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Kazakh law: does it, or should it conform to a Western European or American model?
К содержанию номера журнала: Вестник КАСУ №3 - 2005
Автор: Элмерс Д.
Anyone who examines the Kazakh
Constitution, most particularly Section II regarding the rights of the
individual and citizen, and compares it to similar portions of the Russian
Constitution, the U.S. Constitution, or for that matter any of the
constitutions of today’s democratic nations, will be surprised by the
similarity of the principals and precepts that are set forth in those documents.
There are some Americans who would like to believe that this is because
everyone else wants to follow in our footsteps, but in fact many of these
shared principals and precepts come from a common heritage of our respective
nations far older and more unique than the American preoccupation with the
concepts of ordered liberty.
Most democratic nations today, like Kazakhstan, are secular governments,
and many, including the U.S., are reluctant to cite precedents for their laws that
could be identified with religion. However, most of them, excluding some
oriental nations, have religious heritages derived from the Islamic, Christian
or Judaic faiths, and each of these religious faiths reveres the ancient books
of the Bible containing the precepts of Law promulgated by Moses and later
prophets. And this, I believe, is the basis for our commonly held
constitutional precepts and principals.
Students who attend the introductory
sessions of my law classes are often surprised when I bring a Bible to class
and read excerpts from the Old Testament books of Exodus and Deuteronomy that
set forth precepts of constitutions and law. If we had time, and students were
willing to plow through the many chapters of ancient laws there and in
Leviticus and Numbers (which are heavy reading in any language or translation)
I could show a multitude of parallels for our modern procedural and substantive
laws taken from these old Hebraic writings. I dwell on this subject because it
comports with the one comprehensive common sense definition of law that I
emphasize more than the any of the others proffered by famous judges and
scholars – i.e., that Law is the sum total of the human experience of living
together.
Whether we believe the pronouncement of
Moses that this body of law was God’s covenant given to his people to enable
them to thrive and become a great nation, or if we believe, as many historians
do, that Moses merely wrote down the oral traditions of law that had developed
through previous centuries, the result from a legal point of view is the same. The
major commandments and precepts of Mosaic Law have survived the attacks of
despots, anarchists, atheists and the amoral through thousands of years of
history and today are embodied in the core foundations of our Law.
However, while the human experience of
living together may not have differed greatly in the primitive societies of
ancient times, what about the recent century or two of modern history during
which the body of law that now governs us has evolved? Has the human experience
of living together for the people of European Russia and the east bloc, where
the people experienced decades of Soviet rule and survived the most terrible
and violent war of human history, been the same as the experience of the people
of Canada and the US, or of the peoples of the many nations of Central and
South America? Obviously and certainly not. Some zealous reformers in the early
1990’s advocated broad adaptations of western laws to fill the void created by
the demise of the Soviet system. I am told that such efforts led to confusion
and disappointments, and that the emerging bodies of laws in CIS countries now
reflect traditional values of the respective countries. Traditional values, I
believe, are born of the human experience of living together.
These historically induced variations in
the laws by which governments maintain order and control their citizenry can be
graphically illustrated by a uniquely American controversy that few foreign
observers are able to understand – that is, about laws governing private
ownership and possession of firearms, or “gun control” as it referred to in
American politics. The US Constitution contains a provision (the 2nd Amendment)
that is not included in the Canadian, and in so far as I know, in any other
European constitution, which authorizes militias and states that “.. the
right of the people to keep and bear arms shall not be infringed”. The
historical experience from which this provision arose was clearly the war of
independence against England, which had just ended when the amendment was
written, and which was fought almost entirely by American citizens using their
own privately owned firearms, which they needed to feed their families and
protect their persons and property. Today, some say the 2nd
Amendment right is applicable only to military reservists, and the situation
for citizens in the heavily populated urban areas of the Eastern US is quite
different. Their lives are more akin to
Europeans than to other Americans who live in rural areas or the sparsely
populated western states. Most have had no experience with firearms and wish
fervently for a world in which no one could have them, other than the police,
and many see laws prohibiting the ownership or possession of guns as a common
sense practical necessity, regardless of constitutional arguments to the
contrary.
Today’s human experience of living together
in the western states and particularly in my home sate of Alaska
differs radically from the heavily populated east.
Guns are present in virtually every household where they are considered
valuable investments and used with pride for sport, fun, hunting for food,
protection against predatory animals and, if necessary, hostile people.
(Outside of the major cities police are few and far between.) Individual US
states enact their own constitutions and may grant their residents additional
individual rights, and Alaska’s constitution, enacted almost two centuries
after the US Constitution, contains the same right to keep and bear arms
provision and goes even farther to expressly prohibit any state or city law
that infringes on that right. Alaskans still see “gun control” as an attempt by
a distant government to disarm law abiding citizens and leave them at the mercy
of criminals who have no intention of obeying the law, and as a threat to their
personal freedom and integrity. Thus Americans under the same federal
government and constitution, but from different electorates where they have had
widely differing experiences of living together, have irreconcilable views on
an important and fundamental question of law. And the controversy will go on
and on.
Another right stressed in the US constitution that does not appear in the Kazakh
constitution and those of most other countries as well is the right to a jury
trial. Even Great Britain, where the concept originated, has largely
abandoned the use of jury trials for all but select criminal cases. Other than
the US, only Russia is seriously promoting the use of jury
trials. Why did the framers of the present Russian constitution adopt this
provision when so many others question its efficacy? Possibly because of the
dismal experiences of the Stalinist era, when so many thousands were sentenced
to prison or death for crimes against the government without public notice or
participation in the judicial process. The framers of the US Constitution in
the 18th century were likewise suspicious of government prosecutors
and the judges as former servants of a foreign and despotic king, and the
suspicion persists even today that many of our lawyers and judiciary are
members of the intellectually elite who have never actually worked in the real
world. I am uninformed as to the state of mind of the authors of the Kazakh
Constitution, but there is no doubt that they had heard of the abuses and
problems that have occurred in jury trials in the US.
Admittedly there are areas in our civil justice system involving jury trials
that are out of control. Highly sophisticated and sometimes unscrupulous
lawyers use their financial resources and expertise to manipulate juries
composed of ordinary citizens with no prior experience in the matters before
them to obtain unrealistically high awards of damages that not only compensate
but enrich their clients. Controversies about reforms of the system rage on and
they were a major factor in the recent US
presidential election.
People often ask me about the juries I have
tried criminal cases before in my rural Alaska
law practice. Mostly I have been well satisfied with them. They are sometimes
unpredictable or even wrong in their decisions, but usually they are fair,
objective and rational. In difficult criminal cases judges prefer them, as they
relieve them of responsibility for agonizing decisions and insulate them from
the antagonisms of people who suffer as a result of the court’s decision. They
also serve to nullify the effects of ill-advised and foolish laws and
regulations that legislators and bureaucrats sometimes enact. In the area where
I practiced, some bear protections laws were an example. Wild bears are common
there and grow to large sizes on rich diets of fish and small animals. To
hunters, tourists and ecologists who visit the state, they are an unusual and
picturesque attraction and they are protected by a multitude of state and
federal regulations, but to the villagers and natives they are large,
ill-tempered, foul smelling pests that wreck their outbuildings, damage
property, scatter garbage and trash, kill their dogs and other animals they
hunt for food, and sometimes even attack and kill people. The native residents
do not want the bears exterminated, but neither do they want to live with them
in their back yards or neighborhoods. Almost every year someone would be
prosecuted for shooting a bear, which was prohibited except in cases of great personal
peril where there was no other alterative. In a jury trial, such cases were an
easy win for a defense attorney. How would you feel if there were rats in
Ust-Kamenogorsk that grew to be six to 10 times larger
than dogs and the government said you could not harm them? Would you vote to
send your neighbor to jail for harming one of them?
There was also a law that strictly
prohibited the killing of a bear less two years old, even by a legal hunter. But
the bears often grew to a considerable size before the end of their second
year, and hunters that encountered them in the bushes at close quarters would
fail to notice that the bear was of less than average size. When they obeyed
the law and took the bear’s head and hide to a state biologist for a required
inspection, they would be criminally charged. If the hunter would ask for a
jury trial, such cases were easy to win. I needed only to ask the biologist in
front of the jury how he knew the bear was not over two years old. “There is
one sure way” they would say. “You open the bear’s mouth and look at his
teeth.” I never knew of a jury that would convict a hunter for not doing that
before he shot the bear.
Another area of US Law that European and
CIS nations have not seen fit to replicate are the restrictions US Law places
upon the arrest powers of the police and government authority to initiate
criminal prosecutions. As in all countries a person arrested must be promptly
brought before a judge to be informed of the charges against him, but under the
US model the judge is required to review the circumstances of the arrest and
release the defendant immediately if specific criteria necessary for an arrest
have not been met. Prosecutors wishing to initiate a prosecution of a serious
crime must go through cumbersome procedures before they can proceed, such as a
preliminary adversarial hearing with the defendant before an independent judge
to prove they have sufficient evidence to justify a trial, or to go before a
board of independent, disinterested citizens for the same purpose. Such
procedures probably arose because of the public distrust of governmental
authority that existed in the early years of American history. In older nations
with longer histories of law enforcement such constraints may be less favored.
American observers have long admired the
highly organized, professionally trained state police organizations of
Germany, particularly in view of the nation’s comparatively
low crime rates and small prison population. But Germans have a long tradition
of respect for and acceptance of governmental authority and Americans do not. Consequently
many of the prerogatives and practices used by the German Police would be
ineffective or unacceptable in the American environment. For example German
police are permitted to impose and collect on-the-spot fines for traffic and
other offenses. No police officer in the US
is permitted to do this. Here in Kazakhstan (and in Russia as well) I have
noted that traffic police will frequently stand at the side of the road and
randomly select and halt vehicles for possible violations or documentation,
safety or other checks. Thus far I know of no one who regards this as anything
but a routine, justifiable mode of law enforcement. In the US,
however, where a police officer is expected to have
a legal justification beyond mere suspicion for every traffic stop, the
practice would generate a storm of controversy. Does this sound like
foolishness? Perhaps. It depends upon your life experiences.
The final and most frequent question my
students ask me about comparative laws is about capital punishment, meaning the
death penalty. Most European nations, as well as Kazakhstan and Russia, have
abolished or suspended it. In the US federal courts and many state courts it may be in
imposed in carefully defined circumstances, but others prohibit it entirely. This
is a profound and difficult issue that every student and proponent of the Law
should consider, but it is far too difficult and complex to address here. Unfortunately
there are many emotionally charged, subjective arguments made by both opponents
and proponents of the penalty, but there are also sincere and objective
arguments on both sides of the issue that need to be heard. Perhaps at some
future time either Professor William Bontrager or I will be able to present a
seminar here that will thoroughly examine the issue.
Lest I be accused of avoiding a difficult
question, I will do something I try to avoid when instructing in the Law, and
state my personal opinion. While I have grave reservations about the use of the
death penalty, I do not think it is necessarily immoral or wrong. However, my
home state of Alaska prohibits it, and I am very glad it does.
The murder cases I have been involved in were difficult and stressful enough
without the fear that the defendant might go to his death because of my
mistakes or ineptitude.
К содержанию номера журнала: Вестник КАСУ №3 - 2005
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