Maintaining a Healthy Constitution
Constitutions are funny things. The word itself derives from the Latin for regulations and orders, but in the 1550s it started to be used to describe physical health, strength and “vigor of the body.” So perhaps it comes as no surprise that ‘Constitution’ was the word used by the Americans in the 18th Century to define and build a healthier society. Indeed, the Constitution of the United States is the world’s oldest continuously-active codified constitution, having been in force since 1789. It was written by Jacob Shallus, a Pennsylvania General Assembly clerk, for $30, makes no mention of ‘democracy,’ and doesn’t set out the requirements for voting. Benjamin Franklin used to attend drafting meetings in a sedan chair carried by four prisoners from the local jail, the original title for the head of the nation was ‘His Highness the President of the United States of America and Protector of their Liberties’ and it wasn't signed by Thomas Jefferson, who was in France at the time helping them draft their modestly named ‘Declaration of the Rights of Man and of the Citizen.’
And as an aside, to those who write about the marvels of the French Constitution as a basis for modern democracy, don't forget the 1215 Magna Carta, the 1689 English Bill of Rights and the fact that the French only got around to having a Constitution in 1948.
And it was around the time of the English Bill of Rights, in the 1690s, that we saw Khan Tauke develop a constitution of sorts for Kazakhstan, becoming known as the Zheti Zhargy, and something to which the law firm I have co-founded in Kazakhstan, Seven Pillars Law, bears homage.
Kazakhstan saw further constitutional developments with the preparation in 1911 by Barlybek Syrtanov of “The Charter of the Country of Kazakhs,” which laid down the idea of creating a sovereign state. In 1917, the newspaper “Kazakh” published the program of the “Alash” party, which spelt out such ideas as the division of state power into three branches, general elections, and so on: The structure of the document was similar to the constitutions of European states at the time. Kazakhstan then adopted a constitution in 1937, and a second one in 1978, which became the basis for the modern Constitution of an independent Kazakhstan.
That modern Constitution was developed by the First President, Nursultan Nazarbayev in July 1995, during which he reviewed laws from 20 countries and developed a constitution for the newly independent nation of Kazakhstan.
And it was his clarity and focus that allowed the Constitution, drafted over 25 years ago, to be able to thrive, where others have failed: Only half of all constitutions function continuously for more than 19 years.
And it was that focus which meant the Kazakh constitution is a manageable 17,042 words across 98 articles, compared to the Indian constitution with 146,385 words. People say that size isn’t everything, and that the best things come in small packages, which is reassuring. But even the world's shortest constitution, written for one of the world’s smallest countries, Monaco, is 3,814 words, or roughly 1,900 words per square kilometre of size. If we scaled that up for Kazakhstan geography, the Constitution would be 5.1 billion words and take 41 years to read cover to cover.
And when the First President’s drafting was done, he started to put it into practice, seeking input from Kazakh citizens on the draft – by the people, for the people. More than three million people took part in over 33,000 discussions about the Constitution, and it was adopted through a national referendum on August 30, 1995.
And the Kazakh Constitution has stood firm, as a beacon, for the past 25 years, something being celebrated on Sunday. It has withstood dramatic changes in the economy and global politics, offering protection and structure to a nation full of ambition and hope. And although it has been a shield against the tyranny we see playing out across the world today, it has proven to be a flexible enough to allow Kazakhstan to rise up the rankings of nations, and to establish the Astana International Financial Center as a hub for jobs, opportunity and investment into Central Asia: securing Kazakhstan’s position as one of the world’s most pioneering economies, whilst protecting the culture and heritage of which Kazakh citizens can be so proud.
And at the vanguard of the Constitution, and the protections it offers, has been the Constitutional Council. It is worthy of mention that both its previous and current Chairmen, Messrs Rogov and Mami, are innovators. Chairman Rogov is an internationally recognised expert on reform, especially in the criminal justice sector, made great strides with the Venice Commission and is now leading many of the educational reforms being undertaken by the Astana International Financial Centre's Academy of Law. Chairman Mami, the current Chairman of the Constitutional Council, and former Chairman of the Supreme Court, had the vision and drive to transform Kazakhstan's legal and judicial system. He brings that same vision, clarity and passion to his current role, as protector of the Constitution and defender of the rights of every Kazakh citizen, always acting with humility, intelligence and integrity.
So, many happy returns to the Constitution of Kazakhstan on this, its 25th anniversary and congratulations to the Constitutional Council for its work over the years to protect the citizens of Kazakhstan.
The author is Mark Beer OBE, the Co-Founder of Seven Pillars Law in Kazakhstan, a member of the Supreme Court of Kazakhstan’s International Advisory Council, former President of the International Association of Court Administrators and a Visiting Professor at the Shanghai University of Political Science and Law.