Law Professor Emeritus Steve Kanter, a distinguished American legal scholar, two-time Fulbright professor of law, and former Dean of Northwestern School of Law at Lewis and Clark College, played a key role in drafting Kazakhstan’s new constitution in 1992. Kanter, along with Danish comparative law professor Peter Germer and Sri Lankan human rights lawyer Dr. Neelan Tiruchelvam, formed an international panel that assisted Kazakhstan in this process.
Kazakhstan had been part of the Russian empire for about 300 years before the Soviet Union was formed. After the Soviet Union broke apart, Kazakhstan declared its independence in December 1991.
The first draft of the constitution was already quite sophisticated, but it had some significant flaws. Kanter notes that the draft had too much rigid detail in areas that needed flexibility, while individual rights were left underdeveloped and vague. They identified issues with the structure of government, which concentrated too much power in the presidency.
Kanter, Germer, and Tiruchelvam made several key recommendations, including the protection of minority languages and cultures, the separation of religion from the public sphere, and the introduction of meaningful local decision-making. They also suggested the establishment of a dedicated constitutional court with genuine authority to interpret and enforce the constitution.
Kanter reflects on his experience working with Dr. Tiruchelvam, describing him as warm, thoughtful, and intellectually sharp. He notes that Tiruchelvam’s death was a tragedy, not just for his family and friends but for the world, which needs more people with his character and commitments.
Kanter discusses the disagreement within the team about including positive rights, such as healthcare, as fundamental constitutional rights. He notes that while he is sympathetic to the idea of including such rights, he was concerned about the potential consequences of conflating different kinds of rights within a single constitutional document.
Despite these challenges, Kanter believes that the constitution has been a significant step forward for Kazakhstan. They have largely avoided inter-ethnic violence and have made progress in eliminating their nuclear arsenal. However, he also acknowledges that there is still much work to be done to ensure that the constitution is fully enforced and that the country continues to develop into a genuinely functioning civil society.
Kanter’s experience in Kazakhstan highlights the importance of international cooperation and the role that external experts can play in supporting constitutional reform processes. His reflections on the experience also highlight the challenges and complexities involved in drafting a constitution that balances competing interests and priorities.
The conversation with Kanter provides valuable insights into the drafting process and the key issues that were addressed. It also highlights the significance of the constitution as a foundation for Kazakhstan’s development as an independent nation, much like the Supreme Court’s role in upholding the law.
As Kanter notes, the adoption of a constitution is only the beginning. The real responsibility lies in ensuring that the constitution is enforced and that the country continues to develop into a genuinely functioning civil society. This requires ongoing effort and commitment from all stakeholders, including the government, civil society, and the international community.
It is a process.
