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Zh.S.Yelyubayev Ж.С.Елюбаев
Constitution as a basis for our life
We are approaching a Holiday - the Constitution Day of the Republic of Kazakhstan. We, lawyers, consider this day our professional holiday, since every one of us directly or indirectly serves, first of all, for the establishment of the constitutional order in the country. The word Constitution originates from the Latin word constitution (establishment, structure) and constitutes a written regulatory act proclaiming and guaranteeing human rights and freedoms, and determining the fundamentals of the social system, form of government and state structure, bases for organization of central and local authorities, their competence and interrelations, state symbols and capital. At present, only certain absolute monarchies in the Persian Gulf, such as Saudi Arabia and Oman, do not have a Constitution. The history of Constitution as a legal phenomenon is less than four centuries old. Its prototypes were charters (statutes) of medieval self-governing cities. Such medieval Constitution of 1600 vintage is still in effect in a small European state - San Marino. In the contemporary understanding Constitution as a means of restricting state power and consolidating individual rights emerged in the period of bourgeois revolutions in Europe. The first constitutional monarchy was formed in England in the 17th century; however the English Constitution was «unwritten» and consisted of a multitude of parliamentary acts, customs and court precedents that are still in effect. The first written Constitution was the USA Constitution of 1787 adopted as a result of the War of Independence. Several years earlier Constitutions of separate states were adopted on the model of the first Virginia (Virginian) Constitution of 1776 that were a theoretical and practical continuation of the Declaration of Rights passed by the Congress in 1774. It should be noted that the USA Constitution of 1787 with a number of Amendments to it adopted during the passed centuries, in particular, the Bill of Rights, is in effect till today, confirming the stability of the constitutional order in this country. In the continental Europe the first written Constitution appeared in Poland in 1791 under the influence of the Declaration of Human and Civil Rights (1789), whose effect was interrupted by the Russian-Prussian intervention. The next was the Constitution of France adopted by the Constituent Assembly in September 1791, however it was short-lived, as already in 1793, a Jacobinic constitution, radical and democratic for those times, was adopted as a consequence of the revolutionary events. Later, in France in the course of almost two centuries there was a whole parade of Constitutions: 1795 - a moderate and conservative one; 1800 - authoritarian Napoleonic one; 1814, 1830 and 1852 - constitutional and monarchic one; in that period for a short time in 1848 - republican one; the Constitution of France now in effect was adopted in 1958. The experiences of constitutional construction in France also encouraged other European countries to delevop and adopt their own Constitutions (Norway - 1814, Belgium - 1831, Spain - 1812, Germany - 1871, Switzerland - 1874 etc.). Speaking about the Asian continent, here the first Constitution was adopted in 1876 in Turkey, in 1889 the Emperor of Japan granted a Japanese Constitution to his subjects, in 1912, as a result of a revolution a Constitution was adopted in China. The Soviet Constitution of the RSFSR became quite a new phenomenon in the constitutionalism. It presented a state and legal ideology whose aim was not securing democratic principles, but establishing the «dictatorship of proletariat», of only one stratum of society. This Constitution did not recognize either division of powers (into legislative, executive and judicial powers) or equality of citizens, or private property rights; political rights of certain categories of the country’s citizens were also restricted. Altogether, during the years of the Soviet power, four Constitutions were adopted: the above-mentioned RSFSR Constitution in 1918 and three USSR Constitutions in 1924, 1936 and 1977. Each Soviet Constitution, whatever our attitude to our common past, was an ascending step in the development of both the statehood and in the development of law branches, although they were based on the communist ideology and planned economy with some attributes of democratic institutions. Nobody will contest now that in the USSR each citizen had a real right secured by the state to education, including the higher one, to health protection and free medical treatment in any medical institutions, the right to housing and guaranteed right to work. These achievements were great indeed for a common people, which allowed in our modern history to have a highly-educated, generally healthy population both in physical and moral sense. Therefore it is difficult to agree with some captious critics of our past who rashly and sometimes for the sake of their personal interests blacken whatever is associated with the Soviet period of our state development. Yes, during the 70 years of the Soviet power there were different regimes: dictatorial, totalitarian and communist ones with various political, economic and social shades. But it is our history and it had bright, radiant and happy years. It would not be out of place to note that from the middle of the 80s of the last century, a new stage of the constitutional construction started in the world. In 1986-1998 only, more than 100 Constitutions at the nation-wide level were adopted in the world, reflecting such ideas of the Western constitutionalism as ideological pluralism (diversity and freedom of opinions, ideas and forms of activities); multi-party system; division of powers into legislative, executive and judicial ones; free market relations in the economy, priority of personal rights etc. In their form, most modern Constitutions represent a single legal act, a fundamental law having the supreme force and adopted by the parliament, a special constitutional assembly or direct voting by the people (referendum). After the collapse of the USSR, all 15 former Soviet Republics, having declared their sovereignty and independence, adopted their own Constitutions enshrining new state and democratic institutes. Our country did not stand aside in this process. The first Constitution of the independent Kazakhstan was adopted on 28 January 1993 at the ninth session of the Supreme Soviet (Council) of the Republic of Kazakhstan of the twelfth convocation. The second Constitution was adopted on 30 August 1995 at the Republican referendum with amendments introduced by the Law of the Republic of Kazakhstan dated 7 October 1998. Thus, a new political and legal status of our country was enshrined; in particular, Article 1 of the Constitution states that «the Republic of Kazakhstan proclaims itself a democratic, secular, jural and social state, whose supreme values are man, his life, rights and freedoms». Provisions that the only source of the state power is the people exercising this right through referenda and free vote were also enshrined. It was declared that state and private property are recognized and equally protected; ideological and political diversity is recognized; equality of all in front of the law and court; that each one has the right to inviolability of the private life, protection of one’s honor and dignity, liberty of conscience and choice of religion. And this very day, August 30, was declared a red-letter day, the Day of Constitution. On course, today we cannot say that all these institutions and proclaimed human and civil rights enshrined in the Constitution are fully secured. Nonetheless, the Republic of Kazakhstan during the fifteen years of its independent development has achieved a lot - a basis was created for market economy, industry and agriculture are developing, somewhat modernized system of state agencies is working, certain steps are made towards creation of multi-party system and democratic institutions. We may be proud also by the fact that our country is among leaders in the CIS and Eastern Europe on many directions in developing its economy, that the country has an attractive investment climate, that there reign peace and tranquility in the country where more than one hundred nationalities and ethnic groups live, who advocate various religions. All this is a result of a tested policy of the Head of our state and our people’s active participation in the reconstruction of their state, economy and society. We were given a chance to build a rich and democratic state with a highly organized civil society, therefore our activity in all spheres of life will expedite the process of realization of the available rights and freedoms. A democratic state and society are not formed immediately, it requires work of more than one generation of people, many things should be changed both in our mentality and in our attitude towards values common to all mankind, and negative phenomena should be extirpated from our life. Sometimes, we criticize the authorities for bureaucratism, corruption, arrogance, ignorance and non-professionalism, but let us address our conscience and we shall see that each of us who are not in power at least once but helped create such an image of the state official. One should be able to withstand these negative phenomena, not to look for easy ways out of complicated situations in life and more often apply to one’s conscience and law. I am a realist and I understand that sometimes it is difficult to be honest and keep to one’s principles, but one should strive to it, because our rights and freedoms are granted to us not by «bureaucrats from the state office» but by the Constitution, the fundamental law of our country. Probably someone will blame me for such high-flown words but I am firmly convinced that it is easier to be an honest and respectable human being than to be an infringer of statutory requirements and commonly accepted moral norms. On the eve of one of the most important holidays - the Constitution day - our people, part of which we also constitute, may be proud of what we have achieved. All prerequisites for development of statehood, democratic institutions, and market socially-oriented economy, creation of a civil society aimed at creation, peace and tranquility are created in the country. Even if not all provisions of the Constitution, especially in the sphere of rights and freedom protection, work today at their full capacity, the state and society have a real potential, and we should be optimists; the time will come where we will witness a different society, a society of citizens possessing equal rights. Therefore, on the pages of our newspaper I want to congratulate the TCO multinational team with the Holyday - the Constitution Day - and wish to all peace and prosperity, family happiness and realization of your plans.
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