Research Papers on Regional Cooperation between Central and South Asia

• "Asian Security: a Way Forward" by Mr. Dulat Bakishev, CICA Executive Director (6 May 2009)
  

• Justice of Biys and Legal System in Medieval Kazakhstan; Vijay Kumar Bhatia, PhD Research Scholar, Centre for Russian and Central Asian Studies School of International Studies Jawaharlal Nehru University New Delhi, India

• Geopolitics of Kazakhstan and Indo-Kazakh relations, Prof. Ajay Patnaik, JNU, New Delhi, (Speech delivered during the opening ceremony of the Centre for Kazakh Language and Studies at Jamia Milia Islamia University, 29 March 2008)

• Inaugural Address by Hon'ble Minster for External Affairs at the Conference on "Cooperative Development and Peace in Central Asia: An Indian Perspective" , at CRRID, Chandigarh

• Central Asia: Urgent Need For Raising India's Investment Profile

• Speech given by P.S. Tibb at the International Seminar on “India – Kazakhstan Relations” held in New Delhi on 08 March 2007 to mark the 15th Anniversary of the establishment of Diplomatic Relations between the Republics of India & Kazakhstan

• Confidence Building Measures in Asia: From Idea to Realization

Stepping Up Investments
India's total trade with the Central Asian region is estimated to be about less than $500 million. Moreover, Kazakhstan itself accounts for more than half of India's trade with Central Asia. India-Kazakhstan trade stood at around $210 million last year, making Kazakhstan India's largest trade partner in the region. It is true that Kazakhstan is the leader in the region when it comes to current levels of economic development. However, most of this development is energy-driven as about ninety per cent of the government's revenues are generated from the energy sector. Therefore, there is a huge investment requirement in Kazakhstan especially in the conventional economic sectors like infrastructure, construction, services etc. Despite its capabilities, India does not figure in the top twenty trading partners of Central Asian countries. While India is yet to look at diversified investments on a larger scale, companies from China, Japan, South Korea etc are investing heavily in the conventional economy. For example, South Korea has a big presence in the construction boom in Kazakhstan. Given the Indian expertise in the construction sector, analysts feel that Indian companies could play a significant role. Indian presence is to a large extent reflected by Punj Lloyd which is involved in oil-related and engineering construction projects. The company has a $35 million project to build link pipelines in Kazakhstan. There are considerable opportunities for big Indian private companies to secure a share in the construction projects in Kazakhstan. The fact is geographical proximity cannot be the raison d etre for the level of investments. For instance, Gulf countries have investment millions of dollars in the Kazakh economy. Countries like Saudi Arabia, Kuwait and Omar have issued soft loans for developing the new capital of Astana. In comparison, India has extended credit facilities ranging from $5-10 million for boosting trade with Central Asian countries. Several European countries are in the list of top 20 trading partners of Central Asian countries as well even though there is no direct access. For achieving long-term strategic and economic objectives in the Central Asian region, India needs to significantly enhance its investment levels.


Tough Competition
Even though the CARs parted ways from the erstwhile Soviet Union in 19991, Russia continues to be the dominant trade partner in this region. The US is a major investment source for the CARs. Trade between the US and countries like Kazakhstan has expanded significantly in the past few years. However, there is no denying the fact that Russia continues to dominate the energy economy of Central Asia. However, the West has grabbed a share in the energy pie through the Baku-Tbilisi-Ceyhan pipeline and China has managed to direct the flow of energy eastwards through the Kazakhstan-China pipeline. Despite these inroads, the Central Asian energy economy continues to be dominated by Russia. India's initial attempts to gain a foothold in the energy sector failed with Chinese companies outbidding Indian companies for Kazakh oil fields. Significantly, the Kazakh government decided to offer the Satpayev field to India under a tender-free arrangement but the deal is yet to be finalises as there are some differences over the feasibility studies and potential reserves. However, Kazakh officials are of the view that India should first make its presence felt in the energy sector and then seek to expand its interests. Kazakh analysts are of the view that India needs to emulate the Chinese who are investing both in the energy and conventional economic sectors. Moreover, Chinese investment policies are also contributing towards asset building and infrastructure development around the Kazakh oil fields it is operating. China has pledged billions of dollars over the next few years while Japan has assured $2.5 billion in investments in Central Asia during 2005-15. The Chinese case is illuminating as till 2002 only small and medium sized companies were involved in trade with Central Asia. However, due to inter-government engagement trade increased rapidly from 2002 onwards. For instance trade between Sichuan province in China and Central asia increased 13 times between 2001 and 2002. Other Chinese regions have also expanded their trade relations with Central Asia. The support given by the Chinese government, whose policies singularly focus on the 'economic' aspect only, has allowed business relations to grow 'unfettered'. China is planning to increase bilateral trade with Central Asia by about 50 times in the next decade. If this happens it would make China the most dominating investor and trading partner for the CARs. The significant point is that these projections exclude the energy economy of the region.

Even the European Union has redrawn its policies towards Central Asia in order to secure its economic interests in the region. Rather than having a comprehensive agreement with the region as a whole, the EU has bilateral trade relations with each country in the form of Partnership and Cooperation Agreements (PCAs). The parties to these agreements apply most-favoured nation (MFN) status to one another with respect to tariffs. The agreements also contain provisions on the elimination of quantitative restrictions and other trade-related matters. The PCAs with Kazakhstan, Kyrgyzstan and Uzbekistan have been in force since 1999. The Partnership and Cooperation Agreement with Turkmenistan was signed in 1998 though its ratification is delayed due to the unfolding political situation in the country after the death for former president Saparmurat Niyazov. The EU-Tajikistan relations are based on a Trade and Cooperation Agreement (TCA). However, a Partnership and Cooperation Agreement has been concluded and is in the process of ratification. Though EU relations with Uzbekistan suffered a setback after the Andijon unrest of May 2005, there are efforts underway to mend relations between the two sides. At a meeting in Luxembourg in April 2007, EU foreign ministers agreed to improve relations with Central Asia by providing over $1 billion in aid to the CARs for the period 2007-13. This strategy would be endorsed at the a summit of EU leaders in June this year. The EU foreign ministers agreed that Europe had to some 'catching up' to do in Central Asian compared to Russia, China, Japan, Turkey and the US. The new EU strategy had been proposed last year by Germany, which has been instrumental in mending EU ties especially with Uzbekistan.

At the moment, India has a lot of 'catching up' to do in Central Asia especially since it does not figure in the top fifteen countries in terms of export and import relations with Central Asia. However the picture is not as dismal as it is looks. India already has a significant presence in several sectors including pharmaceuticals, tea, readymade garments, woollen goods, leather goods, jute manufacturers, cosmetics, cotton yarn, machinery, machine tools, rice, plastic products, machinery and instruments, electronic goods, chemicals. These are the main items of Indian exports to Central Asia. India currently supplies to over 30 per cent of Central Asian pharmaceutical demand. Indian imports from Central Asia are however limited to raw cotton, iron & steel, zinc etc. India's expertise in the information and computer technology sectors could contribute significantly in its trade relations with the CARs. However, Indian efforts in this direction have been limited with the NIIT setting up a centre for the study of information technologies and software in Almaty and few proposed software parts. To India's advantage, the Confederation of Indian Industries (CII), FICCI and ASSOCHAM have organised several annual trade fairs in Central Asian countries to generate and promote business ventures. In Uzbekistan, an Indian company CLC Textiles has invested about $81 million in cotton spinning and yarn sector. A further investment of $ 40 million is planned by CLC Textiles over the next two years. Indian presence in the Central Asian energy sector is limited to a 15 per cent holding of ONGC Videsh Ltd in Kazakhstan's Alibekmola oil field and a 10 per cent holding in the country's Kurmangazi field. Recently, Indian company GAIL has been awarded two fields for exploration of gas in Uzbekistan in April 2007. To India's advantage, Inter-Governmental Commissions (IGC) have been set-up with all the CARs except Turkmenistan. To facilitate bilateral trade with countries of Central Asia a Trilateral Transit Agreement (TTA) between India, Iran and Turkmenistan has been signed on transit of goods. This agreement would reduce the time taken in shipment to these countries. Uzbekistan and Kyrgyzstan have also acceded to this agreement.

Prospects For Future
While there is appreciation for the investments by countries like China, USA, Japan etc, there are also valid apprehensions regarding their agendas in the Central Asian region. Compared to them, India enjoys a tremendous level of goodwill in all the CARs. Leaders of the CARs have on various occasions mentioned that they seek greater trade and business relations with India. While the Indian effort appears to have been largely focussed on the energy sector, the CARs are keen that India pursues a comprehensive investment strategy that helps develop the convention sectors of the economy in Central Asia. For this reason, the CARs have sought Indian investments and expertise in the services sector and other areas such as tourism, information technology, software parks, education etc. The Indian industry in particular could play a major role by investing in sectors that have potential for exports. These include general purpose machinery, chemicals, agricultural products, textiles, aluminium and the energy sectors. Central Asian analysts are of the view that India should enhance the level of its investments and also help in enhancing the purchasing power of the CARs. With regard to the energy economy in the region, analysts say that existing transit routes are much safer than several proposed ones including the Turkmenistan-Afghanistan-Pakistan-India gas pipeline. Rather than investing with the objective of evacuating Central Asian energy resources, India should invest in exploration and production of energy resources in the CARs. The issue of distribution should be left to be decided by the governments of CARs. Rather than seeking to be an energy partner, India should reinvent itself as an 'energy facilitator' till secure access routes are available.

There are several ambitious projects in the pipeline which would give India a secure and economically beneficial access to Central Asia. Of these the proposed North-South transport corridor (NSTC) project linking Russian port of Astrakhan to western India remains the most significant trade linkage that would go through Central Asia. This ambitious trade route involves a mix of sea and land routes that would allow India access to Central Asian through Iran. The NSTCorridor project has been signed by India, Iran and Russia. At the third meeting of the Co-ordination council of the NSTC held at New Delhi in October 2005, Ukraine and Kyrgyzstan participated as observers while Kazakhstan, Belarus and Tajikistan are now members of the agreement. The "Focus: CIS Programme" launched in 2003-04 now covers all the 12 CIS countries including Russia, Armenia, Azerbaijan, Belarus, Georgia, Moldova, Ukraine, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan. The programme seeks to increase interaction between the business entities of India and the CIS region by identifying areas of bilateral trade and investment. The focus is on major product groups/services for raising India’s exports to this region.

India has also recently agreed with China to rebuild a road link that is part of the ancient Silk Route. If this project goes through then India would have its first secure access to Central Asia through China. Analysts agree on the fact that India has for long been caught up in the debate over secure access to Central Asia. There is urgent need in the Indian foreign policy establishment to step aside from this emphasis and redraw Indian investment considerations pertaining to Central Asia. Two recent developments hold long-term promise for India's business profile in Central Asia. First, Kazakh President Nursultan Nazarbayev has forwarded the idea of a Union of Central Asian Republics (UCAR) with the main focus on economic integration and linkages. Second, the idea of greater linkages between Central and South Asia (Greater Central Asia Project or GSCAP). By raising its investment profile in the CARs India could lay the foundation for a Free Trade Arrangement (FTA) if the idea of a UCAR is realised in the next few years. Secondly, by raising its investment profile in the CARs, India would benefit significantly if and when secure transit routes between Central and Southern Asia becomes a reality. Indian investments in conventional economic sectors would contribute to development of the CARs and also enhance their purchasing power. When Indian products eventually reach Central Asia they would pose a strong competition to the costly Western products as well as the low-cost but low-quality Chinese products that are flooding the Central Asian markets. The CARs clearly need huge investments in their conventional economic sectors. Central Asian analysts feel that India could be a major partner in providing funds for these sectors. However, that would require a complete makeover in the Indian foreign policy establishment which continues to lay more emphasis on the 'strategic' component of the policies pertaining to Central Asia.
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*This article was based on discussions and interactions during a visit to Almaty, Kazakhstan in April 2007.

By K. R. Jawahar
Head of Research
SAPRA India Foundation
Email: kr.jawahar@gmail.com
 

Speech by P.S. Tibb at the International Seminar on "India – Kazakhstan Relations" held in New Delhi on 08 March 2007 to mark the 15th Anniversary of the establishment of Diplomatic Relations between the Republics of India & Kazakhstan

We are gathered here today to celebrate the 15^th anniversary of the establishment of India- Kazakhstan diplomatic relations. Please accept my felicitations on this occasion.

To the ladies present here I extend my heartiest greetings on the occasion of International Women’s Day.

Mr Kapur has already elaborated on the reasons for the almost total snapping of the age old cultural and trade ties between our two great countries.

The four major factors which lead to this unfortunate situation were the colonisation of India and other parts of Asia by various European countries from the 16^th to the 20^th centuries; the ascendancy of the European naval power for trade between Asia and Europe; the assimilation of Kazakhstan and other Central Asian countries into the orbit of the Soviet Union; and, lastly, the partition of India in 1947 which lead to the occupation of northern parts of Kashmir by Pakistan, thereby effectively cutting off the land route between India & Central Asia. It was all these factors collectively which spelt the death knell of the flourishing trade through the centuries old Silk Route as well as the snapping of cultural relations.

In a way this snapping of ties is still a reality manifested by the fact that the sum total of the current two way annual trade between our two countries in 2005 was a paltry 120 million US dollars. Out of this, 30 million US dollars or, 25% of the total, is contributed by the export of Indian tea to Kazakhstan – either directly or through third countries such as UAE, Hong Kong & Russia. From the foregoing it will be accurate to surmise that this snapping of the age old trade ties is still a reality.

How, then, can this unsatisfactory state of affairs be redressed? As an Indian who has been living and working in Kazakhstan since the past eleven years I would like to make the following observations:

1)      Kazakhstan has huge reserves of minerals and hydrocarbons. But when we analyse these two sectors we find that these are almost “closed” sectors and entry to which is confined mainly to a few large corporations from the West and, now, to one or two entrants from China & Russia.

India has a well developed mining and hydrocarbons sector but there is no Indian presence in these two potentially lucrative sectors. ONGC has only lately tried to get a toe-hold in the oil & gas sector – sadly, 15 years too late. Let us hope that they will be successful in acquiring  a couple of viable concessions.

Shouldn’t Reliance Petroleum be here? Western corporations far smaller than Reliance have successfully – and profitably – invested in this sector in Kazakhstan and are continuing to reap the benefits of their vision and foresight.

2)      Kazakhstan also has huge deposits of almost all the metals and ores. But, with the singular exception of Mittal Steel, no other Indian entity is in this sector. A major opportunity exists in this sector for some significant JVs between our two countries.

3)      Kazakhstan has a land area almost equal to that of India but with a total population of only 15 million. Therefore, huge cultivable areas are lying barren and without being put to any productive use.

Take the case of growing soyabean. India is a major producer of this very profitable crop and has all the necessary technology for value addition. Why can’t a couple of major Indian soyabean companies come to Kazakhstan, plant several hundred hectares under soyabean, value add by processing the crop into soya nuggets, soya oil, soya milk, soya sauce and soya based animal feed etc? The world’s largest consumers of soya and soya based products are China, Korea, Taiwan & Japan. China is Kazakhstan’s immediate neighbour and will happily buy whatever quantities can be produced. It will then not be necessary for Brazil to uproot vast areas of its Amazon rain forest to bring it under soyabean cultivation for export to China.

If soya cultivation guarantees only one crop per year, the cultivation of pulses can possibly produce two crops annually. And India will gladly sign a 100% buyback agreement for whatever quantities of pulses which can be produced in Kazakhstan. Let ITC or Bharti or Reliance – all of whom are making major forays into agribusiness – look into this opportunity. I am sure that the govt of Kazakhstan will welcome such investments in the agriculture sector.

4)      India, today, is a major medically advanced nation in the world with many state of the art hospitals and medical research institutions. Several thousand patients from the western world are travelling to India each year for all sorts of medical procedures and treatment. They all go back fully satisfied with the cures and care – often at only 1/3^rd the cost they would incur in their respective countries. With some of the world’s best biotechnology & medical research taking place in India we can rest assured that major inventions and cures will come out of India within the next decade.

Kazakhstan lacks world class medical facilities inspite of having a large and well trained number of doctors and other medical personnel. Major Indian hospital chains such as Apollo, Fortis & Maxx must consider setting up state of the art hospitals in Kazakhstan, staffed by specialists from India and from amongst the local pool of excellent doctors, to give affordable world class medical assistance not only to the people of Kazakhstan but also to the citizens of all other Central Asian republics.

Those in Central Asia who can afford it often fly overseas for medical care. This need not happen. Indian doctors, who are the backbone of the national health services in the UK, Canada & USA, can also play the same role in Central Asia. I am sure that the Kazakhstan government will welcome such an investment initiative from any of the major Indian hospital companies. Let our medical cooperation not be confined to merely a handful of Indian pharmaceutical companies setting up small representative offices in Kazakhstan and selling a few basic Indian medical formulations.

5)      EDUCATION:  Today the world has come to realise that Indian graduates from the Indian Institutes of Technology (IITs) & Indian Institutes of Management (IIMs) are amongst the best and brightest in the world and are being snapped up by the largest multinational corporations of the world. It is worth noting that 36% of all technical employees of NASA are of Indian origin and most of them have graduated from Indian institutions. Likewise, a quarter of all start-up ventures in the Silicon valley are initiated by Indians. Most of the advanced research laboratories in the developed English speaking countries are staffed by a disproportionately large percentage of Indians who are at the forefront of carrying out cutting edge research in all sorts of disciplines.

India has two of the finest defence training institutions in the world –namely, the National Defence Academy in Khadakvasla (Pune) and the Indian Military Academy in Dehradun. Many cadets come from several countries to get trained in these great Academies. Kazakhstan, too, should be encouraged to send its bright young potential military officers to the NDA & IMA so that they can return to their country at the end of their training and serve it with honour. Needless to add that these young officers will someday occupy the highest positions in Kazakhstan’s defence services and will view any future India – Kazakhstan defence cooperation initiatives in a very positive light.

All this underscores the excellence of the Indian higher education system and, that too, at a fraction of the fees charged by western universities. Let Indian institutions set up campuses in Kazakhstan to impart world class education in various fields in the English language medium so that the best and the brightest from Central Asia can benefit from such education. Let not Kazakhstan look only to the west as a model for higher education. There is great scope for cooperation in this very vital field between our two countries.

6)      CONSTRUCTION: Kazakhstan is going through a major construction boom. Housing and commercial space, as well as infrastructure upgradation, are all taking place simultaneously. Several overseas entities, as well as many local companies, are participating in this very lucrative activity. Yet, it is sad to see that there is not a single Indian construction company which has a presence in this field. Several Indian companies, with huge resources at their command, are making world class structures in India UAE and other Middle East & Gulf countries. They should also be present here. Let DLF, Shapourji Palonji, Ansals, Lokhandwalas, Rehejas & Hiranandanis etc look at this huge opportunity. Not only will they earn very handsome profits but they will also showcase India’s capability in making world class structures at a reasonable cost. There is still plenty of scope in this very profitable sector.

7)      To fuel this construction boom, the two basic commodities required in very large quantities are structural steel and cement. Inspite of the fact that Kazakhstan has an abundance of iron ore and availability of steel scrap, there is very little production of TMT bars and other structural steel items within the country. Most of these items are imported from Russia & China. It is an irony that Kazakhstan exports a few million tons of HMS scrap each year to China and then re-imports the re-rolled structural steel items from that country. This is wrong. Kazakhstan should have several medium size steel rolling mills producing all its requirement of TMT bars, angle irons & joists etc. India has the most cost effective rolling mills in the medium sector. Such Indian companies must look at the possibility of setting up factories in Kazakhstan. Kazakhstan has almost limitless reserves of iron ore and coal. As well as abundant cheap electricity which is 1/3^rd the cost payable in India. Plenty of skilled, semiskilled & unskilled labour is available locally. All such structural steel thus produced can not only feed the local market but can also be exported to China which is only 300kms away and has an insatiable demand for all steel products. The Kazakhstan government will welcome all such proposals and will offer generous tax concessions.

8)      Most of the beautiful buildings being built in Kazakhstan are using very large quantities of granite and marble. India is the world’s largest producer and exporter of granite and marble of the very finest quality. No other country in the world has India’s range of products in these catagories. Why is no Indian granite & marble producing / trading company present here stocking and selling materials directly to the major construction companies? There is a very big opportunity for medium size Indian companies in this field.

9)      TEA: 30% of the world’s tea is produced in India. To put it in figures, out of the total world production of 3100 million kg, approximately 950 million kg is produced in India. Out of this 950 million kg, India consumes 750 million kg internally, leaving a surplus of 200 million kg for export. Inspite of this sizeable export, no major Indian tea producing company has cared to set up a simple tea blending & packing factory in Kazakhstan to offer best quality Indian teas to the tea loving people in this part of the world.

The per capita consumption of tea in Kazakhstan is 1.5kg. This is amongst the highest in the world. Hitherto the tea trade was left to mainly the unorganised small tea traders from India who, driven by a short term profit motive, contributed greatly towards severely damaging the reputation of Indian tea. Such an insular approach adopted by the major Indian tea companies has cost Indian tea dearly.  India has steadily been losing market share to tea from Kenya & Sri Lanka. It is still possible to rectify this situation by ensuring that only good quality teas are exported to Kazakhstan.

10)  South Kazakhstan produces cotton of high quality. So does neighbouring Uzbekistan. Some major Indian textile companies must consider setting up totally integrated textile plants in Kazakhstan to manufacture good quality cotton & blended fabrics for the internal market as well as for export. Industrial land in South Kazakhstan is very cheap. So is electricity – only rupees 1.20 per unit. Literate manpower is available in plenty as are generous government tax concessions. Such textile units can be highly profitable ventures for Indian companies. The lucrative European markets are only 10-12 days away by road transit freight.

11)   LEATHER INDUSTRY: Kazakhstan is a large exporter of raw hides and semi processed wet blue skins. Why cant Indian leather companies open tanneries here and convert this abundant raw material into finished leather as well as garments, bags & shoes of the highest quality not only for the local market but also for export to Europe?

12)  TOURISM: Worldwide, tourism is being recognised as a major industry which can not only reap billions of dollars in revenue but can also boost the image of the country. Last year China earned over 30 billion dollars from tourism, while Turkey earned 20 billion and Malaysia over 13 billion dollars.

Indians have started travelling overseas in very large numbers. Yet most of them are unaware of the attractions of Kazakhstan. Let Indian & Kazak travel companies come together in jointly promoting Kazakhstan as a tourist destination either individually or as a part of the combined Silk Route odyssey. I am sure that several thousand Indians will travel to this beautiful country each year. This will give a great fillip to the hotel industry, restaurants, shops, tour guides etc in Kazakhstan thereby directly benefiting the common people.

Kazakhstan is a beautiful country, blessed with ancient history, a bounty of natural beauty, four clear seasons, good infrastructure and shopping, several casinos and inhabited by a wonderful and friendly people who genuinely welcome and happily interact with overseas visitors. Kazakhs are also very interested in India and Indian culture. Therefore, this two way tourism can be a massive growth area between India & Kazakh tour companies.

The Indian film industry produces over 1000 films each year. Many of these are filmed overseas at considerable cost. Kazakhstan could easily attract some of this business if it were to sell itself to the Bollywood film industry in conjunction with reputed Indian travel companies. Holding a couple of “road shows” in Mumbai would be a good starting point. It will help showcase the beauty of Kazakhstan to the Indian public thereby further boosting tourism from India to Kazakhstan.

13)  HORTICULTURE: Kazakhstan consumes vast quantities of fresh flowers on a daily basis. Most of the better known fresh flowers (especially roses) are imported from South America via Holland. Indian horticulture companies can look at this very lucrative market for export of all sorts of fresh flowers in very significant quantities. A special charter flight two times a week can easily be consumed in Kazakhstan alone.

14)  BANKING : It is sad that inspite of having had a “representative office” in Almaty since 1998, Punjab National Bank has not found it fit to open a full fledged branch in Kazakhstan. Let the government of India address this anomaly – and the sooner the better. I have no doubt that a lot of small and medium size enterprenuers from India will be encouraged to venture into Kazakhstan if they have the added comfort of the presence of a premier Indian bank in this country.

15)  CONNECTIVITY: No Indian airline has ventured into Kazakhstan. Since a stand alone flight may not be viable, I have no doubt that a Delhi – Almaty – Birmingham flight (once a week) and a Delhi – Almaty – Amsterdam flight (once a week) will be very viable especially if it offers low level fares. It is very important for India’s image that its national carrier is seen in Almaty on a regular bi-weekly basis. This will also help to bring down the airfare between Almaty – Delhi (presently a monopoly of Air Astana) thereby giving a major boost to travel between the two countries.

16)  VISA REGIME: Kazakhstan needs to simplify its visa regulations. Presently these are a carry over from the erstwhile and archaic Soviet system and effectively curb to dampen the enthusiasm of many potential travellers to Kazakhstan. Perhaps the governments of India & Kazakhstan will agree to simplify these procedures as early as possible.

There are huge opportunities for mutual cooperation between India & Kazakhstan. I have only covered some of them. Modern day diplomacy, and nation-to-nation relations, is trade driven. The more the trade and business interaction between any two nations the less the scope for irritants and misunderstandings. India missed and lost a huge opportunity in 1991/92 when Kazakhstan become independent from the erstwhile Soviet Union. Let us not miss the bus again. Let us strive for close cultural and business ties between our two great nations which will greatly benefit the people of both countries. These do not have to be giant projects like Mittal Steel or ONGC alone. These can and should also be many small and medium size ventures which will bring our two peoples closer together and which will increase the volume of trade a thousand fold.

Thank you.

P.S.Tibb

Central Asia Tea Co Ltd
160-A, Raimbek avenue  
Almaty - 050016

Kazakhstan
Phone: +7 (3272) 730599, 730699
Fax:     +7 (3272) 733465
Mob:  + 7 701 111 2406
e-mail: icepty@nursat.kz

Confidence Building Measures in Asia: From Idea to Realization

By Mr. Nurlan Yermekbayev *

For the first time in the history, appearing on the global scene as the head of newly independent Kazakhstan, President N. Nazarbayev, from the platform of the UN General Assembly, declared his position and vision of the future development of Asia. «The world has now come close to the threshold beyond which the visible disturbing challenges of the future compel us to adopt a new quality of coordination, a new way to organize our joint efforts», - he said in his speech in 1992. One needed to possess huge understanding of ongoing global processes and political courage in order to put forward, in those uneasy times, the initiative of convening the Conference on interaction and confidence building measures in Asia (CICA) as one of mechanisms for dealing with the issues faced by this continent.   The last decade of the previous century was the period of upheavals for the entire world community.

Disintegration of one of superpowers and birth on the world map of scores of new states; growing number of military-political conflicts practically in all regions, including Europe; rising confrontation not only between the West and East, but also between the North and South. It was also a time when globalization began to increase its pace, while tying all the countries tightly to each other economically and politically and causing greater interdependence among them. Globalization is accompanied by positive factors such as gradual "wiping off" of interstate borders, free movement of capital, labour and intellectual resources, information, rapid development of trade and economic relations among the countries. Unfortunately, this process also led to the internationalization of new threats and challenges, including terrorism, rise of religious extremism, drug trafficking and smuggling of small weapons. Recently President N. Nazarbayev - current Chairman of CICA – while addressing 62nd session of UN General Assembly, again drew attention to this issue: «Over the recent years international terrorism has significantly undermined world security. Global drug trafficking serves as a financial pillar of terrorism. Today, global drug industry accounts for a third of the volume of the “economy of terrorism”». One may wonder why Kazakhstan took upon itself the responsibility of implementing such a large scale international project like CICA? It is worthwhile recalling that after the disintegration of the former Soviet Union the balance of forces in the globe, which had been unshakeable until that time, changed and it was for Kazakhstan’s diplomacy to start working in an empty field. The idea of creating a security structure in Asia had been floated several times but did not find adequate support. With the end of cold war and fast changing geo-political and geo-economical scenarios, CICA received support from a number of Asian states that were playing significant role in defining political climate in the continent. Kazakhstan and other states supporting the CICA process were acutely aware of the extremely difficult task of creating such a structure because Asia is the most diverse continent in all its manifestations – be it political, economic, religious, ethnic or cultural. Besides tensions were still running high in certain regions of Asia on account of long histories of conflicts and mistrust. Nevertheless, by that time it became clear that the only way to enable the Asian nations to take the advantage of globalization and to combat the new challenges and threats was through dialogue and cooperation in a secure and stable environment. This year marks fifteen years since the historic launching of the CICA idea. What have been the achievements of the Conference as it approaches the important milestone of its 15th anniversary? In view of above mentioned specific reasons, it was unthinkable to blindly copy the administrative/conceptual principles of such regional organizations as OSCE. It was necessary to create a new structure, whose operational principles and mechanisms could be acceptable to all the parties. The striking illustration of recognition of these efforts was the First CICA Ministerial Meeting in Almaty on 14 September 1999, which adopted the Declaration on the Principles Guiding Relations between the CICA Member States, which became the stepping stone towards future evolution of the CICA process. This first official document laid the foundation of the subsequent development of the CICA process. The document reaffirmed “…universally accepted principles of international security such as: respect of sovereignty and all rights of the CICA member states; territorial integrity and non-interference into each other’s internal affairs; peaceful settlement of disputes between states; non-use of force; disarmament and arms control; social, economic, trade, cultural and humanitarian cooperation; and respect for fundamental human rights in accordance with the principles of the United Nations and international law”. The First CICA Summit held in Almaty on 4 June 2002 marked the formal launch of the Conference on Interaction and Confidence Building Measures in Asia, a multi-national forum for enhancing cooperation towards promoting peace, security and stability in Asia. The summit was attended by the heads of Kazakhstan, Russia, China, Pakistan, Turkey, Mongolia, Kyrgyzstan, Tajikistan and Afghanistan, Prime Ministers of India and Azerbaijan, special envoys from Iran, Egypt, Israel and Palestine as well as official representatives of observer states and observer organizations. During the dialogue at the 1st Summit, the leaders of Asian countries spoke about fundamentally new approaches to security issues in Asia based on trust, respect and cooperation. These principles were reflected in the final documents of the forum - the Almaty Act and the Declaration on elimination of terrorism and promoting dialogue between civilizations. After the Summit, the member-states were busy elaborating “The Catalogue of CICA CBMs” - the basis for the practical activities of CICA. According to this document, adopted at the Ministerial Meeting in 2004, each member-state voluntarily chooses those confidence building measures, in economic, human and environmental dimensions as well as in the field of countering new challenges and threats which suit the national interests of that country. The Second Summit held on June 17, 2006 addressed the task of developing mechanisms for the realization of CBMs. The statements Heads of the State/Government made at this august gathering once again reaffirmed genuine interest of the parties in further developing the CICA process. The signing at the Second Summit of the Statute of the Secretariat of the Conference on Interaction and Confidence Building Measures in Asia, which was set up for increasing the efficiency of the process, has been a remarkable event. One of the most important and priorities tasks of the CICA Secretariat is to assist the country, chairing the CICA, as well as other member-states in the joint development of mechanisms for implementing CICA confidence building measures (CBMs) in economic, environmental and human dimensions and in the field of countering the new challenges and threats as well. There are plans to hold various events.   Nowadays at the Secretariat already work six diplomats from four countries: India, Kazakhstan, Pakistan, Russian and Turkey. It is expected to arrive soon diplomats from Iran and Pakistan which candidacies were approved by the Senior Officials Committee (SOC) on October 17, 2007. In the life of the largest continent has come into existence a new political process that is meant to substantially expand the opportunities for multilateral dialogue. The number of the CICA member states has reached 18 after the accession of the Kingdom of Thailand and Republic of Korea. Few more countries of the region have recently applied for the full membership in CICA. These facts speak of growing importance of the Conference as an all-continental structure. Now CICA has reached the next stage of its evolution, which is realization of Confidence Building Measures among the member states. The detailed concept and procedure for realization of the Confidence Building Measures could be adopted only in March 2007 in Bangkok when the Senior Officials Committee of CICA adopted the Cooperative Approach for the implementation of the CICA CBMs. In a traditional sense, Confidence Building Measures are understood as the measures taken by the states to reduce fear and suspicion among one another and/or reduce the fear of war. The concept of Confidence Building Measures emerged from the attempts during the cold war period to avoid nuclear war by accident or miscalculation. In essence, Confidence Building Measures were perceived to be the military and political measures for reducing tensions among the states. The CICA Confidence Building Measures, however, go beyond the traditional concepts. The leaders of the CICA member states recognized that in the increasingly inter-connected and inter-dependent world of 21st century, Confidence Building Measures in socio-economic dimensions were as important as in the politico-military dimensions. The CICA Catalogue, therefore, laid down five dimensions for realization of the Confidence Building Measures: (i) military-political; (ii) fight against new challenges and threats; (iii) economic; (iv) environmental; and (v) humanitarian. In Asia there is an extensive potential for joint activity in such spheres as trade, economy, protection of the environment, disaster management, transport, power, a cultural exchange, dialogue between civilizations and counteraction to new threats and challenges. The process of realization of Confidence Building Measures in the four socio-economic dimensions has already commenced. Seven member states, namely, Azerbaijan, Iran, Kazakhstan, Republic of Korea, Russia, Tajikistan and Turkey, have volunteered to act as coordinating countries for certain projects for realization of Confidence Building Measures in the areas of human dimensions; new challenges and threats; development of secure and effective systems of transportation corridors; drug trafficking; national disaster management; information technology; energy security cooperation; economic cooperation and tourism. During the recent meeting of the Senior Officials Committee (SOC) of CICA held on 17th October 2007 and dedicated to the 15th anniversary of the CICA process, India offered to act as co-coordinator with the Republic of Korea and Republic of Azerbaijan for the implementation of CBMs in the fields of energy security cooperation and cooperation for the development of secure and effective systems of transportation corridors. Israel offered to share its expertise in the fields of water management, advance agriculture, hi-tech development, disaster and crisis management and indicated its readiness to hold workshops in one or more in these fields. As the Minister of Foreign Affairs of Kazakhstan Dr. Marat Tazhin said while opening the recent meeting of the CICA Senior Officials Committee on October 17, 2007: “… the attractive and unique feature of CICA is vested in the spirit and format of the Forum which has become a common platform for comparison of viewpoints and generating ideas on the acute issues of the life of the Asian continent.” SOC has decided that henceforth the majority of events under the CICA auspices will be held outside Kazakhstan - in Tehran, Ankara, Moscow, Tel Aviv, Kyrgyz Republic (expert meetings), Seoul and New Delhi (Special Working Groups/Senior Officials Committee meetings). The activities within the CICA framework will simultaneously be carried out on several fronts. The meeting of the CICA Senior Officials Committee dedicated to the 15th anniversary of the initiation of the CICA process has proved to be a breakthrough event. The Conference demonstrated that there is a forward movement in the military-political dimension as well. The Republic of Korea has expressed gratitude to the CICA for issuing a statement ahead of many international organizations condemning the seizure of Korean nationals in Afghanistan as hostages. SOC also invited the Member States to continue to render assistance in combating terrorism, opium production and drug-trafficking as well as for the reconstruction of Afghanistan and extend political support for ensuring peace and security and normalization of life in this country. It is important to emphasize that CICA is open to all countries. It is also ready for cooperation with other regional organizations. On the Eurasian space, there are a number of the interstate structures that are close to each other by spirit and objectives. Therefore, the CICA Senior Officials Committee has adopted a decision on establishing relationship with Shanghai Cooperation Organization (SCO), Eurasian Economic Community (EuroAsEC), Economic Cooperation Organization (ECO) and South Asian Association for Regional Cooperation (SAARC). For strengthening cooperation among Asian interstate organizations the CICA SOC has made a decision on holding of an international conference under the aegis of CICA with participation of all the Asian regional and subregional structures. The participants agreed with Kazakhstan’s proposal to establish dialogue on the “inter-parliamentary track” among the CICA member states. During the working negotiations of the Kazakh delegation with the counterparts from other countries, a proposal to consider the possibility and prospects of optimization of existing in Asia regional multilateral organization by joining to each other come up for first time. Such integration could take place by merger of CICA and Asian Cooperation Dialogue - the latter is planning to set up its Secretariat. Possibly such an idea require serious negotiations and consultations with the purpose of determining optimal conceptual and organizational solution. In fifteen years, the CICA process has come a long way. CICA has blossomed into a full fledged functioning forum for dialogue and for seeking mutually acceptable measures for resolving problem and conflicts in the region. The objectives and activities of CICA have received wide recognition from the world community. Addressing to the general debates of 62nd United Nations General Assembly session on September 25th, 2007 the President of the Republic of Kazakhstan, current CICA Chairman Nursultan Nazarbayev said the following: “…speaking of Asia, it is not possible to bypass the issue of setting up of a collective security mechanism of continental scale. That has become possible due to the realization of Kazakhstan’s initiative to convene the Conference on Interaction and Confidence Building Measures in Asia (CICA), initiated by me from exactly this very podium, during the forty-seventh session of the General Assembly in 1992. Today, the CICA process brings together 18 states, which occupy 90 percent of Asia’s territory. Their population makes half of the people living on our planet. Time has proven the relevance of the CICA process, within which a political dialogue among Asian states is gaining momentum”.

Justice of Biys and Legal System in Medieval Kazakhstan
Vijay Kumar Bhatia
PhD Research Scholar
Centre for Russian and Central Asian Studies
School of International Studies
Jawaharlal Nehru University
New Delhi, India

Abstract

The territory of Kazakhstan is one of the most ancient centers of human civilization. Before the medieval period the culture and political life of the region did not differ greatly from the other parts of the nomadic world particularly in Islamic world. The society at that time was a Patriarchal-feudal society based on customs and traditions and was tribal in nature. In the 15-16^th century the Kazakh state was created. In this medieval Kazakh society political culture includes many elements of democracy.

The Kazakh society's was subdivided into two basic social groups: ak-suyek (white bone) and kara-suyek (black bone), differing not so much in economic as in political and legal attributes. The "Ak-suyek" covered the khans of Chingis dynasty, who were called "sultans", and also sayyids and hodjas. All other groups and layers of society made up the "kara-suyek". Of the kara-suyek social group only biys - the leaders of clans and tribes had special rights. The institution of biy played essential in the Steepe. The system of justice was based on  the customary laws (Jarghi).The Biys were the main source and supervisor of law. This authority gave to biys a political and social importance.. The institution of the biys served as a judicial mechanism to solve civil and criminal conflicts. The paper deals with the formation and development of Kazakh laws and the Justice of Biys in the Medieval Kazakhstan. It has also taken into account the various democratic elements and trends like equality before law, elections that had developed in the medieval Kazakhstan society.

Introduction

            Kazakhstan history is long and exceedingly complex. Likewise the origin and heritage of its peoples are richly complex and open to heated controversy both within and outside the region. Thus the following efforts to gloss this history is necessary sparse and aims only to provide a useful context for readers who may not be familiar with the contours of the regions history and culture.

          Prior to Russian conquest the culture and society of Kazakhstan did not differ greatly from the other nomadic societies of Central Asia[i]. The Kazakhs have traditionally been a nomadic people, and there exist few written sources on their earliest history[ii]. They were traditionally Turkic based nomads community roamed from place to place[iii]. Each kin group had its own routes, which other kin groups were not permitted to use. [iv] The kinship, livestock and rituals were central in Kazakh society. Islam was introduced by Arabs who entered Kazakh territory in the eighth and ninth centuries. Between the ninth and thirteenth centuries, the dominant states of the region were those of the Qarakhanids and the Karakitai. In the early thirteenth century, the latter group was conquered by the Mongols under Genghis Khan. During centuries of Mongol rule, the territory of Kazakhstan broke up into several major groups known as khanates.

            There was no concept of nation or nation state. It was only by 1400s that the concept of nation developed.  In 1456 the Kazakh Khanate was formed on the banks of Zhetisu (seven rivers) in the south eastern part of present Republic of Kazakhstan by Janybek Khan and Kerei Khan. During the reign of Kasym Khan (1511-1523), the Kazakh Khanate expanded considerably. In this period Kasym Khan instituted the first Kazakh code of laws in 1520, called “Qasym Khannyn Qasqa Zholy” (Bright Road of Kasym Khan). Other prominent Kazakh khans included Haknazar Khan, Esim Khan, Tauke Khan, Abylai Khan.

            The family was the cornerstone of Kazakh nomad society[v]. A strong family produced a strong society. In nomadic days, the elders of the extended family were put down a code of conduct. According to the way of the elders older persons were honoured and respected, their words were law. Marriages were arranged to cement tribal bonds. The Kazakh saying "the matchmaking lasts a thousand years, while the son-in-law lasts only a hundred" signifies the importance of a relationship created between the two tribes. By the second half of the 15^th century a process of consolidation had begun among the nomadic peoples of Kazakhstan. In short time later, the first Kazakh state was formed, and by the beginning of the 16^th century a united Kazakh nation had emerged. During this period, a legal system was also established, reflecting the norms of the nomadic way of life and the relation between different groups within Kazakh society. In this period the Kazakhs migrated with their herds, and had no towns or cities as such[vi]. The ruler himself like other people of Kazakh society lived in a traditional nomad’s a yurt a portable dome shaped tents of felt made from boiled camel wood[vii]. Any territorial control was highly rudimentary, as was the khan’s control of his subjects. He also had very limited powers of taxation.

The social structure of Kazakh society in the medieval period  (XV to XIX centuries) was based on two main principles. One of them is that all Kazakh clans and tribes entered into three associations namely the Great Horde (Ulu Zhuz, southern region), the Middle Horde (Orta Zhuz, central region), and the Little Horde (Kishi Zhuz, north)[viii]. The division into hordes was not a political one but related to the groups of tribes and clans who roamed over certain wide areas in search of pastureland and water[ix]. According to this complex and widely-branched system, each Zhuz is divided into tribal groups which are, in turn, divided into smaller clans, and so on, all the way down to the concrete individual. According to the norms of customary law, every Kazakh should know his ancestors for forty generations back. The norms of exogamy, claims to property, leviratic norms (according to which a widow must sometimes be married by a brother of deceased husband) and many other things are based on the degree of genealogical kinship. The Despite the division into three hordes, the Kazakhs remained united society with a common language, culture, customs and economy.

  Division of  Kazakh society into Hordes  in Medieval Period

Greater Horde  (Uly Zhiiz)    an area approximating to the present day oblasts 

                                                  of Karaganda (east), Pavlodar, and Vostochnyy

                                                  Kazakhstan

Middle Horde  (Orta Zhiiz)    an area approximating to the present day oblasts 

                                                   of Akmola, Karaganda (west), Kostanay, and  

                                                   Severmyy  Kazakhstan  

Lesser Horde  (Kishi Zhiiz)    an area approximating to the present day oblasts

                                                   of  Aktobe, Atyrau and Zapadnyy Kazakhstan 

The hordes took Kazakh nomadic occupation southward, beyond which were three independently governed domains, these being from west to east the Khanate of Khiva, the Emirate of Bukhara and the Khanate of Kokand. The hordes existed until the 19^th century, but at no stage did they succeed in coalescing to form a definitive Kazakh territory between Russia and Asia. It thus became inevitable that Russia at some point during the course of its expansion into Siberia would move to fill this particular vacuum too.

                The other basic principle of public structure in the Kazakh khanate was Kazakh society's subdivision into two basic social groups: ak-suyek (white bone) and kara-suyek (black bone), differing not so much in economic as in political and legal spheres [x].The above classification of society shows that the Kazakh society was highly stratified.

            The Ak-suyek covered the khans of Chingis dynasty, who were called sultans and also sayyids and hodjas. All other groups and layers of society consisted of kara-suyek (Black bones). [xi]A principle of the society subdivision into these two groups was carried out with strict consistency. The Steppe preserved the tradition of recognizing only Chingisids as its khans right up to the nineteenth century despite ethnical or state boundaries. Unlike the white bone estate, the representatives of the kara-suyek always observed the subdivision into separate clans and tribes. Accordingly, the public position of any representative of kara-suyek whether he be a hereditary head of a clan or an ordinary nomad-herdsman was determined to a degree by the privileges of his clan and tribe. Of the kara-suyek social group only biys the leaders of clans and tribes had special rights. The size, force, antiquity of origin and seniority of the clans headed by them determined the influence of the biys. Biy as a social title was not inherited but acquired by personal features. It was a clear case of meritocracy.

Law in the Legal System in the Medieval Kazakh Society

The legal system during the fifteenth to nineteenth century in Kazakhstan was entirely different from modern system. In Central Asia there were two types of courts one for the sedentary population (non Kazakh people)  run by Kazi and the other for nomadic people (of Kazakhstan)  headed by elder people of clan known as biys. In the courts for sedentary population the Kazis were sole administrators of justice. They had no set district of jurisdiction; any native could turn to the kazi he trusted most.  

The Kazis were appointed by the khans or emirs from persons learned in Muslim law (Shariat), who has passed the required examination, and because  their power and influence were great and only the most worthy among a large number of candidates were chosen, enjoyed a high reputation among the people. There was only one court and appeals against the decision of a kazi could be made only to the highest authority namely the khan or emir or his representative, the bek.

The competence of a kazi was very wide. In dispute concerning property, it was unlimited cases involving the largest sums of money or goods and possessions of any value could be submitted to his judgment. The punishment of kazi were very severe. Torturing, the cutting off of hands or feet, and various more or less forms of the death penalty were employed. Confinement were in pits or dungeons, often for indefinite period with little food and no sanitation. In this period Sheykh-ul-Islam was the highest religious position and Qadi-Kalan was the chief Muslim judge in the society of sedentary population. There was a separate religious police namely (the reis) who had the power to punish people for the violation of Islamic laws or Sharia (known in Turkic as the “seriat”). In this period in Kazakhstan the nomadic people officially adhere to Islam. In reality they shun it and have no specific religious faith and did not use the Shariat, but employed instead the Jarghi, an elaborate system of customary law developed through many centuries.

            In Kazakhstan the legal system was based on the customary laws (Jarghi) and traditional rules and regulations formulated and interpreted by the group of elders known as Biys[xii]. Outside the group no law could be said to exist, it was simply a matter of the rule of force. The biys were endowed with authority recognized by society, known for their justice, objectivity, competency, logic and rhetorical ability

            The custom was the oldest and most important expression of law in Kazakh society. Social life of Kazakh people was regulated by custom long before the emergence of the state. Customs are norms or rules (more or less strict, with greater or lesser support or moral, ethical or even physical coercion) which guide the way people behave if social institutions are to perform their tasks and society is to endure. In other words Customs represented those modes of behavior which were found suitable after trial for a long time, and which were stabilized and accepted as standard forms of behavior. The society came to treat them as binding rules.  Those who violated these rules ridiculed deprived of certain privileges of social life including normal social intercourse or punished. 

            There was no system of written laws or constitution. It was based on the laws that had passed from generation to generations. The Jarghi (Kazakh customary law), was not codified and administered locally and orally. Its basic characteristics, like common law, was based on common prudence. It was not formal hand written law, and was never enacted by the legislative authority, but natural law arisen under the nomadic style of life and expressed values and ideals of nomadic culture, supported and served this society. According to Virginia Martin the customary law was the (unwritten) guiding principles governing the behavior and interaction of individuals with in nomadic community and its kinship structures which were upheld and enforced in everyday life by commonly-accepted obligations responsibilities, sanctions and forms of punishments. In the Kazak society, Jarghi was flexible and adaptable to changing circumstances.

            In the Kazakh society there was no institution like modern day legislature. All the laws were formed and interpreted by biys. From the customary laws Jarghi Biys derived individual rights. Jarghi also played very significant role in maintaining peace and harmony in Kazakh society. These laws kept individuals from being subject to the arbitrary will of another person.

            With the formation of the state in (XVI century), these legal norms were legalized in a special Steppe legal code. The most famous is "Tauke Knah's Zhety Zhargy" (Seven Ascertainments, XVII century). [xiii] The Tauke's customary code encouraged formalization of the legal process and created a single judicial power in the form of the institution of the biys.The main innovation of Zhety Zhargy was the protection of private property of the people. In this period the basis of a property was herd and other animals. There was no concept of ownership of land.

            The Kazakhs did not distinguish between civil and criminal law. The punishment under both these types of offences were same. In this situation the role of biys in the interpretation and making of laws became very  significant. The Biys interpretation of customary laws cannot be challenged by any authority. The biys with the use of their wisdom and knowledge interpret the customary laws and even formulate new laws if necessary or if the present laws were not sufficient. The process of formulation of new laws were not simple. There were no written judgments of the previous cases of earlier biys, so they had to depend on oral source which passed from generation to generation and interpreted differently by different biys. The biys consult with other elders of the society for the formulation of such laws.

                  The Kazakh legal system during this period developed many elements of democracy. For instance the customary law considered basic rights and liberties of people on the principle of justice, without heading class prejudices and property status. In this period the ordinary nomad was legally a free person, possessing personal and property rights. A free nomad (the head of a family) could bequeath property at his own discretion, testify, participate in the annual people's assembly, etc. The great scholar of the Kazakh nation, Chokan Valikhanov further supported the democratic elements in Kazakh law. In his own words   “the common law was peculiar for its openness, tribal solidarity and simplicity, court process and involvement in this of representatives of all parties; and the power of public opinion, and the absence of repression such as imprisonment”. However Chokan Valikhanov also explained the power of the law in a traditional society by its socio-cultural roots since "the law which is well-known to the people, and has formed the person is good for people; however imperfect it is, it should seem to be better, clearer and more understandable than the wisest laws"

            From 1822 the Tsarist government reconstructed the native legal and administrative system to incorporate the Kazakh steppe into their empire and in the process gradually to modernize the Kazakhs. The Russian government redefined the practice of Jarghi according to their own imperial purposes.

            In general, Kazakh customary law was designed to a grant democratic rights and economic self-sufficiency of the community, which was constantly threatened both by external dangers and by the harshness and unpredictability of natural conditions.

            Thus it is clear from the above that the Kazakh laws (Jarghi) were not adopted by any Constitutional Assembly on any definite date. Similarly nobody knows the place of the making of these laws. It was not written but passed orally from one generation to another.  It had slowly and steadily grown. It was thus a result of history and evolution of political institutions over the centuries and was based on conventions

Role of Biy Courts  in the (XVI-XIX Century) Legal System of Medieval Kazakhstan

            The Kazakhs were lived in a nomadic society. In the medieval period (XXVI to XXIX century) the disputes in the society were settled by the senior persons called biys. The word biy has Turkic origin which means ‘power’ or ‘ruler’. This word in Kazakh society referred to the powerful nomadic persons, later by the eighteenth century the term biy had come to mean judge. The biys regulate and formulate laws and were act as a court in their society. They were central figure in the Kazakh judicial system. The biy courts were unique and different from courts in other central Asian regions. They were based on spirituality, humanity and moral principles. All the civil and criminal disputes of the society were referred to biy courts. The biys  were distinguished impartial, honest and intelligent persons and took very wise decisions. 

            Biys of Kazakh enjoyed a high social status and considerable economic privileges. The biys enjoyed special rights and  only biys possessed judicial, authority. [xiv]This authority gave to biys a certain social and political importance, which was expressed in that biys along with sultans participated in making nation wide decisions, coming together to the annually called Kurultai (people’s assembly). The most influential chieftains were included in khans "Councils of biys". The biys had unique features as explained by scholar A Zuev who in his work “the Kyrghiz national court” eferred “Kazakh biys were the wisest and the most worthy “ persons. It is necessary to mention the unique features which distinguish biy courts with other courts. These were:

1 It was based on morality, humanity, secularism and spirituality.

2 The was based on democratic principles like freedom of speech, equality before law, equal protection of law etc.

3 The Biys along with judicial functions also formulate the laws.           

4 The Biy courts were based on fairness and impartiality.

            It was very difficult and prestigious to become a biy. To become a biy one must had good personal abilities of orator, to understand and interpret customary law, formulate new laws and to take wise decisions. The system of biy court was based on merit and equality i.e. any ordinary man or one distinguished by origin can take an office of biy. Only knowledge, sense of justice and a skill to convince were necessary for being elected biy. His reputation and significance were based on personal authority, which was maintained and popularized by people. Loss of authority deprived him of his title. It is possible to say that one became a biy by vocation.

            The institute of biy was unique and  played an essential role in the Steppe. The Chokan Valikhanov wrote in his "Note on Judicial reform" The post of biys was not hereditary but elected. The elders met to choose a biy to represent the family in negotiations with other families and to mediate internal disputes, regulate migration, and allocate pastureland. Thus the title of biy often went from father to son, the office was not hereditary and could be shifted if the elders so chose.

Additionally the Election as a biy with Kazakhs was not stipulated by some formal choice on the part of the people and appointment by the ruling authority; only deep knowledge of judicial custom, united with eloquence, gave a Kazakh this honorable rank. The importance of biy was founded on authority, and this rank was like a patent for judicial practice. Thus, the main resource of biy power was an authority but not the power of state enforcement. One of the most influential biy in Kazakh history Tole biy (end of XVII - first part of XVIII centuries) was from sharua (poorest) social group. It was not an obstacle for him to be a person whose opinion was important for khans and sultans.

            The institution of biy involved a political function, i.e. coordination of the interests of power structures, and tribal groups of the population. In addition there were social and legal functions, i.e. to solve conflicts concerning violations of individual and collective rights. Matters coming before the biys usually concerned theft and barymata, family or marriage affairs, payment of debt and the payment of the kun  for the shedding of blood (i.e. murder or mutilation).[xv]Additionally the biys had the special powers to grant pardon to any person or criminal. They had the powers to suspend, remit any person convicted of any offence.

The mechanism for the solution of conflicts in regard to breaches of individual and collective rights was a specific institute of biys, which executed the functions of judicial and, partly, administrative authority. We may say that biys executed the functions of vertical and horizontal regulation of the life of the Kazakh society. The first presupposes co-ordination of interests of powerful structures, a clan-tribal top and various social layers of the population (political function); the second concerns the solution of civil, property, territorial and other disputes between clans and tribes, on the one hand, between members of one clan and a tribe, on the other (social-legal function).

The biy courts were based on ‘Jargi’ whose main sources were common and customary law standards, orders of Khans and judicial precedents of the famous biy judges who were recognized as the tole biy .The institution of biys had also played an important role in the development of customary laws of Kazakhstan. The biys used their wisdom and interpret the laws from time to time.  The interpretations given by one biy became precedents for other biys and were observed in future. The famous Kazakh khan Tauke and three biys from three juzes passed the Law "Dzhety Dzhargy". Chingiz-khan's Iassy was the source of this Law. Dzhety Dzhargy regulated all spheres of life in Kazakh society and in the Khanate.

            The Biy courts were unique and different form courts in other regions of central Asian and the courts of modern times in many aspects. They were known for their justice and fairness. The Russian scholar Slootov − A defined the biy courts in his own words as “the court of high fair”. In the courts of Biys there were no distinction between ruler and the ruled or between ordinary persons or relatives.. [xvi]It was based on equality and truth. There was no scope for corruption or discrimination in the justice of biys. Each offender was punished according to the customary laws of the Kazakh society.  This can be evident from the fact that in 1748 Sultan Barak was convicted by Biys for killing Abulhair-khan[xvii]. In this case we may say that one of the most important principles of a legal state was implemented here no people are beyond the legal field, everyone is equal under the law.

The courts of biys unlike the modern courts or courts in other regions of Central Asia also contained features of scientific judicial system. In these courts the biys had special qualities and were wise and fair. The biys with their knowledge and wisdom interpret and analyze the civil and criminal disputes and gave their judgment which were  based on impartiality and were very logical, apreciateable. Their judgments were based on morality and spirituality. They used very simple language so that every body can understand the legal proceeding in the biy courts. Their judgment and directions were followed and respected by the entire society. The judgments biys were very popular not only in the Kazakh Khanate but were famous in the entire Turkic community including Cental Asia. Unlike the contemporary judicial system the biy courts were passed orally from generation to generation. They were not recorded in any written document like books or pages.

            The courts of biys contained many elements of democracy and human rights like equality before law, equal protection of law, freedom of expression, free hearing of civil disputes or criminal cases. If a dispute could not be settled or the decision was considered unsatisfactory the dispute could be turned to another group [xviii]Chokan Valikhanov while referring the native courts of Kazakhstan also described the democratic character of the court of biys as a particular institution for protecting human rights and liberties in traditional Kazakh society.

1 Firstly, in case of suspicion of a biy not being impartial both plaintiff and defendant had the right to choose another judge.

2 Secondly, the people had an unlimited right to appeal against unfair judicial decision, and call in another biy.

3 Thirdly, in case of insufficient evidence against the accused, biys had the right to convoke a jury from the honest relatives with high reputation, who under oath prosecuted or discharged a defendant.

4 Fourthly, the court of biys was conducted orally, publicly, and in every case permitted lawyers.
5 Fifthly, it commanded such high respect among people that no disciplinary measures were expected to ensure the execution of pronounced decision. [xix]Thus, the decision of a biy practically did not require any appeal.

            All the above-mentioned is obvious evidence of high ability on the part of the political systems of a traditional nomadic society of Kazakhstan. A variety of channels for the transfer of information promoting mass political participation in the process of making powerful decisions assured the stable and sustainable operation of the entire system.

In the nomadic society the decisions were not reached by the hearing of witness. Often a crime was common knowledge but, if not, the oath was taken i.e. the accused had to produce witness within a given time, a number of respected persons to swear to his innocence.

The Biy courts were unique and different form courts in other regions of central Asian and the courts of modern times. They were known for their justice and fairness. The Russian scholar Slootov A defined the biy courts in his own words as “the court of high fair”. In the courts of Biys there were no distinction between ruler and the ruled or between ordinary persons or relatives.. [xx]It was based on equality and truth. There was no scope for corruption or discrimination in the justice of biys. Each offender was punished according to the customary laws of the Kazakh society.                                          

Judicial System in Tsarist Period

In the nineteenth century, the Russian Empire began to expand, and spread into Kazakhstan. Moreover by the second half of the nineteenth century the Kazakh state was in very bad shape and it was fast declining. Every aspect of the state and its administration had become weak. Therefore they had no option but to bow before Tsarist Russian empire. By the end of nineteenth century the entire Kazakhstan becomes a part of Russia.[xxi]. The final annexation of Kazakhstan by Russia took place in 1822. The territories of the middle and little hordes were brought into its empire. These were divided on the pattern of- okrug, Volost, Uezd, along with aul of Kazakh pattern. Fifteen to twenty Volost constituted one okrug and each aul vary from fifty to seventy yurts and in some cases it consisted of 200 yurts[xxii]. The Russian administration was of military in nature and was run by the Ministry of war. The Russian army officers ran the administration and exploited the local people in their own interest. [xxiii]However, at the local level the administration was largely in the hands of native administrators with customary courts retaining jurisdiction over criminal and civil cases.

              The Tsarist Russia had no ambitions to change or reform the Kazakh society. Their main aim was a maximum of control at a minimum of cost.  The main purpose of Russians which lead to conquest of this region was its economic exploitation to fulfill the primary needs of the industries in the metropolis of Russia. Since the population was nomadic, shifting cultivation was practiced on common land and the most important crop was cotton.[xxiv]. During the colonial period the Tsarist government encourages the people of other parts of Tsarist empire to migrate to the Kazakhstan.. The main objective responsible for bringing the migrants into the region was the misery prevalent on the farm lands of southwestern Russia and Siberia. As a result by 1892 large number of Russian people (mostly unauthorized) migrated into Kazakhstan.

The Russian supervision was almost completely absent and only on in rare occasions did news of judges exceeding their powers or jurisdiction come to the knowledge of Tsarist government. There were three types of native courts existed in Russian Central Asia (i) for the settled population of the Syr-Darya, Samarkand, Fergana and Semirech’ye oblasts, (ii) for the nomadic population of these oblasts, and (iii) for the inhabitants of the Transcaspia oblast. [xxv]

While the latter differed from the first two in organization and procedure, the courts of the settled and nomadic population of the Syr-Darya , Samarkand , Ferghana and Semirech’ye oblasts had certain features in common, being of the type where charges are brought privately. There was no official process of investigation, each case whether civil or criminal, was raised by one or both of the parties involved and led, in most cases to public disputes between the plaintiff and the defendants.  Among the settled population (non Kazakh people)  the case was argued before a Kazi, who gave judgments according to the Shariat whereas among the nomads judgments were usually given by elders of the clan or group or biys and used the customary law.There was no theory of formal proof, the duty of the judge being to ascertain readiness of one of the parties (or their witness) to take the oath as Islamic law to the truth of their assertions and then to apply the legal norms to the situation thus established.

In this period the disputes with in the Kazakh society were settled as usual by the elders of the clan or biys. The Tsarist government allowed the biys to use freely the traditional laws.

The Temporary Statute of 1865 placed the appointment of biy in the hands of military Governor. The Statute however taken out the cases of Murder, Roberry and barymta from the jurisdiction of native courts of biys. The unconfirmed Statute of 1867 recognized these native courts and introduced the practice of elections of the judges. There were three types of courts, the first presided over by a single judge or biy, gave final judgments in affairs involving sums of not more than 100 rubles (five horses or 50 sheep’s), the second  type of courts , the volost  assembly of biys, affairs up to 1000 rubles, the third a special assembly, was an appeal court for cases involving more than 1,000  rubles and the only court for criminal cases (stipulated for the nomads as murder and barymta). In marriage cases an appeal could be refer to the Governor.            

The Tsarist government maintained the traditional types of courts of biys in Kazakhstan. In the legal sphere the judgments were rendered according to traditional standards unless the case involved Russian interest or subjects or was considered grave by the Russian administration [xxvi]T Virginia Martin has referred to this as “legal syncretism” in which customary, Russian and Islamic laws intertwined and operated side by side[xxvii]. The Chief Russian innovation was the elections of the judges. Both kazis and biys were elected for three year terms and received regular salaries drawn from local tax fund.

Punishments were left in the hands of the native courts, but were considerably modified. Corporal punishment and the death penalty were abolished in favour of light fines and short periods of confinement. For more serious cases tried by the Russian courts, hard labour and exile to Siberia were meted out. Jails were built in the towns for the confinement of offenders.

The formal structure so carefully set up did not correspond with actual practice. The native administration after a favourable beginning exhibited even more computation and malpractice than the Russian administration. The elective system proved unsuccessful, bad or weak men were often chosen because they were able to secure Russian favour, and the buying of votes became standard practice.The elected members of the volost meetings and aul or village meetings had no voice in the management of affairs, and were never consulted by the Russians. All resolutions were drawn up by the uezd commandants or by the pristavs and the native officials were ordered to put their seals to them, frequently without explanation.

Election was intended to lessen the influence of the biys upon the people. The elections soon became battles royal between influential and wealthy natives with victory going to whoever could buy the most votes. The winner’s expenses were made up after elections by exactions upon the populace.The formation of the Union of Soviet Socialist Republic and consequent formation of their own type of judicial system destroyed the traditional biy courts of Kazakh nomadic society.