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DE RUEHTA #0260/01 0440143
ZNR UUUUU ZZH
O 130143Z FEB 09
FM AMEMBASSY ASTANA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 4601
INFO RUCNCIS/CIS COLLECTIVE 1177
RUCNCLS/SOUTH AND CENTRAL ASIA COLLECTIVE
RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHBJ/AMEMBASSY BEIJING 0574
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RHMFIUU/CDR USCENTCOM MACDILL AFB FL

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