Conclusions on the constitutionality of provisions of the Law of the Republic of Kazakhstan «On the introduction of changes and supplements to several legislative acts of the Republic of Kazakhstan on questions of freedom of religious practice and religious organizations» (Legal Policy Research Centre, January 2009)

CONCLUSIONS[1]
 

ON THE CONSTITUTIONALITY OF PROVISIONS OF THE LAW OF THE REPUBLIC OF KAZAKHSTAN “ON THE INTRODUCTION OF CHANGES AND SUPPLEMENTS TO SEVERAL LEGISLATIVE ACTS OF THE REPUBLIC OF KAZAKHSTAN ON QUESTIONS OF FREEDOM OF RELIGIOUS PRACTICE AND RELIGIOUS ORGANIZATIONS”

Although they contradict other normative legal acts of the Republic of Kazakhstan and are internally contradictory, the majority of the provisions of the Law are in accordance with the Constitution of the Republic of Kazakhstan of 1995.

Nevertheless, there are several provisions that appear problematical from the point of view of their constitutionality.

1.       The proposed new version of Article 4 of the Law “On Freedom of Religious Practice and Religious Organizations” (Part 1).^[2]

“Article 4. The State and Religious Organizations.”

1. Religions, religious organizations and religious groups are separate from the state and are equal before the law. No religions, religious organizations or religious groups may have any privileges over any others. An organization of citizens that undertakes religious activity must be registered in the form of a religious organization or a religious group. Religious organizations and religious groups that are not registered according to the provisions of the legislation of the Republic of Kazakhstan may not function.

The Constitution of the Republic of Kazakhstan does not contain any provisions concerning the necessity or lack of necessity for the registrations of religious organizations or groups. In Point 1 of Article 22 the Constitution simply states that everyone has the right to freedom of conscience.

What constitutes freedom of conscience is also not spelled out in detail in the Constitution of the Republic of Kazakhstan. Therefore, and considering that this is one of the most fundamental human rights, it is useful to turn to the international legal acts ratified by the Republic of Kazakhstan. This is particularly true in that Point 3 of Article 4 of the Constitution states that international treaties ratified by the Republic apply directly except in cases where the international treaty requires that a law be passed for it to be applied.

In accordance with Article 18 of the International Convention on Civil and Political Rights (1996), which was ratified by the Republic of Kazakhstan on November 28, 2005, every person has the right to freedom of thought, conscience and religion. This right includes the freedom to have or to adopt the religion or beliefs of one’s choice and the freedom to practice one’s religion and express one’s beliefs both singly and together with others, either publicly or privately, to carry out services and religious or ritual rites and study.

According to the proposed Part 1 of Article 4, the freedom of joint practice of a religion is conditioned by the requirement to receive prior permission from state institutions. If one accepts that the Republic of Kazakhstan recognizes the understanding of freedom of conscience contained in the ICCPR, this contradicts Point 1 of Article 22 of the Constitution regarding the right to freedom of conscience. The requirement for obligatory registration and the ban on activities by unregistered organizations or groups denies citizens the right to practice their religion together with others. In essence it is, therefore, a limitation on freedom of conscience. Point 3 of Article 39 of the Constitution states that in no case should the rights and freedoms laid out by the individual articles of the Constitution, including Article 22, be abridged.

Beyond that, the demand for obligatory registration contradicts Point 1 of Article 39 of the Constitution of the Republic of Kazakhstan, in accordance with which the rights and freedoms of a person and a citizen may be limited only by laws and only to that extent necessary to defend the constitutional order, protect social order, the rights and freedoms of the individual, or the health and morals of the population. The activity of unregistered religious organizations or groups in itself is not a threat to the constitutional order, the social order, the rights and freedoms of individuals, or the health and morals of the population. Thus, the ban on the activities of such organizations and groups is not in accordance with Point 1 of Article 39.

2.       The re-introduced “Article 4-3. Religious Groups (Part 2).

“Members of religious groups have the right to carry out religious rites and ceremonies, teach and study religion only among themselves and in buildings (facilities) belonging to members of the group and on the territory on which the religious group is registered.”

In accordance with Article 22 of the Constitution of the Republic of Kazakhstan, everyone has the right to freedom of conscience. The practice of this right to freedom of conscience should not condition or limit general human and civil rights and duties to the state.

Thus, the Constitution does not condition the practice of freedom of conscience on the territory or place where religious rites, study and teaching take place or the fact of a citizen’s membership in any particular organization.

Part 2 of the re-introduced Article 4-3 violates the right set forth in the Constitution to freedom of conscience (Article 22) because it limits the holding of religious rites and services to particular territories, buildings and groups of citizens. In accordance with Point 3 of Article 39 of the Constitution, in no case should the rights and freedoms set out by the individual articles of the Constitution, including Article 22, be abridged.

In accordance with Point 1 of Article 39 of the Constitution of the Republic of Kazakhstan, the rights and freedoms of an individual and citizen may be limited only by laws and only to the extent necessary to defend the constitutional order, protect social order, the rights and freedoms of the individual, or the health and morals of the population. The fact of a person’s membership in a religious group may not serve as the basis for imposing a limitation in accordance with Point 1 of Article 39 of the Constitution in as much as it does not threaten those conditions spelled out in that point.

Moreover, in accordance with Article 14 of the Constitution of the Republic of Kazakhstan, all are equal before the law and the courts. No one may be the victim of any kind of discrimination for reasons of ancestry, social, official or economic situation, sex, race, nationality, language, relation to religion, beliefs, place of residence or for any other reason. The appearance of the new [JLG1] Article 4-3 means that the rights of members of religious groups are limited in comparison with those of members of religious organizations, to which the limitations set forth in Article 4-3 do not apply. In addition, in accordance with Point 3 of Article 39 of the Constitution, rights and freedoms set out in Article 14 of the Constitution should not be limited in any circumstances.

Thus, Part 2 of the re-introduced Article 4-3 contradicts Articles 14 and 22 and Points 1 and 3 of Article 39 of the Constitution of the Republic of Kazakhstan.

3.       New Version of Article 13 (Parts 2 and 5). The re-introduced Sub-point 5 of Article 6.2.

 “The import of religious literature and other informational materials of a religious character into the territory of the Republic of Kazakhstan, with the exception of articles intended for personal use, is allowed after a religious examination is carried out (Article 13 part 2).”

“The distribution of religious literature, other informational materials of a religious character and items of religious significance among citizens in public places is allowed only in stationary locations specially designated by the local authorities (Article 13, Part 5).”

“5) [local authorities] will designate special stationary locations for the distribution of religious literature and other informational materials of a religious character and items of religious significance (Sub-point 5 of Article 6-2).”

In accordance with Point 2 of Article 20 of the Constitution of the Republic of Kazakhstan, each individual has the right to freely receive and distribute information by any method not forbidden by law. As in the case of freedom of conscience, the right to receive and distribute information may only be limited in order to defend the constitutional order, protect social peace, individuals’ rights and freedoms and the health and morality of the population (Point 1 of Article 39 of the Constitution). The receipt and distribution of religious literature and other informational materials is the normal practice of all religious organizations and according to the spirit of Point 1 of Article 39 cannot serve as the basis for the limitations set forth in this point.

Thus, the limitation of the right to receive information through the institution of a requirement that religious literature and other informational literature of a religious character be imported only after an obligatory religious examination, and the limitation on the right to distribute material by the institution of specialized locations for such distribution and the de facto ban on distribution in other places both contradict Point 2 of Article 20 and Article 39 of the Constitution of the Republic of Kazakhstan.

4.       New version of Article 7 (Parts 3 and 4).

“A Central Religious Organization is a religious organization created on the initiative of plenipotentiary representatives of Local Religious Organizations operating on the territory of at least five oblasts (the city of national significance, the capital) who call a founding meeting (congress, conference), at which its statutes are adopted and structures formed. The basis for receiving the status of a Central Religious Organization is the undertaking of the plenipotentiary organ that the local organizations and participants (members) that form the Central Religious Organization will abide by the Law of the Republic of Kazakhstan.”

“4. In accordance with their statutes, Central Religious Organizations have the right to create organizations for spiritual (religious) education that carry out professional programs of study to prepare clergy.”

In accordance with Point 1 of Article 1 of the Constitution, the Republic of Kazakhstan professes itself to be a democratic, secular law-based and social state, which holds as its highest value the individual, his or her life, rights and freedoms. In current Kazakhstani constitutional doctrine and legislation, the secular character of the state is linked with the separation of religion from the state.[3] Separation presupposes that the state does not interfere in the internal matters of religious organizations if their activities do not contradict the laws of the Republic of Kazakhstan. The creation of centralized, religious and other hierarchical structures or organizations is an internal matter for religious groups and depends to a significant extent on religious norms and traditions.

Thus, the procedure set forth in the Law for the foundation of Centralized Religious Organizations and institutions of religious education, which may not accord with the rules of the religious organization, is an example of state interference in the internal affairs of religious organizations and violates the constitutional provision regarding the secular character of the Kazakhstani state as set forth in Point 1 of Article 1 of the Constitution.

5.       The re-introduced Part 5 of Article 3 of the Law on Freedom of Religious Practice and Religious Organizations.

“Freedom to practice a religion or to spread beliefs may be limited by laws of the Republic of Kazakhstan only with the goals of protecting public order and security, life, health, morality or the rights and freedoms of other citizens.”

In accordance with Point 1 of Article 39 of the Constitution of the Republic of Kazakhstan, human rights and freedoms may be limited only by law and then only to the extent necessary to defend the constitutional order, protect public order, a person’s rights and freedoms and the health and morality of the population.

The re-introduced Part 5 does not correspond with the Constitution for two reasons.

First, it introduces an additional ground for the limitation of freedom to practice a religion that is not included in the Constitution: protection of security (of society).[4]

Second, Article 39 of the Constitution states that limitations may be introduced with the goals of protecting a person’s rights and freedoms, whereas the proposed amendment speaks of the possible limitations of the rights and freedoms of other citizens. It is clear that the approach and text of the Law differs from the approach and text of the Constitution in this case.

6.       New version of Article 7 (Part 3).

“A Local Religious Organizations is a religious organization formed with the goal of jointly satisfying religious interests and needs by a group of no fewer than 50 adult citizens of the Republic of Kazakhstan who call a founding meeting (congress, conference), at which its statutes are adopted and structures formed”

The right to freedom of conscience as described in Article 22 of the Constitution refers to a number of natural rights and freedoms. It is for this reason that the right to freedom of religious practice is given to everyone in the territory of the Republic of Kazakhstan and not just to citizens. As already demonstrated by the prior analysis of Article 4 of the Law, the right to freedom of conscience includes the right to freely practice one’s religions and express one’s beliefs both individually and together with others, which supposes the creation of a religious organization. As is the case with the Constitution, the ICCPR speaks of this right as not being limited to citizens.

The proposed Part 3 denies foreign citizens the right to create religious organizations and thus the right to jointly practice their religion and express their beliefs (since religious organizations may only be formed on the initiative of citizens of the Republic of Kazakhstan). This limits the right guaranteed them by the Constitution to freedom of conscience and thereby contradicts Point 1 of Article 22 and Point 3 of Article 39 of the Constitution.

Thus, the re-introduced Part 5 of Article 3 of the Law on Freedom of Religious Practice contradicts Point 1 of Article 39 of the Constitution.

Kazakhstan, January 2009

[1] This analytical note has been put together by the Legal Policy Research Centre (LPRC) with the support of Freedom House Kazakhstan.

[2] The basis for the unconstitutionality of Article 4 also holds for the new version of Article 375 of the code of Administrative Violations of the Republic of Kazakhstan, which is analogous to the Law and provides the basis for state organs to refuse requests for registration.

[3] See, for example, the Constitution of the Republic of Kazakhstan, a Commentary,  Edited by G. Sapargaliev, Almaty, Zheti Zhariy, 1998. Pg. 10; The Decree of the Constitutional Council of the Republic of Kazakhstan of April 4, 2002, No. 2 “On the Verification of the Constitutionality of the Law of the Republic of Kazakhstan “On the Introduction of Changes and Supplements to Several Legislative Acts of the Republic of Kazakhstan on the questions of Freedom of Religious Practice and the Activity of Religious Organizations.”

[4] In accordance with Point 3 of Article 18 of the International Convention on Civil and Political Rights (1966), the freedom to practice a religion or express beliefs may only be limited by laws that are essential to protect public safety, order, health and morals and the basic rights and freedoms of other people.  Thus, the ICCPR allows such bases for limiting the freedom to practice religion and express beliefs as the security of society. Nevertheless, the Constitution of the Republic of Kazakhstan does not formally include such a basis.

 [JLG1]Throughout out they refer to the “vnov vvodimaya” Article 4-3.  Here they refer to the “new” article 4-3.  Is that an error?