According to Evgeniy Jovtis, the constitutional reform that was announced in Kazakhstan, retains the existing power structure of “three plus one”, with three branches of government, and a president above them, so nothing has changed dramatically.
On January 25th of this year, Kazakhstan’s president Nazarbaev came out with a special address to the citizens of the republic, in which he stated the necessity of adding changes into the constitution of the country, due to redistribution of responsibilities between three branches of the government, namely the president, parliament and the government.
Political analysts had differing opinions on this initiative, with some assuming that it will lead to modernization of the country, while others were more critical (see article “Doesn’t smell like revolution”). Among the latter category, is a famous Kazakh lawyer and civil rights activist Evgeniy Jovtis, whom we asked to examine the proposed initiative and its different sides.
The issue of modernizing Kazakhstan, its political, judicial and economic systems, has been brewing for a while. Many experts have said multiple times that the country is at least 15 years behind the rest of the world. Now, finally, this has been admitted by the regime, even if only on the level of stating a need for the passage of reforms, including changes to the constitution.
It is a positive sign, but the only one I could find in the announced modernization plan, since its practical realization through proposed reforms sounds a little overhyped and doesn’t change much in essence.
Why you ask? Because the reform retains the existing constitutional structure three-plus-one. In democratic states, it is customary to have a constitutional division of power into three branches – executive, judicial and legislative. In Kazakhstan, the president is added to this power equation, being above all other branches; and if before he was primarily in charge of facilitating the cooperated functioning of all these branches, now he serves more as a top arbitrator. Naturally, the existence of this power equation puts under suspicion the distribution of power, the system of checks and balances and the democratic system itself. The proposed reform will not change this fact.
In other words, Akorda has an understanding of the fact that Kazakhstan needs modernizing, but all of the indicated steps towards it are very small and most importantly the president retains absolute control. He has all of the key powers that are not balanced by the powers of the parliament and the effectiveness of the judicial system.
I especially emphasize the continuing existence of the constitutional board in Kazakhstan. The ruling power still hasn’t come to the decision of creating a constitutional court, or reinstating the existence of constitutional court as a higher body of constitutional oversight for securing the correct execution of constitution and adherence to rights and liberties in the republic.
I am also unsatisfied by the fact that in justifying the upcoming reforms there was nothing mentioned about the necessity of liberalizing the political system. Because, it is not only what is written in constitution that matters. There are problems related to political atmosphere in the country, existence of independent media outlets and differing points of view, an ability to create opposition political parties, truly participate in the political life of the country, having an access to constituents and having an access to all kinds of media outlets. But nothing was said about this, neither in the presidential address nor in his message to Kazakhstan’s people. The head of the state only talks about technical redistribution of power, responsibilities and accountability while maintaining significant presidential powers.
Of course, one could not ignore the amendments ⃰ to the article 26 of the constitution of KR, that don’t align with the logic of the reform, since they have nothing to do with the redistribution of responsibilities, but rather deal with ownership rights.
Why was it necessary to stress in the constitution the fact that the parliament cannot legislate laws that would limit or strip someone of property rights on the equity that was obtained illegally? All property rights are already protected both by constitution and by legislation. Why, then emphasize the impossibility of amendments in it?
A comparison with famous amendment to American constitution about the impossibility of legislating laws that infringe on the freedom of speech comes to mind. In Kazakhstan, on the other hand, they are trying to strengthen the property rights. Why? Multiple political experts in Kazakhstan, are talking, with varying degrees of criticism and resistance, about why these amendments are suddenly needed. One theory is that it resembles an attempt to guarantee preservation of property ownership, following the transit of power.
However, I think that the amendments to the article 26 of the constitution are related to the privatization of the 1990s. That process was, not fully legal, to put it lightly, and in a lot of ways linked to a lot of ruses and schemes. Therefore, the regime is clearly worried, since it has always been and still is the main beneficiary of that process. Now it is trying to increase the warranty of preserving the obtained properties, by increasing legislative barriers, so that no one will attempt to reexamine the results of the 1990s privatization and the property rights laws.
Therefore, the amendments primarily protect the property rights of those at power – those who enriched themselves during the privatisation years. Hence, it is an interesting factor, since it attests to the uncertainty of the elites.
However, I have doubts about the effectiveness of these undertakings, since throughout the last eighteen years the parliament had repeatedly changed some of the stances of the constitution. What stops the new upcoming parliament from reexamining some issues again, in the future?
In my opinion, as a result of the proposed constitutional reform we will only witness minor redistribution of powers and slight increase in the role of the parliament in relation to the government while maintaining president’s total control over all branches of the government. These are half-measures, that don’t change much in the country. Thus, I believe, those are not the last propositions of changes to the constitution of the country.
⃰ I am referring to the changes in parts I and II of the article 26 of the constitution of KR. More specifically the following provision has been proposed for addition “Inclusion of any laws or legal acts that limit or deprive of the ownership of private property, attained in legal ways, is prohibited, unless otherwise covered by constitution.”
