2017 Constitutional Reform in Kazakhstan: increasing democracy without political pluralism?

On 25 January 2017, during a special televised address to the nation, Kazakh President Nursultan Nazarbayev proposed a number of amendments to the Constitution. Draft constitutional amendments were originally formulated by a special working group set up by presidential decree in December 2016, and composed of the members of the Government, Parliament, Supreme Court, Constitutional Council, academia and civil society. After the televised address, the proposed constitutional reforms were submitted to nationwide discussions, which formally ended on February 26th. Following the public’s input the final draft law introducing constitutional changes was presented to a joint session of Parliament. It was approved in its first reading on March 3rd, and in its second reading on March 6th. At the same time, upon Nazarbayev’s request, the Constitutional Council declared the package of amendments in line with the Constitution. Finally, the law entitled “On amendments and changes to the Constitution of Kazakhstan” was signed by the President on March 10th.

The newly approved constitutional reform appears to aim, at least in the words of the first and only Kazakh President, at seriously redistributing powers and democratizing the political system as a whole. The key step in this direction is the transfer of some presidential powers to the Parliament and the Government. For many observers, the initiative to amend the Constitution represents a move that could help lead the present Kazakh consolidated authoritarian regime towards an eventual political transition. Accordingly, this article discusses the current constitutional developments in Kazakhstan in order to assess whether the new constitutional reform is committed to introducing a genuine system of checks and balances thus allowing, at least theoretically, prospects for the democratic development of the country.

Background

Constitutional arrangements have proven to be remarkably fluid in Kazakhstan. The existing Constitution was approved by a national referendum on August 30 1995, in order to replace the first post-Soviet 1993 constitutional document. This constitutional replacement occurred within a context of an intense crisis between the President and the Parliament; it was, in fact, put forward by Nazarbayev as a way to consolidate presidential powers.  Rewriting the Constitution gave Nazarbayev the possibility to shift from one constitutional order to another, legitimately replacing bodies that are supposed to check executive powers. The 1995 Constitution maintained a strong presidential system, but it also weakened the legislature by creating a new bicameral Parliament comprised of the Senate (the upper house) and the Majilis (the lower house) with limited powers. Moreover, the previous Constitutional Court was substituted with a weaker Constitutional Council, thus preventing any serious check on the exercise of presidential powers.

Further constitutional amendments (1998, 2007, and 2011) progressively extended presidential powers and finally resulted in the consolidation of an authoritarian regime that places few constraints on the executive power and gives little space for checks and balances. The country’s Constitution still looked formally democratic, but its text has been substantially reworked to a point that it minimized the possibility of future democratization. In particular, it gave Nazarbayev the right to rule by decree, dissolve Parliament more or less at will, appoint and dismiss the Prime Minister and other governmental figures, as well as appoint seven members of the 47-member Senate. In addition, it permitted Parliament to delegate law-making powers to the President for up to a year, and allowed the incumbent President to run in presidential elections for an unlimited number of terms, which paved the way for Nazarbayev to become de facto President for life. Kazakhstan justified the expansion of presidential powers with its “special way theory”, which follows the formula “economics first, politics second”, meaning that only once economic recovery is ensured, political democracy will be introduced in the country.

The Newly Approved Law “On Amendments and Changes to the Constitution of Kazakhstan”

The law “On amendments and changes to the Constitution of Kazakhstan” of March 10 2017 represents the fourth reform of the Kazakh 1995 Constitution. Contrary to previous constitutional changes aimed at greatly expanding presidential powers, the main essence of the newly adopted reform is, at least on paper, the redistribution of powers between different branches of government. More specifically, the objectives of the reform are: a more rigid and precise separation of powers between branches of government; strengthening the supervisory powers of the Parliament over the activities of the Government; improving the system of checks and balances and the stability of the political system. This implied several innovations, including strengthening the role of the Parliament; the transfer of some presidential powers to the Government and the Parliament; the new role of the President, and the modernization of the judicial system. Additionally, the reform introduces some changes related to local government and the procedure of amending the Constitution.

Strengthening the role of the Parliament

The reform increases the role of the Parliament in two main areas: the formation of Government and the vote of no-confidence. Under the new provisions, in the formation of Government the Parliament is empowered to negotiate the Cabinets’s structure with the President. In this sense, the Prime Minister has now to consult with the legislature before submitting proposals to the President concerning the composition of the Government. An exception is made for the Ministers of foreign affairs and defense, which are appointed by the President independently (Article 44, par. 3).

Further, according to previous provisions, the Government, as a collegial body, was accountable in all its activity to the President and only in cases provided by the Constitution to the Majilis of the Parliament and the Parliament as a whole. By contrast, the new provisions expressly establish that the Government is now accountable in its activity to both the President and the Parliament (Article 64, par. 2). Accordingly, the Prime Minister reports on the work of the Government not only to the President, but now also to the legislature (Article 67, par. 4). Moreover, the Government automatically resigns its powers to the Majilis of the Parliament, and not to the President as it was before the reform (Article 70, par. 1). However, the President continues to play an important role in these processes. On the one hand, he can still consider within a period of ten days the issue of accepting or declining the resignation of the Government in the event that the Parliament passes a vote of no-confidence against the Cabinet (Article 70, par. 5). On the other hand, the President still have the right to adopt a decision to terminate the powers of the Government on his own initiative, regardless the parliamentary motion of no-confidence (Article 70, par. 7).

Nonetheless, the new amendments maintain the individual ministerial responsibility, which means that members of the Government are accountable to the chambers of the Parliament (Article 64, par. 3). The new procedure requires a quorum of the majority of non-less than 2/3 of the total number of the chamber deputies to propose to the President the removal from office of any member of the Government in the case of non-fulfillment of laws (Article 57, par. 6). Contrary to the case of cabinet collective responsibility, it also forces the President to dismiss a member of the Government without any possibility to reject the appeal (Article 57, par. 6).

The transfer of some presidential powers to the Government and the Parliament

The reform reduces some presidential powers in favour of the Government, including the approval and implementation of state programs (Article 66 par. 1) and the adoption of a unified system of financing and labor payment for all bodies financed by the state budget of the Republic (Article 66, par. 9.1). At the same time, the reform removes the President’s power to instruct the Government to prepare draft laws and submit them to the Majilis of the Parliament as well as the right of the President to cancel or suspend the acts of the Government and the Prime Minister. In turn, the President retains the right to preside over meetings of the Government on especially important issues, but after the reform only if necessary (Article 44, par. 3). In relation to the Parliament, the reform abolishes the right of the President to issue decrees having the force of law as well as the right of the Parliament to delegate legislative powers to the President for up to a year. However, the President still may indicate to the Parliament which draft laws are to be examined as a matter of priority (Article 61, par. 2) and retains the right of legislative initiative (Article 61, par. 1).

The role of the President

Under the new provisions, the role of the President is designed as a head of state and “supreme arbiter” between different branches of powers. His main activities are aimed at focusing on strategic development planning, representation of the state and foreign affairs, as well as national security and defense.

The modernization of the judicial system

Changes related to the judiciary concern both the Supreme Court and the Constitutional Council. According to the new provisions, the Supreme Court no longer exercises supervision over the activities of local and other courts. Major changes are, however, introduced in relation to the constitutional review. First, the Constitutional Council is now empowered to review all constitutional amendments before their adoption in regard to their compliance with the requirement of Article 91, par. 2, providing that the provisions on constitutional values cannot be changed (Article 91, par. 3). Second, the President has the right to request the opinion of the Constitutional Council on the compliance of a law or another legal act or regulation with the Constitution (Article 44, par. 10.1). Finally, the reform abolishes the power of the President to veto the decisions adopted by the Constitutional Council, which greatly limited constitutional review in the country.

Local government

The reform further introduces two changes to the legal framework for the activities of the local administration and local government. First, the President keeps the power to appoint the akims (administrative heads) of regions, major cities and the capital, but under the new provisions the procedure of appointment or election of the akims of other administrative-territorial units is to be established by law (Article 87, par. 4), which partially implies the transmission of this function to the Parliament. Second, the pre-term termination of powers of maslikhats (local representative bodies) remains within the presidential competences, but the new procedure integrates some elements of collegiality as it requires consultations with the Prime Minister and Chairpersons of the two Chambers of Parliament (Article 86, par 5).

Constitutional Amendments Procedure

The Kazakh Constitution contains a list of constitutional values, which may not be changed even through the constitutional amendments procedure (Article 91, par. 2). These values are the unitary and territorial integrity of the state and the form of government. The reform adds to this list the independence of the State.

Is the New Constitutional Reform in line with the Constitution?

The Constitution expressly establishes that the form of government as a constitutional value may not be changed by constitutional amendments. However, the newly adopted reform redistributes 34 presidential powers to other branches of government, and this requested to amend 23 Articles of the existing Constitution. Does it mean that the newly adopted reform is in contrast with Kazakh constitutional values?

The 1995 Constitution establishes two alternative procedures for the adoption of constitutional amendments both initiated by the President. The first requests an all-nation referendum, and the second parliamentary approval. What procedure should be followed depends again on the decision of the President. In other post-Soviet countries, the parliamentary approval is usually required to change the amendable parts of the Constitution, while the national referendum is used for its unamendable provisions. This is because it is assumed that in the latter case people exercise through a national referendum their constituent power, which cannot be limited by the Constitution. If these assumptions are applied to Kazakhstan, the new constitutional reform appears, at least at first sight, unconstitutional from both formal and substantive perspectives; Nazarbayev opted for a speedy passage through Parliament although the reform changed a high number of provisions designing the form of government. The unconstitutionality of the reform seems further confirmed by those observers who argue that it changed the Kazakh presidential system into a more parliamentary or at least semi-presidential system. The latter vision was initially shared also by Nazarbayev, who asserted in his televised speech of 25th January that the strong presidential model in force since independence was necessary to overcome the enormous difficulties of forming the state, but the time has arrived for a new model as over the course of 25 years the presidential form has fulfilled its mission. Nonetheless, after the approval of the reform Nazarbayev changed his mind and asserted that the country will continue to have a presidential form of government, but power will be more balanced, flexible and effective. Moreover, the Constitutional Council declared the reform in line with all constitutional values. The preservation of the presidential system has been further confirmed by the opinion of the Venice Commission, which clearly stresses that the reform brings Kazakhstan closer to the semi-presidential system, but it does not represent a change in the nature of the constitutional order of the country, which retains the general features of a presidential system. Thus, the reform should be considered ultimately in line with the Constitution but only because it was formulated within the framework of the presidential system. This is not to say that the Kazakh form of government could not be changed because included in the list of constitutional values; theoretically, however, the only way to shift from one governmental system to another is by holding a nationwide referendum.

Conclusions

According to Nazarbayev, the 2017 constitutional reform is aimed at furthering the democratic development of Kazakhstan. Yet what remains unclear is what Kazakhstan means by the concept of democracy. The country’s political situation is still heavily dominated by Nazarbayev’s Nur Otan party. The latter, together with some puppet parties all notably loyal to the President, maintains complete control over the Parliament and other institutions, which serve as a rubberstamp for the President’s policies. Competitive parliamentary and presidential elections are non-existent, and the space for opposition politics tightly restricted. Courts, including the Constitutional Council, are weak and only nominally independent, and basic fundamental rights such as speech, media, religion and association highly restricted and frequently violated. In this political reality, the objectives of the reform – such as the creation of a more rigid and precise separation of power between branches of government and an effective system of checks and balances – risk to remain within the paradigm of surface change at least until the reform will not be accompanied by the introduction of a real political pluralism. The latter requests as its first step to dissolve the Parliament, form a genuinely competitive party system, hold free elections, and ensure that the newly elected Parliament become a forum for pluralistic debate.

In the absence of any substantive change aimed at introducing genuine political pluralism, the newly approved constitutional reform is bound to remain yet another example of insincere pledges to democratic politics, thus reflecting a notable common practice of all Central Asian authoritarian leaders, who have mastered the rhetoric of reform and democratization without demonstrating any sincere commitment to these processes. However, it should be noted that the construction of a system of checks and balances designed to prevent the accumulation of power, even if introduced only formally on a constitutional level, could serve as a mechanism to prevent potential political instability in the country once Nazarbayev leaves office. His eventual successor will be forced to share power with other institutions, thus creating, paradoxically, unintended but more amenable conditions for a real transformation of Kazakhstan into a truly pluralistic and democratic order. Reforms are in fact the most dangerous moment for an authoritarian regime because they could trigger the unravelling or even the end of it. Building democracy represents, on the other hand, a very long journey; the example of the neighboring Kyrgyzstan, the most democratic but the least stable country in Central Asia, best reflects this truth.

Carna Pistan is a Postdoctoral Research Fellow in Comparative Public Law at the University of Udine, and a Research Fellow at the Center for Constitutional Studies and Democratic Development (CCSDD) where she coordinates the research project on "The Role of Constitutional Courts in the Challenges to Democratization and the Protection of Human Rights in Central Asia". She is also a member of the IACL research group on Constitutionalism in Illiberal Democracies.