Interim President Kasym-Zhomart Tokayev did not have a legal right to make changes in the Kazakh Constitution, believes famous Kazakh human rights activist Evgeniy Zhovtis. We are talking about the renaming of Astana into Nur-Sultan.

Starting from March 20, 2019, the Kazakh capital has, de-facto, been bearing a new name – Nur-Sultan. This happened after President Kasym-Zhomart Tokayev had launched this initiative at the inauguration ceremony. The Parliament approved it in both readings and the Astana Mayor’s Office did not raise any objections having only suggested putting a hyphen after ‘Nur’.

The initiative, however, has caused a negative response in the civil society. In several cities, people took to streets protesting against the renaming of the capital.

The protests in Kazakhstan against the renaming of Astana into Nur-Sultan. Euronews video 

The experts and legal professionals have written on social media that the appointed President Tokayev (in reality, he is only interim president) does not have the right to make changes in the Constitution.

But is this really the case? We have asked famous Kazakh attorney and human rights activist Evgeniy Zhovtis to comment on this situation. Here is his comment in its entirety.

— Article 2 of the Constitution of the Republic of Kazakhstan stipulates: “Astana is the capital of Kazakhstan”. This means that, in order to change the name of this city, it is necessary to make changes in the Constitution. In other words, the Constitution must read that now Nur-Sultan is the capital of Kazakhstan.

The Constitution can be changed via the two means. First, the Parliament can do it on the initiative of the President and in accordance with its authorities stipulated by Subsection 1 of Article 53. It says that the Parliament, on the initiative of the President, can make changes in the Constitution. The second way is to hold a referendum and make the changes via this referendum. The referendum is announced by the President – on his own initiative or on the initiative of the Parliament or the Government.

In other words, essentially, the key role in any Constitutional changes belongs to the President. He announces the referendum either on his own initiative or on the initiative of the Parliament and the Government or initiates the changes that must be approved by the Parliament.

And here we have a sticking point. It lies in the fact that Article 48 of the Constitution that has to do with the early resignation from the Presidency contains Subsection 2 that says that the person that accepts the Presidential authorities based on Subsection 1 does not have the right to initiate the Constitutional changes and additions. In other words, Kasym-Zhomart Tokyev cannot initiate any changes and additions to the Constitution of the country. The Parliament can but, again, via the referendum that can only be conducted upon the decision of the President. But this President must not be the one that ascended to power due to the early resignation of the acting President. 

In other words, I do not see any legal possibility for President Tokayev to initiate the Constitutional changes.

However, in Kazakhstan, regardless of what the law says, one can if one really wants to, and this rule has been at work for a number of years now.

The Kazakh Constitution is interpreted by the Constitutional Council whose members include the First President, Nursultan Nazarbayev. And, theoretically, I can imagine a legal scheme that the authorities may built around the initiative to rename Astana into Nursultan. This scheme is quite curious, and I discovered it in Article 91 of the Constitution. The thing is that, if the President decides to give a draft of the Constitutional changes and additions to the Parliament for review, then the referendum is not to be held. Therefore, the authorities may give the following explanation to the current developments: it is a fruit of our imagination that the newly appointed President has suggested to rename the capital; in reality, the suggestion has been made by the Parliament. The Parliament told to the President to hold the referendum on renaming Astana into Nursultan, but the President said that the referendum is not to be held and passed the initiative along to the Parliament. And it was the Parliament that made the decision.

So, they can offer this clever interpretation: something like, President Tokayev himself did not initiate any changes since it is prohibited by Article 48 of the Constitution; it was the initiative of the Parliament. The President simply decided not to hold the referendum and immediately sent the initiative back to the Parliament to make a decision.

I repeat this is just an option, my hypothesis as to how this legal curlicue may be interpreted by our Constitutional Council. And this option cannot even be called far-fetched. It is a distortion of reality since the suggestion on the renaming of Astana into Nursultan was made by no other than Mr. Tokayev himself and the whole Kazakh nation was a witness to that. But the authorities may offer this exotic explanation as to why they choose not to follow the Constitution. And it will be called “The Law does not Allow, but if One Really Wants to, One Can”.

As for the renaming of the central streets of the Kazakh cities in honor of Nursultan Nazarbayev without asking their citizens, let us be honest – who has been interested in hearing the people’s opinion for the last 25 years?

When they really wanted to put it to use, they used it in the form of different kinds of referendums. But asking the people whether they consent to the renaming of their city or street? Goodness, who are they, these people of Kazakhstan? They are a dependent population and, due to their dependency, they accept what is bestowed on them from the above. And, generally speaking, the authorities are not in the habit of asking anyone about anything. They are the power and we are not. It is only the Constitution that stipulates that the people are the source of the power. But, in our country, the source of the power is the power itself. The end.

 NOTE FROM EDITOR: the comment of human rights activist Evgeniy Zhovtis was recorded on Friday, March 22. As we can see, he was correct in his prognoses.