by Mr ZHOVTIS, Chair of the Council of the Kazakhstan International Bureau on Human Rights and the Rule of Law, Co-Chair of the Working Group under the Human Dimension Dialogue Platform Consulting & Advisory Body under the Ministry of Foreign Affairs of Kazakhstan,
a member of the Working Group on Interaction with Non-Governmental Organizations under the Ministry of Culture & Sports of Kazakhstan,
on the adoption of the Law "On the Introduction of Changes and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the issues of non-governmental organizations' activities" adopted by the Majilis of the Kazakhstan Parliament
Several days ago the Majilis of the Parliament of the Republic of Kazakhstan passed the Law introducing amendments into the legislation on non-governmental organizations and submitted it to the Senate.
The draft of this Law that first came to life about one year ago immediately raised many questions among experts, human rights defenders and other representatives of civil society organizations, both from a point of view of its legal writing technique and correctness of its legal terminology, as well as given a number of its objectives.
During the entire year, a number of experts and representatives of international and Kazakhstani non-governmental organizations took part in the discussions around this draft law. Such discussions were also held in the framework of the Human Dimension Dialogue Platform Consulting & Advisory Body under the Ministry of Foreign Affairs ("HDDP CAB"), its Working Groups and Sub-Groups, as well as by the Working Group on Interaction with Non-Governmental Organizations under the Ministry of Culture and Sports of Kazakhstan ("MCS WG") and at other dialogue platforms and fora.
Despite some compromises reached in the course of those discussions and the revised wording of a number of provisions, the draft Law submitted by the Government to the Majilis in a hurry was obviously 'raw,' allowed for ambiguous construction and dubious interpretation, and as such requires serious analysis, follow-up work and improvement.
And though representatives of human rights and other non-governmental organizations did take part in the discussions of the draft law at the Majilis' Working Group and presented some ustified arguments, the draft Law did not only undergo any positive changes, but was rather worsened by the amendments introduced by a number of the Majilis members.
As a result, the draft Law that the Majilis submitted to the Senate contains a number of provisions that raise objections or concerns, including due to its non-compliance with the international standards and Kazakhstan's international commitments. I believe it is necessary to specify some of these objections and comments here.
1. The draft Law introduces the legal term of 'non-governmental organizations.' This term does not have any legal content, as it does not exist in the Kazakhstan legal terminology relating to legal entities, it is not used in the Civil Code of the Republic of Kazakhstan or the Kazakhstan legislation on the registration of legal entities. All these normative legal acts use the term 'non-commercial organizations' which enables to distinguish this type from other types of legal entities – 'commercial organizations.' Using the term of 'non-governmental organizations' not in the non-legal literature, but in the normative legal act brings in legal uncertainty, even though this term is defined in the draft Law as a part of non-commercial organizations.
2. The draft Law expands the subject-matter that is regulated by the Law on Government Social Order, which also creates some legal uncertainty. While the underlying issue was about the government social order, that is about financial support to non-commercial organizations from the national budget, the relations arising in the course of provision of such funds were the subject-matter for legal regulation. No problem arises also in the case when, in addition to the government social order, the support for non-commercial organizations from the national budget is carried out in other forms such as grants and bonuses. However, when this Law also regulates the provision of grants from non-state sources, the subject-matter of regulation goes far beyond the limits defined in its title and legal regulation objectives, which creates a legally uncertain situation, since these relations are also regulated by the whole number of other normative legal acts, first of all, by the tax legislation.
3. In essence, Articles 1 and 5 of the draft Law establish an exhaustive list of working areas in which the government social order, grants and bonuses are provided. It is unclear why this list does not correspond to Article 4 of the Law on Non-Commercial Organizations, which provides the following: "Non-commercial organizations could be established to achieve social, cultural, scientific, educational, charity, management goals; to protect rights, legitimate interests of citizens and organizations; to settle disputes and conflicts; to satisfy spiritual and other needs of citizens; to protect public health and the environment; to develop physical culture and sports; to provide legal aid, as well as for other purposes aimed at ensuring public good and wellbeing of all its members/participants." Nobody also revoked Article 5 of the Law on Civil Society Organizations, according to which "Civil society organizations shall be established and operate with a view to exercising and protecting political, economic, social and cultural rights and freedoms…". It is unclear why the draft Law limits this list of working areas and based on what principle.
4. It is understood that the executive power wants to improve the institutional base for the provision of financial support to non-commercial organizations from the national budget by partially transferring this function from government bodies to the single non-state operator. However, the implementation of this idea in legal terms leaves much to be desired. It is unclear how the competencies and powers in this sphere are divided between the authorized body and the operator. Besides the statement that the operator is a non-commercial organization in the form of a joint-stock company, the draft Law does not provide any information on how it is to be established, who will become its interest-holders, on the decision-making process and the procedure for ensuring transparency and objectivity of the decisions taken, etc.
Moreover, based on the wording of Articles 1 and 6-2 of the draft Law, it follows that the scope of the Operator's competence includes only the provision of grants, while coordination of the activities to put together and implement the government social order, to award bonuses, to allocate grants and monitor the implementation thereof is within the competence of the authorized body, which is, obviously, the Ministry of Culture and Sports of the Republic of Kazakhstan ("MCS"). This means that the idea of establishing the operator to provide financial support to non-commercial organizations is limited to the provision of grants only; then, it is not clear what is the meaning of a major institutional improvement, if in practice all the main functions to provide financial support to non-commercial organizations from the state budget are concentrated with one authorized body of the government.
5. Pursuant to the draft Law, the authorized body is given additional broad functions to oversee and supervise the vast majority of non-commercial organizations in Kazakhstan. In essence, the MCS will become the Ministry for Non-Commercial Organizations with special functions to oversee their activities, with the right to take them to court to hold them administratively liable and to suspend their activities.
Giving these functions to the specialized authorized body which deals with the issues of culture and sports on top of the statistics and tax authorities to which non-governmental organizations submit their reports on a regular basis, in addition to the sufficient powers of the law-enforcement bodies, including the national security bodies, prosecutor's offices to prevent wrongs by non-commercial organizations, among others, unfortunately, is the sign of an authoritarian, police-run state, and not of a democratic one.
Moreover, under the draft Law local executive bodies are getting additional functions to collect information about non-government organizations located within their territories.
Given that the number of non-commercial organizations in the country amounts to several tens of thousands, it appears that it would be necessary to set up a special administration under MCS and special sections at all local administrations at all levels that would be obliged to collect information about the activities of the vast majority of non-commercial organizations.
Also given that tens, or maybe even hundreds, of legal entities that are non-commercial organizations are being established or liquidated in the country every year, the government will need to spend a lot of money from the budget to collect and store this information. In this regard, it would be interesting to find out whether this draft Law has passed the expert examination as to the allocation of additional funds from the budget for this major system of controls.
Moreover, all this information is kept in the database of the Ministry of Justice, a pertinent state registry of the registered legal entities, and also in the government database on taxpayers.
The only difference is that the information about tens of thousands of non-commercial organizations that is already available at the registrars (justice bodies) and tax authorities will be obviously duplicated in the database of MCS and supplemented by the information about hundreds of thousands of projects, programs, etc. that are implemented by non-commercial organizations (since every non-commercial organization implements several projects or programs).
It is not clear why the government needs all this. If the competent authorities have some questions concerning the activities of a concrete non-commercial organization, they have enough legal means to check this, provided they have some justified suspicions.
Our Constitution and the existing legislation must protect all law-abiding non-commercial organizations from unjustified suspicions and certain stigmatization.
Moreover, according to the Guiding Principles of the OSCE and the Venice Commission of the Council of Europe on the freedom of association issued this year, civil society associations shall not be subjected to stricter oversight and supervision than private commercial companies (Section 228), as such approach would be discriminatory.
It is necessary to note that the draft Law discussed in the framework of the HDDP CAB and MCS WG did not contain any such provisions. Therefore, these provisions were introduced at the stage when the draft text was discussed at the Majilis. Since neither MCS nor MFA, with whom the members of the HDDP CAB and MCS WG discussed this draft Law, did not object to these amendments, it is difficult to talk about any equal partnership, fulfilling the agreements that have been already reached and trust between representatives of the government bodies and civil society who participate in these dialogue platforms and structures.
6. It is necessary to separately consider a number of arguments concerning the oversight and supervisory functions of the authorized bodies that are secured in the draft Law in different forms and that are deemed as necessary by some representatives of the executive power, some members of the Parliament and heads of some non-governmental organizations.
These arguments are often based on myths, incompetence, ignorance of the international and foreign practices or simply on the manipulation of facts.
One such argument is that similar laws on oversight of civil society organizations exist in many countries; in particular, the USA, France, Germany, the United Kingdom, Sweden and others have been mentioned. However, those who refer to this forget that in all these countries there is no compulsory registration of civil society organizations whatsoever. When there is no compulsory registration, any oversight over their activities is meaningless. That is, in contrast to Kazakhstan, citizens in these countries associate with each other based on their common interests without the need to set up legal entities, they are absolutely free to act at their own will without any administrative or criminal liability for the establishment or operation of an unregistered civil society association, and without any need to report their activities to anybody. In these and many other countries there are also no specialized bodies carrying out the oversight and supervision functions vis-à-vis civil society or non-governmental organizations and their activities.
The registrars (sometimes justice bodies, sometimes police) and tax authorities do carry out certain oversight, but they oversee not the actual activities, considering the goals of non-commercial organizations having the status of a legal entity, but rather confirm their non-commercial status, i.e. that their activities are not related to generating and distributing profits among the participants or members of the non-commercial organization. This is related to tax benefits that are provided in these countries to non-commercial organizations, and to nothing else.
Another argument is that this draft Law will allow preventing financing of non-commercial organizations from "dubious sources." It is unclear why such oversight should be done by the authorized body only vis-à-vis non-commercial organizations. In practice, all financial operations of both non-commercial and commercial entities are carried out via bank accounts. Upon the completion of a correspondent tax reporting period, non-commercial organizations submit their reports to tax authorities. These reports contain information about the sources of financing and the working areas in which the received funds were spent. There is no need to have a special law or a special authorized body, if the current tax or other legislation enables law-enforcement bodies to identify such 'dubious' sources in concrete cases when there are sufficient grounds for suspicion, as it is required under the administrative and criminal procedure legislation, and hold both non-commercial and commercial organizations and their top managers liable in case there are sufficient grounds.
Another argument is that it is necessary to ensure transparency of the activities of non-commercial organizations and to inform the general public about such activities.
All this is a typical approach taken by the police-run state willing to know everything that its citizens are doing under the guise of public interests.
First of all, proceeding from such logic, the government and, as it appears, the general public should be interested in the activities of each individual citizen who must report his/her activities to the authorized body. Otherwise it is unclear, if one person is not obliged to report his/her activities, then why must the two persons, who have established a non-commercial organization, report theirs?
Second, it is unclear who members or participants of non-commercial organizations are, if they must report to the general public. Are they not the general public? Then who are they? Does this mean that those who took the initiative, established a non-governmental organization, jointly tackle their problems and promote their values or points of view about the public good must report to those who did not take any initiative, does not participate in any undertaking, but wants to know what others are doing?
Third, pursuant to Article 4 of the Law on Non-Commercial Organizations, the goals of a non-commercial organization must be aimed not only at the public good, but also at the wellbeing of its members. Then such non-commercial organizations should report to their own members who established such organizations for themselves and sometimes pay membership dues in such organizations.
In general, first of all, citizens must be interested in transparency and accountability of the government bodies because they exist on taxpayers' money, on our money and we should be interested on what and how these funds are used.
The activities and spending of funds should be of interest to the members of civil society organizations who collect membership dues, who convene a general meeting of its members and have an audit commission to check how the funds were spent.
This should be of interest to donors, government and non-government, local and foreign who award grants through calls of proposals and applications for grants to pursue different goals.
This should be of interest to tax authorities to ensure there is no tax evasion.
And, of course, this should be of interest to law-enforcement bodies and national security bodies, but only in those cases when, as those who work there say, they have operative data that certain NGOs receive funds from illegal sources, by illegal means or for illegal purposes. These bodies also have special means and sufficient powers to engage in this kind of activities.
As for the rest, those non-commercial organizations that are interested in having public support do publish information about their activities on their websites and in the press.
The activities of other organizations are assessed by their members or social groups whom they represent or simply their own members or participants.
Over the last 15 years, the legislation of the Republic of Kazakhstan on non-commercial organizations has been criticized by various UN offices, including the UN Council on Human Rights, the UN Committee on Human Rights, the International Labour Organization, the UN Special Rapporteur on the freedom of assembly and association, the Organization for Security and Cooperation in Europe, international human rights organizations. Following the review of Kazakhstan's reports on the fulfilment of its international commitments under the ratified international human rights treaties, our government received several tens of recommendations aimed at a conceptual revision of the current legislation on non-commercial organizations to bring it in compliance with the international standards.
These standards are specified, as noted above, in the Guiding Principles of the OSCE and the Venice Commission of the Council of Europe on the freedom of association, et.al. The Republic of Kazakhstan is a member-state in the OSCE; however, the current Kazakhstan legislation on non-commercial organizations and the proposed draft Law do not correspond to the above-mentioned document to a significant degree.
Though in accordance with paragraph 5 of Article 6-1 of the draft Law the possibility remains to finance non-commercial organizations in the format that existed prior to its potential adoption, I believe that this draft Law as it was submitted to the Senate of the Parliament cannot be adopted because it suffers from serious legal drawbacks, is not in line with the principle of legal certainty and predictability, and as such will result in unjustified restrictions on the right to association.
In essence, this draft Law secures 'the presumption of guilt' of non-commercial organizations because it creates a whole new mechanism of full-scale oversight over all non-commercial organizations instead of combating certain NGOs that are in breach with the law the same way as it is done vis-à-vis any other organizations, individuals or groups by the means available in the administrative or criminal law.
I support the efforts and calls expressed by a whole number of civil society organizations that voice their objections against the adoption of this Law in its current wording that was submitted to the Senate, and also call for withdrawal of this draft Law for further revision and improvement.