Today, 30 August, is Constitution Day of the Republic of Kazakhstan. On this day in 1995, the current Constitution of Kazakhstan was adopted at a nationwide referendum. Its highest values are proclaimed to be the human being, his life, rights and freedoms. In this article, we will look at the history of the country’s Constitution, the amendments made, and the activities of the Constitutional Court aimed at guaranteeing compliance with the norms of the country’s Basic Law.

The Constitution is the basic law of the state, which has supreme legal force and defines the foundations of the political, legal and economic systems of the state. The vast majority of countries today have constitutions, and only about ten do not. The prototype of the first constitution is considered to be the Magna Carta of 1215, which serves as a prototype of the constitutional system in the history of modern Europe. According to the social contract theory, a constitution can be considered as a kind of contract between a state and its population, which defines the relationship between the parties and the order of establishment of the state system.

The first Constitution of independent Kazakhstan was approved at the ninth session of the Supreme Soviet in 1993. This document proclaimed Kazakhstan a republic with a parliamentary form of government, with the Supreme Soviet as the country’s sole legislative and highest representative body. The author of this Constitution is a well-known Kazakhstani lawyer, Doctor of Law, Professor Nagashbay Shaikenov.

The political system of Kazakhstan existed in this form until 1995. On the initiative of Nursultan Nazarbayev, a referendum on the adoption of a new Constitution was held, which resulted in the dissolution of the Supreme Soviet. At this referendum, the 1995 Constitution of the Republic of Kazakhstan established a new body of constitutional supervision – the Constitutional Council of the Republic of Kazakhstan, in connection with which the Constitutional Court of the Republic of Kazakhstan ceased to exist. In general, since the adoption of the new Basic Law, it has been amended seven times, introducing more than 1,100 amendments.

The amendments initiated to the Constitution caused a flurry of criticism from lawyers and the public. Doctor of Law, Professor Suleimenov M.K. wrote: “Take at least the Constitutional Court headed by Academician M.T. Baimakhanov, which was quite progressive for its time and which became famous for its strong opposition to the 1995 draft Constitution, so Nazarbayev liquidated it and created a toothless Constitutional Council, which does not decide anything and actively promotes all the President’s endeavours”.

What was wrong with the Constitutional Council

Each constitution requires a mechanism to monitor its enforcement. Depending on the system, this can be done by centralised bodies (Constitutional Courts) or by courts of general jurisdiction. With the adoption of the 1995 Constitution, the Constitutional Court was replaced by the Constitutional Council, which was responsible for interpreting various legal norms, supervising the constitutionality of adopted laws, the conformity of the Constitution with international treaties, and existed only as an advisory body.

As noted by Sabyr Kasymov, a former judge of the old Constitutional Court:

“The Constitutional Court could examine and rule on the observance of the norms of the Constitution on appeals from public organisations and citizens. There were other powers that the Constitutional Council does not have.”

Thus, the Constitutional Council lacked the authority to assess the legality of the President’s decisions, as well as other issues of national importance, such as the privatisation of large oil facilities. In addition, the President of the Republic had the right to object to the decisions of the Constitutional Council, and citizens were deprived of the possibility to directly address the Council for clarification.

Thus, between February 1996 and 2022, the Constitutional Council received more than 200 appeals: 27 from the Head of State, 77 from the Presidents of the Chambers of Parliament and its deputies, 27 from the Prime Minister, and 71 from the courts. The Constitutional Council adopted more than 140 normative decisions. In connection with the introduction of novelties to the Basic Law in 1998, 2007 and 2017, the Constitutional Council adopted decisions to revise some of its decisions.

On 5 June 2022, the Constitutional Court was re-established through a referendum to amend the Constitution, replacing the Council. Adhering to the principle of a “hearing state”, Kasym-Jomart Tokayev proposed to amend the Basic Law through a nationwide vote, which was a first in Kazakhstan’s history and aimed to “transition from a super-presidential country to a presidential one with a powerful Parliament and an accountable Government”.

By whom are judges of constitutional courts in foreign countries elected?

Given the political importance of a constitutional court, there is a great deal of interest in who judges are selected by and the qualifications for selection. Practice varies widely among modern constitutional courts. One obvious point unique to constitutional judges is that their selection system is not similar to that of ordinary judges.

Constitutional judges are selected to perform tasks appropriate to a specialised court, usually for a fixed term (being 3, 6, 9 or sometimes 12 years), with shorter terms renewable only once. We can categorise the selection mechanisms into five categories:

• Appointment by the executive and the legislature. (Nomination by the president, but appointment requires approval of the legislature.)
• Selection and appointment by the legislature.
• Selection by the executive, legislative and judicial branches. (authorising each of the three branches of government to appoint a certain quota of constitutional court members)
• Selection by a special committee.
• Appointment by the executive branch. (not recommended as it gives the executive power to control the constitutional court through a system of appointments).

Dependence of the Constitutional Court on the President

The Constitutional Court of Kazakhstan consists of ten judges and a President, whose term of office is eight years. The President appoints four judges independently, the Chairman with the consent of the Senate, and the Deputy Chairman on the proposal of the Chairman. The Senate and Majilis appoint three judges each. It turns out that in Kazakhstan judges are appointed by the executive and legislative branches of government. In foreign countries, before confirmation by voting, confirmation hearings often provide democratic control, allowing to examine the personal suitability and ideological positions of potential candidates.

Can the CC of the RoK be considered dependent on the President? For an answer to this question we turned to Evgenia Nefedeva, a researcher in the field of constitutional justice.

• I would not draw such an unequivocal conclusion. On the one hand, it is true that it can be assumed that a significant part of judges are appointed by the President to some extent and that the term of office of judges is the same in duration as that of the President (The term of office of the President is 7 years and the judges of the Constitutional Court are appointed for 8 years) . On the other hand, a guarantee of the independence of judges can be considered to be the fact that once they cease to hold office, they cannot be reappointed for a new term. This is an effective measure to prevent the “ageing” of the court^[3] [2] and the re-election of judges for a new term may undermine their independence.

The current Constitutional Court is very young, and it has to go through its way of establishing and gaining authority not only in the system of separation of powers, acting as an arbitrator between the executive and the legislature, where judges may indeed be under certain political pressure. However, at the moment, the greatest demand to the Constitutional Court comes from the society, when the Constitutional Court fulfils a human rights function, standing up for the protection of human rights and freedoms, which is undoubtedly the highest value in a democratic state.

How should the independence of the Constitutional Court be ensured, apart from the appointment of judges?

• Indeed, to ensure the independence of the Constitutional Court, in addition to the appointment of judges, other mechanisms are necessary. These include the financial and organisational autonomy of the court, the transparency of court proceedings, the possibility of public control over the court’s activities, as well as mechanisms to protect judges from political pressure and interference in their activities.

For example, the Draft Constitutional Law on the Constitutional Court enshrined the right of a judge to express a dissenting opinion with further publication of the dissenting opinion in the public domain. The dissenting opinion appears at the stage of voting of judges in favour of the final draft judgement.  It is believed that a judge who decides to express a dissenting opinion either disagrees with the Court’s decision or wishes to supplement the decision with arguments that were not included in the final judgement. Yes, now the judges of the Constitutional Court of Kazakhstan have such a right to express a dissenting opinion, but it is, unfortunately, not published in the public domain.

The institution of dissenting opinions very clearly demonstrates to the public the high degree of transparency of the Constitutional Court. In addition, the publication of dissenting opinions solves many practical tasks: it develops various legal sciences, signals to the public about topical legal problems that have been the subject of discussion not only between the parties to a constitutional dispute, but also within the Court.

Therefore, it is important that the Constitutional Court has sufficient resources and powers to perform its functions independently and to take decisions free from external influence.

What do the Constitutional Courts of foreign countries do?

Apart from the exercise of exclusive jurisdiction over constitutional matters, there are effectively no common powers for all constitutional courts (other than constitutional review of legislation, and even these powers vary in scope and effect). Nevertheless, modern constitutional courts have the following four main powers:

1. Constitutional jurisdiction (control of the constitution itself):

• Consideration of issues arising in the constitution-making process;
• testing the constitutionality of constitutional amendments (e.g. as in Niger, Senegal and South Africa)

2. Judicial control of legislative acts (control of legislative power):

• testing the constitutionality of laws before legislation is enacted (ante factum);
• testing the constitutionality of laws after enactment (ex post facto);
• Reviewing the constitutionality of decisions of the legislature; and
• Initiating or required by law

3. Jurisdiction over officials and institutions (controlling the executive):

• verification of the constitutionality of actions and decisions of the executive branch;
• Hearings on impeachment proceedings against holders of public office;
• Handling criminal or civil cases of official corruption;
• Consideration of the qualifications of persons capable of holding or continuing to hold public office;
• Ruling on the appointment of officers in accordance with the constitution;
• resolution of disputes over the competence of state bodies;
• resolving disputes between government agencies

4 Jurisdiction of political parties and elections (controlling elections):

• ruling on the dissolution or merger of political parties and monitoring the constitutionality of their actions;
• Verification of the legitimacy of elections and election results at any level; and
• consideration of election petitions

What the Constitutional Court of Kazakhstan does

The new Constitutional Court is characterised by a rather wide range of powers. According to Article 72 of the Law “On the Constitutional Court of the Republic of Kazakhstan”, in addition to interpreting the norms of the Basic Law and reviewing the conformity of adopted laws and resolutions, the Court may also consider the issue of the correctness of the election of the President, Chairman of the Senate and Majilis, as well as the Prime Minister. Now the right to appeal to the body of constitutional control has not only the President, the Chairmen of the Senate and Majilis, members of Parliament, the Prime Minister, the Prosecutor General, but also the citizens of the country, the Commissioner for Human Rights and the courts.

            In 2023 alone, the Constitutional Court received almost 5,300 appeals, of which only ten were from state bodies and officials. The appeals concerned issues of housing and labour relations, social protection, bankruptcy of individuals, non-execution of judicial acts, execution of sentences, access to information and others. And only in 27 per cent of appeals citizens asked to check the constitutionality of laws and other normative legal acts.

            It should be noted that the Court has the right to return applications that do not meet the admissibility requirements, which was done in response to 4.9 thousand applications. Thus, only 182 appeals were admitted to proceedings, and in eight cases final rulings of unconstitutionality      were issued.

            One such case is a case in which the applicant was dismissed from the law enforcement service for committing a misdemeanour that discredited the law enforcement agency. The applicant repeatedly applied to the state authorities for clarification of the possibility to participate in competitions for positions in the civil service, but received negative answers referring to the lifetime prohibition of admission to the civil service of persons dismissed for committing such a misdemeanour. The Constitutional Court, after examining this appeal, concluded that this prohibition was inconsistent with the norms of the Constitution, as it “does not take into account the nature of job duties, violates the equal right of citizens to access to public service and, in general, does not meet the principles of fairness, proportionality and the criteria of mutual coherence of substantively related norms of different sectoral affiliation.” (As of 1 July, this norm has not been replaced.)

Decisions of the Constitutional Court are final and not subject to appeal, except in cases where new material circumstances are discovered or the norm of the Constitution on the basis of which the decision was adopted is changed. In such cases, the review may be initiated either by the Court itself or by the President of the country.

The recognition of norms of Kazakh legislation as unconstitutional means that they are inapplicable, requires a review of court decisions adopted on the basis of these norms, as well as bringing the legislation into compliance with the decision of the Constitutional Court. In its judgements, the Court may recommend to the Government and authorised bodies to improve legislation, if necessary. In the first half of 2024, the Constitutional Court received more than two thousand appeals. Based on the results of the appeals, the Court recommended to improve the norms of administrative and criminal law of the country.

Despite pessimistic predictions about further possible amendments to the country’s Constitution and possible reasons for this, the return of the Constitutional Court is a decisive step towards the democratisation of the country and the establishment of the rule of law. The Constitutional Court is the guarantor of constitutionality and citizens can finally directly assert their rights and freedoms at the highest level, which clearly improves access to justice.

The fact that the Constitutional Court is headed by a woman is also encouraging. In 2023, Kazakhstan improved its overall ranking in the Global Gender Gap Index, moving up 18 positions to 62nd place among 146 countries. Kazakhstan closed the gender gap in education and showed improvement in economic and political opportunities.