September 16, 2011
Yuri Buluktaev Chief Research Fellow at KazISS, Doctor of Political Science
As a rule, the functioning of political parties is dependant of the composition of various factors of social, historical and institutional nature. This composition may vary from country to country. Institutionalization of political parties is understood as their recognition by both the society and power as a necessary element for a properly functioning political system within the state. In a narrower sense, institutionalization means providing a legal basis for functioning of political parties.
The development of multiparty system, to a certain extend, is determined by political pluralism which has become an attribute of the political development of Kazakhstan during the period of social, economic and political transformation. Pluralism means an environment of competition and interaction of various political forces in accordance to the law and traditions. Increasing pluralism means improvement of political space. As multiparty system is recognized as an attribute of political pluralism it is the vehicle to improve political and partisan space.
In the 1990s the political parties and movements were necessary for institutional design of democratization process of the Republic, from one hand. From the other hand, they were formed not through social and ideological demand due to a weakness of civil society but out of quite different reasons.
Since 1989, during the period of half-disintegration and eventual disintegration of the USSR, political parties were formed on the ideological basis by the groups of likeminded; those who were supportive towards democratic socialism, national independence, western democracy values and their opponents. As newly independent states were accommodating a new political system the process of party formation was regulated by the ruling elites. This is a dilemma of democracy. In a democratic environment ideologies are the means for a party to achieve its political goals (not surprisingly all political parties appeared in Kazakhstan those days called themselves ‘democratic’), at the same time the process of partisan building was governed from the above. In such conditions normative and legal mechanisms are crucial, as well as functional (the ways how the power is exercised) and communicative (interaction between the state power and the parties). In democratic states with multiparty systems, national legislation defines the format of inclusion of the political parties into the process of formation and functioning of the bodies of state power as well as the character of their interrelations with the other public associations. These interactions shall be based on the principle of mutual non-interference and independent functioning. This principle is stipulated by a number of international documents especially when it concerns the relations of state and political parties. The states participated in the OSCE Copenhagen Conference in 1990 declared that “a clear separation between the State and political parties is one of those elements of justice which are essential to the full expression of the inherent dignity and of the equal and inalienable rights of all human beings. In particular, political parties shall not be “merged with the State”.
Partisan policy of state is one of the key factors influencing the dynamics of development and efficiency of political parties. Formation of this policy is dependant both on social structure, public demand and capacities of political system to provide political basis for the functioning of the party system.
The capacities of the political system of Kazakhstan, experiencing the time of transformation and modernization, were mainly formed in the result of the state powers bodies; their regimentation and regulation impact on political parties. The regulation activity was manifested mainly in normative and legal mechanisms as well as the functional and communicative mechanisms. The factor of political and legal institutionalization of the political parties affected the dynamics of development of the party system and efficiency of the parties themselves.
The national legislature regulates the character of relations of political parties with the other political institutions within the political system. It regulates the format of the partisan building and their inclusion in the process of formation of various state power bodies as well as the character of the relations of the parties with the other public associations in accordance to the principle of non-interference.
Liberalization of the Soviet political system resulted in establishment of a great number of new socio-political movements and, therefore, imperfection of the legal basis became particularly visible. On April 14, 1989 the Supreme Soviet of the Kazakh Soviet Socialist Republic passed the Act on Establishment and Functioning of the Independent Public Associations. The Law on Public Associations passed by the Supreme Soviet of the USSR on October 9, 1990 had a great significance for institutionalization of proto-partisan structures. It provided the legal basis for establishment and regimentation of organization and functioning of numerous newly created public associations.
The Declaration on the State Sovereignty of the Kazakh SSR passed on October 25, 1990 by the Supreme Soviet of the Kazakh SSR guaranteed equal rights to all public and political associations and movements to participate into political and social life. Since 1991 the activities of the public associations were regulated by the Law on Public Associations in the Kazakh SSR.
It was designed on the basis of the similar law passed by the Supreme Soviet of the USSR in 1990 and contained 5 chapters: ‘Preamble’, ‘Establishment of Public Associations and Termination of their Activities’, ‘Terms and Conditions of Activities of Public Associations’, ‘Liability of Infringement of Law’, ‘International Cooperation, International Treaties’. The Law stated the association freedom to be an imprescriptible constitutional right of human individual and citizen the realization of which serves the interests of society and shall be protected by the State. The law also enumerated the recognized public associations but it gave the right to establish the others beyond the given list. The law also stipulated the procedure of re-registration of all public associations within the territory of the Republic by 31 December 1991.
The law prohibited any associations of political nature to be established at public administration bodies, courts, public prosecution offices, army, state-owned industries, public and government agencies and organizations in order to guarantee the equal opportunities for the former and keep the latter neutral and impartial in terms of politics.
Thus the Constitution and national legislature guaranteed equality for public associations. The Constitution of the Republic of Kazakhstan is the main source of the legal norms regulating the status of political parties.
Political and legal basis for building of a multiparty system was provided by the Constitution adopted on October 28, 1993. Chapter 10 stipulated inclusion of political parties into execution of state power and this fact signified that there were premises for the multiparty system to be an integral part of state power formation mechanisms. The parties were recognized as actors of the political process.
Article 16 of the 1993 Constitution stipulated the right of the citizens to establish public associations on the basis of the principle of free expression and common interests to realize the fundamental rights and freedoms guaranteed by the Constitution. The Article was a foundation for observance of free associations rights of the Kazakhstan citizens.
Article 117 of the 1993 Constitution gave the registered parties the right to nominate candidates, conduct free debate, and pursue campaigns for and against the other candidates. According to Article 56 political parties shall facilitate free expression. All this signified a considerable democratization of social relations.
However, the legal basis for the rights and responsibilities of the political parties remained insufficient until the end of 1994. The motioned above Law of the Kazakh SSR on Public Associations passed back in June 1991 had become outdated in the political situation those days. The law did not differentiate political parties and other public associations; it just recognized a number of associations to be political parties.
The Constitution of Republic of Kazakhstan adopted in 1995 and the Laws on Public Associations and on Political Parties passed in 1996 were the principle legal basis since the second half of the 1990s. The Constitution adopted through the referendum in 1995 made Kazakhstan a unitary state with a presidential form of government with the bicameral parliament and defined the partisan building process and political space in general. The previous approach to regulation of the status of the political parties and other public associations had become inappropriate. Thus it was necessary to distinguish them within the national legislature; the Law on Public Associations was passed on May 31, 1996 and the Law on Political Parties was adopted on July 2 the same year. These laws meant a new stage in the process of legal institutionalization of political parties in the Republic.
In accordance to these legal acts public associations shall be equal before the law. Illegal interference of the state in the affairs of public associations and of public associations in the affairs of the state, imposing the functions of state institutions on public associations should not be permitted. The parties were given the right to nominate their candidates for Presidency and Parliament seats. It was stipulated that the parties had the right to unite into electoral blocks and other associations and do business in accordance to the Law on Public Associations.
In accordance with the Law on Political Parties passed in 1996 a political party is a voluntary association of the citizens of Kazakhstan aimed to detect and express the political will through representation in execution of state power. The State shall guarantee the observance of the rights and legal interests of the political parties. Article 16 provided the legal basis for financing of the parties. It outlawed financial assistance from abroad as well as that from religious organizations. According to the new legislature, a party shall provide the list of 3,000 members in order to be officially registered. A party might be liquidated by the resolution of its superior executive organ or upon court order.
The Law on Political Parties of the Republic of Kazakhstan, formation and functioning of public associations pursuing the goals or actions directed toward a violent change of the constitutional system, violation of the integrity of the Republic, undermining the security of the state, inciting social, racial, national, religious, class and tribal enmity, as well as formation of unauthorized paramilitary units were prohibited. The Law on Political Parties was aimed at strengthening of multiparty system in the country in accordance with the general democratic principles.
The fact that the norms on political parties are included into the Constitution signifies constitutional recognition of them as an independent political and legal institute of the state. Constitutional provisions were concretized in other sources of Constitutional Law, namely in the mentioned above Law on Political Parties regulating their functioning as a politico-constitutional institute and the Law on Public Associations.
There were a number of legislations to regulate certain aspects of political parties functioning. For example, the Law on the Press and other Mass Media passed on June 28, 1991 stipulated the right of the parties to use Mass Media and provided the procedures for its realization. The Presidential Decree on Elections in the Republic of Kazakhstan dated September 20, 1995, being in force of constitutional law, defined the procedure and terms for the parties to participate in the elections. The rules of procedure of the Parliament and its two Chambers outlined the format of partisan participation in the organization and functioning of the lawmaking body. The Presidential Decree on Registration of Legal Entities, being in force of law, contained the norms of some procedural issues for partisan registration process.
The Criminal and Administrative Codes of the Kazakh SSR stipulated the legal liability of infringement of Law on Political Parties. The legal status of political parties as legal entities is regulated in a number of provisions of other laws, namely in Civil Code of the Republic of Kazakhstan adopted on December 27, 1994 where the political parties were legally defined as non-profit organizations. There were also some provision in the Labor Code of the Kazakh SSR dated July 21 1972, Law on Social Welfare and Social Insurance and Decree on Taxation and other Mandatory Budget Payments issued on April 24, 1995.
Having analyzed the sources of legal regulation of the political parties’ status, the Kazakhstan experts had the ground to state that a new institution emerged within the constitutional law of Kazakhstan that was the legal institution of political parties.
The principle of political pluralism was realized when the provision of equal rights of political parties was included into Clause 2 of Article 5 of the Constitution of Kazakhstan: “Public associations shall be equal before the law. Illegal interference of the state in the affairs of public associations and of public associations in the affairs of the state, imposing the functions of state institutions on public associations shall not be permitted”.
Let us consider some of aspects of the political partisan regime in Kazakhstan where the parties were to function in the 1990s.
There are three options to legalize a political party in democratic states; by way of accomplished fact, by notification and by registration. The latter is/was the procedure for all legal entities in Kazakhstan.
The registration procedure is aimed at the following:
а) to confirm the fact of establishment of a legal entity;
б) to enable to keep State record of all legal entities;
в) to maintain government control over the legal entities activities;
г) to enhance transparency as the details on the legal entities are available from the documentations of the register agencies.
Minimum membership necessary for establishment of a political party may very from country to country and is dependant on political tradition and culture as well as other objective or subjective factors. The minimum number may even two or three individuals (France, Switzerland), ten (Hungary) fifty (Bulgaria).
The most important question is to what extend the state may limit the public association freedom. This kind of restriction is inevitable and necessary. The issue was partially resolved by the provisions of Article 5 of the Constitution of Kazakhstan: Formation and functioning of public associations pursuing the goals or actions directed toward a violent change of the constitutional system, violation of the integrity of the Republic, undermining the security of the state, inciting social, racial, national, religious, class and tribal enmity, as well as formation of unauthorized paramilitary units were prohibited. Activities of political parties and trade unions of other states, religious parties as well as financing political parties and trade unions by foreign legal entities and citizens, foreign states and international organizations were permitted in the Republic. Additionally Article 23 (2) stipulates that the military, employees of national security, law-enforcement bodies and judges had to abstain from membership in political parties, trade unions, and actions in support of any political party. These kinds of provision are commonly accepted particularly in newly established developing states.
The Laws on Political Parties and on Public Associations contained the restrictions of other character. Generally there are internal and external conditions for legalization. Internal restriction of the association right rooted in the collective nature of its realization when a party is established. Therefore the provision in the Law on Political Parties passed in 1996 that there had to be at least ten individuals to initiate the establishment of a political party seemed to be quite obvious.
The provisions on minimum membership and national status for a political party may seem less relevant. Article 10 (4) of the Law on Political Parties stipulated the minimum membership of 3000 people representing more then half of the Kazakhstan oblasts. In accordance to Article 7 (2) of the Law on Public Associations the status of a ‘Republican’ may be granted only to those associations having its divisions in more then half of the Kazakhstan oblasts. The legislature was designed so that the political parties would acquire nation-wide character in terms of their structure and membership.
Some of the experts argue that Article 5 (5) of the Law on Public associations and Article 5 (6) of the Law on Political Parties prohibiting activities of unregistered associations (political parties) is major restriction of public association rights.
The experts stated that these norms were not in compliance with the constitutional norm of freedom of associations as the registration procedure had acquired permissive character. Thus, the registration procedure became a criterion of legality not illegality of an association. Article 5 (4) of the Constitution said that: “ Activities of political parties and trade unions of other states, religious parties as well as financing political parties and trade unions by foreign legal entities and citizens, foreign states and international organizations shall not be permitted in the Republic”. This norm was included to secure the election process from the interference from abroad in order to avoid distortion and breach of the will of the people of Kazakhstan who was declared to be the only source of state power.
The comprehensive analysis of institutional basis of the process of party building in Kazakhstan shows that it was quite behind the demands during the process of optimization of the political system. During that period the parties being recognized as key actors within the political system faced rather vague material and legal criteria for their legal status and functioning as an institute of the political system.
That was the case until 1996 when the Law on Political Parties was passed. It opened a new page in the post Soviet history of political pluralism in Kazakhstan. The adoption of the Law obviously forwarded the process of legal institutionalization of the political parties. However, a number of its provisions remained declarative because the parties were not active actors of political process yet.
These are the reason why the political parties in Kazakhstan were weak:
-lack of mechanism to influence their representatives elected to the representative bodies of power;
-majority of the parties those days did not have a comprehensive social base and were weak in terms of their organization and funding;
-although the Laws on Political Parties and on Public Associations were passed in 1996, the legal base was quite limited in comparison with developed democracies.
In the mid 1990s there were not any provision in the national legislation to allow the elections from the party list and therefore, the parties could not from the majority government. Majority voted system of those days did not encourage the appearance of strong parties and excluded the parties from being directly involved in the elections process. Therefore, the process of formation of strong parties was delayed and the relations between the state and nascent civil society were not developing fast enough.
The transformation character of party political system was changed in 1999 when the proportional system of introduced and 10 of 77 seats in the lower Chamber of the Parliament were reserved for the political parties so that they could directly compete for the deputy mandates. The subsequent elections into the Majilis (the lower Chamber of the Parliament) were the first time when the political parties of Kazakhstan competed with each other for parliamentary seats. A new stage of partisan and associations’ development began in 1998 when the partisan political activities intensified dramatically due to a number of factors.
The first was the Address of the President of Kazakhstan N. Nazarbayev ‘On the Situation in the Country and Major Directions of Domestic and Foreign Policy: Democratization, Economic and Political Reform for the New Century’ made on September 30, 1998. President Nazarbayev said that political parties were one of the major elements of our political democratization, The strengthening of the role of parties in our political system was “the basic building block of democracy, and we should do everything possible, by statute and by statement, to help them grow and develop”.
The next important move was the constitutional amendment stipulating the proportional representation of the political parties in the Parliament, made on October 7, 1998. There were ten additional seats for the MPs elected from the party lists. This considerably increased the role of the political parties in the election system in particular and in the political system as a whole. That was the first case in Kazakhstan and other Central Asian states when the elections were conducted with the appliance of the both majority system for single mandate constituencies and proportional system to fill in the additional ten parliamentary seats. This combined electoral system enabled to have fuller representation of the interests of parties and public associations.
Thus, the legally regulated opportunity for the political parties to participate in the parliamentary elections brought a certain character of liberalism to the national electoral legislation. This, in its turned, encouraged the development of the multiparty system and further democratization of political process in Kazakhstan. However, the parties then did not participated in decision making as genuine actors at the political space. The parties failed to fulfill their major task of structuring of the elections results, facilitating political mobilization and integration of the people, consolidating the various social and political interests, restructuring the political elites, and articulating the major directions of political development. There were the actors alongside with the parties, who turned out to be much more effective, namely, the President, and Presidential Administration, state apparatus on various levels and pressure groups.
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