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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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