Emeritus Dean Steve Kanter Discusses Project Involvement
Law Professor Emeritus Steve Kanter played a key role in Kazakhstan’s constitutional reform process in 1992. As one of three members of an international panel, he worked alongside Dr. Neelan Tiruchelvam and Peter Germer to assist the Kazakh government in drafting its new constitution.
Kanter recalls that Kazakhstan had already begun its reform process under Gorbachev‘s instructions, but the Soviet Union’s breakup accelerated the need for a new constitution. The international panel was invited by the government to provide an international perspective and help the working group with their draft.
The panel’s role was to spend a couple of weeks meeting with the working group, suggesting modifications, and discussing the process. Kanter notes that the first draft was sophisticated but had significant flaws, including too much rigid detail and underdeveloped individual rights. For instance, the draft included provisions that were overly prescriptive, leaving little room for flexibility and adaptability, which are essential for a country undergoing significant political and social change.
Constitutional Reform Process
The working group had studied constitutions from around the world, including Europe, the United States, and Asia, before producing their first working draft. Kanter and his team received the draft in English translation and prepared themselves by researching comparative models.
Their role was to facilitate movement toward a document that would genuinely support a constitutional democracy. Kanter emphasizes that the team’s involvement was not about imposing a single model but rather about providing a genuinely effective team with diverse constitutional backgrounds. This diversity allowed them to consider various approaches and tailor their recommendations to Kazakhstan’s unique circumstances.
The team identified several key areas that needed attention, including language rights, ethnic and religious minority protections, decentralization, and the design of a new Constitutional Court. Kanter notes that the team’s recommendations were not universally accepted, but many were adopted in the final draft.
Language and Ethnicity
Language was a contentious issue throughout the process, with Kanter and his team pushing for explicit protective language to ensure that neither Kazakh nor Russian could be diminished or displaced. The final constitution made Kazakh the official language while designating Russian as the language for interethnic communication.
Kanter also notes that the team worked to address the issue of ethnicity and pluralism, given the 40/40 ethnic split between Kazakhs and Russians. The team’s recommendations included provisions for minority language protections, decentralization, and the separation of religion from the public sphere. These provisions aimed to promote inter-ethnic harmony and prevent the dominance of one ethnic group over others.
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The team’s work on these issues was influenced by Dr. Tiruchelvam‘s experience in Sri Lanka and his deep concern for inter-ethnic harmony. Kanter emphasizes that Dr. Tiruchelvam‘s contributions were invaluable, and his legacy continues to be felt in Kazakhstan’s constitutional development.
Constitutional Court and Positive Rights
The team also made recommendations for the design of a new Constitutional Court, including provisions for its independence, the professional qualifications of its judges, and its insulation from political pressure. Kanter notes that the court’s early decisions were assertive, but it was eventually weakened by the president’s amendments.
The team also debated the inclusion of positive rights, such as healthcare, as fundamental constitutional rights. Kanter was concerned about conflating different kinds of rights within a single constitutional document, while Dr. Tiruchelvam and Peter Germer were more inclined to include positive rights directly.
The final constitution included both negative checking rights and positive economic and welfare rights, but with some differentiation in how they are treated and enforced. Kanter notes that the outcome was a divided one, with none of the team members entirely satisfied with how it came out.
Legacy and Impact
Kanter reflects on the legacy of Dr. Tiruchelvam, who was assassinated in 1999. He notes that the world lost a courageous and committed individual who genuinely believed in what he was doing and was willing to act on that belief.
Kanter also notes that Kazakhstan has made significant progress since the adoption of its constitution, including the establishment of a new capital and the development of its economy. However, challenges remain, including corruption and the need for further constitutional reform.
Despite these challenges, Kanter believes that Kazakhstan’s constitution has provided a foundation for the country’s development and has helped to promote stability and security in the region. He emphasizes that the real responsibility lies ahead, and it falls on the president and everyone else who holds power in the system to keep pursuing a dignified, rule-of-law society.
