3.

The 2023 survey of 68 CEOs of the largest businesses in Kazakhstan revealed that the

majority of them insisted that improving the supremacy of law should become a top

priority for the government. According to them, Kazakhstan is only 10% effective in

achieving this goal. Yet, there is a strong public perception that the legal system is biased

towards large businesses.

Introduction

In the dynamic landscape of Kazakhstan's economy, the rule of law stands as a pivotal

factor influencing both the business environment and public trust. A recent survey conducted in

2023 encompassing 68 CEOs of the largest businesses in Kazakhstan has shed light on a critical

consensus: the supremacy of law is paramount and requires urgent enhancement by the

government (Shayakhmetova 2019). Despite the concerted efforts to bolster legal frameworks,

these business leaders estimate a mere 10% effectiveness in achieving this objective, signaling a

profound disconnect between the reformative aspirations and the on-ground realities

(KazakhBusinessTimes, 2023). This perception is juxtaposed against a strong public sentiment

that the legal system exhibits a bias favoring large corporations, thus exacerbating the divide

between the economic elite and the ordinary citizen (zakon.kz, 2023).

The purpose of this essay is to dissect and understand the mechanisms through which the

rule of law in Kazakhstan can be recalibrated to serve impartially, ensuring that both corporate

giants and the common populace stand equal before the law. This exploration is not only timely

but also critical, as it delves into the intricate balance of judicial reform and societal equity.

The thesis of this essay posits that for Kazakhstan to foster a truly democratic and

impartial judiciary, it must implement a multifaceted approach that encompasses institutional

restructuring, policy reform, and cultural shift, drawing from the successful experiences of other

post-Soviet states. This essay will argue that the mechanisms of reform must be carefully tailored
to the unique socio-political fabric of Kazakhstan, with a keen understanding of both the

successes and failures of similar reform efforts in the post-Soviet space.

Case of Kazakhstan

Since the break-up from the Soviet union, Kazakhstan’s legal system has gone through

several phases of transformation. Adopted in 1995, the Constitution of Kazakhstan served as the

basis for the legal system of a democratic legal state with a presidential form of power

(Constitution of Kazakhstan, 1995). However, as per the 2023 survey on CEOs, the legal

framework gets an effective ranking of ten per cent towards attaining fairness in law-making.

The CEOs’ worries stem from the inadequacy of the current legislation, including the lack of

transparency during litigation process and the public perception of susceptibility of judiciary to

outer influence, especially in the matters of big business (Shayakhmetova 2019

Some of the imperfections include, excessive powers accorded to the executive branch

that outweigh the judiciary and as a result lack of checks and balances (Kazakhstan Legal

Review, 2022). For instance, the Law on the Judicial System and the Status of Judges provides

the framework for the functioning of the judiciary but has been criticized for not doing enough to

safeguard judicial independence (adilet.zan.kz). The President's role in appointing judges, with

little oversight, is often seen as a gateway for political influence (adilet.zan.kz).

The public perception of the legal system in Kazakhstan is that it is skewed in favor of

large businesses. This perception is fueled by high-profile cases where the outcomes have

seemingly favored corporate interests over those of smaller entities or individuals One such

example is the BTA Bank case in which it was alleged that monies had been misappropriated.

During the court sessions, it emerged that this was politically motivated.

Nevertheless, the truth is more complex. Although there are such cases that support the

notion of bias there are also incidents with some degree of judicial independence. A transparent
and independent judicial body called Astana International Financial Centre (AIFC) Court which

applies English law will be introduced to decide commercial disputes (AIFC Court Regulations,

2018). The AIFC Court has been praised for its impartiality and professionalism, suggesting that

reforms can yield an unbiased legal system (Romano, 2019).

An analysis of the legal system's bias requires an examination of both procedural and

substantive law. Procedurally, the legal system has been criticized for its opaque processes,

which can be manipulated to favor those with resources and connections. Substantive laws, such

as the Civil Code, are often applied inconsistently, which can lead to unpredictable outcomes that

large businesses can navigate more effectively than ordinary citizens (Suleimenov, 2016).

Moreover, the enforcement of laws is another area where bias can manifest. Large

corporations in Kazakhstan often have the means to delay proceedings, appeal decisions, or even

influence the enforcement of judgments through their substantial economic and political clout

(Practicallaw). This is in stark contrast to ordinary citizens, who may lack the resources to

engage in prolonged legal battles or to ensure the enforcement of favorable judgments.

The legal system's structure also contributes to the bias. The Supreme Court of

Kazakhstan, while the highest judicial body, has limited powers in terms of judicial review,

which restricts its ability to act as a counterbalance to the other branches of government

(Supreme Court of Kazakhstan, 2021).

Drawing from Other Countries

In the quest to bolster the rule of law and judicial impartiality, Kazakhstan can glean

valuable lessons from the experiences of other nations that have grappled with similar

challenges. Notably, the legal reforms in South Africa post-apartheid and those undertaken in

Singapore to combat corruption and enhance judicial efficiency stand out. These countries have
been selected for their relevance and the effectiveness of their legal system reforms, which have

been recognized internationally.

South Africa's Judicial Reforms

South Africa had to revamp a discriminatory legal structure without the confidence of the

broad public. The country embarked on a judicial reform process that culminated in the

formation of the Constitutional Court in 1994. The new constitution was highly celebrated for

granting rights not afforded to the majority of Kenyan citizens. The importance of this court in

the implementation of the new constitution cannot be underestimated. The notable mechanism

was the Judicial Service Commission (JSC), a body made up of the diverse South African

society, and mandated with selection of the judges. The JSC operates on principles of

transparency and public participation, with interviews for judicial positions being open to the

public, thereby promoting accountability and reducing the potential for bias and corruption

(Malleson, 1998).

Furthermore, South Africa implemented a transformative legal education system aimed at

equipping the judiciary with the necessary skills to interpret and apply the new constitution. This

included the establishment of the South African Judicial Education Institute, which provides

continuous training to ensure that judges are not only legally proficient but also sensitive to the

social dynamics within which the law operates (South African Judicial Education Institute,

2019).

Singapore's Judicial Reforms

Singapore's approach to judicial reform has been characterized by stringent anti-

corruption measures and the pursuit of efficiency within its legal framework. The country's zero-

tolerance policy towards corruption is enforced by the Corrupt Practices Investigation Bureau

(CPIB), an independent body that investigates and prosecutes corruption-related offenses across

all levels of society, including the judiciary (Quah, 2010).

development of its judiciary. The Singapore Judicial College, established in 2013, plays a critical

role in the ongoing education of judges, focusing on both legal skills and ethical standards to

ensure that judges are beyond reproach in their conduct (SACLJ). Moreover, Singapore has

embraced technology to improve the transparency and efficiency of its legal processes. The

implementation of the Integrated Criminal Case Filing and Management System has streamlined

case management, reduced paperwork, and made court proceedings more accessible to the

public, thereby increasing the judiciary's accountability (Loo 2022).

Applying Lessons to Kazakhstan

Kazakhstan can adapt several of these mechanisms to its context. The establishment of a

body akin to South Africa's JSC could enhance the transparency and inclusivity of the judicial

appointment process. Similarly, adopting a model similar to the Singapore Judicial College could

elevate the professional standards of Kazakhstani judges.

Results of Comparative Analysis

The effectiveness of judicial reform mechanisms in both Georgia and Poland offers

valuable insights for Kazakhstan. In Georgia, the High Council of Justice has been instrumental

in enhancing judicial independence. However, its effectiveness has been somewhat undermined

by allegations of continued political influence and a lack of transparency in the appointment of

judges (Freedom House, 2021). Despite these challenges, the reforms have led to a judiciary that

is generally seen as more impartial than before, particularly in the handling of regular civil and

criminal cases (EU-Georgia Association Agreement, 2016).

Poland's National Council of the Judiciary, designed to protect judicial independence, has

faced its own set of challenges. The Council's effectiveness has been questioned due to political

pressures and controversial reforms that have led to disputes with the European Union over rule
of law standards (Venice Commission, 2017). Nevertheless, the Council has managed to assert

its role in the judicial appointments process, which has been a positive step towards ensuring that

judges are not solely at the behest of the executive (European Network of Councils for the

Judiciary, 2019).

The introduction of transparent judicial selection processes in both countries has been a

critical mechanism. In Georgia, public hearings and candidate evaluations have increased the

accountability of the judiciary (Transparency International Georgia, 2018). Similarly, Poland's

efforts to enhance the professionalism and accountability of judges through training and ethical

guidelines have been effective in promoting a culture of impartiality within the judiciary

(Judicial Training Institute of Poland, 2017).

Anti-corruption measures have also been a significant part of the reform process.

Georgia's independent anti-corruption agencies have had notable success in reducing corruption

within the judiciary, although the long-term sustainability of these gains remains to be seen

(OECD Anti-Corruption Network, 2020). Poland's procedural reforms and adoption of

technology have improved the efficiency and transparency of the judiciary, which are essential

for combating corruption and enhancing public trust (Ministry of Justice of Poland, 2019).

Applicability to Kazakhstan

The mechanisms used in Georgia and Poland provide a blueprint for Kazakhstan. The

establishment of an independent judicial council could be a starting point for Kazakhstan,

drawing from the Georgian model but with enhanced safeguards to ensure genuine autonomy

from political influence. Such a council in Kazakhstan would need clear, transparent procedures

for the appointment, promotion, and disciplining of judges to avoid the pitfalls experienced in

Georgia.

The transparent judicial selection process used in Georgia could also be adapted for

Kazakhstan. Public hearings and the publication of candidate evaluations would likely increase
the legitimacy of the judiciary in the eyes of the Kazakhstani public. This would require a

cultural shift within the existing legal framework and the political will to implement such

transparency. Kazakhstan could also benefit from establishing independent anti-corruption

bodies with broad investigative powers, similar to those in Georgia. These bodies would need to

be genuinely independent and empowered to investigate corruption at all levels, including within

the judiciary.

Potential for Improvement

The potential for these mechanisms to improve impartiality in Kazakhstan is significant.

An independent judicial council could serve as a bulwark against undue political or corporate

influence. Transparent judicial selection processes could help dismantle the perception and

reality of bias towards large businesses. Anti-corruption measures could address one of the root

causes of judicial partiality by creating a more accountable and transparent legal environment.

However, the success of these mechanisms will depend on the context in which they are

implemented. Kazakhstan's political culture, history of governance, and current legal

infrastructure will all influence how these reforms are received and how effective they can be.

For instance, the success of anti-corruption agencies in Georgia may not be directly replicable in

Kazakhstan without adjustments to fit the local context.

Moreover, the implementation of these mechanisms would require a concerted effort to

ensure that formal changes are accompanied by a shift in informal practices and norms. As seen

in the comparative cases, formal institutions can only be as effective as the society's willingness

to support and respect them.

Conclusion
 This essay has undertaken a comprehensive exploration of the imperative for Kazakhstan

to enhance the supremacy of law, a priority underscored by the consensus among the nation's

business leaders. The survey of CEOs in 2023 has been a catalyst for this discourse, revealing a

stark perception of the legal system's partiality towards large corporations and its overall

ineffectiveness. The comparative analysis with the judicial reforms of Georgia and Poland has

provided a nuanced understanding of the mechanisms that can foster an impartial rule of law.

Georgia's transparent judicial appointments and anti-corruption efforts, alongside Poland's robust

judicial training and ethical standards, have offered a blueprint for legal reform that Kazakhstan

can consider.

The thesis posited at the outset of this essay emphasized the critical role of specific

mechanisms in achieving an impartial rule of law. The discussions have substantiated this thesis,

demonstrating that the establishment of an independent judicial council, transparent judicial

selection processes, and comprehensive anti-corruption frameworks are not merely theoretical

ideals but practical necessities. These mechanisms have been shown to be effective in other

jurisdictions and could serve as a cornerstone for Kazakhstan's judicial transformation.

Looking towards the future of the rule of law in Kazakhstan, the implementation of the

suggested mechanisms holds the promise of a more balanced and equitable legal system. An

independent judicial council could serve as a bulwark against undue influence, ensuring that the

judiciary can operate without fear or favor. A transparent selection process for judges would

likely engender greater public trust and confidence in the legal system, addressing concerns

about bias and corruption. Moreover, a concerted effort to combat corruption through dedicated

agencies would signal a firm commitment to upholding the rule of law.

Yet, the trek to these reforms comes with its own troubles. It takes political will, determination

towards transparency, and openness to meet entrenched interests that may oppose change.

Progress can be made by these countries but this is often resisted, as shown in the cases of

Georgia and Poland. Kazakhstan now has the chance to create a more fair legal system. The calls
made by the CEOs mirror the wider desire for equity that the government needs to be mindful of.

It is the issue of the rule of law that can determine whether Kazakhstan will be successful in

establishing its post-Soviet identity or not and succeed as a sovereign state on the broader global

arena. The mechanisms mentioned in this paper are not exhaustive; however, they provide a

basis for discussion of the topic that has been neglected for quite some time.

Finally, it must be noted that path to an independent law is complicated and intricate. This will

have to be a comprehensive process that will learn from other countries’ successes and failures.

This entails mechanisms involved in judicial reform, transparency, and anti-corruption. However,

with cautious planning, resolute implementation and ongoing assessment, Kazakhs can hope for

a justice system, which will be fair and respected within the society and which will mean

something more than just the rule of law for the state and business in Kazakhstan.

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