Annul Decree and Amend Law Allowing Censorship
(Berlin) – The Kazakh government should annul a decree implementing legislation that imposes excessive restrictions on freedom of speech and association during states of emergency. The government should also amend the underlying state of emergency law.
Under the state of emergency law and the new implementing decree, which went into effect on April 12, 2014, Kazakh authorities can act with minimal judicial oversight. If the government declares a state of emergency, officials can issue orders to suspend or terminate media publications, suspend the activities of political parties and public associations, or have administrative sanctions brought against individuals for using audio or video recording devices when they have been ordered not to.
“These blanket emergency restrictions are unjustified and overreaching from the start,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “But the rules detailed in the decree expose just how far the authorities are willing to go to muzzle the media outlets and independent society groups they deem threatening.”
The decree, “Approving Rules for the Application of Additional Measures and Temporary Restrictions during a State of Emergency,” was adopted by the government on January 28 and entered into effect on April 12, ten days after it was published.
Kazakh authorities have long limited key civil and political rights, including the rights to freedom of association and expression. However, since early 2012, authorities have carried out an overt crackdown on government critics. The crackdown followed an outbreak of violence in Zhanaozen, in western Kazakhstan, in December 2011, when police opened fire on striking oil workers and others. Over the last two-and-a-half years, key civil society activists have been imprisoned, including Vladimir Kozlov, a political opposition leader. The government has also suspended some independent and opposition newspapers and permanently closed down others.
Kazakhstan’s state of emergency law lists eight additional measures and restrictions the government can impose during a state of emergency of a social nature, such as mass riots, including: exercising control over mass media outlets; suspending or terminating the activities of political parties and public associations; restricting or banning the use of technical equipment such as photocopy machines and radio and television broadcasting equipment; imposing a curfew; and banning the sales of arms.
While governments may legitimately impose some constraints on the enjoyment of certain rights or particular activities during states of emergency, the broad provisions in law and the accompanying rules provided for in the new decree are unjustified and unnecessary, and would violate the rights to freedom of expression and association, Human Rights Watch said. The restrictions would also violate Kazakhstan’s obligations as a party to the International Covenant on Civil and Political Rights (ICCPR).
The decree specifies that within 24 hours from the declaration of a state of emergency, the commandant’s office, or the local body charged with enforcing the state of emergency, is to inform media agencies that they must provide advance copies of material for publication, whether print, radio, or television.
Throughout the state of emergency, the news agency owner must provide an advance copy of the required materials 24 hours in advance, or in the case of breaking new reports, immediately before publication to “align its content.”
If the outlet publishes any information that has not been approved, the commandant can issue “an order to suspend for a period established by law and/or to terminate production of mass media materials, or stop the distribution of mass media reports.”
“Requiring prior approval of all television and radio material is barefaced government censorship,” Williamson said. “These emergency provisions extend far beyond any reasonable and proportional restrictions and violate Kazakhstan’s international commitments.”
Similarly, the decree specifies that the commandant’s office can issue an order to “suspend the activities of a political party or public association for a period established by law” if they are found to impede efforts “to eliminate the circumstances that gave rise to the state of emergency.” The decree does not specify what actions or words constitute such interference.
If the commandant’s office determines that the party or association has not complied with the order and has continued to impede the elimination of the circumstances that gave rise to the state of emergency, the commandant’s office “sends materials to the court to issue a decision to suspend the activities of a political party for a period established by law, or terminate the political party’s activities by liquidating it.” The political party or public association would have the right to appeal the decision.
If a country declares a state of emergency that “threatens the life of the nation,” the ICCPR allows it to adopt exceptional and temporary measures that impose restrictions on certain rights that would not otherwise be permitted. But the measures must be only those “strictly required by the exigencies of the situation.”
Any restrictions to rights and freedoms during a state of emergency must be specified by law, demonstrably necessary for the purpose of protecting a legitimate aim, in a manner that is proportionate to protect that aim, for a specific period of time to meet the exigencies of the situation, and subject to judicial review.
The Siracusa Principles, authoritative guidelines on human rights norms in states of emergency developed under the auspices of the former United Nations Human Rights Commission, set out clearly that “the principle of strict necessity shall be applied in an objective manner” and that derogations – temporary exceptions – “may not be imposed merely because of an apprehension of potential danger.”
The Kazakh authorities have not provided any credible justification for the need to impose such overreaching restrictions on freedom of speech and association during states of emergency, Human Rights Watch said.
“These sweeping restrictions on free speech and association should have no place in Kazakhstan, even in times of emergency,” Williamson said. “It’s not too late for the government to amend the emergency law and annul the decree to adopt a more narrowly defined set of rules.”