Kazakhstan's Constitutional Council announced on 11 February that the restrictive "Law on Amendments and Additions to Several Legislative Acts on Questions of Freedom of Conscience and Religious Associations" is unconstitutional. Gulnara Baygeldy, the Council's press officer, told Forum 18 News Service from the capital Astana on 12 February that "now the President [Nursultan Nazarbaev] should decide to agree or disagree with us within 10 days." She declined to make further comments, or make the text of the Constitutional Council's judgment public. "Only after the President makes his decision can we make further comments," she told Forum 18.
The Chair of the Constitutional Council, Igor Rogov, made the announcement at a meeting in Astana widely shown on television and reported in the local media. He said that the proposed Law is not in accord with the Constitution and so "cannot be signed and brought into force".
President Nazarbaev has up to one month to respond to the decision. He can propose changes to the decision, but these must be supported by two-thirds of the Constitutional Council's members to take effect.
Rogov said the Constitutional Council particularly cited Article 39 paragraph 3 of the Constitution in support of its judgment that the draft Law is unconstitutional. This paragraph states that the "rights and freedoms stipulated by" various specific articles of the Constitution "shall not be restricted in any way". Among the articles listed is Article 14.2 stating "no one shall be subject to any discrimination for reasons of origin, social, property status, occupation, sex, race, nationality, language, attitude towards religion, convictions, place of residence or any other circumstances." Also listed is Article 19.1, which states that "everyone shall have the right to determine and indicate or not to indicate his national, party and religious affiliation."
Constitutional Council Chair Rogov said the draft Law violated the equality of all before the Law by giving different registration conditions for faiths "previously unknown in Kazakhstan". He added that the draft Law would also have infringed the rights of non-citizens by not specifically including legal residents who are not citizens as having equal rights.
Human rights defenders, religious communities, Kazakh and international human rights experts – including the OSCE/ODIHR Advisory Council on Freedom of Religion or Belief - are strongly critical of the draft Law's many restrictions on fundamental human rights.
Yevgeni Zhovtis, head of the Almaty-based Kazakhstan International Bureau for Human Rights and Rule of Law, told Forum 18 on 12 February that the Constitutional Council's judgement on the draft law also implies that the current Religion Law is unconstitutional.
He told Forum 18 that, as the Constitutional Council has indicated by its use of Article 39 paragraph 3 that the current Religion Law is also unconstitutional, the Kazakh Parliament should in principle scrap all its limitations on freedom of religion or belief. An example of the limitations, Zhovtis said, is the current Law's ban on the unregistered dissemination of religious views.
"Anyone charged with breaking the current Religion Law's limitations on religious freedom can cite the Constitutional Council's decision in court," Zhovtis said. "The court can then be asked to refer the current Religion Law to the Constitutional Council, for them to directly rule on the current Religion Law's constitutionality."
Human rights defender Ninel Fokina, head of the Almaty Helsinki Committee, agrees that the current Religion Law needs to be examined. "The Constitutional Court decision was only about the proposed Law and has no retroactive effect," she told Forum 18 on 12 February. "But of course it does have an impact on the current Law." However, she pointed to the difficulty of finding 20 parliamentary deputies, or a judge, or a senior government member, who would be likely to refer the current Law to the Constitutional Council for a review.
"It is also very important," Zhovtis told Forum 18, "that as well as looking at the draft Law, people also pay attention to the continuing violations by officials of everyone's freedom of religion or belief."
Human rights defender Fokina told Forum 18 that these violations include officials repeatedly encouraging intolerance of religious minorities and freedom of thought, conscience and belief. Officials often ignore Kazakh law in carrying out human rights violations, for example banning a Hare Krishna devotee from the country after a trial which apparently never took place.
[ kazakhstan ]