To ensure the stability of constitutional norms, it is considered necessary to have a more complex regulation of the process of amending the constitution, as opposed to ordinary laws. Accordingly, in constitutional law theory, constitutions are divided into three types: soft (or flexible), hard, and super-hard. This was reported by Eduard Mukhamendzhanov.
A soft constitution allows for easy amendments and additions to the text.
Constitutions of this type are often subject to changes that can occur almost without delay.
An example of a soft constitution is the Constitution of the Kazakh SSR from April 20, 1978, which was amended between 1989 and 1993 to adapt to changing conditions in the country.
Hard constitutions require a complex process for amendments.
A constitution is considered hard if the following mechanisms are provided for making amendments:
- qualified majority of votes from parliament deputies (2/3, 3/5, 3/4);
- ratification of amendments by the legislative bodies of the subjects of the federation;
- approval of amendments in a referendum;
- re-election of parliament to adopt the constitution with a new composition of parliament, etc.
The Constitution of the Republic of Kazakhstan from August 30, 1995, is an example of a hard constitution. Although amendments have been made to it, it is important to note that it was adopted in a republican referendum, and amendments could be made through a referendum or through parliament (Article 91 of the Constitution).
Amendments could be adopted through a referendum initiated by the President of the Republic of Kazakhstan, based on his proposal or the proposal of Parliament or the Government. For amendments to be considered adopted, more than half of the citizens participating in the voting needed to vote in favor, and this had to occur in at least 2/3 of the regions and cities of republican significance. The referendum itself was considered valid if more than half of the citizens eligible to vote participated.
If the President of the Republic of Kazakhstan rejected the draft law on amendments to the Constitution, parliament could adopt it by a majority of at least 4/5 of the votes from the total number of deputies in each chamber. If the draft was submitted by the President, then ¾ of the votes from the total number of deputies were required for its adoption. The decision was made at a joint meeting of the chambers (Article 53).
Super-hard constitutions are those in which amendments are nearly impossible, such as the U.S. Constitution of 1787.
To amend this constitution, at least 2/3 of the members of both chambers of Congress must vote in favor of the amendment, and then it must be approved by ¾ of the state legislatures.
We believe that the draft of the new Constitution of the Republic of Kazakhstan can also be classified as super-hard. This is because the process of making amendments and additions to the new Constitution is no longer within the authority of the legislative body (Kurultai). The adoption of amendments becomes the exclusive prerogative of the people through a nationwide referendum.
This procedure for making amendments contributes to the stability and sustainability of the norms of the Constitution of the Republic of Kazakhstan. However, in our opinion, this could also become a disadvantage.
- Firstly, practice shows that any law, including the Fundamental Law, can contain editorial errors and incorrect application of legal terms, which sooner or later will require corrections to the text.
Unfortunately, the draft Constitution of the Republic of Kazakhstan, put to a republican referendum, already has such shortcomings.
For example, in Article 65 of the draft Constitution, the expression "republican budget" is repeatedly used, while in subparagraph 8) of the same article, the expression "state budget" appears. These inaccuracies, from the perspective of legislative technique, are considered unacceptable and require corrections.
Another example that may require changes to the already adopted Constitution is the provision stating that "Amendments and additions to the Constitution of the Republic of Kazakhstan are made by a nationwide referendum conducted by the decision of the President of the Republic of Kazakhstan, made on his own initiative, or by the initiative of the Kurultai, the Government, or the Kazakhstan People's Council."
From this text, it is evident that among the initiators of the referendum for amendments, there is no subject such as "the people of Kazakhstan," who, according to paragraph 1 of Article 4, is "the only source of state power and the bearer of Sovereignty."
However, this does not mean that the people cannot be the initiators of a referendum. An analysis of Article 4, paragraph 2 of the draft new Constitution shows that "The people exercise power directly through a nationwide referendum and free elections, and also delegate the exercise of their power to state bodies."
Nevertheless, such a comparative analysis of norms and their interpretation is unlikely to be accessible to the general public.
Moreover, even the arguments presented do not allow us to assert unequivocally that the people will be able to initiate such a referendum, as the formulations "exercise power" and "initiate a referendum" require more complex legal clarifications.
These examples highlight that such problems may subsequently require amendments and additions to the already adopted Constitution, and a new referendum on such minor amendments is unlikely to be justified.
- Secondly, the draft Constitution significantly complicates the process of conducting a nationwide referendum, which not only requires complex organizational preparation but also entails significant financial costs.
For example, the preparation and conduct of the republican referendum scheduled for March 15, 2026, is estimated to require about 20.8 billion tenge.
It is evident that in the future, conducting similar referendums may become even more expensive, which, in our opinion, will pose a serious obstacle to making amendments and additions to the Constitution.
