The complex procedure for amending the constitution is considered a reliable way to ensure the stability of constitutional norms. Based on this concept, constitutions are divided into soft, rigid, and super-rigid. This is noted by Eduard Mukhamedzhanov.
Soft constitutions allow for simplicity in making amendments and additions.
Such constitutions are often amended based on current needs.
An example of a soft constitution is the Constitution of the Kazakh SSR, adopted on April 20, 1978, which underwent constant changes during the period from 1989 to 1993, adapting to the current situation in the country.
Rigid constitutions require complex procedures for making amendments.
A constitution is considered rigid if the following conditions are required for amendments:
- a qualified majority of votes from parliament deputies (for example, 2/3, 3/5, 3/4);
- ratification of amendments by the legislative bodies of the federation;
- approval of amendments in a referendum;
- re-election of parliament for the purpose of adopting a new version of the constitution, among others.
An example of a rigid constitution is the Constitution of the Republic of Kazakhstan, adopted on August 30, 1995. Despite its amendments, it is important to remember that it was approved in a republican referendum, and amendments could be made either in 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, at the proposal of parliament or the government. For changes to be considered adopted, more than half of the citizens participating in the voting had to vote in favor, and at least in 2/3 of the regions and cities of republican significance. The referendum was considered valid with participation from more than half of the voters.
Also through parliament, if the President of the Republic of Kazakhstan rejects the proposal for a referendum, parliament can adopt a law on amendments with a majority of at least 4/5 of the votes. If amendments are made by the President, they must be supported by ¾ of the deputies of both chambers. The decision is made at a joint meeting of the chambers (Article 53).
Super-rigid constitutions are characterized by a high complexity of amendment, such as the U.S. Constitution of 1787.
To make amendments, at least 2/3 of the members of both chambers of Congress must vote in favor, and then the amendment must be approved by ¾ of the state legislatures.
It is assumed that the new draft Constitution of the Republic of Kazakhstan may also be classified as super-rigid. This is because the initiative for amendments will no longer be within the competence of the legislative body (Kurultai). Making amendments will become the exclusive prerogative of the people through a nationwide referendum.
This procedure for making amendments will result in stability and high resilience of the norms of the new Constitution; however, it may also become its drawback.
- Firstly, practice shows that any law, including the Fundamental Law, can contain not only editorial errors but also incorrect application of legal terminology, which will sooner or later lead to the necessity of making corrections.
Unfortunately, the draft Constitution of the Republic of Kazakhstan submitted for referendum already contains such shortcomings.
For example, in Article 65 of the draft Constitution, the phrase "republican budget" is repeated, but in subparagraph 8) of the same article, the term "state budget" is used. Such ambiguities are unacceptable from the standpoint of legislative technique and require correction.
Another example that may require changes in the adopted Constitution is the point stating that "Amendments and additions to the Constitution of the Republic of Kazakhstan are made by a nationwide referendum, conducted at the decision of the President, made on his own initiative or at the initiative of the Kurultai, the Government, or the Kazakhstan People's Assembly".
From this text, it is evident that the people of Kazakhstan, as the source of power, according to paragraph 1 of Article 4, are excluded from the number of initiators of the referendum.
However, this does not mean that the people cannot initiate a referendum. This conclusion can be drawn by analyzing the content of paragraph 2 of Article 4, which states that "The people exercise power directly through a nationwide referendum and free elections".
However, it should be noted that such analysis and interpretation of norms are unlikely to be accessible to the general public.
Moreover, even the arguments presented do not allow for a definitive assertion that the people will be able to initiate a referendum, as the concepts of "exercise of power" and "initiation of a referendum" require more complex legal justification.
These examples show that such ambiguities may necessitate changes in the already adopted Constitution, and conducting a new referendum for minor amendments may prove impractical.
- Secondly, the draft Constitution makes the process of a nationwide referendum super-rigid, as its organization requires significant resources.
For example, the preparation for the referendum scheduled for March 15, 2026, is estimated to cost 20.8 billion tenge.
It is clear that in the future, the costs for such referendums may increase, which will also become an obstacle to making changes to the Constitution.
