KAZAKHSTAN: CONSTITUTIONAL COUNCIL RULES RELIGION LAW IS

UNCLAS SECTION 01 OF 02 ASTANA 000260

SENSITIVE
SIPDIS

STATE FOR SCA/CEN, DRL/IRF

E.O. 12958: N/A
TAGS: PGOV PHUM SOCI KIRF KDEM KZ
SUBJECT: KAZAKHSTAN: CONSTITUTIONAL COUNCIL RULES RELIGION LAW IS
UNCONSTITUTIONAL

REF: (A) 08 ASTANA 2494
(B) 08 ASTANA 2388
(C) 08 ASTANA 2365
(D) 08 ASTANA 1107
(E) 08 ASTANA 767


1. (U) Sensitive but unclassified. Not for public Internet.


2. (SBU) SUMMARY: On February 11, Kazakhstan's Constitutional
Council ruled that the proposed amendments to the country's religion
law are inconsistent with Kazakhstan's Constitution. Before
arriving at its decision, the Council studied reviews of the
legislation done by ODHIR and local experts, and questioned several
high-level government officials and parliamentarians. The
Ombudsman's Human Rights Commission and the Ministry of Foreign
Affairs strongly argued against the legislation, with the MFA
contending that it would severely tarnish Kazakhstan's image in
advance of its 2010 OSCE chairmanship. Other government officials
and the parliamentarians argued in favor of the law, but the Council
members systematically dismissed their arguments, which one civil
society activist sees as proof that they "got orders from above" to
rule the legislation unconstitutional.

LAW JUDGED UNCONSTITUTIONAL


3. (U) On February 11, Kazakhstan's Constitutional Council ruled
that the draft religion law is inconsistent with the country's
Constitution. The draft law, which has been heavily criticized by
civil society activists and the international community, was passed
by the parliament on November 26 (ref B) and sent to the Council for
review by President Nazarbayev on January 8. The Council's ruling
means that Nazarbayev cannot sign the legislation into law. (NOTE:
Kazakhstan's Constitution does allow the President to object to a
Constitutional Council ruling -- in which case the Council must go
back and muster a two-thirds majority ruling to block the President
from signing a law. However, to our knowledge, Nazarbayev has never
invoked this power. END NOTE.)

STRONG SAY FROM CIVIL SOCIETY AND ODIHR


4. (SBU) OSCE Human Dimension Officer Eugenia Benigni told us that
her office provided the Council with the most recent review of the
legislation by OSCE's Office of Democratic Institutions and Human
Rights (ODIHR). According to Almaty Helsinki Committee head Ninel
Fokina, the Council also reviewed assessments done by local experts,
including her own. Fokina, who attended the Council's February 10
session, said that the Council "seems to have studied our comments."
According to Fokina, Council member Nikolay Belorukov, who briefed
the Council on the legislation, highlighted many of ODIHR's and
civil society's objections to the law.

MFA: RELIGION LAW WILL "TARNISH" KAZAKHSTAN'S IMAGE


5. (SBU) Fokina told us that the Council invited several senior
government officials and legislators to present the positions of
their ministries and the parliament on the law. Deputy Foreign
Minister Nurlan Yermekbayev, Deputy Justice Minister Dulat
Kusdavletov, Chairman of the Religious Issues Committee Ardak
Doszhan, Deputy Prosecutor General Askhat Daulbayev, Director of the
Ombudsman's Human Rights Center (HRC) Vyacheslav Kaluzhny, and
several members of the Senate and the Mazhilis (the lower house of
parliament) all spoke at the February 10 Council session. According
to Fokina, Yermekbayev and Kaluzhny strongly objected to the law.
Kaluzhny cited the Helsinki Committee's analysis in arguing that the
legislation would violate Kazakhstan's international commitments on
human rights. Yermekbayev, on the other hand, maintained that
passing the legislation in advance of Kazakhstan's 2010 OSCE
chairmanship would seriously tarnish the country's image and harm
Kazakhstan's interests. (NOTE: Foreign Minister Tazhin made the
very same argument in a November 19 internal memo to Prime Minister
Masimov, in which he contended that the sharp criticism continuously
leveled against the legislation from OSCE-member states could easily
turn the subject of religious tolerance "from an advantage to
disadvantage" for Kazakhstan as it assumes the OSCE chairmanship

ASTANA 00000260 002 OF 002


(ref A). END NOTE.)

"INVITATION TO AN EXECUTION"


6. (SBU) Fokina told us that the other government officials and the
parliamentarians attempted to "loyally" defend the legislation, but
their arguments were systematically dismissed by the Council, which
she believes is proof that the Council "got orders from above" to
declare the legislation unconstitutional. "We thought we were
invited to a funeral, but it turned out to be an execution," she
quipped. As she related to us, the Council members highlighted many
problematic provisions of the law. Specifically, they argued that
creating a new legal category called a "religious group" would
severely restrict the rights of smaller religious groups; that
mandating expert analyses of all religious literature would amount
to censorship; and that requiring that all religious organizations
re-register would violate a provision of Kazakhstan's Constitution
that prohibits adverse legislation from having a retroactive impact.
As Fokina put it, "The defense had little to say."


7. COMMENT: This is not the first time that the Constitutional
Council ruled restrictive religion legislation to be
unconstitutional. It previously did so in 2002. Yevgeniy Zhovtis,
Kazakhstan's top civil society leader, argued to us several months
ago that the religion law was actually aimed at diverting attention
from Kazakhstan's Madrid commitments. Specifically, he maintained
that the religion law would be killed in the end, earning accolades
from Western countries and ensuring they would not focus on the fact
that the government did not significantly reform the country's
media, election, and political party laws. On the one hand, the
fact that the new media, election, and political party legislation
was signed into law by Nazarbayev just days before the
Constitutional Council ruled against the religion law lends credence
to Zhovtis's line of reasoning. On the other hand, the government
-- or at least some elements within it -- appeared to have spent
months laying the groundwork for the religion law, including through
a media campaign to heighten the public's concerns about
"non-traditional" religious groups and "sects." It seems more
plausible to us that the religion law was derailed because the
government's "liberal faction," especially the MFA, ultimately
succeeded in making the case to Nazarbayev that the law would
undermine Kazakhstan's international image and damage its OSCE
chairmanship.


8. (SBU) COMMENT CONTINUED: We have little doubt that this
decision was manipulated from within the government by the "liberal
faction" in consideration of Kazakhstan's 2010 OSCE Chairmanship.
At the same time, it is worth noting that Kazakhstan's civil society
engaged in vigorous and open debate with the government about this
flawed bill. We also note that the government did indeed take note
of the chorus of negative international comment. We suggest that
the international community remain vigilant and outspoken on other
retrograde legislation, like the so-called Internet Bill, because
for the next several years with the OSCE spotlight on Kazakhstan,
real progress will be possible, both to promote democratic issues
and to strengthen civil society. END COMMENT.

HOAGLAND