Kazakhstan’s Constitution: from Soviets to democratic values

On August 30, 1995, the Constitution of the Republic of Kazakhstan was adopted. The current constitution is the supreme act in Kazakhstan’s system of law. It has the highest legal force and has a direct effect on the entire territory of Kazakhstan.

The legal formalisation of real relations in society, i.e. the actual constitution, is ensured by a written legal constitution. In the history of Kazakhstan there have been five such constitutions. Three of them were adopted during the Soviet period, the other two adopted during the years of Kazakhstan’s independence. Undoubtedly, all of them in one degree or another affected Kazakh statehood and its development.

The foundation of the first Constitution of an independent Kazakhstan was the Declaration of State Sovereignty of the Kazakh SSR of October 25, 1990, and the Constitutional Law of December 16, 1991, “On State Independence of the Republic of Kazakhstan.” This demonstrates that the sovereign people and sovereign country have a sovereign constitution. It organically proceeds from the inalienable sovereign right of the people to have statehood and to be a full-fledged subject of the world community.

At the same time, being adopted by the Supreme Soviet (the parliament of the time), it had a compromise character. The question of whether Kazakhstan was a presidential or parliamentary country at that time remained open.

At the first session of the Assembly of the People of Kazakhstan in March 1995, Nursultan Nazarbayev initiated the adoption of a new constitution. The Constitution of 1995 embodied the will of the people – it passed through a broad public discussion and was then adopted through a national referendum.

The main feature of our constitution is that it takes into account the fact of the multi-ethnicity of the people and does not infringe on the interests of the state-forming Kazakh nation. It is enough only to pay attention to its preamble: “We, the people of Kazakhstan, united by a common historical destiny, creating statehood on the ancient Kazakh land…” Both chambers of the Parliament stipulate the existence of a quota for representation of national, cultural and other significant interests of society, and the Assembly of the People of Kazakhstan is given a constitutional status.

The preparation of the draft constitution was initiated by the, First President of Kazakhstan, and he played a key role in its development with the assistance of a group of leading local and foreign lawyers. As is known, it is based on the model of the French Constitution from 1958. The system of supreme bodies of state power with the “arbitration” position of the President practically reflects the Constitution of the French Republic. The President is elected by citizens and without the participation of the Parliament. At the same time his authority, on the one hand, is limited by the constitution and laws, on the other hand, it is balanced by the functioning of the bicameral Parliament and the Constitutional Council.

The ideas expressed by the President laid the foundation for the construction of the Basic Law. In his book “The Kazakhstan Way”, President Nazarbayev detailed the history of drafting the constitution and elaborating the main approaches of the constitutional reform.

For example, among Kazakhstan’s fundamental principles, the current constitution includes public consent and political stability, economic development for the benefit of the whole nation, patriotism and the solution of the most important issues of state life by democratic methods, including voting in a national referendum or in Parliament. He made a direct contribution to fixing those principles, whose immutability in 2017 was designated by parliamentary deputies as part of constitutional reform. With the huge support from broad sections of society, we can call our constitution both charismatic and national.

Kazakhstan claims to be a democratic, secular, legal and social state. In other words, the country intends to progressively develop as a modern, strong state, whose power is based on the law that restricts it and reflects progressive universal ideals. The individual; his life, rights and freedoms; are proclaimed as the highest values of the state.

It is very significant that one third of the articles of the constitution is devoted to the legal status of a person and a citizen.

The people are defined as the only source of state power, exercising power directly through the national referendum and free elections, as well as delegating the exercise of their authority to state bodies.

The presidential form of government, as history demonstrates, is the most acceptable for multiethnic Kazakhstan and helps avoid political crises. Ideological and political pluralism is recognised. Unified state power is exercised on the basis of the constitution and laws in accordance with the principle of its division into the legislative, executive and judicial branches and interaction among themselves using a system of checks and balances. Moreover, the coordinated functioning of all branches of state power and the responsibility of the authorities to the people is provided by the President.

Since the adoption of the current constitution, amendments and additions have been made to it four times: in 1998, 2007, 2011 and this year. The need for reforms every time was initiated by the President. Neither the government nor the Parliament have taken advantage of this opportunity.

We see that the reforms that have been undertaken have been consistent, reconciled and carried out while preserving the entire framework of the political system in order to achieve the goals of phased implementation of democratic reforms, without excessive politicisation, shocks and tensions in society. They are relevant to the historical situation and the objective level of the country’s development.

Approaches that are aimed at reviewing certain articles of the constitution are possible and are not excluded, because the introduction of new articles and the modification or abolition of already obsolete ones takes into account the political, economic and social needs and demands of society.

The stability of constitutional norms is guaranteed by the fact that the constitution contains provisions on subjects entitled to make a proposal to amend the constitution and make a final decision. The procedure and limits of such reforms are stipulated.

Proceeding from the fact that the President is a symbol and guarantor of the unity of the people and state power and the inviolability of the constitution, draft amendments and additions to the constitution are submitted to a national referendum or to the Parliament only by the President. The unity and territorial integrity of the state established by the constitution, the form of government, as well as the independence and fundamental principles of the activities of the republic, are not subject to any change.

From the point of view of current conditions and foreseeable prospects, Kazakhstan’s constitution is quite conducive to the consistent formation and promotion of the state policy, its sustainability and continuity, as well as comprehensive modernisation of all spheres of life.

The author is head of the Legal Analytics Department of the Centre for Political Analysis and Strategic Studies of the Nur Otan Party.