Legislative Amendments on the Military Service of Clergy
Assessment by Tolerance and Diversity Institute (TDI)
As part of announced defense reform, the government of Georgia, on 28 December 2022, presented the Parliament of Georgia with a package of draft laws, which also includes a draft law on the Defense Code of Georgia that aims at codifying several currently effective legislative acts and defining legal grounds for organizing the state defense. Furthermore, the package of draft laws contains a number of initiatives to amend various legislative acts, which may directly or indirectly affect the issues regulating the exemption of the clergy from the obligation to undertake a compulsory military service or undertake it in an alternative form.
The submission of the legislative initiative was preceded by a statement made by Prime Minister Irakli Gharibashvili at the government meeting on 12 December 2022, which concerned the plan to adopt the Defense Code that, among other things, would regulate an issue of the use of deferment of military service by the clergy.
As it was revealed from the statement of the Prime Minister, the government discussed this issue in advance with the Patriarchate of the Orthodox Church alone, whereas the information about the initiative was communicated to other religious organizations later, in January 2023.
This preliminary assessment is based on the draft law submitted to the Parliament of Georgia. The analysis of the proposed draft has made it clear that if adopted, it will place the clergy of non-dominant religious associations in an unequal condition as compared to the clergy of the Georgian Orthodox Church, with the latter continuing to enjoy a possibility to evade the compulsory military service owing to the Constitutional Agreement signed between the Georgian state and the Orthodox Church. According to the proposed draft law, the status of “priest” will no longer be considered a ground for the deferment of military service and with the signing of the bill into the law, a rule will come into force that will obligate the clergy of non-dominant religious associations to undertake military service in an alternative, non-military form.
The aim of initiated legislative amendments
According to an explanatory note to the draft law submitted to the Parliament of Georgia, the bill aims to increase the effectiveness of management of defense forces; to eliminate loopholes in the provisions concerning the performance of military service; and to create a codified legal act in the field of defense.
Within the scope of the reform, changes will affect several key issues, including the rule and conditions of compulsory military service to be undertaken by conscripts. According to the explanatory note, “the enactment of the mentioned system will allow to reduce the number of those individuals who are willing to evade the national military service.” It also notes that the adoption of the law will “eliminate a legal loophole and a possibility that enables indecent fictitious religious organizations to assist separate individuals in evading conscription.”
As noted above, the initiative submitted by the government is not limited to the adoption of the Defense Code, but it also proposes amendments to a whole set of legal acts. One of such acts is the Law of Georgia on Non-Military Alternative Labor Service. While cancelling a possibility of the deferment of military service on the ground of a status of “priest,” the government proposes to add the term “clergyman” to the list of those individuals who may use a possibility of performing non-military alternative labor service. Thus, this part of the legislative package is particularly important.
An explanatory note to the draft law on the amendment to the Law of Georgia on Non-Military Alternative Labor Service, submitted to the parliament, says that “In the light of the geopolitical situation and based on the principle of total defense, a new reserve system will be introduced. One of the important factors of this system is to set up a reserve formation comprising of individuals who have undergone military training as well as individuals who have special, non-military skills that will contribute to the improvement of management processes of reserve formation at times of crises.”
According to the law effective at present, persons aged between 18 and 27 are subject to compulsory military service.
Conscription into compulsory military service shall be deferred for a conscript if he “is a priest or studies in a theological school” (article 30 of the Law on Military Duty and Military Service).
However, the clergy of the Orthodox Church enjoys a more privileged law because “clergyman [of Orthodox Church] shall be free from a military duty” (article 4 of the Constitutional Agreement).
Thus, the effective legislation prescribes unequal conditions for the clergy of the Orthodox Church and the clergy of all other religious associations, where, in the former case, clergymen are fully exempted from compulsory military service whereas in the latter case, clergymen may only enjoy the right of deferment. Nevertheless, they are more or less equal in practice as the right of “deferment” as well as the right of “exemption” has a similar effect – any clergy may avoid compulsory military service. This is precisely the reason that the aforementioned legal inequality has not been appealed in the Constitutional Court so far.
What is military duty?
According to the current law, military duty includes: а) military registration; b) preparation for military service; c) military service; d) reserve service (article 1 of the Law on Military Duty and Military Service).
The effective legislation and the case law of the Constitutional Court define a non-military, alternative labor mechanism as one of the ways of performing a military duty in the form of non-military, alternative labor service (Preamble of the Law on Non-Military Alternative Labor Service) and explicitly state that a military duty is not limited to military activities and training for them alone, but it also includes a component of non-military, alternative labor service.
Consequently, when the Constitutional Agreement states that “Clergyman [of Orthodox Church] shall be free from a military duty,” it implies the exemption of clergymen of this religious organization not only from a compulsory military service, but also from a non-military, alternative labor service.
Does this issue affect conscientious objection?
The changes planned by the government of Georgia, which relate to the conscription of clergymen into a military service, are often confused with the issue of conscientious objection to military service.
In accordance with international norms of human rights, the Georgian legislation provides a “conscientious objection” as a ground for the exemption from military service for those individuals who, on the ground of religion, conscience or thought, refuse to perform a military duty in the form of military service. Therefore, the law provides for a possibility to perform a military duty in the form of non-military, alternative labor service.
According to the Law on Non-Military Alternative Labor Service (articles 1, 3, 4), a non-military, alternative labor service constitutes a civil service that can contribute to the public welfare, replacing the military service, and is based on a substantiated refusal to perform a military duty in the form of military service on the ground of conscience, religion and thought.
Any conscientious objector may use the right to perform alternative labor service. This does not necessarily require from a citizen to be a clergyman.
Consequently, conscientious objectors have used the right to perform their military duty in the alternative form, not by “deferment” or “exemption.” Therefore, the planned changes that relate to clergymen have nothing to do with conscientious objection.
Planned legislative amendments
The title: to denote a military duty of citizens, the current law applies the term “compulsory military service.” According to the proposed draft Defense Code, the “compulsory military service” is replaced with a “national military service of conscripts.”
The term “priest:” the current law on military service says that a conscript may defer a military service if he is a “priest” (article 30, subparagraph “k”). This term is no longer seen in the draft law submitted by the Ministry of Defense and it is replaced with the term “clergyman” which, instead of the Defense Code, will appear in the Law on Non-military, Alternative Labor Service.
Annulment of a possibility for a clergyman to defer a military service: while under the current law, a priest (clergyman) of conscription age (18-27) can enjoy the right of deferment of military service, the draft Defense Code does not recognize this ground of deferment, which means that the status of a priest will no longer be considered a ground for the deferment of military service (article 71 of the draft Defense Code).
As regards the timing of the enactment of the abovementioned amendment, it will come into force upon the publication of the Defense Code. In particular, the draft law will enter into force after it has been adopted by the parliament and signed into the law by the president, which is planned to be carried out during the spring session of the current year.
Non-military, alternative labor service: according to the proposed draft law, changes will be made to the Law of Georgia on Non-military, Alternative Labor Service and clergymen will be obligated to undertake a non-military, alternative labor service.
Under the current law, the right to undertake a non-military, alternative labor service is enjoyed by individuals who, on the ground of religion, conscience or thought, refuse to perform a military duty in the form of military service (conscientious objection). This right myn be exercised by any conscientious objector without necessarily being a “clergyman.”
With the proposed amendment, however, the new Defense Code will not provide a clergyman with a possibility of deferment of military service; instead, the Law on Non-military, Alternative Labor Service will be amended to add the category of “clergyman” to the relevant provision.
Consequently, while, so far, the clergy have been fully exempted from a military duty (by means of deferment), the new amendment will obligate them to perform the military duty in the form of alternative labor service.
Non-military, alternative labor service may be performed by conscientious objectors as well as clergymen (article 4 of the new draft of the Law on Non-military, Alternative Labor Service).
Exemption of conscripts from a military service: according to the draft Defense Code, persons who have performed non-military, alternative labor service will be released from conscription (subparagraph “e” of paragraph 1 of article 70 of the draft Defense Code). Moreover, persons performing non-military, alternative labor service are not subject to military registration (subparagraph “c” of paragraph 2 of article 61 of the draft Defense Code).
Forms of alternative service undertaken by clergymen
According to the current Law on Non-military, Alternative Labor Service (article 5), citizens undertake non-military, alternative labor service in the following non-military labor formations, groups or individually:
- Formations of Emergency Management Service of the Ministry of Internal Affairs, ecological or other special non-military labor formations;
- Civil purpose building, repairing organizations and facilities;
- Organizations and facilities producing agricultural products;
- Health care institutions;
- Besides, employment of the Georgian citizens for the purposes of maintaining socially vulnerable people (elderly, people with disabilities, etc.), constitutes non-military, alternative labor service;
- Citizens may undertake non-military, alternative labor service by performing relevant civic duties in construction, economic and other subunits of military forces of Georgia;
- The law also permits citizens to perform non-military, alternative labor service in other offices and non-military labor formations which are included in the list approved by the government of Georgia.
Apart from the forms and locations of undertaking alternative labor service specified in the law, the government ordinance determines an additional list which includes “building, repairing and agricultural works carried out by religious organizations legally operating in Georgia.”
It is worth to note that the draft law submitted to the Parliament of Georgia does not envisage any amendment to article 5. Consequently, after the enactment of the legislative changes, the rule of organizing the performance of alternative labor service will remain unaltered. Besides, the law maintains a possibility for the government of Georgia to expand, through issuing an ordinance, the list of forms and locations for undertaking an alternative labor service.
Duration of non-military, alternative labor service
Under the current law, the term of compulsory military service is 12 months whereas that of non-military, alternative labor service is 18 months. According to the draft Defense Code, beginning from 1 January 2025, the term of national military service for conscripts will be six, eight and eleven months. Consequently, the term of non-military, alternative labor service will change too. In particular, the draft law sets a 12-month term for non-military, alternative labor service (paragraph 1 of article 6 of the draft law). Consequently, clergymen will have to perform alternative labor service for 18 months before 1 January 2025, and for 12 months after 1 January 2025.
Do planned amendments affect the clergy of Georgian Orthodox Church?
Legislative amendments planned by the government of Georgia envisage the annulment of the right to the deferment of military service for the clergy and replacement of this right with a possibility to perform non-military, alternative labor service. These changes will be introduced to the initiated Defense Code, not the current Law on Non-military, Alternative Labor Service.
The most important question from the perspective of prohibition of discrimination against religious associations, that arises within the scope of the proposed reform is whether the proposed amendment equally affects all religious associations, including the Georgian Orthodox Church.
As noted above, the Constitutional Agreement between the state and the Orthodox Church exempts the clergy of Orthodox Church from a military duty. “Non-military, alternative labor service,” in its literal sense, may leave an impression that it is a separate mechanism, independent of “military duty.” However, a systemic analysis of the current legislative framework and proposed amendments leads to an opposite conclusion.
In particular, the preamble of the abovementioned law states that “this law regulates legal relations concerning the performance of military duty in the form of non-military, alternative labor service by citizens of Georgia.” Thus, alternative labor service is viewed not as a counterpoise to military duty but one of the forms of performing that duty. It should be noted that the initiated draft law does not envisage amending the preamble of this law. Hence, it remains in force, which means that non-military, alternative labor service continues to be considered a form of performing a military duty.
Moreover, the initiative proposed by the government does not envisage any amendment to the Constitutional Agreement. The Constitutional Agreement, however, is the legislative act of higher order as compared to organic and other Georgian laws.
Following from all the above said, the phrase “military duty” used in article 4 of the Constitutional Agreement implies both the national military service and the non-military, alternative labor service of conscripts. Consequently, in contrast to all other religious associations, the clergymen of Orthodox Church will continue to enjoy the exemption from the duty of undertaking national military service under the Defense Code as well as from the duty of undertaking an alternative service under the Law on Non-military, Alternative Labor Service.
Involvement of stakeholders in the process of drafting amendments
The explanatory note to the draft law submitted by the government to the parliament reads that along with local or international subjects, the drafting process and discussion of the bill involved “nongovernmental organizations” and “almost all religious associations existing in Georgia.” However, the information provided in the explanatory note is wide of the mark as the process of drafting the law did not involve a large number of nongovernmental organizations working on this topic and religious associations. A proof of this is a statement made by the Prime Minister on 12 December 2022, which reveals that the government discussed this issue in advance only with the Patriarchate of the Orthodox Church, while according to information released by media and the Defense Ministry, other religious associations were notified about this initiative later, after the draft law was submitted to the parliament, in January 2023.
Assessment of proposed legislative amendments
Considering the above discussed factors, this type of amendments to the legislation will be a cause of new discrimination. Although under the legislation effective so far, a full exemption from the military service has applied to the clergy of Orthodox Church alone whereas the clergy of all other religious associations have been granted the right to deferment, the result, in practice, has been the same – all the clergy have enjoyed the right to avoid a compulsory military service.
With the new legislation, however, the reality will change and the clergy of Orthodox Church will be put in a privileged condition both in terms of legislation and practice. In particular, based on the Constitutional Agreement, Orthodox clergy will remain fully free from a military duty (both military service and alternative labor service) whereas all other clergy will have to perform a military duty in the form of non-military, alternative labor service.
For the government to avoid the adoption of yet another discriminatory law which will create additional inequality between the Orthodox Church and all the other religious associations, it is necessary to discuss the issue with the involvement of all stakeholders.
We call on the initiators of the draft law and the Parliament of Georgia to reject the amendments in the current form, to continue considering other legal ways that will not be discriminatory and will not infringe the fundamental right to freedom of religion and belief as well as the autonomy of religious associations.
 Government of Georgia sitting of 12 December 2022, 15:20-24:20, see: https://www.facebook.com/watch/live/?ref=watch_permalink&v=44542258761358
 Explanatory note to the Draft Law of Georgia on the Defense Code. See: https://info.parliament.ge/file/1/BillReviewContent/319224
 Explanatory note to the draft law of Georgia on the Amendments to the Law of Georgia on Non-military, Alternative Labor Service. See, https://info.parliament.ge/file/1/BillReviewContent/319228
 Explanatory note to the draft law of Georgia on the Amendments to the Law of Georgia on Non-military, Alternative Labor Service. Pg.2, see, https://info.parliament.ge/file/1/BillReviewContent/319228
 Decision №1/1/477 of the Constitutional Court of Georgia of 22 December 2011 on the case “Public Defender of Georgia vs Parliament of Georgia,” Par. II.34.
 Ibid., Par. II.56
 The bulk of articles of the Defense Code will be enacted upon its publication. The list of norms provided in article 184 of the Defense Code (stipulating exceptions from this general rule) does not include article 71 of the Code (which regulates the issues of deferment of compulsory military service). Therefore, the rule that cancels the status of a “priest” as a ground for the deferment of conscription, will be enacted upon the publication of the Code.
 According to the proposed draft law, article 4 of the law will have the following wording: “Conscription into non-military, alternative labor service during a peaceful time shall apply to: a) citizens who have to perform a military duty in accordance with the Georgian legislation, but refuse to undertake military service on the ground of conscience, religion or thought; b) clergymen.”
 Government of Georgia ordinance №391 of 30 December 2013, on the “Approval of regulation on the performance of non-military, alternative labor service, regulation of a state commission for conscription of citizens into non-military, alternative labor service, and an additional list of services and non-military labor formations for citizens to undertake non-military, alternative labor service.”
 Explanatory note to the Draft Law of Georgia on the Defense Code, pg. 19. See: https://info.parliament.ge/file/1/BillReviewContent/319224
 Government of Georgia sitting of 12 December 2022, 15:20-24:20, see: https://www.facebook.com/watch/live/?ref=watch_permalink&v=44542258761358 – “This harmful, anti-national, anti-statehood program invented by Girchi, which, actually, confused the youth and offered an alternative service. We understand full well that it was a fictitious religious service, which was the biggest blasphemy and let me be straightforward, despicable undertaking. We cannot turn a blind eye to that. It is our duty to set this issue to rights and we have put it to rights…. This loophole will be closed and a possibility will be eliminated for that indecent, fictitious religious organization. We have discussed this issue with our Patriarchate too; by drafting a relevant provision, this issue will be settled once and for all.”