Freedom of religion and issues of freedom from religious discrimination
In Latin, discrimination means DIFFERENCE and it is a rather old legal concept, and it was not always that discrimination had a negative connotation from the point of view of public institutions and public conscience.
Article 14, part 2 of the Constitution of the Republic of Kazakhstan states that «No one may be subjected to discrimination on the grounds of one’s origin, social, professional and property status, gender, race, ethnicity, language, religious affiliation, belief, place of residence, or any other circumstance.»
Therefore, such constitutional provision must give a jump-start to the development of legislation protecting citizens from discrimination. In other words, protection from discrimination must be ensured by both the totality of laws and regulations at large, and also specific provisions of particular laws.
However, when it comes to the current legislation of the Republic of Kazakhstan or law enforcement practice, understanding discrimination is a rather difficult task as there is no definition of this legal term.
In Latin, discrimination means DIFFERENCE and it is a rather old legal concept, and it was not always that discrimination had a negative connotation from the point of view of public institutions and public conscience. Moreover, in different countries religious or any other discrimination was perceived as a good thing by the public. In other words, society consciously created mechanisms to discern people using racial, ethnic, religious, gender and other features, when a person with a particular colour of skin, or practising a different religious denomination, or being of a different gender, was not able to enter public premises, or was forced to work in certain strictly determined fields or professions, or was not able to attend a school or hold an official position.
Nowadays, in our country, as in most other civilized societies, public conscience views discrimination as an extreme form of violation of human rights. However, the country’s legislation offers only a superficial definition of discrimination, and does not define religious discrimination—which, however, does not mean this is not a real life occurrence.
It should be noted that it would be incorrect to mix the concepts of inequality and discrimination, and it is important to understand that inequality, as an institutional phenomenon, is present in any society. For instance, in any country the legislation will not put an equal sign between the rights of a citizen, foreign person, or a stateless individual. The latter two, unlike the former, may not elect executive bodies and be elected to those bodies, and may not normally do public or military service, and must make mandatory deductions to the budget, which citizens do not make.
However, such legal inequality may not be considered discrimination because it is legally justified and results from the legal nature of relations between the state and foreigners or stateless persons, i.e. it is based exclusively on the legal status of those legal entities.
Since we are discussing the issue of religious discrimination, we should be based on the premise that religious discrimination, or restriction of the rights, responsibilities and law-protected interests of a citizen and person based on his/her attitude toward religion or affiliation with a certain religious movement, represents a violation of human rights.
Based on the fundamental premise stated in Article 14, part 2 of the Constitution of the Republic of Kazakhstan, the current national legislation must contain actual legal mechanisms of protection of citizens against any forms of discrimination. In addition, our state is bound by international human rights documents.
We can offer some examples of manifestations of religious discrimination based on attitude toward religion.
Tengrinews, an internet publication, published on 2 March 2017 on its website an article entitled «Members of Jehovah’s Witnesses in Astana are accused of inciting religious and ethnic hatred» in which it made a false and defamatory statement that «in 37 countries, the members of Jehovah’s Witnesses are officially banned. Those countries include Tajikistan, China, Spain, Greece, Romania, the Dominican Republic.» The information was based on a press release by the Association of Centres for Religious Studies.
In other words, the information that it is specifically that the religious associations of the Jehovah’s Witnesses that are banned in 37 countries, is presented in this particular publication in such a way as to make it look like the Jehovah’s Witnesses are by themselves and by virtue of being the followers of this particular religious movement are predisposed to break the laws and engage in illegal activities in whatever country they are represented, which is, they are unworthy members of society and should not be afforded the same rights as other law-abiding citizens, so they should and must be banned specifically as a religious association.
In doing so, the Association of the Centres for Religious Studies itself was based off of information received from sources managed by the Russian Orthodox Church. The information was completely false and Jehovah's Witnesses, a religious movement, is not banned in the countries that were listed in the publication.
Another example of religious discrimination features Mr. M. Mukhlisov, who was imprisoned for committing a number of serious crimes. He regularly practised a religious ritual (namaz) at the prison, for which he has been disciplined by the prison’s management for violating the internal order.
From the point of view of human rights, this prisoner has an inalienable right to practice his religion, even when at a penitentiary. However, from the point of view of the penitentiary’s management, a religious prisoner, especially the one who regularly practices his religious rituals, is an original violator of internal discipline and must be punished for that. Other well-known examples make it possible to assert that internal discipline order at penitentiaries has for a long time been directly dependent on the religious affiliation of prisoners and has been given higher priority than the religious needs of prisoners.
Case in point, Mr. Mukhlisov did duly appeal what he considered as unlawful punishment, i.e. with the prosecutor’s office, to a higher-up officer. However, on 17 May 2010 the Arshaly district court for Akmola oblast found that Mr. Mukhlisov was guilty of committing a crime stipulated by Article 360, part 1 of the Criminal Code (defying lawful demands of the management of a penitentiary facility), and had an additional year of imprisonment slapped on top of his already-existing sentence.
While conducting a review of Mr. Mukhlisov’s case and complaints by his attorney, the courts failed to consider the arguments put forward by his defence of religious discrimination practised by the prison’s management and officers, while his defence argued that the attitude of the prison’s administration toward Mr. Mukhlisov was one of religious discrimination, i.e. persecution of a person based on his/her religious affiliations.
Nevertheless, in 2015 Mr. Mukhlisov filed a complaint with the UN Committee for Human Rights of being discriminated on religious grounds. The complaint was accepted by the UN Committee, however no action has been adopted on it yet.
It should be noted that imprisoned Muslims indeed suffer from systematic religious discrimination in prisons, which is the result of their affiliation with a religion, and public institutions, officials and even public figures accept it as a fact. Religious discrimination of prisoners is actively supported by a number of representatives of public associations. For instance, in her video interview Ms. G.K. Ozarbayeva, chairperson at the Centre for Assistance to Victims of Destructive Religious Movements, directly confirms the facts of «prohibited» religious literature, including the Quran, being confiscated from the prisoners (https://youtu.be/aBFA0NWBOPg).
Another example of religious discrimination features an akim of Mezhdurechensky village district in Almaty oblast, who with his letter of 21 November 2017 issued a suspension on the activity of the local religious association «Christian Presbyterian Bethlehem Church.» A prosecutor for the Ile district, in his letter of 22 February 2018, in response to the religious association’s appeal responded that a local executive body does not have the authority to re-profile the cult buildings so there was no ground for a prosecutorial action. In other words, the prosecutor gave a response that had nothing to do with the essence of the appeal, and failed to act on an obvious violation of the law by a public official who in principle had no authority to issue a resolution suspending a religious association.
This fact speaks of a situation where religious citizens and their associations, especially the minor ones, are viewed by the public as discriminated ones, the ones that deserve and should be subjected to law violations, persecuted and limited in their rights in any relations, and this can be done with impunity.
All listed facts draw a convincing picture of not how citizens’ and individual rights to freedom of conscience and religion are being restricted, but rather that there is a mechanism of religious discrimination whereunder all rights and law-protected interests of a citizen are being restricted and abused, all because of his/her affiliation with a religion.
An individual and even members of his/her family are slated to be restricted in their day-to-day life, directly or indirectly, in many aspects. For instance, the Ministry of Education has adopted the Rules of School Attire wherein the matter of religious attributes in attire is absolutely not touched on, i.e. there is no direct prohibition of the hijab, and the only requirement is that the students wear neat clothes in accordance with approved standards. However, it is beyond doubt that the Rules have been adopted exclusively not to allow girls wearing a hijab in schools. Therefore it bears to ask whether the Ministry of Education and certain other public activists consider it a positive that as a result of such decisions and local initiatives, the children’s right to education is being destroyed due to theirs or their parents’ affiliation with a religion?
In this example it is important to understand that public officials and civil society activists who support them in no way restrict the freedom of religion, but still create an obvious and clear legal barrier for religious citizens and their children in their efforts to obtain an education.
As said above, the current legislation does not contain a definition of discrimination, however the laws of the Republic of Kazakhstan equally offer no mechanisms to protect citizens and individuals against discrimination in any shape or form.
Thus, the Criminal Code has an article 145, (Violation of equal rights of individuals and citizens) that stipulates criminal liability for direct or indirect restrictions on the rights and freedoms of an individual (citizen) based on origin, social, official or property status, gender, race, ethnicity, language, attitude toward religion, belief, place of residence, affiliation with public associations, or any other circumstances.
Of course, there are a number of questions as to the disposition of this legal provision. Is this norm a legislated implementation of the guarantee as provided by Article 14, part 2 of the Constitution to protect the citizens against discrimination? What does direct restriction of rights and freedoms mean? What does indirect restriction of rights and freedoms mean? Why is restricting rights and freedoms only possible on the motive of one or another affiliation, and not simply as a result of affiliation, e.g. religious one?
This article of a criminal law raises more questions than it provides answers, probably this is the reason why it is not working.
Of note, the examples of religious discrimination that were listed above fall squarely under Article 145 of the Criminal Code; however none of the appeals or complaints filed by the victims, their attorneys and human rights defenders have resulted in a criminal inquiry against the perpetrators.
Aside from Article 145 of the Criminal Code, the legislation of the Republic of Kazakhstan contains no other legal mechanisms to protect citizens against discrimination.
For example, it would make sense to presume that an interested person, persons or associations of citizens could demand protection against discrimination as a matter of a civil process, i.e. under a special proceeding.
Citizens could appeal to a court of law demanding that the fact they were blocked from being hired to a public service position due to their affiliation with a religion be recognized as a fact of discrimination, and appeal both the regulatory acts and resolutions of public officials and state bodies, or their unlawful actions or failure to act.
Special proceeding could provide protection to citizens against discrimination from commercial organizations. For instance, when a citizen is denied employment, or services, or sale of goods due to his/her religious or any other affiliation.
The institution of a human rights ombudsman could be an important mechanism of protection against discrimination, due to the fact that it is not an executive authority and it could reveal the facts of discrimination, analyse the reasons for it in the legislative base and law enforcement practices, and share its recommendations with state bodies, public officials, NGOs and commercial organizations, so that discrimination could be prevented and stopped. Unfortunately, in our country this institution carries nothing but a decorative function.
As a matter of legislative initiative, discrimination should now be presented as a socially dangerous phenomenon, and as such included in the criminal law. In terms of existing law enforcement techniques, the following definition of discrimination as a criminally punishable act could be suggested: discrimination is a deliberate action(actions) having as objective complete or partial destruction of the rights, freedoms and law-protected interests of citizens (individuals) based on their attitude toward religion, belief, place of residence, political beliefs, affiliation with public associations, or any other circumstances, as well as their national, ethnic, racial or religious group, or creating other conditions of life that are designed to restrict the rights of members of such group.