President Kurmanbek Bakiev
Dear President Bakiev:
I am writing to express profound concern about the draft amendments to the 2002 Law on the Right of Citizens to Hold Peaceful Assemblies, adopted by the parliament on June 13, 2008 and currently pending your signature. The amended law as drafted unreasonably restricts freedom of assembly enshrined in the Constitution of the Kyrgyz Republic and in international law.
In the three -month period between the registration of the draft law with the parliament on February 28 and its adoption on June 13 neither the parliamentary press service nor any other government agency took proactive steps (such as notifying the press) to raise public awareness that the amendments had been introduced; the amendments were merely posted to the parliament’s website. While in recent years many other Kyrgyz draft laws benefited from public consultation and input, no such process of public consultation was undertaken in relation to these amendments. As set out by the Organization for Security and Cooperation in Europe, in its publication on “Effective Participation and Representation in Democratic Societies”, best practice requires that “those who will be affected by the legislation — interest groups, NGOs, citizens — are given an opportunity to comment on the draft legislation.”
Moreover, the parliament adopted the draft amendments even though a key decision by the Constitutional Court of the Kyrgyz Republic regarding peaceful public assemblies (see below) was still pending. The parliament also failed to wait for, and therefore take into account, the conclusions and recommendations on the amendments by OSCE/ODIHR and the European Commission for Democracy through Law (Venice Commission) although the speaker of the parliament had officially requested such a review on June 2. The 17-page opinion the Commission released on June 27 states that “the amendments raise a number of serious concerns and present a setback from the standard espoused in the law before amendment.”
The draft amendments essentially establish a licensing regime for public assemblies and are therefore at odds with the Constitution of the Republic of Kyrgyzstan. Article 25 of the Constitution requires only that local authorities receive notification – not grant permission – about planned public actions. But article 6 of the amended assembly law requires organizers to submit notification of any public gathering to the local authorities at least twelve days in advance of the planned event. Then, local authorities may either permit the gathering or provide a “reasoned disagreement" six days before the event. The law does not enumerate grounds for refusal, opening the possibility for local authorities to arbitrarily ban public gatherings. It also unnecessarily restricts possibilities for timely and spontaneous protests.
The draft amendments also contradict two rulings by the Constitutional Court of the Kyrgyz Republic (October 2004 and July 2008) stating that the establishment of any licensing regime for public assemblies is unconstitutional and de facto reinstate the annulled articles of the 2002 Law on the Right of Citizens to Hold Peaceful Assemblies.1
The International Covenant on Civil and Political Rights, to which Kyrgyzstan is a party, states that any restrictions on the right to assembly must be limited to what is necessary in a democratic society —the manner and intensity of state interference must be necessary to attain a legitimate purpose, and any restriction must also be proportionate. Several restrictions introduced by the amendments adopted by the parliament on June 13 aim to control or even prevent peaceful assemblies instead of protecting and facilitating citizens’ rights. For example, article 9 of the draft law allows provincial governors and heads of self-governance bodies to determine the location of a gathering, change the time and conditions of the event and ban the event if there is a risk of public disorder. Local human rights groups are concerned that this wording provides the authorities with carte blanche arbitrarily to ban gatherings or demonstrations, thereby depriving the right to freedom of assembly of any meaningful substance.
Freedom of assembly is a basic human right essential for the exercise of other human rights and the development of democracy.
Human Rights Watch calls upon you to veto the draft law and send it back to the parliament for revision, and to insist that adequate time be set aside for public consultation and debate. We urge you to ensure that any new law or regulation on public assemblies conforms with the Kyrgyz Republic’s international human rights obligations on freedom of assembly.
Europe and Central Asia Division
1 In a ruling handed down on October 14, 2004 the court recognized null and void articles 5, 6 and 7 of the 2002 Law on the Right of Citizens to Hold Peaceful Assemblies, which had required organizers of public events to obtain permission from governmental bodies. In this context, the court also pointed out that the constitution bars “state authorities and local self-government bodies and their officials” from “exceeding their authority as established by the Constitution and the laws.” In a ruling handed down on July 1, 2008 the court declared article 11 of the Law on the Capital unconstitutional. The article had given the Bishkek municipal assembly the authority to independently regulate the permission for, rallies, street marches and the like, The 2008 Constitutional Court ruling annulled a December 2007 ordinance by the Bishkek City Council based on this article.