A draft bill amending the Churches and Congregations Act has boomeranged back to the Riigikogu via the president, who refused to promulgate it. All those interested in the fate of this law, as well as in the autonomy of churches and freedom of religion, are closely following what will happen next. There has also been a fair share of confusion and mixed feelings across the entire legislative process.

While church leaders and representatives in Estonia are disturbed by Moscow Patriarch Kirill's support for President Vladimir Putin's policies in the war against Ukraine and the implementation of the imperialist ideology of the "Russian world," the Estonian Council of Churches (Eesti Kirikute Nõukogu) has not taken a position on the draft Churches and Congregations Act, due to the lack of legal clarity.

We have neither approved it nor condemned it.

It is true that we were involved in the early drafting phase of the bill and submitted our specific wording proposals, all of which were taken into account. However, in the written opinion submitted to the Ministry of the Interior (on November 13, 2024), we also stated that the very initiative to amend the law makes us concerned and cautious, as we sense a threat of interference in the autonomous functioning of churches. This uncertainty has not gone away. Precisely due to the lack of necessary clarity, the ECC has not formed a final position on the bill at the working meeting of church representatives.

I have expressed a personal opinion that there is nothing inherently wrong with the draft, if it is assessed specifically as a measure to mitigate a security risk. However, in the same opinion piece, I repeatedly pointed out that legal certainty is needed as to whether the state even has the right to regulate the internal affairs of churches to such an extent.

Legal clarity in the context of the law amending the Churches and Congregations Act is needed by all those affected by this law: Churches, congregations, unions of congregations, monasteries and convents, religious associations, and their representatives.

The main question is whether restrictions imposed by the amendment and in the name of national security sufficiently take into account the autonomy of churches, and whether the constitutionally protected freedom of religion is not being infringed or violated.

The future of the law in this aspect primarily concerns the Estonian Orthodox Church of the Moscow Patriarchate (now known as the EKÕK and formerly the MPEÕK following a name change – ed.) and the Pühtitsa Convent (also known as the Kuremäe Convent, in Ida-Viru County – ed.).

It is precisely from these that the Minister of the Interior expects changes to their founding statutes in a way that would sever ties with the Moscow Patriarchate – which the Riigikogu declared last year to be an institution supporting Russia's military aggression.

If the law is in line with the Constitution, they must comply with that law.

However, to begin implementing historically significant changes via state coercion and against people's will, without knowing whether the state even has the right to demand this, feels deeply unjust.

While expressing a belief that the Moscow Patriarchate undermines the sovereignty and democracy of states, President Alar Karis nonetheless presented a series of legal arguments in his decision not to sign off on the law, and to return it to the Riigikogu.

Based on the president's reasoning, the Ministry of the Interior and the Riigikogu's Legal Affairs Committee concluded that it would not be practical to vote on the law again in its unaltered form, as there is a high likelihood that the president would then recourse to the Supreme Court, with the proposal of declaring the law unconstitutional.

Consequently, it was decided to slightly revise the wording of the law.

The question now remains whether this will be sufficient for the president to promulgate it this time around.

My opinion is that there is a very real possibility that President Karis will refuse to give his assent to the legislation even after it has been amended.

In reading the president's explanations why the law was not promulgated the first time, it seems that the head of state does not consider the amendment of the Churches and Congregations Act to be appropriate or justified in any way.

The president's decision states: "A vague and extensive prohibition cannot be established which reaches to the core of freedom of religion and association and is not necessary in a democratic society, since that goal can be achieved via other means."

The president refers to other pre-existing laws, which can be enforced more strongly where needed.

A little later he adds: "A restriction is not in accordance with the Constitution if the goal can be achieved by a measure that is less restrictive of rights."

If the president states that the restriction of freedom of religion and association is not proportionate after the adoption of the amended law, given current law already provides all the necessary tools, then I believe he sees that amendment as entirely unnecessary.

Instead, he wants to emphasize that existing laws need to be better enforced.
It seems that President Karis himself considers an alternative to be a proportionate restriction, rather than the forceful severance of canonical ties.

The president's decision adds: "The question is also whether a security threat associated with a foreign person can be attributed to an organization operating in Estonia if that organization has some economic or other connection with a foreign person, or if it is found that the Estonian organization 'follows in its activities' the foreign person."

This is precisely the position represented by the Center Party, whose amendment proposals Alar Karis refers to.

The Center Party's proposal called for imposing restrictions on specific orders, decisions, or other instructions coming from abroad, which should not be followed, after the law is amended, if they pose any threat to Estonia's national security, constitutional or public order, or if they support military aggression or incite war, acts of terror, or otherwise the use of armed force or violence.

The restriction is placed not on the ties with a specific person abroad, but on the execution of such orders and decisions from that person who is considered to be endangering security.

The Riigikogu's Legal Affairs Committee did not support imposing this narrower restriction, however, presumably because it would not obligate any church, congregation, or monastery to sever its canonical or other official ties with a leadership body located outside Estonia.

The political will at the moment is precisely that all such ties must be completely cut.

Whether the implementation of this political will in its current form is in line with the Constitution, can, in my opinion, be clarified in one way alone: The Supreme Court has to give its assessment.

Because the Riigikogu, by adopting the law again in its unaltered form, did not refer it to the Supreme Court via the president, it is now possible for the president himself to recourse to the Supreme Court, for legal clarity.

The whole of Estonian society would benefit from such a step.

The Supreme Court can provide legal clarity and peace of mind to all parties, regardless of which way the decision were to go.

And if the law is constitutional, it must be implemented.

That means churches, congregations and religious communities must adapt accordingly.

If the Supreme Court declares the law unconstitutional, then everyone must pause for breath and consider how to ensure national security in a way which does not infringe upon or violate freedom of religion and association, and which respects the autonomy of churches.

The air would be clearer that way, and peace of mind would be found for everyone, from the president and Riigikogu, to the nuns of the Pühtitsa convent.

The author's views do not represent the official positions of the Estonian Evangelical Lutheran Church (EELK) or the Estonian Council of Churches (EKN). Archbishop Viilma is currently on sabbatical.

Editor's note: This opinion piece published in Estonian prior to the Churches and Congregations Act amendment bill passing its second reading (of three) on Wednesday.

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