“May you live in the age of changes” (Old Chinese aphorism)
Ulan Batenov, MinTax LLP Senior Lawyer, the author of this article, believes that the aphorism is not accidentally placed on the top of this article.
Today Kazakhstan together with the entire international community is involved in the largest integration and other global, large-scale processes that led to unprecedented changes.
Among other things, one can emphasize such integration processes as joining the World Trade Organization (WTO) and the establishment of the Eurasian Economic Union (EAEU). Kazakhstan’s accession to these major international institutions has triggered an unprecedented legislative process, carried out by the Government in the framework of implementation of international treaties, harmonization of the national legislation with the legislation of the countries – participants of the above-mentioned institutions.
The changes affected all branches of law, and the legislation of the RoK in the field of architecture and construction was not an exception.
Thus, at the end of last year, the close circles of architectural and construction industry’s community began to talk about and vigorously discuss the “novelties” of the RoK Law No 242 dated 16 July 2001 “On architectural, urban planning and construction activities in the Republic of Kazakhstan” (hereinafter – the “Law”) introduced by the Law # 366-V ZRK dated 28 October 2015 “On amendments and additions to some legislative acts of Kazakhstan on issues of architectural, urban planning and construction activities”.
Special attention was paid to the clause of paragraph 2-1 of Article 32 of the Law, effective from 9 November 2015 which states as follows: “2.1. The applicants who apply for obtaining a license for the design activities and construction and installation works, as well as licensees carrying out these activities must have certified engineers as their staff members.”
The stumbling block and keywords of the above item is “certified engineers”.
The applicants and licensees that are already operating asked themselves: “Where and how the engineering staff could pass certification?”.
It is here that the ‘era of change’ phenomenon showed itself in all its charm. The hastiness and rashness in the legislative process were exposed and became the subject of heated arguments and criticism. The normative legal acts, directly or indirectly regulating the procedure for certification of engineers, appeared much later than the imperative requirement of the Law, while some have not yet been adopted.
The normative legal act regulating the procedure for the accreditation of certification centres has already been adopted and reflected in the Order of the RoK Minister of National Economy No 735 dated 26 November 2015. But the normative legal act regulating the activities of such certification centres has not been adopted so far.
According to the official information, the appropriate Standard regulating the activities of certification centres is undergoing registration in the RoK Ministry of Justice. Obviously, there is a legal requirement that can not be fulfilled.
But that’s not all. Here I would like to refer to the title of this article.
The problem is that in accordance with subparagraph 1) of paragraph 13 of the Regulations, engineers who applied for passing certification procedures, should be tested by automated computer method in the official or Russian languages at the option of the applicant. This means that the relevant certificate can only be obtained by those engineers who know the Kazakh or Russian language.
The question arises – what is to be done by foreign experts who have international experience and name? What is this: protection of the domestic market or unwillingness to recognize the international experience?
After all, it is no secret that many ambitious projects that showed to the world our young capital Astana or Almaty recognized as the financial and cultural centre (not to mention industrial projects) were implemented precisely by foreign architects.
In this regard, given Kazakhstan’s desire to receive and deploy the advanced world experience everywhere, it would be appropriate to introduce into the legislation some mechanisms for recognizing experience of international experts and carrying out their certification.
A striking example of Kazakhstan’s moving towards the international experience is its accession to the Convention on the Recognition of Qualifications relating to Higher Education in the European Region, signed on 11 April 1997 in Lisbon, ratified by the RoK Law # 202-I dated 13 December 1997.
Furthermore, the RoK Ministry of Healthcare and Social Development (http://pda.mzsr.gov.kz/node/310388), as well as the Ministry of Education and Science (http://www.edu.gov.kz/sites/default/files/koncepciya_o_prof.kvalifikaciyah_s_uchetom_predl_mon._dekabrdoc.pdf) have developed and are implementing the strategy to promote the Concept of the draft Law “On professional qualifications”, Chapter 5 whereof just provides for “Recognizing qualifications of experts of foreign countries.”
And in the light of the above circumstances, the adoption of the Regulations which, in fact, deprive foreign qualified professionals of a chance to be certified, in my opinion, is a step backwards.
I would like to conclude the article with a short but very expressive aphorism – ‘What is done in a hurry won’t last long’.