In the run-up to the national referendum on the adoption of the new Constitution of the Republic of Kazakhstan, scheduled for March 15, 2026, citizens – from ordinary workers to representatives of professional sectors – are asking questions about how the Fundamental Law will change the life of each individual. For example, why did the Preamble include "continuity with a thousand-year history," can Kazakhstan be considered a presidential republic, why was the primacy of international law removed, and how will all this affect sovereignty, people's rights, and the balance of powers.

The deputy chairman of the board – first vice-rector of Al-Farabi Kazakh National University, member of the Constitutional Commission, Doctor of Law, Professor Yerkin DUISENOV, spoke to the editorial board of the "Legal Gazette" about this, as well as about the key changes in the draft of the Fundamental Law, their legal justification, and significance for the further development of the state.

– Yerkin Ermanovich, how do you assess the inclusion in the Preamble of the draft Constitution of a reference to the "thousand-year history of the Great Steppe"? Can this historical reference be considered a legal (legitimate) basis for the sovereignty of the state, given that in legal doctrine the concepts of "sovereignty" and "independence" have different meanings?

– To answer your question, I need to say a few words about how the Constitutional Commission worked. The most important work took place within the Commission's groups and sections. I can say with absolute certainty that every article, every word of the presented draft underwent a "brainstorming" session. It involved highly qualified specialists: legal theorists and practitioners, members of Parliament, representatives of the judicial system and law enforcement agencies, linguists, political scientists, economists, sociologists, and others. Therefore, the draft we have today is the collective work of, I would say, a quite significant elite: scientific, political, and professional in general.

Now, regarding the Preamble. We cannot ignore the fact that we have an almost entirely new Preamble. And what is stated in our Preamble today – that we are strengthening statehood on the primordial Kazakh land, preserving the continuity of the thousand-year history of the Great Steppe – is very important.

It is important in the sense that the state of Kazakhstan did not appear out of nowhere. Historians will probably talk about this for a long time to come. The truth is, we have much to be proud of.

In my opinion, it is very good that this idea has been enshrined in the draft of the new Constitution. For the first time in the Preamble, we have reflected our value orientations – culture, education, science, innovation, and, naturally, respect for nature. After all, the Preamble is not just an introduction, as many believe, but the quintessence or essence of the ideas that then run like a red thread through the entire Constitution and are reflected in almost all of its content. So, the fact that we have created such a Preamble is a huge achievement of political and legal thought.

– Some experts express the opinion that too little time has been allocated for reviewing the draft of the new Constitution, whereas it should be considered comprehensively, with a detailed analysis of all possible risks and errors, and this process, as is known, takes years. What do you think about this?

– We cannot overlook the fact that the Head of State, Kassym-Jomart Kemelevich Tokayev, speaking at the final meeting of the National Kurultai (advisory and consultative body), noted that the Constitution contains not just stylistic flaws, but also terminological inaccuracies. This is what the Constitutional Commission worked on.

For example, the first section of our Fundamental Law in the current Constitution is called "General Provisions." But this is unacceptable for the Fundamental Law. It is acceptable for ordinary, current legislation, where the categorical and conceptual apparatus is given, and the social relations regulated by this law are indicated as the goal. The first section of the Constitution contains the basic principles, concepts, categories, and ideas on which our state is built: the form of government, the form of state structure, the relationship between authority and the people, and much more. Therefore, in the proposed draft, this section is now correctly titled. All these are the foundations of the constitutional order. By the way, scholars and lawyers, including within the walls of our university, have long had a very big debate about this. That is one point.

Another point that cannot be ignored, again concerning the first section: we have aligned, in my opinion, the most important concept – the form of government. In fact, lawyers and scholars have been raising this topic for a very long time, and it is good that this issue has now been resolved positively. There are two forms of government – monarchy and republic, and this is an axiom.

If everything is clear with monarchy – the transfer of power by inheritance, where the autocrat bears no responsibility to the people and is not obliged to account for their actions – then the republican form of government includes the presidential republic, the parliamentary republic, and the mixed republic. Therefore, what we have now stated in paragraph 1 of Article 2 – that the Republic of Kazakhstan is a unitary state and the form of government is a presidential republic – is a very correct approach from the perspective of constitutional law science. Another important aspect is the addition to paragraph 1 of Article 4, which states that the only source of state power and the holder of sovereignty is the people. This is very important because only on the basis of popular, and then national, sovereignty is the universal sovereignty of the state created. So this, in my opinion, is also a fairly strong breakthrough in the development of constitutional construction.

Furthermore, in the new draft, we have removed the primacy of international law, as this concerns the protection of sovereignty. Any influence, including through international treaties that do not suit either our traditional society or the state, represents to a certain extent a loss of sovereignty. Therefore, while retaining the basic international legal acts ratified by Parliament, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, we have nevertheless included in the draft of the new Constitution a clause stating that the procedure for the effect of international acts is regulated by laws. And the ratification of international treaties will be carried out only in accordance with the law on international treaties. In other words, in the new draft Constitution, we have strengthened the protection of our sovereignty.

– What specifically new is meant here?

– The non-retroactivity of the law is fully enshrined in the Constitution. A person cannot be held liable for an offense committed before a new law came into effect. This is one element of how the state stands guard over the rights of our citizens. Add to this paragraph 6, which is currently causing debate on social media, about the special legal regime in the financial sphere. But this is not new. We already have the Astana International Financial Centre functioning quite successfully, where not our national legislation, but English common law is applied, which allows for the prompt resolution of many economic issues and is, so to speak, very attractive to foreign investors.

Another point I cannot fail to mention, which we discussed a lot, is the form of ownership. Based on paragraph 3 of the current Constitution, the land, its subsoil, water, flora and fauna, and other resources belong to the people. This amendment was introduced into the Constitution in 2022. It can be argued, and this is logical, that we have public ownership. From this, municipal ownership may arise. Therefore, paragraph 1 states that in the Republic of Kazakhstan, all types of property are recognized, guaranteed, and equally protected. This is a positive point, which means that tomorrow, the day after tomorrow, or in the near future, we will be obliged to develop local self-government in a democratic, legal state. And municipal property can serve as the socio-economic foundation on which the development of our local self-government will be based.

– There is a lot of criticism of the draft Constitution on social media. In your opinion, will this lead to serious contradictions with other legal institutions of the republic in the future?

– Regarding the criticism on social media of the presented draft of the new Constitution, it should be noted that democracy is, first and foremost, pluralism of opinions, a diversity of views and ideas. If citizens come forward with constructive criticism, then that criticism should be heard and appropriate conclusions drawn. But if there is rabid criticism without fundamental knowledge of constitutional law, then that, of course, does not credit those who make such statements, especially on social media. I think that in the future, there should be no contradictions between the legal institutions enshrined in the Constitution.

The draft of the new Fundamental Law very well provides for a system of checks and balances, and I believe that the overall democratic nature of the presented draft Constitution will allow all state institutions and civil society institutions to function normally in a unified balance to achieve the priorities outlined in the Constitution.

– Recently, at the academic hearings at Al-Farabi KazNU discussing the draft of the new Constitution, there was a debate concerning paragraph 1, which states: "The Republic of Kazakhstan is a democratic, secular, legal and social state. The highest values of the state are the individual, their life, rights, and freedoms." What can you say about this?

– Regarding Article 1 of the Fundamental Law, the current Constitution of 1995 considers that Kazakhstan "proclaims itself" a democratic, legal, secular, and social state. The concept of "proclaims itself" is transitional for the simple reason that being a legal state and proclaiming oneself a legal state are different things. By proclaiming itself legal, Kazakhstan indicates that it is only on the path to building a rule-of-law state. But Kazakhstan has been an independent state for 35 years. I believe this period is sufficient for us to no longer proclaim ourselves as a democratic, legal, secular, and social state, but to state it as a fact. Moreover, the constitutions of many countries around the world state exactly that: such-and-such a republic is a legal, democratic, secular, and social state. So there is no contradiction here.

– I must ask you about Article 86 of the draft Constitution, where the advocacy is described as a "human rights mechanism," but without guarantees of independence from the state. How will this affect the protection of citizens' rights, given the criticism from well-known lawyers in our country about the possible deterioration of the institutions of advocacy and legal consultants?

– Yes, indeed, according to Article 86 of the draft new Constitution, the advocacy is a human rights mechanism. It facilitates the realization of state-guaranteed human rights to judicial protection, and also, concerning legal consultants, the right of citizens to receive legal assistance in the form of consultations and other forms. I do not see major problems here in the alleged lack of state guarantees for the functioning of the advocacy. Paragraph 1 of the same article directly states "state-guaranteed human rights to judicial protection." These rights are also set out in Section 1 and Section 2 of the presented draft of the new Constitution of the Republic of Kazakhstan.

– In last September's Address, the Head of State voiced the idea of forming a unicameral Parliament for the country. Work is underway, but there are questions. For example, in a number of European countries, unicameralism is often associated with a high level of trust in institutions. In Kazakhstan, however, citizens criticize Parliament more than they show it their trust. What, in your opinion, are the advantages of such a Parliament, what are its values?

– Regarding the transition to a unicameral Parliament, indeed, the Head of State voiced this idea, and it has already been implemented in the draft of our country's new Constitution, where the Parliament will be called the Kurultai. Actually, European countries have a significantly higher experience compared to us, not just in state building, but centuries-old traditions of building a democratic and legal society. Nevertheless, I believe that 35 years of our state's existence provide grounds for transitioning to a unicameral parliament. This is connected to two main reasons.

Firstly, a bicameral parliament is typically formed in countries with a federal state structure, that is, in countries where there are state entities such as autonomies, states, or lands, so that two chambers are represented, and one of these chambers represents precisely these state entities. Since we have a unitary state structure, we have no need for a bicameral parliament.

Secondly, a unicameral parliament will be able to pass laws more efficiently. They will not need to be approved or reviewed in an upper house. This guarantees that we can respond promptly to all the changes happening in the world and to the emergence of new social relations. It is well known that progressive legislation is a fertile ground for further socio-economic development of the country. Therefore, I believe this is the right decision, and I think the citizens will support it.

– Some legal scholars believe that the transition to a unicameral Parliament and the appointment of the new position of Vice-President further strengthen the presidential model. How does this align with the idea of the balance of powers, and why do critics see centralization here rather than decentralization?

– There is indeed an opinion that the transition to a unicameral Parliament and the introduction of the position of Vice-President will strengthen the power of the Head of State, but we have a presidential republic, and this is a normal phenomenon. I believe that the current system of checks and balances in the country will not allow anyone, including the Head of State, to strengthen their power to such an extent that it goes beyond the framework of the Constitution. Moreover, the draft of the new Constitution stipulates that usurpation of state power is a crime and is prosecuted by law. That is one point.

The second point. The introduction of the position of Vice-President and his appointment by the President – this is not the full context. The full context reads: "with the consent of Parliament." And what is Parliament? Parliament is the representation of the people. It is the highest representative body exercising legislative power.

Therefore, the vote in Parliament in support of a particular candidate for Vice-President is an indicator of the democratic development of our institutions. It seems to me that in this case, we are seeing the implementation of indirect democracy, that is, through deputies, by giving consent to the candidate for Vice-President, which in no way undermines the democratic foundations of our state.

Interviewed by Bakhtiyar TOKHTAKHUNOV