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Balancing the conflict between the rights to health and religion in Georgia

Article by Mariam Uberi

April 7, 2020

Balancing the conflict between the rights to health and religion in Georgia

Health is a public good and a fundamental requirement necessary to enjoy a number of other rights including right to freedom of religion. The right to health has been codified in many international human rights treaties[1]. It encompasses the ‘the right to highest attainable standard of health’ and implies a clear set of legal obligations on states to ensure appropriate conditions for the enjoyment of health, including access to health-related education and information.[2]International law allows the right to manifest one’s religion to be restricted to further common goals, including public health. In fact, when faced with a choice between a policy grounded in religion and the one on health intervention, basing policy on science to promote health is consistent with international law.[3] It is also believed that the right to religion that undermines positive public health outcomes can negatively affect other rights guaranteed under the human rights conventions.

 

A Presidential Decree ‘should not be understood ‘verbatim’

Amidst efforts to protect ‘public health and reduce the looming threat’ related to the virus Covid- 19,  on 21 March the Georgian President declared a nationwide emergency limiting the right to freedom of association. Prior to its enforcement, the Prime Minister commented that the ban on public gatherings of ten people would be enforced universally and would include the churchgoers. Alarmed by the limitation, the Georgian Orthodox Church (GOC) sought for explanations and called the PM.  The Press secretary for the Patriarchate later suggested that ten people should not be taken ‘verbatim’ and the Presidential Decree did not contain numbers as such.[4] The number of worshipers allowed into a Church rather would depend on its size – with the essential criteria being to keep the required distance from others as per State recommendation. The Speaker of the Parliament also confirmed that the Decree did not limit the right to religious services and participating in religious rites was an inalienable right of the faithful.[5]

 

On 23 March however, Government Ordinance spelled out that in fact the Presidential Decree was limiting freedom of assembly to ten people ‘both indoors and in any place outdoors.[6] In a bid to respond to an increasing public criticism, the Patriarchate showed its bewilderment at how government pressurised church goers to attend less frequently due to the virus. It said that the thousand year old tradition of a holy sacrament was being attacked by those who lack faith, concluding that those ‘who refuse communion from the same cup is refusing the Savior.[7]The church did tell worshippers not to spend long periods of time in churches, keep a two meter distance from each other and not to come if they were ill but rejected calls to abandon the reusing and sharing of sacramental spoons, claiming that it is not possible to get infected during the holy communion. On 30 March the Georgian government declared a curfew and further limited the maximum size of a group of people able to meet in public to three[8]. On 1 April the Patriarchate issued seven rules detailing how to behave while in a church. Nevertheless, the number of parishioners who attended the Sunday liturgy at each church was far more than three[9].  It is important to mention that other religious denominations have suspended their religious services in Georgia to avoid public health risk. Some healthcare professionals who were put in charge of the briefing on patients’ conditions admitted that as a member of the orthodox church parish, they will attend a liturgy for Easter night and do as was the Patriarch’s blessing.[10]Other health professionals emphasised that religious rituals can pose a risk of virus transmission and deterred churchgoers from attending the liturgies. The GOC’s insistence not to alter the rules of the holy sacrament was widely seen as undermining the government’s efforts to contain the highly-contagious coronavirus.

 

The Church’s position versus the right to religious worship

Georgia is a secular country. State and the GOC  separation is guaranteed by a constitutional agreement according to which the GOC is a legal  entity under public law and is governed by its canonical laws, Georgian national laws and the Constitution[11]. The Georgian Constitution makes clear that domestic normative acts should comply with international treaties and the norms of international law (Article 4) and that the constitutional agreement with the GOC must be in full compliance with universally recognised principles and norms of international law in the area of human rights and freedoms (Article 8).’[13] Hierarchically speaking the Constitution ranks higher over the Presidential Decree where religious freedoms can be restricted based on health.[14]On another note, the Governmental Ordinance limits the number of people to three notwithstanding the location, and strictly speaking is directly applicable to the number of people inside the Church too.

 

The right to religion has been defined as protection of ‘freedom of thought, conscience and religion’ as it encompasses the adoption of a religion or belief as well as the public and private practice of the religion. This right distinguishes between two aspects of religious freedoms where the internal dimension of the right to freedom of religion, also called the forum internum, is inviolable in the sense that it cannot be subject to limitations. However, as freedom to manifest one’s religion can interfere with the rights of others or pose a danger to society, it can be restricted based on health, providing the respect of legal prescription, pursuance of a legitimate aim and necessity in a democratic society.[15] That said, the external dimension of the freedom of religion is not absolute[16].

 

Article 18 of the International Covenant on Civil and Political Rights (ICCPR) says that right to manifest one’s religions must be established by law i.e. that prevents discrimination against minority religions and safeguards democratic process. It should be directly related and proportional to the goal of public health and States can only restrict manifestation of religion when it is custom made to the end goal. Finally, public health cannot be used in a discriminatory way.[17] By using these guidelines States should constrain the impact of religion on public health policy where necessary.

 

The GOC however has long been an institution that enjoyed unfettered trust from the public and has received financial privileges, donations and great support from every Georgian government. Since the GOC holds an important role in national discourse, few elected public officials can contravene to its indications. The religion and the GOC became bearers of significant symbolic capital, led by the revered Georgian Patriarch Ilia II and its clergy. During their 2003 visit the UN Special Rapporteur on freedom of religion or belief recognised the special power of the Church and rightly observed that politicians tend to use Orthodox religion as a form of tool and few had taken an overtly critical attitude towards the Orthodox Church. On the other hand, it was also highlighted that Orthodox Church appeared to make regular use of its unchallenged influence and had bent government policy in certain directions.[18]

 

Applying international human rights standards to the right to health

Under International law, public health is recognised as an allowable basis to limit the right to religion. The Right to the highest attainable standard of health requires governments to create and maintain conditions that are conducive to the achievement of good health. The state obligation under this right is threefold: obligations to respect, protect and fulfil. The latter contains obligations to adopt appropriate legislative, administrative [..] and other measures towards the full realisation of the right to health.[19]

 

Government officials in charge of health policy are faced to make a difficult decision when the religious practices conflict with public health concerns.[20]This involves protecting the right to health by constraining religious practices and taking positive measures that enable communities to enjoy the right to health. In fact, use of the common spoon during the pandemic when the spread of the virus occurs person to person requires State intervention. By basing health policy on science, the government fulfills its obligation before the right to health without violating the right to religion.[21]

 

A number of human rights documents, including the Siracusa Principles, state that health professionals acting on behalf of the state, must restrict human rights and civil liberties to protect the health of the community, particularly during health emergencies.[22]Importantly because of their role in the investigation of health needs and implementation of policy—health professionals play a unique role in generating health-related human rights responses.[23] An understanding of the relationship between health and human rights and the use of a human rights based approach among health professionals prevents otherwise harmful practices in public health.[24] It can increase awareness among staff of their ethical duties and the potential for their public health practice to impact the human rights of the populations they serve[25]. In fact the World Conference on Human Rights included ‘Education in Human Rights’ as a priority area in the Vienna Declaration and Programme of Action calling for governments to train health professionals as a special group for participation in human rights education.[26]

 

Public officials have a legal obligation to foster recognition of factors favouring positive health results including the dissemination of information[27] and education campaigns even if this undermines the practice of religion during the public health crisis. The Government has a ‘core obligation’ to provide education and access to information concerning ‘the main health problems in the community, including methods of preventing and controlling them’[28] That said providing adequate information about the risks of using a common spoon is important, otherwise by failing to largely publicise its effects the State will deny the public knowledge necessary for safeguarding their health.

 

The COVID-19 infection underscores the indivisibility of health and a range of human rights. It also underlines the importance of human rights based approaches where duty bearers must assert human rights standards to protect public health. Similarly, health professionals should put behind their religious convictions where it conflicts with the science and guide the public using evidence based policy. Whilst some health practitioners and public officials have been adamant that religious rituals entail public health risks, it was not enough to curtail them all together; The Pandemic further exposed inequalities between the religious imperative and public health. Government responses to the Church have laid bare a secularism that is deeply flawed at its roots. At the moment it appears that the GOC stands above law, showing startling indifference to growing public health vulnerabilities.

 

[1]The International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) , the Convention on the Rights of the Child (CRC) and the  Declaration of Alma-Ata International Conference on Primary Health Care, Alma-Ata, USSR, 6-12 September 1978  are some of the central human rights instruments for the protection of the right to health.

[2]ICESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12). See also WHO: Human Rights and Health:https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health.

[3]L. Stone et al, When the right to health and the right to religion conflict: a Human Rights analysis. 12 Mich. st.j. Int’ L 247. 2003-2004.p.24

[4]News On.ge. Jagmaidze: We would not understand the restriction verbatim; https://on.ge/story/52532-%E1%83%AF%E1%83%90%E1%83%A6%E1%83%9B%E1%83%90%E1%83%98%E1%83%AB%E1%83%94-%E1%83%9E%E1%83%A0%E1%83%94%E1%83%9B%E1%83%98%E1%83%94%E1%83%A0%E1%83%9B%E1%83%90-%E1%83%92%E1%83%90%E1%83%9C%E1%83%92%E1%83%95%E1%83%98%E1%83%9B%E1%83%90%E1%83%A0%E1%83%A2%E1%83%90-%E1%83%A0%E1%83%9D%E1%83%9B-10-%E1%83%9E%E1%83%98%E1%83%A0%E1%83%98%E1%83%A1-%E1%83%A8%E1%83%94%E1%83%99%E1%83%A0%E1%83%94%E1%83%91%E1%83%90-%E1%83%90%E1%83%A0-%E1%83%A3%E1%83%9C%E1%83%93%E1%83%90-%E1%83%92%E1%83%90%E1%83%95%E1%83%98%E1%83%92%E1%83%9D%E1%83%97-%E1%83%91%E1%83%A3%E1%83%99%E1%83%95%E1%83%90%E1%83%9A%E1%83%A3%E1%83%A0%E1%83%90%E1%83%93 21 March 2020.

[5]Ibid.

[6]State  Ordinance  204. 23 March 2020.

[7]Jama news. Georgian Orhodox News:Refusing communion from a shared cup is refusing the Savior. 25 March, 2020

;https://jam-news.net/georgian-orthodox-church-refusing-communion-from-a-shared-cup-is-refusing-the-savior/

[8]Radio Free Liberty.Announcement of the Patriarche the II.https://www.radiotavisupleba.ge/a/30523874.html

[9]The government imposed a ban social gatherings and allowed groups of no more than three persons as per the Ordinance

[10]News On.Ge. I as a practitioner will probably do as would be the blessing from the Patriarch. 2 April 2020. .http://go.on.ge/1idw

[11]Article 1. Resolution of the Ceorgian Government Constitutional agreement between the Orthodox Autocephalous Church and the Georgian Government.

[12]Article 8 – Relationship between the State and the Apostolic Autocephalous Orthodox Church of Georgia Constitution of Georgia, https://matsne.gov.ge/en/document/view/30346?publication=35.

[13]Article 4, Legal State of the Constitution of Georgia;

[14]Article 16 of the Constitution. Right to Religious Manifestation.

[15]Article 18 (Freedom of Thought, Conscience or Religion) of ICCPR. It is listed to be a non derogable right, however similar provision on religious rights Article 9  can be derogated from during the emergencies.

[16]Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993). Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994).

[17]L. Stone et al, When the right to health and the right to religion conflict: a Human Rights analysis. 12 Mich. st.j. Int’ L 247. 2003-2004.

[18] The UN Special Rapproteur on Freedom of Religion or Believe, country visit: Georgia. E/CN.4/2004/63/Add.1 1( 2003), para 41.

[19]International Covenant on Economic, Social and Cultural Rights (CESCR) General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), para 33.

[20]L.stone et al.

[21]Ibid.

[22]J. Mann, “Health and human rights: If not now, when?,” Health and Human Rights (1997) in . r. hall-clifford, d. g. addiss, r. cook-deegan, and j. v. lavery / editorial, Global Health Fieldwork Ethics and human rights. pp, 1-5.

[23]Siracusa principles on the limitation and derogation provisions in the international covenant on civil and political rights, E/CN.4/1985/4 (1985). Available at https://www. refworld.org/docid/4672bc122.html.

[24]Article 12. WHO, International health regulations (2005). https://www.who.int/ihr/publications/9789241580496/en/.

[25]S. Glowa-Kollisch, J. Graves, N. Dickey et al., “Data-driven human rights: Using dual loyalty training to promote the care of vulnerable patients in jail,” Health Human Rights 17/1 (2015), E124-E35.

[26] Vienna declaration and programme of action, A/ CONF. 157/23 (1993).

[27]General Comment No. 14, para 37 (i).

[28] Ibid.para 44 (d).

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