Current legislation of the Republic of Kazakhstan on freedom of conscience and freedom of religion: challenges and development
The Constitution of the Republic of Kazakhstan (article 22) and Kazakhstan’s international obligations declare that everyone has a right to freedom of conscience. This right implies not only freedom of conscience but also freedom of faith and freedom of religion as constituent components of freedom of conscience. This fundamental constitutional principle must give jump-start to the development of entirety of the legislation on freedom of religion.
However, when assessing and analysing the current national legislation, one finds it difficult to assert that freedom of religion is a legal construct that is subject to a legal regulation. In other words, it should certainly be understood that the state regulates, however well or poor, the relations as they revolve around religious activities, not freedom of religion or conscience.
The guarantees of freedom of thought, conscience and religion are enshrined in the key international documents, such as the United Nations on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, the International Covenant on Civil and Political Rights, as well as the commitments that the OSCE members states had undertaken.
Article 18 of the Covenant defines freedom of thought, conscience and religion as a right to freedom to have or to adopt a religion or belief of one’s choice, and freedom, either individually or in community with others and in public or private, to manifest one’s religion or belief in worship, observance, practice and teaching.
Article 1 of the Declaration defines that the right to freedom of conscience and religion includes freedom to have or to adopt a religion or belief of one’s choice, and freedom to practice one’s religion and manifest one’s belief, either individually or in community with others.
The concept and content of freedom of thought, conscience, religion and belief are stipulated in the Final Documents of the OSCE Summit (Helsinki 1975, Madrid 1980, Vienna 1989, Copenhagen 1990, Paris 1990, Budapest 1994). In paragraph (9) of the 1990 Copenhagen Document, OSCE participating States reaffirmed that “(9.4) - everyone shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to change one’s religion or belief, and freedom to practice one’s religion or belief, both individually and in community with others, in public or in private, through worship, teaching and performing religious and ritual practices. That is, freedom of religion is complemented by the right to freedom to change one’s religion, and the expression of such freedom also includes freedom to study.
Accordingly, international standards define freedom of religion (which also includes freedom of thought, belief and religion) as the right to have or not to have, accept or change, any belief or religion of one’s own choice, as well as to profess and express one’s beliefs or religion, both individually and in community with others, in public or in private, through teaching, worship and the performance of religious and ritual practices.
In Kazakhstan’s national legislation, relations in the field of religious discourse are currently regulated by the Law of the Republic of Kazakhstan “On Religious Activity and Religious Associations,” the Civil Code, the Criminal Code, the Code of Administrative Offences, the Law of the Republic of Kazakhstan “On Non-Profit Associations,” the Law ”On the State Registration of Legal Entities and Statistical Registration of Branch Offices and Representative Offices,” the Law “On Licensing,” the Law “On Education,” etc.
In the Law “On Religious Activity and Religious Associations" dated 11 October 2011, the focus of legal regulation is placed on determining the status and powers of the authorized state body, as well as the status of religious associations.
Initially, the main objective of this law was to make the procedure of state registration of religious associations more cumbersome for the citizens, by introducing legislative requirements which required an increased number of founders of a religious association from ten to fifty, and by introducing a mandatory religious review of the foundation documents of a newly established religious association. In other words, this law offered no real legal innovations.
The significant flaw of the said Law is that it does not define the subject of activity of a religious association. On the contrary, the Law confuses the concepts of “religious activity” and “activity of a religious association,” and as a result, when the activity of a religious association is suspended and prohibited by a court of law, it is not the activity of the religious association as a legal entity that is banned, it is the religious activity, including the right of citizens to perform religious rituals and ceremonies, and hold religious meetings. Such an approach results in a direct violation of the human right to perform religious rites and ceremonies and to participate in religious meetings.
For instance, section 4 of article 490 of the Code of Administrative Offences of the Republic of Kazakhstan (CAO) provides that if a religious association engages in an activity that is not mentioned in its charter, this may result in a fine of three hundred times the monthly calculation index, with the activity of such association being suspended for a period of three months.
Neither the language of this administrative law nor the definition given in the Law of the Republic of Kazakhstan “On Religious Activity and Religious Associations” make it clear which activity is subject to suspension--religious activity or the activity of a religious association.
Such a legislative approach comes into conflict not only with international standards but also with the provision of the Constitution of the Republic of Kazakhstan on freedom of religion. The previous Law of the Republic of Kazakhstan “On Freedom of Religion and Religious Associations” provided that a citizen, in community with others, had the right to participate in religious services, rituals, and ceremonies. However, the current Law contains no such guarantees for the free religious practices in communities, but only implies the right to participate in the activities of a religious association with the purpose of performing services, religious rituals, and ceremonies.
The CAO also defines an administrative liability of religious associations and citizens in its article 490 “Violation of the legislation of the Republic of Kazakhstan on religious activity and religious associations.”
However, article 6 of the CAO states that “the legislation on administrative offences has the purpose of protecting the rights, freedoms and legal interests of a person and a citizen.” In other words, whilst such provision suggests that the protection of the right to freedom of religion is the objective of the legislative regulation, the CAO’s specific provisions allow and/or prohibit religious activity, which in and by itself is an internal contradiction of a regulatory act and is at odds with the Constitution.
The Criminal Code of the Republic of Kazakhstan (Article 2) establishes the purpose of criminal legislation, which is to protect the rights, freedoms and legitimate interests of a person and a citizen.
Article 145 of the Criminal Code provides for criminal liability for direct or indirect restriction of the rights and freedoms of a person (citizen), including on grounds of attitude to religion, including when such an act is committed by a person using his/her official position or by the leader of a public association.
In other words, violations of the human right to freedom of religion are not prosecuted by administrative law or by criminal law.
The Law of the Republic of Kazakhstan “On Countering Extremism” contains provisions setting out the grounds for prohibiting the activities of religious associations, as well as on studying the activities of religious associations and missionaries, on the creation of a data bank on religious associations and religious missionaries, on carrying out information and propaganda activities on the issues pertaining to religion and religious activities, and on studying and analysing the religious situation in the region.
The Law of the Republic of Kazakhstan “On Countering Extremism and Terrorism” specifically regulates the issues pertaining to religious activities. However, from a detailed analysis of the provisions of this Law it can be concluded that legal regulation is primarily aimed not at ensuring the right to freedom of religion, but at creating a mechanism of discrimination and control against believers as alleged potential carriers of the ideas of religious extremism.
In July 2006, the President of Kazakhstan signed a decree approving the Concept for the Development of Civil Society, the purpose of which was to further improve the legislative, socio-economic and organizational and methodological base for a comprehensive development of civil society institutions and their equal partnership with the state in accordance with international legal instruments within the framework of international treaties and covenants in the field of human rights and human dimension. According to those documents, the key point in the interaction between the state and civil society institutions was to ensure freedom of religion and the right of citizens to assembly.
In 2007, the State Programme was adopted to ensure freedom of religion and improve relations between the state and confessions in the Republic of Kazakhstan for 2007-2009. The key objective of the Programme, among others, included these: improving legislation in the field of exercising the rights of citizens to freedom of religion and activities of religious associations.
However, from the above examples it can be concluded that legislative practices took a different path and departed from the objective of protecting the right of citizens to freedom of religion. For instance, the normative acts of the Republic of Kazakhstan today do not provide legal regulation of the right to freedom of religion, despite the fact that the Constitution of the Republic of Kazakhstan in its preamble establishes the priority of the rights of a citizen. Such a contradiction creates a basis for legislative practice whereunder the right to freedom of religion is violated and not respected, and the laws and judicial acts are interpreted to go against the right to freedom of religion.
Since 2011, the Kazakh authorities have been actively trying to deal with a growing threat of religious extremism and terrorism. For this reason in 2011 a law “On Introduction of Amendments to Certain Legislative Acts of Kazakhstan on the Issues of Combating Organized Crime, Terrorism and Extremism” was adopted, followed by another one, in 2012, titled “On Introduction of Amendments to Certain Legislative Acts of the Republic of Kazakhstan on Combating Terrorism.”
The laws on countering extremism, including religious extremism, are rather contradictory and underdeveloped, both in terms of legislative techniques and prospects of achieving their goals and objectives. The internal contradictions those laws have make it difficult if not impossible to expect that the legislation on religious activity and freedom of religion will see any development in the near-term future.
Spelling out the principle and concept of freedom of religion in the legislation requires legal provisions ensuring it to be developed, and comes into direct conflict with the provisions of other laws in effect, as well as law enforcement practices.
Nevertheless, it is a necessary measure at this particular moment, because any legislative development should be based solely on the observance of the principle of priority of human rights, the rule of law, and separation of the state from religion, and religion from school.
Separation of the state from religion means that the state ensures the autonomy of religious life and activity at the legislative and practical level. Any religious community should be able to resolve the issues of religious activity independently and enter into legal relations with the state only when such scenarios are stipulated by the state, mainly concerning real estate and taxation. Other possible scenarios of interaction between the state and religion may also include the procedure for conducting mass religious gatherings and meetings of believers.
Any proposals for the development of legislation should be based on an analysis of the long-term development of public relations and the religious situation in the country, taking into account the real threats present in the public life. The current legislation must ensure and observe the right to freedom of religion equally for all citizens, foreigners and stateless persons without exception; state bodies and public officers must respect the legitimate interests of citizens; laws must guarantee problems and conflicts are resolved peacefully, not by provoking certain parts of society to confront the state institutions.
International standards on freedom of conscience and religion as well as constitutional principles must be fully implemented in the national legislation. The use of “religious extremism” in the legislation must be ended, both in the Criminal Code and special laws, including the law “On Countering Extremism.” Essentially, considerations must be made to completely abolish this law.
The term “extremism” itself, even from the point of view of the current legislation, is not a legal concept, and its definition in section 5 of article 1 of the Law “On Countering Extremism” provides no clear criteria for defining this phenomenon. This definition is essentially tautological and ensures the use of non-legal methods of regulation in law enforcement practice. There have been instances of politically motivated judgments by courts by which organizations were recognized as extremist, which is unacceptable from the point of view of the rule of law.
A decision to het rid of the use of term “extremism” at the legislative and law enforcement level will ensure the rule of law, human rights to freedom of conscience and religion, freedom of thought and speech are respected, and will work towards further development of democratic institutions in society, pluralism of opinions, and a multi-party democracy.
When the term “extremism” is excluded from the laws and regulations, it will also create legally fundamental and necessary conditions for a dialogue between the state and religious communities, will eliminate the threat of interreligious conflicts being escalated, and confrontations among citizens based on attitudes toward religion.
One of other essential conditions is the abolition of a separate state authorized body that regulates religious life. In fact, this body performs only one government function--it carries out religious censorship. The idea of those who drafted the law “On Religious Activity and Religious Associations” was to task this body with suppressing “totalitarian and destructive sects;’ however our religious experts had apparently failed to give a legal definition of “religious extremism and destructivism,” which was brought out clearly by the experience of last several years.
The function of registration of religious associations may well be performed by the Ministry of Justice, while it should not be concerned with determining whether or not the relevant groups of citizens adhere to a particular religious direction or have a confessional affiliation.
The relations between the state and religious associations may be restricted by the law “On the Registration of Religious Associations.” We need only one law on registration of religious associations, and only when the religious citizens decide so, i.e. when they need to perfect the ownership of the religions community over a religious building(s), or to carry out economic and/or charitable activities. For the rest of religious activities, e.g. worship, religious assemblies etc. there is no need to have a separate law.
At the same time, the Law “On the Registration of Religious Associations” should clearly state that the initiators of a religious association are not its founders and participants, meaning they do not have property rights and rights under an obligation to the religious association’s property. In practice this means that if fifty citizens file an application for registration with a justice department, then after registration those citizens cannot influence the re-registration, division, separation from a religious association, or its liquidation, other than as established by the religious association’s charter. The law should also regulate situations when a religious association is left without a governing body or a religious building is left without an owner.
The citizens should not and are not obliged to confirm their religious affiliation during the registration of a religious association, as it is provided by the current legislation. This practice significantly contradicts the fundamental provisions of the Constitution of the Republic of Kazakhstan and international human rights standards.
The legislative division of religious associations into local, regional and republican is completely unjustified since our country is a unitary state and all laws adopted in it apply throughout its territory equally. Therefore, restrictions on the rights of religious associations based on territory are unacceptable.
Without a doubt, the legislative regulation of the “activity of a missionary” should be abolished, as should registration of missionaries and, consequently, liability for carrying out missionary activities without registration.
To protect the rights and law-protected interests of when it comes to freedom of conscience and religion, including freedom of religious association, the CAO should include a new provision on liability of officers for obstructing religious activity and religious rites, for illegal refusal to register a religious association, and for violation of the rights of religious associations. This being said, the General Prosecutor's Office should regularly exercise prosecutorial supervision over officers in this matter.
To protect the secular principles of the state, the CAO should introduce administrative liability for violating the principles of separation between the state and religion, and between religion and school, including for those government officers who participate in public and mass religious rituals, for joint actions and activities of public officers and religious associations, including their representatives, and for introducing religious education in any form at secular educational institutions. To ensure protection of the human right to freedom of conscience and religion, article 490 part 2 of the CAO which concerns the “activity by a religious association that is not stipulated by its charter” should be excluded from administrative legislation because the administrative punishment includes suspension and ban of the religious association found to be in violation of such provision.