Kazakhstan’s New Constitution and the Balance of Power
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A new version of the Constitution was presented by a dedicated commission at the end of January, described by its members to be “in accordance with the needs of society and the times.” Although it is just a preliminary draft, there are still revisions to be made and the final version will be voted on in a referendum.
Upon closer inspection, the new constitutional project appears to strengthen the president’s position at the expense of most other institutions. The government will simultaneously receive more opportunities to restrict civil society, under the guise of the national interest and citizens’ “dignity and honor.”
The Role of the President(Articles 46,47, 56, 62)
According to the proposed new version of the Constitution, the president will have the authority to nominate and determine the powers of the vice president.
This new position will become the second-highest authority in the country, and will succeed the president in case of their inability to carry out their responsibilities. In the current Constitution this role is taken up by the Senate speaker, a situation which in principle strengthens parliament. Because the Senate and the lower chamber will be replaced by a unicameral parliament, the Kurultai, the Senate speaker will become the third-highest authority.
Key appointments will also be the head of state’s remit. The president will propose candidates for prime minister, members of the Central Electoral Commission and Supreme Audit Chamber. Parliament’s role will be to confirm these nominees. As for the Supreme Court, the president will independently appoint the chief judge while candidates for judges positions will be approved by the Kurultai.
The president will receive the right to appoint certain other positions without need to consult parliament, whereas previously the Senate would have needed to consent. These include the head of the Central Bank, the Supreme Judicial Council, and the National Security Committee, as well as both the Prosecutor General and the human rights commissioner.
As head of state the president will have the ability to dissolve the Kurultai if it twice rejects the president’s nominees. If the Kurultai is dissolved, the president will have the authority to pass decrees holding the same power as laws (Article 42, paragraph 2), a power not afforded in the previous Constitution.
Photo: Akorda.kz
In addition, the head of state will also appoint the 126 members of the Halyk Kenesi (People’s Council), which will serve as a direct link between the government and all sections of society. The proposed Constitution does not make any provision for elections of People’s Council deputies. In both old and new versions of the Constitution, there are limited opportunities for political participation; the public are only able to vote in referendums and free elections. However, referendums can only be called by the president.
These reforms will give the president primary control over the political realm. Referendums on extending the president’s power, revising constitutional protections, and dissolving parliament or other institutions are usually called on issues pre-decided by the regime, as post-soviet history has often shown.
The Role of the Legislature(Articles 46, 53-56)
The merging of the Majilis and the Senate is not inherently a positive or negative decision. On the one hand, the legislative review process will in fact be sped up, since new laws will not have to be reviewed in two stages. However, the move could also worsen the already poor quality of parliamentary debate. Deputies could previously review laws in a matter of hours, with the process only being extended by the formality of Senate approval. This, at least in theory, created a place for discussion, although critical issues are hardly ever raised. The bicameral structure also allowed for greater scrutiny of proposed legislation.
The Kurultai will still reserve the right to overpower a presidential veto with a three-quarter majority. The new structure will however increase the president’s influence in parliament, effectively nullifying this power. The new legislature will also retain the right to hold a vote of no confidence in the government, if proposed by at least one-fifth of its deputies (29 members). The Majilis had previously held this power, although it only required 20 votes to initiate a no confidence motion.
Photo: Akorda.kz
On economic affairs, the new Constitution does not task parliament with approving, reviewing or revising the national budget, rather the Kurultai will only have the responsibility of reviewing and approving government and Supreme Audit Chamber reports (Article 56, paragraph 16). Parliament would also lose the ability to impeach several key positions, including the Prosecutor General, chief justice of the Supreme Court, and human rights commissioner. These roles would effectively become accountable only to the president.
The Role of the Halyk Kenesi(Articles 58, 60, 70, 71, 92)
The new Constitution will introduce the Halyk Kenesi, a new institution designed to develop policy recommendations on internal politics. The “People’s Council” will be made up of 126 members, with the president selecting 42 of these from ethnocultural groups, civic society organizations, and regional authorities.
According to President Kassym-Jomart Tokayev, the Halyk Kenesi will become “a new state apparatus to represent all ethnic, regional and civic society groups.”
Two existing structures – the Assembly of the People (comprising representatives from various ethnocultural groups) and the National Kurultai (established after violently repressed unrest in January 2022) – will be replaced by the Halyk Kenesi. The new assembly will have the power to prepare legislation for the Kurultai, and, on the same basis as parliament, propose nationwide referendums. The power to approve referendums will still remain solely with the president.
The Constitution vs. International Law(Article 5)
According to the new Constitution, Kazakhstan’s laws will take precedence over international agreements. The importance of this was stressed by deputy Murat Abenov, who explained that international standards frequently “clearly conflict with the law, affecting citizens’ rights and freedom.” The deputy also pointed out that the new Constitution “does not call into question” the legal authority of international laws and treaties already ratified in Kazakhstan.
However, the government will still have the power to interpret international law, able to deem it as being contrary to the Constitution. This could be based on defending national interests, or else the honor and dignity of Kazakhstani citizens. In special cases, new constitutional laws may be adopted.
Photo: Akorda.kz
On Application of Special Legal Regimes(Article 5, paragraph 6)
To boost economic development across the country, special legal regimes may be introduced. These will relate to the financial sector, public administration, and the judicial system. Specific population centers may be granted the special status of “accelerated development city.” Such measures have already been implemented in Alatau City and Almaty region.
On Separation of Religion and State(Article 7)
The new version of the Constitution includes provisions about the separation of religion and state. Religious organizations must act in accordance with the law and their activities may be restricted to protect national security, constitutional order and human rights.
On Deprivation of Citizenship in the National Interest(Article 12)
New changes to the Constitution refer to the reasons for which the state can deprive an individual of their citizenship. In addition to cases of terrorism, a new edit has changed the provision on “serious damage to the interests of Kazakhstan,” into “causing other serious harm to the interests of Kazakhstan.” Both definitions of “interests” are significantly vague so as to be open to broad interpretation.
On the Honor and Dignity of the Individual(Article 20)
In the former Constitution, it was stated that an individual’s dignity was inviolable. In the new version, “honor” is also inviolable and like “dignity” also falls under legal protection. “Honor” and “dignity” are, naturally, difficult terms to allocate definitive meaning to.
On the Right to Privacy(Article 21)
The current Constitution guarantees every citizen an unconditional right to privacy, as well as a private personal, family and financial life. In the new draft, however, this information is no longer completely out of the bounds of legal intrusion, and in certain cases the law may limit one’s right to privacy. In the former Constitution such exemptions were also present, but under the new revision the conditions for this have become broader.
On Religious and Party Affiliation(Article 22)
The right to refuse to declare one’s national, religious, or political affiliation is explicitly stated in the current Constitution. In the new document, one may only decline to state one’s national affiliation.
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