An article by the former Minister of justice, former Chairman of the constitutional Council, the honored worker of the Republic of Kazakhstan, doctor of legal Sciences and Professor, and member of the Venice Commission of the Council of the Republic of Kazakhstan published in “Komsomolskaya Pravda”.
Freedom and independence
Human history repeatedly proves one simple truth – strategic and current goals, objectives and scope of activities of States in different time. However, among them there are those who always remain paramount for any person, nation, country. In a series of unwavering values – freedom and independence.
Since the adoption of 16 December 1991 the constitutional law “On the state independence of the Republic of Kazakhstan” of Kazakhstan stood before the world community as a young sovereign state, on whose shoulders lay a heavy burden of responsibility for the future of his people.
The first President of Kazakhstan Nursultan Nazarbayev and his team had the historic mission to take
for the construction of nationhood practically from scratch in terms of the comprehensive crisis of the Kazakh SSR and the collapse of the Soviet Union
In a speech on 28 Aug 2015 at the international scientific-practical conference dedicated to the 20th anniversary of the adoption of the Constitution of the Republic of Kazakhstan, Nursultan Nazarbayev presented the following assessment of the time:
Today we can objectively claim that early in 1995 years of Kazakhstan’s independence was at a precipice. The question stood an edge: to be or not to be the state after the collapse of the Soviet Union? In that time, Kazakhstan was desperately poor and desperately limited in their actions and capabilities. We had neither the knowledge, nor the experience of self-government and very little idea how to operate a modern state. We knew – if we do not act quickly and decisively, instead of a new and independent state, we’ll have anarchy. We watched it on the experience of other countries, — said Nazarbayev.
How Kazakhstan managed to avoid large-scale collapse, and then firmly stand on its feet, to carry out a triple upgrade, to form a social community – the People of Kazakhstan to make a breakthrough in a market economy, creating the foundations of social policy, to ensure the sustainability of the democratization process? And then – gradually build up a positive potential in the country and all Kazakhstanis.
The choice of strategy. Why are lawyers important?
Currently, Kazakhstan, received social harmony and political stability in the Republic, achievements in the country and a peaceful foreign policy General international recognition, has become a strong and successful state initiative authoritative player on the world stage, growing in well-defined areas, through the implementation of carefully considered strategies.
What is behind the victories and successes of the Countries of the great Steppe? I think the crucial role was played correctly chosen course of construction of the new Kazakhstan statehood, the chosen Leader of the nation the First President of the Republic of Kazakhstan – Elbasy Nursultan Nazarbayev.
From today’s perspective who knows a little about how I had to work then the whole state apparatus, and especially the First President, as now they are often called, dashing 90-e
It was a difficult time and especially for the First President, who, however, managed to choose the proper course, and most importantly – stick to it throughout the period of formation and development of the independent state.
Judge for yourself: we live in the USSR, with its administrative-command economic system, however, almost everyone understands that it is necessary to prepare for the change. All want change, but what? Thus best of all the situation was realized, the President of Kazakhstan. After all, he’s already in 1990 identified for Kazakhstan, the establishment of the market economy, building a new legal system, corresponding to modern requests of the legislation.
I came to work in the presidential Administration or, as it was then called, the office of the President of the Kazakh SSR, in may 1990, almost immediately after establishment in the Republic as President. Then, the Machine was created by the State-legal Department, where he was involved many lawyers, as practitioners and scientists – representatives of legal science.
I admit, not everyone understood why such a “popular” are just the lawyers, because in the party there were very few. I once heard from one of the secretaries of the district Committee for the phrase: “Lawyers, do not prevent to work!” And now, after a while, come to understand: in 90-e years the state was in dire need of a new legal system, and it is clear that help could only come from professional lawyers who know well the not only domestic legislation, but also familiar with foreign law, with the global trends of its development.
I must say that the Soviet higher school has given a very good education. In universities read courses of lectures on criticism of the so-called bourgeois law
But to criticize something, the subject must know at least in General terms. In the 70-80s in Russian language were translated and published Constitution, codes, and other laws of many foreign countries, and not only socialist. So, with great interest I have read the criminal codes of Bulgaria, Cuba, Germany, France, Japan, new York (USA), etc.
Characteristically, the course of modernization, but rather, building new policies in the judicial system of the country was taken even before the collapse of the Soviet Union. So, one of the first decrees, for example, was aimed at strengthening the fight against crime. At the same time N. Nazarbayev felt the need to fight crime on a scientific basis. On his initiative in the summer of 1990 in Alma-ATA (then the capital of the Republic) was held a meeting of leading criminologists of the Soviet Union, which was established Criminological Association of the USSR, headed by the famous criminologist doctor of legal Sciences, Professor Azalea Ivanovna’s Debt. After disintegration of the USSR the Association was transformed into the Russian criminological Association, which until the end of his life also led Azalea Ivanovna.
The results of the communication with criminologists from Russia and other Soviet republics began the revision of the provisions of article 168 of the criminal code of the Kazakh SSR, which included responsibility for the speculation. Speculation was understood then, as purchase-resale goods and other items for profit. That is what today is considered a business. This article of the criminal code on behalf of the President we had all the former Soviet republics was officially decriminalized.
Gradual formation of new economic relations demanded a new legal clearance.
There was a question about the definition of the institution of private property, which in the USSR was not and could not in principle be
The Supreme Council of the Kazakh SSR attempts to do so, by adopting the Law “On property”. But failed. In fact, the law has not helped and hindered the development of market economy, and then the President for the first time decides to use its veto. The Supreme Council has not been able to overcome a veto.
Was later adopted by the Civil code. In its development participated Yuri G. Bassin, Kuntuarovich Maidan Suleimenov, A. G. Didenko and a number of other well-known Kazakh lawyers.
Consideration of the draft CC of the Supreme Council lasted several days. And I was amazed that all these days our President is held in the courtroom of the Supreme Council. Moreover, he actively participated in the discussions. Nursultan Nazarbayev understood that the Civil code is, in fact, the economic Constitution of the country. In GK determined the key terms of the construction of a new economic system, new economic relations.
I’ve always wondered how the President could precisely and accurately predict what is important for the country at one time or another. I and all who worked with him developed a strong belief that this is a man who is so well feels the situation that is always aware of what will turn certain of his decisions in the future.
Nevertheless, he was regularly invited, listened to, and most importantly, listened to the proposals of prominent legal scholars of that period. In his entourage were the masters as Salyk zimanovich Zimanov, Sultan sartaev Sartaevich, Gayrat I. Sapargaliyev, Yuri G. Bassin, Vladimir Kim, – Zinaida Fedotova and others.
At the dawn of the 90s, one of the pressing issues, as we all remember, was the crime, which is rampant. The widespread dismantling of criminals, a ruthless racket, a brazen theft, robbery and assaults – all this demanded from the leadership of the country for an immediate response. And one of the most effective measures was the adoption of the new Criminal code of Kazakhstan.
The working group on its creation was then headed by Thomas Aitmukhanbetov, who at the time was Chairman of the Supreme court. The group has done a huge amount of work.
Then the President instructed to finalize the UK for me. I led a new working group
Of course, we didn’t realize that involved in the development of a historical document. Was carefully studied the experience of foreign countries. Base served as the Model code of the CIS countries.
However, our Code in the end was very different from the model project, and from that adopted earlier by the criminal code. It was something that required our Kazakhstan reality.
Remember when we were finished, the President called us with Baurzhan Mukhamedzhanov, he was then the head of state-legal Department of the presidential Administration. And for several hours we sat in the office of the President, listened to his comments and suggestions, and gave explanations on virtually every topic, and sometimes on specific articles.
Nursultan Abishevich was literally reading every line of this document. He knew, as Head of state, the importance of proper regulation of such regulatory legal act which is the penal code.
The President was originally configured that if the government uses enforcement mechanisms, and any state should have these mechanisms and be able to apply them, because otherwise there will be a state itself, then everything should be regulated and fairly clearly spelled out in the law.
Most of all I remember two of his comments on the draft criminal code. The first was the Institute of necessary defense. The President then emphasized that our citizens should really have the right to protection from criminal attacks, especially because this right is guaranteed by the Constitution. It is suggested to set man free from responsibility, even if he exceeded the limits of self-defense, but did it because of fear or excitement caused by the assault. We said that such a rule is in the criminal code of Germany.
The President responded: borrow it, borrow everything that is good in our society
The second of the comments touched on issues of freedom of speech. The President gave a clear indication that in UK should be spelled out: the assault on freedom of speech and harassment of journalists are punished, and quite harshly.
I must say that this code was welcomed by the legal community in many countries. Our working group was even nominated several embassies of European countries to one of the international competitions conducted by the Council of Europe and the USA, for contribution to the development of democracy.
The award we were not given, but the nomination was honored. And in the CIS our work has been appreciated, I think, appreciated. I was awarded the honorary prize of the International Union of lawyers “Femida”. This reputable international organization, then and now headed by known Russian lawyer Andrey Adamovich Trebkov.
Interestingly, when actualized the question of the fight against corruption, the President, contrary to popular opinion, that in such cases it is only necessary “to identify and to plant”, said: “We need preventive measures”. By the way, in Kazakhstan the Law “On combating corruption” was adopted early in the post-Soviet space. The head of state foresaw how important it is at the system level to approach the organization to counter this social evil.
The Constitution is a reflection of the reform and modernization
And of course, special attention deserves the topic of constitutional construction in Kazakhstan.
After the collapse of USSR and proclamation of independence by Kazakhstan on 28 January 1993 adopted the first Constitution of the Republic of Kazakhstan. Many experts called it a “compromise”, as it failed to resolve a number of fundamental issues related to the transition from one socio-economic formation to another.
In this regard, two and a half years on 30 August 1995 at the Republican referendum was adopted the Constitution of the Republic of Kazakhstan, which provided for a presidential form of government, a bicameral Parliament, the universally recognized rights and freedoms of person and other constitutional values.
It is no secret that when determining the concept of the Basic law, notable assistance was provided by Russian and French experts, which was part of the Expert-consultative Council under the President of the Republic on the draft of the new Constitution.
Well-known personal contribution of Nursultan Nazarbayev directly in the text.
He thoroughly studied a few dozen of the constitutions of foreign countries, and then in the discussions quoted them from memory
I had the opportunity to participate in almost all initiated by the First President of the reform of the Constitution. Over the past almost 25 years since the adoption of our Constitution, there are three major reforms: it is 1998, 2007 and 2017: (there were other amendments, but they were not of a systemic nature).
Noteworthy is the fact that almost immediately after the adoption of the new Constitution in 1995, the First President stated that as the establishment of appropriate economic, social, political foundations will be the process of decentralization and devolution of powers from the President to the Government and Parliament. Then that promise was perceived by some sceptics as a traditional rhetoric, but in 1998 was made the first, significant steps to implement this program: increased terms of office of members of the Senate to 6 years, the term of office of deputies of the Majilis (lower Chamber) of Parliament to 5 years, 10 Deputy mandates increased the number of Majilis, strengthened the control powers of the Parliament over the activities of the Government (which instituted the so-called “impeachment” of members of the Government Houses of Parliament subject to certain conditions). In criminal proceedings were included the Institute of jurors.
In 2007 the First President continued this line. There have been changes in the procedure of appointment of Prime-Minister of the Republic, enriched by the representative function of the Parliament, changed the order of formation of the Majilis, improved accountability of Government to Parliament and in particular Majilis. The issue was resolved on the death penalty. She now provides in time of peace only for terrorist crimes entailing loss of life. This presidential decree the moratorium on execution of death penalty, which is still in effect. I must say that our experience in this regard is of great interest in legal circles in many countries. Introduced judicial sanctioning of arrest. Now it makes the court, not the Prosecutor. Implemented a number of other democratic elements.
The most important and, one might say, system changes were made to the Constitution amendments, 2017. The Venice Commission of the Council of Europe in its opinion noted that “the constitutional changes in Kazakhstan represent a step forward in the democratization process of the state. The reform sets the right direction in the further development of the country and indicates demonstrable progress”. According to the Commission, “enhancing the role of Parliament in General and of Parliament in particular, the transfer of certain functions of the President of the Republic, the Government, strengthen mechanisms for accountability and answerability to Parliament is a positive change, which corresponds to the logic of the previous constitutional reforms in 1998 and 2007”.
Commenting on the conclusion of the Commission, the President of the Venice Commission Gianni Buquicchio said that they heard from President Nursultan Nazarbayev of his intention to first build a strong economy, and then to resolve political issues. And judging by the draft amendments, in Kazakhstan, in large measure, the economic issues have been solved, so now it’s time for a serious political modernization.
The Venice Commission subsequently noted, also, that this constitutional reform allowed to make serious steps in the democratization of society, smoothly and painlessly to carry out the change of Supreme power in the country.
Of great interest to foreign lawyers and the business community called the addition to article 2 of the Constitution a provision stating that the boundaries of the capital Astana city (now Nur-Sultan) can be set to a special legal regime in the financial sector in accordance with constitutional law. This is done to give a special status as an International financial centre “Astana” (IFCA), was created to attract foreign investments into the economy of Kazakhstan by creating a favorable environment in the financial services industry, the further development of the securities market and ensuring its integration with international financial markets. The Center started its activity to the international arbitration center, an independent judiciary, and the Academy of law of IFCA.
It would be interesting to compare the constitutional development of Kazakhstan and Russia. Not a great discovery to say that our Constitution, like most former Soviet republics, elected presidential form of government, a lot in common. While often coincide and trends of development: from a strong presidential Republic to a presidential – parliamentary, etc. this is more evident on the example of the recent constitutional reform in the Russian Federation. A number of amendments to the Constitution of the Russian Federation pursues the same objectives as the some norms of the Constitution of Kazakhstan, although the solutions to the problems they differ.
So, some changes in Russian Constitution as conceived by its developers is aimed at the so-called “independence” of domestic law, to prevent the priority of international treaties over national legislation. In Kazakhstan the Constitution provides for the precedence over domestic legislation to all international treaties (as it was until recently in Russia), only treaties ratified by the Republic of Kazakhstan, and since we have the ratification made by the enactment of the law, the priority of ratified international treaties is quite logical. Although in the hierarchy of the law, the law on ratification has priority, but it is also a law that indirectly expresses the will of the people (the law passed by Parliament and signed by the President).
Thus in our Constitution from the very beginning was recorded her unconditional priority laid down by its highest legal force.
In the practice of the constitutional Council of the Republic was the recognition not corresponding to the Constitution even ratified the international Treaty
In the new edition of the Constitution of the Russian Federation establishes the inalienability of its territory. We have the same in 1995 formulated a list of specially protected constitutional values that cannot be changed even by amendment to the Constitution, which includes the unitary, territorial integrity and form of government of the Republic of Kazakhstan. Today the list is expanded, it is in 2017, also includes the independence of the state, the fundamental principles of the Republic established by the Founder of independent Kazakhstan, the First President of the Republic of Kazakhstan — Elbasy, as well as its status.
In Kazakhstan, as in Russia, provides for a special procedure for the appointment of Ministers of foreign Affairs, defence and internal Affairs. Both these mechanisms both the Russian and Kazakhstan aimed, in fact, apparently to ensure the stability of power in terms of, if he wins the parliamentary elections the opposition to the President of the party, and the Government will be formed from representatives of political parties different from that which supports the Head of state. The experience of stable operation, when the Government belongs to one party, and the President of the other party, was in France.
Many Russian jurists noted that the constitutional reform in the Russian Federation is very similar to our constitutional reforms in Kazakhstan
I would also like to mention one feature of our Constitution. In our basic law among the unchangeable constitutional values directly related to the principle of the Kazakhstan patriotism, that is, the value to the protection of which directed a number of amendments to the Constitution. And this rule really works here. Moreover, this rule provides, we can say, the ideological impact on foreign colleagues. So, the judge of the constitutional court of one of the Baltic republics, having visited us in the country, with amazement said “is patriotism and nationalism may not be identical concepts.” Of course, for the realization of this, and most other constitutional values, not just proclamation. Required persistent dedicated work of the entire state apparatus and society.
A crucial role is played by the activity of the national leader of Kazakhstan
Thus, it is no exaggeration to say that the creation of modern Kazakhstan’s statehood, and hence the legal system of the country, as well as formation of legal policy is inextricably linked with the name of the First President of the Republic of Kazakhstan – Leader of Nation Nursultan Abishevich Nazarbayev.
In conclusion, I would like to mention one remarkable trait of the personality of the First President of Kazakhstan. In his time in the West, wrote enthusiastically about the inauguration speech of U.S. President John F. Kennedy, who said that we need to think not about what the country can give you, and what you can do for your country. I think this idea is absorbed, probably with youth and Nursultan Nazarbayev, who always and everywhere adhered to the principle “think about the Motherland and then about yourself” and tried to instill in all its surroundings, and the society of Kazakhstan as a whole. In large measure he succeeded, as evidenced by among other things, the continuity of the political course, pursued by President of the Republic of Kazakhstan Kasym-Zhomart Tokayev Kemelevich by.