Erlan Karin

Navigating constitutional amendments

President Kassym-JomartTokayev signed a decree on holding on 5 June a national referendum on the draft amendments and additions to the country’s Constitution. The upcoming constitutional reform is an important step in the implementation of the President’s programme of political reforms outlined in his state-of-the-nation address in March.

The draft amendments and additions to the Constitution were developed by leading legal and constitutional scholars and received a positive assessment from the Constitutional Council. The draft constitutional amendments are based on the requests from citizens and are implemented in the interests of the entire society.

All amendments and additions to the Constitution are interrelated and form part of a single goal – to create a legal framework for:

1. the final transition from a super-presidential model to a presidential republic;

2. redistribution of a number of powers;

3. strengthening the role and status of Parliament;

4. increasing the participation of the people in the country’s governance; and

5. strengthening mechanisms for protecting citizens’ rights.

The draft Law of the Republic of Kazakhstan “On Amendments and Additions to the Constitution of the Republic of Kazakhstan” was officially published in the state’s print media on May 6.

For an unqualified person, it may be very difficult to navigate through the numerous amendments, to see the difference between the old and new versions of the Constitution. Therefore, to make it easy to become acquainted with these amendments, they are divided into large blocks of amendments and additions, indicating specific points and articles of the Constitution.

The final transition from a super-presidential model to a presidential republic

The constitutional reform will create an optimal balance of relations between the branches of government, ensure maximum equidistance of the institution of the presidency.

Article 43 of the Constitution is supplemented by paragraph 3, which stipulates that the President of the Republic should not be a member of a political party while in office. Based on the same logic, this ban is extended to the chairpersons and judges of the Constitutional Court, the Supreme Court and other courts, the chairpersons and members of the Central Election Commission, the Supreme Audit Chamber of the Republic (new version of paragraph 2 of Article 23 of the Constitution).

This will result in increased political competition, creation of equal conditions for the development of all political parties, independence and impartiality in decision-making.

The Head of State should act as a steadfast guarantor of equal opportunities for all citizens. Therefore, Article 43 of the Constitution is supplemented by paragraph 4, according to which close relatives of the President are not permitted to hold positions of political civil servants and heads of quasi-public sector companies.

At the suggestion of the members of the Working Group, the provisions on the right of the First President to be elected more than twice in a row (a new version of Article 42 (5) of the Constitution) and Article 46 (4) of the Constitution, which stated that the status and powers of the First President are determined by the Constitution and constitutional law, are excluded.

Article 91 of the Constitution excludes the provision on the status of the First President as the Founder of independent Kazakhstan (new version of paragraph 2 of Article 91 of the Constitution).

The outcome of the constitutional reform should be the expansion of the powers of local government and self-government, implemented by local representative and executive bodies responsible for the state of affairs in the relevant territory.

The draft envisages the exclusion of the President’s powers to terminate or suspend in whole or in part the acts of governors of regions, cities of national significance and the capital (a new version of subparagraph 3 of Article 44 of the Constitution).

It also envisages the exclusion of the President’s power to dismiss akims (mayors) of districts, cities, and rural districts (new version of Article 87, paragraph 4, of the Constitution).

The procedure for obtaining powers by governors of regions, cities of national significance and the capital is significantly changing.

According to the new wording of paragraph 4 of Article 87 of the Constitution, they will now be appointed by the President with the consent of deputies of maslikhats (local representative bodies) located in the territory of the region, or deputies of maslikhats of cities of national significance and the capital, respectively. At the same time, the Head of State will offer at least two candidates to be voted on. The candidate who receives the most votes from the deputies who took part in the voting is considered to have received consent.

As such, the powers of the President in relation to local authorities are reduced and concentrated on regional governors, while the role of maslikhats is significantly strengthened.

Redistribution of a number of powers

The presidential quota in the Senate is to be reduced from 15 to 10 deputies. Moreover, five of them will be proposed by the Assembly of People of Kazakhstan (a new version of paragraph 2 of Article 50 Constitution).

The powers of the Senate are supplemented by the right to approve candidates submitted by the President of the Republic for the posts of Chairpersons of the Constitutional Court and the Supreme Judicial Council (new versions of subparagraph 4 of Article 44, subparagraph 2 of Article 55, paragraph 4 of Article 82 of the Constitution).

Overall, the institution of constitutional control is being modernised with the establishment of the Constitutional Court (instead of the current Constitutional Council).

The Constitutional Court will consist of 11 judges (the current Constitutional Council consists of 7 members). Its composition is formed as follows: 6 judges are appointed by the Parliament (3 judges each by the Mazhilis and the Senate), 4 judges are appointed by the President. The Chairperson of the Constitutional Court, as mentioned above, is appointed by the President with the consent of the Senate (new version of sub-paragraph 1) of Article 57, sub-paragraph 7) of paragraph 3 of Article 58, Article 71 of the Constitution).

The Accounts Committee for Control over the execution of the national budget is transformed into the Supreme Audit Chamber, the chairperson of which will report to the deputies of the Mazhilis twice a year (new version of subparagraph 2 of Article 53, new subparagraph 3-1) of paragraph 1 of Article 56 of the Constitution).

The institute of the “Secretary of State” will be transformed into the institute of the “State Counsellor”, which will be responsible for forming proposals and recommendations to the Head of State (a new version of subparagraph 19 of Article 44 of the Constitution).

Strengthening the role and status of the Parliament

As a result of the constitutional reform, the legislative branch of government will undergo a significant reformatting. As a result, the role and status of the Parliament and its chambers will significantly increase.

As already mentioned, the Senate will coordinate the appointment by the President of the chairpersons of the Constitutional Court and the Supreme Judicial Council.

In addition, the President will appoint not 15, but 10 deputies of the Senate, 5 of them will be suggested by the Assembly of People of Kazakhstan (new version of paragraph 2 of Article 50 Constitution).

At the same time, the quota of the Assembly of People of Kazakhstan is transferred from the Mazhilis to the Senate and reduced from 9 to 5 deputies. Accordingly, the total number of deputy mandates in the Mazhilis will be reduced from 107 to 98 (new version of paragraph 3 of Article 50 of the Constitution).

Deputies of the Mazhilis will be elected by a mixed electoral system: by a system of proportional representation in the territory of a single nationwide constituency, as well as in single-mandate territorial constituencies (new version of paragraph 3 of Article 50 Constitution). The introduction of a mixed electoral system will make it possible to fully take into account the rights of all citizens and better reflect the interests of voters.

The right of voters to revoke the mandate of deputies of the Mazhilis elected in a single-mandate territorial constituency is introduced (a new version of paragraph 5 of Article 52 of the Constitution). As a result, democratic traditions will be significantly strengthened, and a new political culture based on mutual responsibility and trust between deputies and voters will take root.

The competence of the Mazhilis is being expanded, and parliamentary control over the quality of execution of the state budget is being strengthened. For this purpose, as already mentioned, the Accounts Committee for Monitoring the execution of the state budget is transformed into the Supreme Audit Chamber, the chairperson of which must report twice a year to the deputies of the Mazhilis (new version of subparagraph 2) of Article 53, new subparagraph 3-1) of paragraph 1 of Article 56 of the Constitution). This will further strengthen the status of the Mazhilis and the Parliament as a whole.

In order to strengthen the mechanism of checks and balances in the political system and optimise the legislative procedure, it is proposed that the Mazhilis pass laws (previously considered and approved bills), while the Senate approves or does not approve laws (previously the Senate passed laws) (new version of paragraphs 4 and 5 of Article 61 and paragraph 5 of Article 62 of the Constitution).

Constitutional laws will be adopted by the Parliament at a joint session of the Chambers in at least two readings (new version of Article 53 of the Constitution).

A special mechanism for prompt adoption of laws in exceptional cases is being introduced. Draft laws introduced as a legislative initiative of the Government in order to promptly respond to conditions that pose a threat to the life and health of the population, the constitutional order, the protection of public order, and the economic security of the country are subject to consideration by the Parliament immediately at a joint session of its chambers.

For the period of consideration of these bills, the Government has the right to adopt temporary normative legal acts that have the force of law (supplement to paragraphs 2 and 3 of Article 61 of the Constitution).

This mechanism is designed for special circumstances that require immediate joint coordinated work of the branches of government to overcome particularly dangerous threats. It is not intended for everyday use and is ensured by mutual responsibility of members of Parliament and members of the Government.

Increasing people’s participation in the country’s governance

The Constitution definitively and unambiguously establishes the norm that the land and its subsoil, water, flora and fauna, and other natural resources belong to the people. The State exercises the right of ownership on behalf of the people (new version of article 1, paragraph 2 Constitution).

As already mentioned, it is proposed to elect deputies of the Mazhilis using a mixed electoral system: according to the system of proportional representation in the territory of a single nationwide constituency, as well as in single-mandate territorial constituencies (new version of paragraph 3 of Article 50 and paragraph 1 of Article 51 Constitution).

It is also going to be possible to revoke the mandate of deputies of the Mazhilis elected in a single-mandate territorial constituency (new version of paragraph 5 of Article 52 of the Constitution).

Governors of regions, cities of national significance and the capital will be appointed by the President on an alternative basis (at least two candidates) with the consent of all deputies of maslikhats of the region/city (new version of paragraph 4 of Article 87 of the Constitution).

Thus, the guarantees of local public administration and self-government, implemented by local representative and executive bodies responsible for the state of affairs in the relevant territory, are strengthened.

Strengthening the mechanisms for protecting the rights of citizens

As already mentioned, the Constitutional Council is being transformed into the Constitutional Court, which, at the request of citizens will consider the compliance with the Constitution of normative legal acts of the Republic of Kazakhstan that directly affect their rights and freedoms enshrined in the Constitution (new version of Articles 71-74 of the Constitution).

The decision to abolish the death penalty at the constitutional level is finally fixed (new version of paragraph 2 of Article 15 of the Constitution).

The competence, organisation and procedure for the activities of the Prosecutor’s Office will be determined by the constitutional law (new version of paragraph 4 of Article 83 of the Constitution). This should strengthen the system of human rights activities and highest supervision of compliance with the rule of law in the Republic of Kazakhstan on behalf of the State within the limits and forms established by law.

Provisions of the new article 83-1 of the Constitution grant immunity to the Ombudsperson for Human Rights and guarantees independence and non-accountability to any other state bodies and officials when exercising their powers to promote the restoration of violated human and civil rights and freedoms. To achieve this, they will have the right to appeal to the Constitutional Court.

The legal status and organisation of the activities of the Ombudsperson for Human Rights will be determined by the constitutional law.

Ultimately, it can be rightly argued that the constitutional reform will expand the participation of citizens in governance and ensure genuine democratisation of political processes.

Erlan Karin is the State Secretary of Kazakhstan