|
|
|
KAZAKHSTAN PODOPRIGORA R.
ИСТОЧНИК: ENCYCLOPEDIA OF WORLD CONSTITUTIONS. GERHARD ROBBERS. ED. NEW YORK, FACTS ON FILE, 2007. 3 V. VOL. 2. P 471-477.
At-a-Glance Official name: Republic of Kazakhstan Capital: Astana Population: 15,000,065 (2005 est.) Size: 1,052,089 sq mi (2,724,900 sq km) Languages: Kazakh (official), Russian Religions: Muslim 9.6%, Protestant 5.6%, Russian Orthodox 4%, Catholic 0.4%, other 0.4%, unaffiliated 80% National or ethnic composition: Kazakh 57.2%, Russian 27.2%, other 15.6% (made up largely of Ukrainian, Uzbek, German, Tatar, and Uigur) Date of independence or creation: December 16, 1991 Type of government: Presidential republic Type of state: Unitary state Type of legislature: Bicameral parliament Date of constitution: August 30, 1995 Date of last amendment: October 7, 1998 Kazakhstan is a presidential republic with a division of executive, legislative, and judicial powers. The constitution of the country provides for guarantees of human rights, and it is generally respected by the public authorities. The president of the Republic of Kazakhstan is the head of state and its highest official. The president, who determines the main directions of domestic and foreign policy, is a very strong political figure with a huge influence on all state bodies. The bicameral parliament is the main legislative body. Some members of the parliament represent political parties. The Supreme Court is the highest judiciary body. Among state bodies that are not included in the legislative, executive, and judicial branches are the Constitutional Council and the procurator general. Religious freedom is respected, and state and religious communities are separated. The economic system can be described as a developing market economy. The military is subject to the civil government in terms of law and fact. The current constitution was adopted in 1995. It determines the basic principles of state organization, state-citizen relations, and fundamental individual rights and freedoms in the new political, economic, and cultural situation after the collapse of the Soviet Union and the first years of independence. Constitutional HistoryKazakhstan does not have a long constitutional history, although various political-state unities existed on the modern territory of the country, including the Turkic kaganat, Kipchak khanat, Mogulistan, and Ak-Horde. The Kazakh khanate of the 15th-18th centuries is considered to be the beginning of Kazakh statehood. The nomadic style of life explains peculiarities in the organization of political power in that system: concentration of power in the hands of the khan or ruler, especially in land, military, and judicial issues; seasonal mutability of the khan’s actual power; dominance of customary law; and absence of developed institutions of political power such as a tax system or a regular army. The annexation of the Kazakh lands into the Russian Empire was a long and complicated process beginning in the 18th century. Eventually, all Kazakh lands came under the state-political protectorate of Russia. Russian authorities introduced their own system of state administration and legislation in the Kazakhstan territory. The October Revolution (1917) in Russia brought about a new stage in political development. In 1920, under Soviet decree, Kazakhstan for the first time received its own formal state system. The country was included as a national autonomous region in the Russian Federation. In 1926, the Constitution of the Kazakh Autonomous Soviet Socialist Republic was adopted. In 1936, the Kazakh autonomous region was reorganized into the Kazakh Soviet Socialist Republic, one of the highest-level components of the USSR. In 1937, the constitution of the new republic entered into force. All these constitutions had formal democratic provisions, but in practice many of them were not realized. The communist party leadership and rules were much more important than any other political-legal institution. Communist ideology permeated all state-legal systems. Modern constitutional development began in 1990 when Kazakhstan adopted the Declaration on State Sovereignty. The next step was the adoption of the constitutional law «On State Independence» of December 16, 1991, as the Soviet Union collapsed and communist ideology imploded. The newly independent country needed a new organization of state power and a new legal system, as the old party-state system could not meet the requirements of political and legal development. The first constitution of independent Kazakhstan, in 1993, was the legal act that accomplished this task. For the first time in the country’s constitutional history, provisions were included on separation of powers, the priority of the individual in relation to the state, and the equality of state and private property. Kazakhstan took on the appearance of a parliamentary republic, as compared with the acting constitution at the time, in which Kazakhstan was proclaimed a republic with a presidential form of government. During the preparation of the constitution, the framers paid special attention to the constitutional experience of the United States and France. The constitution of 1993 existed for only two years. In 1995, a new constitution was adopted by a national referendum. The main change was the strengthening of presidential power. Some democratic practices were curbed; this was justified by the problems of the reform period, and the need for a strong power to effect a smooth transition to a new society. Form and Impact of the ConstitutionKazakhstan has a written constitution, codified in a single document. The constitution takes precedence over all other national law. International law must be in accordance with the constitution to be applicable within Kazakhstan. The first and only amendments were adopted in 1998. The chief importance of the constitution is in laying the legal grounds for independence, and its commitment to new principles of organizing society, with the goal of a democratic, secular, social state based on the rule of law. In reality, many constitutional provisions remain declarative only. The presidential orders and regulatory acts of high officials count for much more then the constitution for other state officials, despite the constitution’s formal legal superiority on the entire territory of the republic. Many administrative regulations have revised constitutional norms or limited them with very complicated procedures. However, in legal terms, all laws must comply with the provisions of the constitution. Basic Organizational StructureKazakhstan is a unitary state and a presidential republic, with a very strong presidential power. The president has influence on all branches of state powers, especially on executive bodies. The main territorial division is the oblast. There are 14 oblasts and two cities with separate status--Astana, the current capital, and the former capital Almaty. There is also a city with a special status under the jurisdiction of both Kazakhstan and Russia - the space center Baykonyr. There is no real system of self-government on the local level. All local bodies are state bodies. The local legislative body is elected by the people but the main power is in the hands of the local executive. All higher local officials are appointed by the president. Leading Constitutional PrinciplesUnder Article 2 of the constitution, the Republic of Kazakhstan proclaims itself a democratic, secular, legal and social state whose highest values are the individual, his or her life, rights and freedoms. The word «proclaims» means that the country is in the process of establishing such principles. Taking into account deep political and social changes, it may take a long period of time in order before democracy and the social welfare orientation of the state can prevail. Kazakhstan’s system of government does have some of the features of a democracy: the people elect the president, parliament, and local legislative bodies; they can petition to state bodies; they have access to the civil service; they can create political parties and other public associations in order to participate in political life; and finally, the constitution of the country was adopted by a national referendum. That Kazakhstan is a secular state means that religious organizations are separate from the state. Under the Kazakhstan approach, religion is a private matter. Religious organizations have no governmental functions and no right to interfere in the affairs of the state. There is no state religion or state religious organization. The phrase «social state» means that the state ensures a minimum standard of living, and gives social guaranties in employment, heath, education, and other areas. A «legal state» follows the rule of law, meaning the supremacy of the constitution and the leading role of law. The principle of rule of law also refers to limitation of the state by law. It entails mutual responsibility between state and individual, an independent court system, and human rights and freedoms. One of the key constitutional principles is the separation of powers. There is a division of the executive, legislative, and judicial power, based on checks and balances. Some other fundamental principles in the constitution are: public concord and political stability; economic development for the benefit of all of the nation; Kazakhstani patriotism; recognition of ideological and political diversity; the right to public associations; equality before the law; equal protection of state and private property; respect of the principles and norms of international law; a policy of cooperation and good-neighborly relations between states; non-interference in the internal affairs of other countries; peaceful settlement of international disputes; and the renunciation of the first use of military force. Constitutional BodiesThe predominant bodies provided for in the constitution are the president, parliament, the administration (cabinet), the Constitutional Council, and the Supreme Court. The constitution also mentions the National Bank, the procurator general, and some other bodies. The presidentThe president is the head of state, its highest official determining the main directions of domestic and foreign policy, and representative of Kazakhstan within the country and abroad. The president of the republic ensures the coordinated functioning of all branches of state power and the responsibility of the institutions of power before the people. The president appoints and dismisses the prime minister, who is the head of the administration, ministers, and other higher executive officials. The president also appoints judges (except Supreme Court judges), seven members of the Senate, and the heads of the local state authorities. The president determines the structure of the administration, and creates and abolishes ministries and other administrative agencies. The president may annul or suspend the administration’s acts in whole or in part. The president signs laws. In fact, he has the right to issue laws if parliament delegates legislative powers to him, for a term not exceeding one year. He may issues decrees having the force of laws (if parliament failed to consider the draft of a law which he declared urgent or priority-driven, one month from the day of its submission). The president calls for regular and extraordinary elections to the parliament of the republic, convenes the first session of parliament, and calls extraordinary joint sessions of the chambers of parliament. The president conducts foreign negotiations and signs international treaties, signs ratification instruments, and receives letters of credentials and recalls from diplomatic and other representatives of foreign states. The president acts as the commander in chief of the armed forces of the republic, and appoints and replaces their highest commanders. In the case of aggression against the republic or immediate external threat to its security, the president may impose martial law on the entire territory of the republic or in particular areas. The president also resolves issues of citizenship and political asylum, and issues pardons. The president of the republic is elected for a seven-year term by the citizens of the republic. No one may be elected as president more than twice in a row. The president can be prematurely released from office in case of continued incapacity to perform his duties due to illness. The president can also be discharged from office for high treason. In both cases parliament makes the final decision. The ParliamentThe Parliament of the Republic of Kazakhstan is the highest representative body of the republic performing legislative functions. Parliament's also establishes state awards, issues honorary, military, and other titles, appoints high-ranked positions and diplomats, and define state symbols. Parliament decides on issues of state loans and other international economic and other assistance. It issues amnesties, ratifies international treaties, and approves to the appointment of some higher officials by the president. Parliament consists of two chambers acting on a permanent basis: the Senate and the Majilis. The Senate is the higher chamber. It is composed of two deputies elected from each oblast and major city and from the capital of the republic. Elections are conducted at a joint session of the members of all representative bodies of the respective oblast or city. Seven members of the Senate are appointed by the president. The Majilis is the lower chamber; it consists of 77 members, who are elected by citizens. The term of office is six years for Senate members and five years for Majilis members. The president may dissolve parliament for certain reasons: a vote of no confidence in the administration; the repeated refusal of parliament to give consent to the appointment of the prime minister; and political crisis resulting from insurmountable differences between the chambers of parliament or between parliament and the other branches of state power. The AdministrationThe administration (cabinet) has the executive power, leads the system of executive bodies, and exercises supervision of their activity. Members of the cabinet are the prime minister and his deputies, ministers, and other officials appointed at the president's discretion. The cabinet resigns its powers to a newly elected president. At all times, president has the right to terminate the powers of the administration and release any of its members from their offices. The release of the prime minister from office denotes the termination of the powers of the entire cabinet. The Constitutional CouncilThe Constitutional Council is a body of constitutional supervision. It reviews considers the laws adopted by parliament with respect to their compliance with the constitution before they are signed by the president. Similarly, it reviews the international treaties with respect to their compliance with the constitution before they are ratified. It is the official interpreter of the constitution, and it can declare existing laws unconstitutional in case of court appeals. The Constitutional Council also reviews the fairness of presidential and parliamentary elections, and national referendum. The Constitutional Council consists of seven members whose powers last for six years. In addition to those, the ex-presidents of the republic have the right to be life-long members of the Constitutional Council. The chairperson and two other members of the Constitutional Council are appointed by the president. Two members are chosen by the chairperson of the Senate, and two by the chairperson of the Majilis. Half of the members of the Constitutional Council are renewed every three years.
The Law-Making Process The right of legislative initiative belongs to the members of parliament and to the administration. It is exercised exclusively through the Majilis. A draft law, if considered and approved by the majority of all members of the Majilis, is transmitted to the Senate, which has 60 days to consider it. If the majority of all members of the Senate approve the draft, it is submitted to the president; if not, it is returned to the Majilis. If the Majilis approves the draft by a majority of two-thirds of all members, it is transferred once more to the Senate for a second discussion and voting. A twice-rejected draft may not be submitted again during the same session. The president signs laws submitted by the Senate within 15 working days and promulgates the law. He may also return it or its separate articles to parliament for a second discussion and vote. The JudiciaryThe judiciary in Kazakhstan is formally independent from the executive and legislative branches. Judicial power is exercised through the constitutional, civil, administrative, criminal, and other forms of judicial procedure as established by law. In cases stipulated by law, criminal procedure requires the participation of a jury. The only courts of the republic under the constitution are the Supreme Court and local courts. However, specialized courts handling military, economic, administrative, and juvenile matters can be created by law. Currently, military, economic and administrative courts do exist in Kazakhstan. The Supreme Court and higher local courts consist of three collegiums: Criminal Collegium, Civil Collegium, and Supervising Collegium. These courts as a rule are not involved in political life. The courts have no special constitutional jurisdiction, and judges cannot declare acts unconstitutional. However, if a court finds that a law or other regulatory legal act infringes on the constitutional rights and liberties of an individual, it can suspend legal proceedings in the case and ask the Constitutional Council to declare that law unconstitutional. The Election ProcessAll Kazakhstan citizens over the age of 18 have the right to vote in the elections. Presidential ElectionsThe president of the republic is elected by universal, equal, and direct suffrage by secret ballot. A citizen of the republic is eligible for the office of president if he or she is over 40 years of age, has a perfect command of the Kazakh language, and has lived in Kazakhstan for not less than 15 years. The candidate who receives more than 50 percent of the votes is deemed elected. If no candidate receives that percentage, a second round of elections is held between the two candidates who obtained the largest number of votes. The winner of the second round is deemed elected. Parliamentary Elections67 members of the Majilis are elected in single-member constituencies based on the administrative-territorial division of the republic with approximately equal number of voters. 10 members are elected from party lists according to a system of proportional representation, with a unified national constituency. Any citizen of the Republic of Kazakhstan who has reached the age of 25 can be elected member of the Majilis. A candidate is deemed elected if he or she receives more than 50 percent of the votes cast in a single-member constituency. If none of the candidates receives the necessary number of votes, a second round of voting is held between the two candidates who obtained the largest number of votes. The winner of the second round is deemed elected. A party must receive at least 7 percent of the votes to be eligible to receive any of the 10 party-list mandates. The Senate is elected on the basis of indirect electoral right. The majority of its members are chosen by the members of local representative bodies, and seven are appointed by the president. To be a member of the Senate one must be a citizen of the Republic of Kazakhstan for not less than five years and be at least 30 years of age. He or she person must also have a higher education, must have at least five years’ work experience, and must have been a permanent resident for not less than three years in the constituent territory--oblast or city.
Local electionsLocal representative bodies - maslikhats - are elected by the population on the basis of universal, equal suffrage by secret ballot for a four year term. Any citizen of the Republic of Kazakhstan who has reached 20 years of age can be elected as member of a maslikhat. Political PartiesKazakhstan has a pluralistic system of political parties. This is one of the new phenomena in political life after years of communist party domination. Article 5 of the constitution states that the Republic of Kazakhstan shall recognize ideological and political diversity. Currently, there are 11 political parties registered by the Ministry of Justice. A political party must have at least 50,000 members in order to be registered. Some political parties are pro-government and others are in the opposition. A pluralistic political system has only begun to develop, and the parties so far lack any strong impact in political life. Besides, many citizens are apolitical, which deprives any potential party of a serious social base. Political parties based in other states, or receiving funds from foreign legal entities, foreign citizens, foreign states, or international organizations are not permitted in Kazakhstan. Religious parties are also banned. Political parties, like any other public associations, may be liquidated by courts if they violate the law. There are no special rules regarding banning of political parties. CitizenshipCitizenship of Kazakhstan is acquired mainly by birth, although special procedures exist for acquiring citizenship. For birth, there is a combination of the «right of the blood» (ius sanguinis) and «right of the soil» (ius soli), with descent playing the major role. Noncitizens are not eligible to vote or to stand for office. They cannot create political parties or any other public association, or be a member of political parties. They also have no access to civil service. Fundamental RightsIn Article 1, the constitution declares that the highest values of Kazakhstan are the life, rights, and freedoms of the individual. The majority of human rights and fundamental freedoms relate to both individuals and citizens, including the right to life, to personal freedom, to freedom of conscience, and freedom of speech. However, there are some exceptions; for example, only citizens of Kazakhstan have the right to form associations. There are constitutional provisions regarding social rights as well; in this case too, some rights apply to everyone and others only to citizens of Kazakhstan. For instance, everyone has the right to freedom of labor but only citizens have the right to protection of health. There is also a group of political rights for citizens of Kazakhstan: the right to participate in running the affairs of the state, to address public bodies personally, to vote and stand for election, and to participate in national referendums. In contrast to Soviet times, the modern constitution is very attentive toward the protection and assurance of personal rights. Kazakhstan does not want to repeat the experience of Soviet constitutions, when the state formally ensured many rights and freedoms, but those rights remained mere declarations. One of the reasons Kazakhstan has hesitated to sign international covenants on human rights was the state’s incapacity to provide these rights to the fullest degree. Only in 2003 did Kazakhstan sign two major human rights documents: The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Today, people actively defend the rights and freedoms described in the constitution. People have started to believe that these are not mere words on paper but real legal possibilities. Under the constitution, rights and freedoms of individuals and citizens may be limited only by law, and only to the extent necessary for the protection of the constitutional system, defense of the public order, the human rights and freedoms of others, or the health and morality of the population. Any restrictions to the rights and freedoms of citizens on political grounds are not permitted. Fundamental rights apply not only in the relations of individual and the government, but they also have effects among private persons. EconomyThe constitution contains some provisions that can be seen to characterize the economic system. The Republic of Kazakhstan recognizes and protects both state and private property. This is an absolutely new point in comparison with Soviet times when state property dominated to an enormous degree. One constitutional provision that still arouses much public opposition and many disputes is private land ownership. Under the constitution, land may be privately owned on terms, conditions, and limits established by law. Other natural resources such as mines, oil, water, and wildlife are owned by the state. Article 26 of the constitution guarantees freedom of enterprise and free use of ones property for any legal activity. Monopolistic activity is to be regulated and limited by law, as is unfair competition. The article explicit provides that property, including the right of inheritance, shall be guaranteed by law. The constitution also provides that everyone has the right to work and to a free choice of occupation and profession. Involuntary labor is permitted only following a court sentence, or under conditions of a state of emergency or martial law. Everyone also has the right to safe and hygienic working conditions, to just remuneration for labor without discrimination, and to social protection against unemployment. The constitution also recognizes the right to pursue individual and collective labor disputes, using methods stipulated by law, and guarantees the right to strike. Some civil constitutional freedoms have an economic aspect. For instance, freedom to form associations includes the right to organize trade unions or other professional communities. Taken as a whole, Kazakhstan’s economic system can be described as a transitional economy from a state to a social market economy. Religious CommunitiesEveryone has the right to freedom of conscience, exercised either individually or jointly through religious communities. Freedom of conscience is traditionally associated with freedom of religion in political and legal terminology. The constitution does not define a particular status of «religious community.» Activities of foreign religious associations within the territory of the republic, including the appointment of heads of religious associations by foreign religious centers, can be carried out only in coordination with the respective state institutions. There is no established state church. All religious organizations, including the two main ones - Islam and Russian Orthodoxy - are equal from a legal point of view. Religious communities have the legal status of civil law corporations. There is requirement for mandatory registration of religious communities. The principle of separation of religious organizations and the state is not explicit in the constitution, but it has been included in special legislation regarding religious organization. Despite the principle of separation, the state and religious communities have begin to cooperate in certain areas, a striking new phenomena after many years of suppression of religious freedom under communism. Military Defense and State of EmergencyThe constitution contains only a few provisions regarding military defense and state of emergency, just enough to determine that the civil government dominates the military. The president is commander in chief of the armed forces. He also imposes martial law and the state of emergency and decides on the use of the armed forces. Parliament declares war and peace. On the president’s proposal, it also decides about deploying the armed forces of the republic abroad, to fulfill international obligations in support of peace and security. The administration is responsible for developing the defense capability of the state. In case of martial law, the military authorities can assume all police and security powers in the republic. In case of a state of emergency, the president can create special bodies within the state administration that are not subject to military command. The president can also use armed forces to help guard special objects and territories, suppress illegal military activity, and rescue people. The defense of the Republic of Kazakhstan is, according to the constitution, a sacred duty and responsibility of every citizen. Citizens of the republic perform compulsory military service, and can also enlist on contract. The term for compulsory military service is twelve months (twenty four months for officers). Kazakhstan does not provide for alternative service to conscientious objectors. Amendments to the ConstitutionThe process of amending the constitution is complicated in comparison with changing other laws. Amendments may be passed by a national referendum called by the president, either on his own initiative or, at the recommendation of parliament or the cabinet. The proposal is passed if at least half of those voting approve. If the president turns down a referendum request from parliament, that body can still adopt the amendment by a majority of four-fifths of all the members of each chamber. In such a case the president can either sign the amendment or submit it to a referendum. In such a referendum, at least half of all citizens possessing the right to vote must approve. Certain constitutional provisions are not subject to change at all. Article 91 says: «The unitary status and territorial integrity of the republic, and the forms of government may not be changed.» Further Reading:Constitution in English: The Constitution of the Republic of Kazakhstan, Almaty: Zheti Zhargy, 2000; http://www.president.kz/articles/state/state_container.asp?lng=en&art=constitution. Constitution in Kazakh: Қазақстан Республикасының Конституциясы (Алматы: Жетi Жарғы, 2000). Constitution in Russian: Конституция Республики Казахстан (Алматы: Жетi Жарғы, 2000); http://www.president.kz/main/mainframe.asp?lng=ru. Secondary Sources: Background Notes & Country Reports on Human Rights Practices & International Religious Freedom Report 2004 (Bureau of Public Affairs, U.S. Department of State, 2005); Glenn E. Curtis (ed.), Kazakhstan: A Country Study (Washington, D.C.: Library of Congress, 1996), http://lcweb2.loc.gov/frd/cs/kztoc.html.
Доступ к документам и консультации
от ведущих специалистов |