the Code of Administrative Offenсes. Key points of the bill are as follows:

• a definition of the concept "intolerance" is introduced;
• administrative or criminal liability for offenсes related to intolerance and discrimination is introduced;
• the powers of the Human Rights Commissioner of the Verkhovna Rada of Ukraine are increased.

What is meant by the term "intolerance"

Bill 5488 reads:

“Intolerance should be understood as an open, biased, negative attitude towards persons on such grounds as race, skin color, political, religious or other beliefs, gender, age, disability, ethnic or social origin, citizenship, family or property status, sexual orientation, gender identity, place of residence, language, or other grounds”.

And now we give some quotes from the Bible and the Holy Fathers, which exactly fit this definition.

“A woman must not wear men’s clothing, nor a man wear women’s clothing, for the Lord your God detests anyone who does this” (Deut. 22: 5). It's about transgender people.

“If a man has sexual relations with a man as one does with a woman, both of them have done what is detestable. They are to be put to death; their blood will be on their own heads” (Lev. 20:13). It's about LGBT people.

“Even their women exchanged natural sexual relations for unnatural ones. In the same way, the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men and received in themselves the due penalty for their error. <...> they know God’s righteous decree that those who do such things deserve death..."(Rom. 1: 26-32). And this is also about LGBT people.

“The Holy Scriptures and the teachings of the Church unequivocally condemn homosexual intercourse, seeing in them a vicious distortion of the God-given nature of man” (Fundamentals of the Social Concept of the Russian Orthodox Church).

"Warn a divisive person once, and then warn them a second time. After that, have nothing to do with them" (Tit. 3: 10,11).

“If someone corrupts the faith of God with an evil teaching, for which Jesus Christ was crucified <...> such a person as bad will go into an inextinguishable fire, as will the one who listens to him” (schmch. Ignatius Theophorus).

As you can see, all these quotes from the Holy Scriptures and the works of the Holy Fathers clearly violate the norms of the bill as they declare "intolerance" and a negative attitude towards persons guilty of committing sinful deeds.

What will be punishable

In many articles of the Criminal Code, bill 5488 proposes to replace the words “on the grounds of racial, national or religious intolerance” for “on the grounds of intolerance” with reference to the definition of intolerance mentioned above. As you can see, the proposed definition of "intolerance" is much broader than the one already existing in the legislation. Particular attention should be paid to such signs of intolerance as “sexual orientation, gender identity”. In this regard, bill 5488 is intended to make people have a positive attitude towards these vices because otherwise it will be called "intolerance" with all the ensuing consequences.

The most controversial innovation proposed by bill 5488 is an amendment to Article 161 of the Criminal Code, the maximum punishment for which involves imprisonment of up to eight years.

The most controversial innovation proposed by bill 5488 is an amendment to Article 161 of the Criminal Code, the maximum punishment for which involves the imprisonment of up to eight years. If earlier this article was called: “Violation of the equality of citizens regardless of their race, nationality, religious beliefs, disability or other grounds”, now it is proposed to rename it “Incitement to hostility and hatred based on intolerance”. That is, if earlier punishable actions were supposed to lead to the violation of someone's rights, the principle of equality, now these are just actions that someone (the authorities) may see as “incitement”. The text of this article is proposed to be worded in the following way: "Public calls for violence on the ground of intolerance, as well as other deliberate actions aimed at inciting enmity and hatred on the ground of intolerance."

Yes, calling for violence for any reason is not good but what is behind the words “other deliberate actions aimed at inciting enmity and hatred on the ground of intolerance”? If we protest against the introduction of gender ideology at our schools, if we oppose gay pride parades in our cities, if we declare that schismatics do not belong to the Church of Christ, all of this falls within the scope of this article and can be punished by criminal law. 

Bill 5488 proposes to include a completely new article 188-56 entitled "Violations of legislation in the field of preventing and combating discrimination" in the Code of Administrative Offences. Its text reads: “Direct or indirect restriction of the rights or establishment of direct or indirect privileges of citizens on the ground of race, color, political, religious and other beliefs, gender, age, disability, ethical and social origin, citizenship, family or property status, sexual orientation, gender identity, place of residence, language or other grounds”.

If we protest against the introduction of gender ideology at schools, if we oppose gay pride parades in our cities, if we declare that schismatics do not belong to the Church of Christ, all of this falls within the scope of this article and can be punished by criminal law.

If an employer refuses to hire a sodomite or a transgender person, this is a direct restriction of rights, but there is also an “indirect” one, under which you can, if you wish, bring anything.

What is meant by the establishment of "direct or indirect privileges"? From the point of view of legislation, Holy Communion may well be regarded as a privilege since it is given only to the faithful children of the Church and is conditioned by the whole complex of preparation of the believer to receive this Sacrament. And from the text of Article 188-56, it follows that any sexual pervert, not to mention the Gentiles, can complain that he is not given the Communion on the basis of “religious and other beliefs <...> sexual orientation, gender identity”.

What can this law mean for the UOC?

On the one hand, the canonical Church must receive legislative protection. After all, how many times have we heard completely absurd accusations and insults from radicals, “patriotic” media and schismatics of spreading the “Russian world”, working for Moscow, the KGB, the FSB and Putin personally? It сomes to the point of ridicule when, in remote villages of Western Ukraine, supporters of the OCU call their neighbours from the UOC “Muscovites” and “agents of the Kremlin”. But let's be honest – are there any chances that someone will be punished for this? No, given the current political course, this seems almost unbelievable.

On the other hand, the bill if adopted can cause serious problems for the UOC from different sides.

• As mentioned, the Church can be under serious pressure from LGBT people. Any criticism of representatives of gender or homosexuals can be considered as "intolerance" and punished by law. That is a priest who has publicly declared that sodomy is a sin can easily go to jail. It seems unbelievable to us now, but it is quite common in the West. And there is no doubt that Ukraine is moving in the same direction.
• Relations with schismatics and Uniates. From time to time, scandals arise in the media space when the UOC refuses to hold a funeral service or give communion to schismatics and Uniates. For example, the case in Zaporizhzhia when a UOC priest refused to read a funeral service over a child “baptized” in the Kyiv Patriarchate. Conflicts regularly arise when non-church parents try to commune their unbaptized children in the churches of the UOC and, after refusal, express their dissatisfaction. If bill 5488 is adopted, the UOC will be completely defenseless against any provocations on this ground. It is enough for a schismatic or a Uniate to come with a camera to any church of the UOC, ask for communion, record a refusal and go to court.

Paradoxes of legislation

It sounds ridiculous, but bill 5488 denounces the Ukrainian state for engaging in discrimination and intolerance. Indeed, the state is engaged in the fact that "directly or indirectly" restricts rights and establishes "direct or indirect privileges" on the ground of language. Only Ukrainian-speaking citizens of our country can watch films and listen to radio broadcasts, study at schools and universities in their native language. All other citizens are deprived of this.

And the definition of “intolerance” covers a great many political and public figures, government officials, bloggers and TV presenters who “openly, biased and negatively” refer to the Ukrainian Orthodox Church, its hierarchy and parishioners, and express this opinion publicly. And there are those who publicly call for “intolerance-motivated violence”. For example, not so long ago, the former deputy chief of the SBU, Lieutenant General Alexander Skipalsky, said on the Espresso TV channel: “We must cleanse all Moscow monasteries (monasteries of the UOC – Ed.), from where information about the stay of people with behaviour and psychology of Russian saboteurs is received daily. A lot of work".

Only such “intolerant” ones are not punished in our country, because intolerance towards the UOC is not punishable at all, but, on the contrary, is even a welcome act. Therefore, at the beginning of the article, it was said that the bill can be applied against the enemies of the UOC, but is that really what our Ukrainian authorities are now inclined to do?

Outcomes

Firstly, draft law 5488 contains definitions and wordings that allow them to be interpreted in a very wide sense, proceeding from the arbitrariness of the authorities or rather from those political priorities facing the authorities. As the proverb says: "One law for the rich and another for the poor."

Secondly, the bill is clearly aimed at promoting gender ideology and sodomy in Ukrainian society since the authorities can hardly be suspected of wanting to eradicate "intolerance" in relation to language, religion, race, etc. In this respect, it corresponds with such a document as the Biarritz Partnership. The "Partnership" promotes anti-Christian moments in our schools and society as a whole, and bill 5488 threatens criminal and administrative responsibility for anyone who does not agree with it.

Thirdly, the bill essentially declares active protection of traditional values, Christian morality, and the purity of the Orthodox faith punishable.

Unfortunately, bill 5488 has a great chance of being adopted since it was introduced to the Verkhovna Rada not by individual deputies, but by the Cabinet of Ministers, which in turn developed this bill on the basis of the Action Plan for the implementation of the National Human Rights Strategy and the Action Plan for the implementation of the Association Agreement between Ukraine and the European Union.