Reviewing the Changes in the New Constitution

Many people have asked me what I think of the new Constitution. Let me say at the outset that I am not a lawyer, still less a specialist in constitutional law, and it is extremely difficult for me to comment from a legal standpoint. Nevertheless, I have a subjective opinion that I would like to share.

First, it no longer makes sense to propose what I would change: that should have been done earlier, while the draft Constitution was under public discussion. Since I took no part in that discussion and made no proposals (and such proposals should come from professional lawyers anyway), the question now is somewhat different: does the new Constitution improve on the old one?

If the proposed changes raise the standard of the country's state and political system and strengthen its ideology and citizens' rights, such reforms should clearly be chosen, because even a step forward can make our state more developed. To put it in very general terms: suppose you own an old car and are offered a swap for a new, improved one, but what you really want is, say, a Ferrari. You have a choice: either turn down the new car and stay with the old one for many more years, or take the new car, even though ideally you would want a different one. A rational person will, of course, take the new car.

Second, we need to weigh all the pros and cons and work out whether the proposed Constitution is an improvement on the old one. In this respect, the most important provisions are those that define the country's system of government and are mandatory norms. Ideological provisions mostly set the tone, and it is far more important to look afterwards at the secondary legislation, where the legal norms will be spelled out precisely.

Now let us go through the key provisions and see whether each proposed change is an improvement.

The most important changes concern the legislative branch: in effect, we have moved to a unicameral parliament, which is the norm in international practice for unitary states. We are a unitary state, which means a single legislative body is quite sufficient for us. The Senate had the power to approve the principal officials who report directly to the President. This power has, in effect, been transferred to the Kurultai. It is important to understand that our Senate was, in effect, appointed along the entire chain of command, and transferring this power to the Kurultai, which is elected, does strengthen the Kurultai's position and protects the state system during the transfer of power, but more on that later.

Deputy quotas are abolished, and the Kurultai moves fully to a proportional system, under which only a party member can become a deputy, and only on a party ticket. This point has provoked the most discussion in society, but we need to look at the current makeup of our Mazhilis and determine whether anything changes and what the Mazhilis is for. Under the majoritarian system there are very few self-nominated candidates: deputies mostly run on party tickets and the parties give them full backing in the vote, which allows parties to use the majoritarian system to increase the number of "their own" deputies in the Mazhilis. Of the 29 majoritarian deputies, 23 are representatives of the Amanat party. So, from the opposition's point of view, this provision does not allow the number of deputies from non-ruling parties to increase.

We must also be clear that self-nominated candidates are more prone to populism and to various ineffective initiatives and inquiries that, in essence, do not solve problems but create difficulties for various institutions through publicity and exposure with no result. There are, of course, isolated cases in which self-nominated deputies genuinely defend the rights of the people. In most cases, however, I cannot endorse deputies travelling around to various sites and resolving issues with private companies. This looks more like lobbying and vested interest. In this respect, party discipline makes it possible to build a more constructive dialogue through the party, since parties have their own analytical centers and are better prepared for debate. The task of deputies is, after all, primarily legislative, and any problems should give rise to systemic legislative initiatives, not individual fixes, of which there are millions in the country, while there are only about a hundred deputies, and a deputy simply wastes his time inefficiently. On balance I favor the proportional system, but there is an important nuance: our problem lies not in the Mazhilis electoral system but in party pluralism and the transparency of elections. That is addressed in secondary legislation, not in the Constitution, so if parties are being deprived of a loophole for increasing their presence through the majoritarian system, I consider the current model more viable for Kazakhstan.

The second most significant change in the Constitution is the introduction of the post of vice president and the transfer of power. I consider these the key amendments, because, as it seemed to me, they create a mechanism for a painless transfer of power that rules out its usurpation. Previously, if the sitting President left office for any reason, the Chairman of the Senate remained in the post of President until the end of the term. Now, regardless of who becomes acting President, the Kurultai calls elections within 7 days, to be held within 2 months, and during that time the acting President cannot dissolve the Kurultai. And since the Central Election Commission, the Supreme Court and the Constitutional Court were appointed by the outgoing President, they ensure that elections are held in accordance with the law, and only direct elections are possible, moreover under the oversight of people whom the future President did not appoint.

How far this arrangement will ensure a proper handover from one President to another is hard to say now, but it is unquestionably better than what we had.

An important provision that has been retained in the Constitution is the single presidential term: 7 years and no more. The new provision under which any amendment to the Constitution can be made only by referendum, with a turnout of at least 50% of eligible voters, makes it considerably harder for future Presidents to change their powers and terms. This, too, is a fairly positive point.

There were many questions about the dissolution of parliament if it twice fails to approve candidates put forward by the President. Previously such a provision applied to the prime minister, while other posts were approved by the Senate, which was entirely dependent on the President. Now it has been extended to everyone whom the Kurultai will approve, but in practical terms, since there is usually a ruling party backed by the President, it is highly unlikely that this party will refuse to agree with the President. I agree that a more sophisticated mechanism could have been devised here, but this is not a step backward; in essence, it preserves the old mechanism of control over appointments.

So, looking at the main and most important provisions being changed, in my view they have improved the Constitution. I think the most significant change is the transfer of power, which for Kazakhstan is the most important of all. For my part, therefore, I support the proposed version, as it is unquestionably better than the previous one.