TURKMENISTAN: INTERNATIONALS GIVE COMMENTS ON

UNCLAS SECTION 01 OF 03 ASHGABAT 001100 SIPDIS SENSITIVE STATE FOR SCA/CEN, DRL, PPD E.O. 12958: N/A TAGS: PGOV PHUM PREL SOCI TX SUBJECT: TURKMENISTAN: INTERNATIONALS GIVE COMMENTS ON DRAFT CONSTITUTION REF: A. ASHGABAT 1068 ¶B. ASHGABAT 1026 ¶C. ASHGABAT 0963 ¶1. (U) Sensitive but unclassified. Not for public Internet. ¶2. (SBU) SUMMARY: On August 12, diplomats from various Western embassies met at a UN-hosted roundtable to provide comments to Turkmenistan's draft constitution. On August 20, the UN resident coordinator "informally" passed those comments to Institute for Democracy and Human Rights director Shirin Akhmedova. Akhmedova welcomed the contribution and indicated that she would carefully review the recommendations and present them to the parliament for consideration. It is anybody's guess, what, if any of these suggestions, gets incorporated into the final document. Nevertheless, this was probably the best avenue for getting these proposals into receptive hands. END SUMMARY. ¶3. (SBU) On August 12, Ambassadors and Charges representing the United States, UK, French, Turkish, and German embassies, OSCE, UNDP, and UNICEF met at a roundtable hosted by the UN resident coordinator to discuss and provide comments on Turkmenistan's draft constitution. The comments were uniformly constructive. After consolidating the comments, the UN sent them around for review by the participants. ¶4. (SBU) The UN resident coordinator met August 20 with Institute for Democracy and Human Rights director Shirin Akhmedova, a member of the Constitutional Commission, and presented her with the group's recommendations. The UN resident coordinator stressed that the recommendations were made in a constructive spirit, bearing in mind the government's expressed commitment to align its legislation with international standards. Akhmedova welcomed the contribution and indicated that she would carefully review the recommendations and present them to the parliament for consideration. The UN resident coordinator gained the sense from the meeting that Akhmedova really did appreciate the group's inputs to the constitutional amendment exercise. ¶5. (U) The following are the submitted comments, keyed to the articles in the draft: -- Article 12 (on freedom of religion): There should be mention of the state's non-interference into religious affairs. In addition to guaranteeing the freedom of religions and confessions, it should declare that "the state �00A;should guarantee the equality of religions and confessions before the law." -- Article 19 (on human rights and liberties) The term "fundamental human rights" should be changed to "all human rights." A clause should be added saying "children under the age of 16 may not be deprived of their liberty under any circumstances." Reason: Currently, Turkenistan has a two-tiered minimum age for criminal responsibility, for which it has been criticized by the Committee on the Rights of the Child. The recommendation from the Committee is to have one -- the highest possible age. -- Article 24 (on detention or arrest) The stipulation of detention of citizens "for some time" in urgent cases needs further clarification. -- Article 27 (on the right of free movement) The article should contain a clause on the right to leave the country. -- Article 29 (on the right to information) The article lacks a clear reference to the law which should specify what is regarded as secret or classified information, and therefore should define what are state or official secrets. ASHGABAT 00001100 002 OF 003 -- Article 30 (on freedom of assembly) Freedom of assembly, demonstration and rally should simply be guaranteed. -- Article 31 (on political parties) Propaganda of "social inequality" is unclear, because of the lack of definition of what social inequality in this context actually means. -- Article 34 (on the right to work) The sentence in the first paragraph on the prohibition of forced labor, except as envisaged by law, should simply state that forced labor is prohibited or it should explain those circumstances when forced labor is lawful. The following sentence should be added to the first paragraph: "All forms of labor of persons under the age of 15 are prohibited." Reason: This sentence will ensure the compliance with the ILO Convention 182 on worst forms of child labor Article 3 (d) as well as the National Law on Guarantees of the Rights of Youth to labor. --Article 35 (on recreation) It is unclear what is meant by "rational use of free time." -- Article 37 (on natural resources) The article should read: "The state supervises the efficient and sustainable use of natural resources with the aim of protection and improvement of citizens' living conditions, as well as protection and restoration of the environment. -- Article 39 (on the right to education) There should be a clear reference to a specific law regulating the process of establishing private schools. -- Article 41 (on the rights and liberties of citizens) This article could be interpreted as depriving citizens of Turkmenistan of their rights if they don't fulfill duties to society and should be changed. -- Article 42 (on the duty to serve in the army) The article should substitute adult males for "men," so that it is clear that adults are the ones who can be conscripted. The term of service should also be specified and provision should be made for conscientious objectors. -- Article 44 (on protection of honor and dignity) The article lacks clarification of the legal guarantee of the honor and dignity of foreign nationals. -- Article 52 (on election of the president of Turkmenistan) The clause on the high respect and recognition of the candidate qualified for election be dropped due to the impossibility to measure the extent of public respect or recognition enjoyed by the candidate. The reference to being someone working in state bodies seems quite restrictive and limits the pool of potential candidates for the post of president by possibly preventing those from academia, the business community, and other sectors of society from participating. -- Article 54 (on the president of Turkmenistan) The paragraph on the Central Election Commission lacks detail on the kind of changes (qualitative or quantitative) the president can make to its composition. -- Article 59 (on the transfer of power) The article needs clarification, setting the norms for people making up the State Security Council. The process of appointing an acting president is not clear. Also, it is unclear what are the criteria for choosing one or another deputy chair of the Cabinet of Ministers for the post of acting president. -- Chapter V (local authorities) There is no clear definition or description of functions of local halk maslahatys and separation of their duties from executive authorities. ASHGABAT 00001100 003 OF 003 -- Article 103 (on appointment of judges) There is no description of the procedure for dismissal of judges. -- Article 107 (on legal proceedings in courts) There needs to be a provision on access to language services for defendants whose native language is not Turkmen. -- Article 109 (on qualified legal support) The right to qualified legal support should be "guaranteed" rather than "recognized." -- No article on gender discrimination. There should be a separate article prohibiting gender discrimination. This will ensure compliance with international standards as per the CEDAW. That committee has issued concluding observations that recommend that Turkmenistan "incorporate fully the definition of discrimination against women, encompassing both direct and indirect discrimination, in line with article 1 of the Convention, in its constitution." -- No article on freedom and independence of media. There should be an article on freedom and independence of the media. Suggested language: "The State shall promote and ensure the freedom and independence of the media. All state-owned media shall be empowered to have fair opportunities and facilities for the presentation of free views and opinions. There shall be no impediments to the establishment of private press or media. All citizens have the right to free and open access to information from all media sources." -- Other General Comments. The constitution refers to citizens' rights without specifying if foreign nationals are entitled to the rights enjoyed by Turkmen nationals. There is no constitutional court in Turkmenistan to determine compliance or non-compliance of laws with the constitution. Currently, the parliament has this role, which can be interpreted as conflict of interest. (article 64). ¶6. (SBU) COMMENT: It made sense to convey comments by internationals "informally" to the government via the UN. The government had not provided another avenue for comments by the international community. And Akhmedova, who is one of the most forward-leaning of Turkmen officials, is charged with helping the country meet its international obligations regarding human rights. It will be anybody's guess, however, what, if any of these suggestions, gets incorporated into the final document. Certainly, Akhmedova's voice will not be the only one regarding the issue. One hopeful note that something might make the cut was conveyed to us by the head of the UNHCR office. Weeks ago, she had independently approached Akhmedova to include language on refugees. Akhmedova had assured her that the language, which was lifted from the UN convention, would be incorporated. END COMMENT. CURRAN