Normative resolution No. 2 of the constitutional Council of the Republic of Kazakhstan dated April 17, 2017

Undo in part:

Normative resolution of the constitutional Council of the Republic of Kazakhstan dated May 16, 2013 № 2 " on interpretation of Normative resolution of the constitutional Council of the Republic of Kazakhstan dated October 15, 2008 № 8 "on official interpretation of article 54, subparagraphs 1) and 3) of paragraph 3 of article 61, as well as a number of other provisions of the Constitution of the Republic of Kazakhstan on the organization of public administration", having eliminated:

in the second paragraph of item 2 of the reasoning part:

the figure "9),";

words "form, abolish and reorganize Central Executive bodies that are not part of the Government";

words " approve uniform system of financing and compensation of workers for all bodies containing at the expense of the state budget of the Republic; to form the service of protection of the President of the Republic subordinated to it and Republican guard;";

in the fourth paragraph of paragraph 2 of the motivational part of the word "and 8)";

in the paragraph of eighth point 3 of the reasoning part of the figure "8)"

 

Official interpretation of the norms of Constitution of the Republic of Kazakhstan

 

Normative resolution of the Constitutional Council of the Republic of Kazakhstan of 16.05.2013, № 2 “On the interpretation of the Normative resolution of the Constitutional Council of the Republic of Kazakhstan of October 15, 2008 № 8 "On the official interpretation of Article 54, paragraphs 1) and 3) of paragraph 3 of Article 61, as well as a number of other provisions of the Constitution of the Republic of Kazakhstan on the issues of governance."

 

Constitutional Council of the Republic of Kazakhstan, consisting of the Chairman Rogov I.I., members of the Council Bahtybaev I.Z.,      Belorukov N.V., Zhailganova A.N., Malinovskiy V.A., Nurmagambetov A.M. with participation of:

representative of the subject of appeal - deputy of the Senate of the Parliament of Kazakhstan, Chairman of the Committee on constitutional law, the judiciary and law enforcement agencies of the Republic of Kazakhstan Senate Akylbay S.B.; representative of the Mazhilis of the Republic of Kazakhstan - deputy of the Mazhilis of the Parliament of Kazakhstan Sarpekov R.K.; representative of the Government of the Republic of Kazakhstan - responsible secretary of the Ministry of Justice of the Republic of Kazakhstan Beketaev M.B.; representative of the Supreme Court of the Republic of Kazakhstan - a judge of the Supreme Court of the Republic of Kazakhstan Ak- kuova G.B.; representative of the General Prosecutor of the Republic of Kazakhstan, Deputy Prosecutor General of the Republic of Kazakhstan Assanov Z.K.; representative of Kazakhstan Agency for Civil Service Affairs - Deputy Chairman of Kazakhstan Agency for Civil Service Affairs Komekbaev A.A.; representative of Kazakhstan Agency for struggle with Economic Crimes and Corruption (Financial Police) - Chief of Staff of the Republic of Kazakhstan Agency for struggle with Economic Crimes and Corruption (Financial Police) Temirbulatov S.G.;

representative of the Human Rights Ombudsman of the Republic of Kazakhstan - Head of the National Centre for Human Rights                  Kalyuzhnyi V.A.

Considered at a public hearing the petition the Chairman of the Senate of the Parliament of the Republic of Kazakhstan for the interpretation of normative decision of the Constitutional Council of the Republic of Kazakhstan of October 15, 2008 № 8 "On the official interpretation of Article 54, paragraphs 1) and 3) of paragraph 3 of Article 61, as well as a number of other provisions of the Constitution of the Republic Kazakhstan on the issues of governance."

Having heard the rapporteur - a member of the Constitutional Council of the Republic of Kazakhstan Malinovskyi V.A., participants of the session, having learnt the experts' judgements - Doctor of Law, Professor of Theory and History of State and Law , Constitutional and Administrative Law at the Al -Farabi Kazakh National University Baymahanova D.M., doctor of Law, Professor, Head of the Department of Theory and History of State and law, Constitutional law at the L.N. Gumilev Eurasian National University Busurmanov J.D. , Doctor of Law, Professor of the Caspian Public University Porokhov E.V.; opinions of experts - Al -Farabi Kazakh National University ( Director of the Institute of State and Law , PhD , associate professor Salimgerey A.A., Research Institute of State and law, Doctor PhD Bitabarov J.O. ); E.A. Buketova Karaganda State University ( Rector of the University , Doctor of Law, Professor Kubeev E.K., PhD, professor Kakimov M.S. , PhD , Professor Musalimova KS, PhD, associate professor Turlaev A.V.); Institute of State and Local Government Regional Centre for retraining and advanced training in Almaty and Almaty region (rector of the institute, PhD, professor Toktybekov A.A.), the Academy of Public administration under the President of the Republic of Kazakhstan , as well as with other materials of the constitutional proceedings, the Constitutional Council of the Republic of Kazakhstan

 

ascertained:

 

In accordance with subparagraph 1) of paragraph 1 of Article 35 of the Constitutional Law of the Republic of Kazakhstan dated to December 29, 1995 № 2737 "Of the Constitutional Council of the Republic of Kazakhstan" Chairman of the Senate of the Parliament of the Republic of Kazakhstan K. Mami addressed the Constitutional Council on 17 April 2013 with a petition for interpretation of normative resolution of the Constitutional Council of the Republic of Kazakhstan of October 15, 2008 № 8 "On the official interpretation of Article 54, paragraphs 1) and 3) of paragraph 3 of Article 61 , as well as a number of other provisions of the Constitution of the Republic of Kazakhstan on the issues of governance" (further - Normative resolution of the Constitutional Council of 15 October 2008                № 8).

The reason for matter were the questions raised during the consideration of the Parliament of the Republic of Kazakhstan of the draft Law "On amendments and additions to some legislative acts of the Republic of Kazakhstan on the questions of setting the competence of state bodies on legislative and (or) a sublegislative levels. "According to this draft law is the part of government functions is excluded from the scope of legislative regulation.

The draft law was elaborated by the Government of the Republic of Kazakhstan for complying with the normative resolution of the Constitutional Council of October 15, 2008 № 8 in accordance with which the competence of the state bodies is set not only by Constitution but constitutional laws and laws, sublegislative acts also.

Chairman of the Senate of the Parliament of the Republic of Kazakhstan requests to answer the following questions:

"1. What is meant by "the fundamentals of the organization and activities of state bodies " in subparagraph 3) of paragraph 3 of Article 61 of the Constitution?

2. What functions of state bodies in the context of subparagraph 3) of paragraph 3 of Article 61 of the Constitution may be subject of law regulation, and which – of sublegislative acts?"

Having considered the issues raised in the petition, the Constitutional Council considers it necessary in addition to clarify the following.

1. Analysis of the norms of the Constitution of the Republic of Kazakhstan and normative resolution of the Constitutional Council of 15 October 2008 № 8 gives grounds to assert that "the foundation of the organization and activity of state bodies" make up first of all, enshrined in the Constitution, ideas, goals, objectives and principles of the Republic of Kazakhstan, norms and provisions of the Basic Law regulating the legal status of public bodies.

2. Along with the spheres of governance, mission, main tasks, functions and powers of a public body, together constituting the content of its activities the system of "foundations of the organization and activity of state bodies" includes other priority issues. Among them - related to establishment, and the abolition of the reorganization , the activity of state bodies , types of legal acts, their juridical effect , the order of adoption, entry into force , expiring, as well as the main forms of responsibility of officers and other persons representing public authorities, public order interaction bodies, non-governmental organizations and individuals.

According to the Constitutional Council, under «the basic organization of public authorities» (subparagraph 3) of paragraph 3 of Article 61 of the Constitution) we should understand the principles and rules aimed at regulating the Constitution, established by the laws of the most significant public relations connected with the organization and activities of state bodies.

In a number of articles of the Basic Law there are state bodies, organization and activities of which, alongside with the Constitution, must be installed in constitutional laws and laws.

So, based on the norms and provisions of the Constitution, constitutional laws define the basis of the organization and activities of the President of the Republic of Kazakhstan and the First President of the Republic of Kazakhstan - the Leader of the Nation, Parliament and the legal status of its deputies, competence, organization and activities of the Government, the organization and functioning of the Constitutional Council, and also of the judiciary (paragraph 4 of Article 46, paragraph 4 of                Article 49, paragraph 4 of Article 64, paragraph 6 of Article 71, paragraph             4 of Article 75, paragraph 3 of Article 82 of the Constitution ).

Further to the provisions and norms of the Constitution laws shall establish the order of formation, powers and organization of the Chambers of Parliament committees and joint commissions of the Senate and the Majilis, the status and organization of the Supreme Judicial Council, competence, organization and activities of the Prosecutor's Office of the Republic; competence of Maslikhats, order of their organization and activities legal status of deputies; competence of local executive bodies, organization and order of their activity, organization and activities of the local self-government (paragraph 4 of Article 60, paragraph 5 of Article 82, paragraphs 1 and 4 of Article 83, paragraph 6 of Article 86, paragraph 6 of Article 87, paragraphs 3 and 4 of Article 89 of the Constitution ).

It comes from subparagraph 3) of paragraph 3 of Article 61 of the Constitution and normative resolution of the Constitutional Council of                   15 October 2008 № 8 that the subject of legislative regulation is the basis of organization and activity, and other state bodies not specified in the Constitution of the (the laws of the Republic of Kazakhstan dated to December 21, 1995 № 2707 "On the internal affairs of the Republic of Kazakhstan", of 21 December 1995 № 2710 "On national Security Authorities of the Republic of Kazakhstan " of March 18, 2002 № 304 "On Bodies of Justice " and others), particularly important types of state activity (laws of the Republic of Kazakhstan of January 6, 2011 № 377 -IV «On State Control and supervision in the Republic of Kazakhstan", of January 6, 2011 № 380 -IV «On law Enforcement Service» and others), the forms and methods of implementing powers (the laws of the Republic of Kazakhstan of March 24, 1998 № 213 "On normative legal acts", July 23, 1999 № 453 "On Civil Service", of November 27, 2000 № 107 "On administrative procedures" and others).

On separate issues of subject of petition the number of resolutions of the Constitutional Council was adopted (December 2, 1996 № 8, March               6, 1997, № 3, July 9, 2001 № 11/2, November 12, 2001 № 14/2, from February 11, 2003 № 1, 9 April 2004 № 5, from April 15, 2004 № 2, of August 20, 2009 № 5). In accordance with these resolutions the consolidation of specific functions, powers, objects of reference, the distribution of powers issues of specific state bodies is constitutionally permissible.

Constitutional Council comes from the fact that the basis of the organization and activities of state bodies not mentioned in the Constitution, may be fixed by special laws or under legal acts regulating the respective spheres of activity of the state.

2. On the basis of the second part of paragraph 3 of Article 61 of the Constitution the relationship is not listed in subparagraphs 1) - 11) of paragraph 3 of Article 61 shall be regulated by sublegislative acts .

In accordance with the second part of paragraph 3 of Article 61 and paragraph 3) , 5 ), 9) , 18) - 20) Article 44 of the Constitution the President of the Republic of Kazakhstan shall have the right: to establish the legal basis for the organization and activities of the state bodies of the Republic, to consolidate their functions and powers, including identifying the structure of the Government of the Republic, to form, abolish and reorganize central executive bodies , which are not part of the Government, form, abolish and reorganize state bodies directly subordinated and accountable to the President of the Republic, establish the basis of appointment and dismissal of the heads of state bodies; assert unified system of financing and labor payment for all bodies at the expense of the state budget of the Republic; to form subordinated to the President of the Republic Service of Guard of the Republican Guard, to establish the basis of appointment and dismissal of State Secretary of the Republic of Kazakhstan, to determine his status and powers, to form the Presidential Administration of the Republic , to form the Security Council and other consultative and advisory bodies, the people's Assembly of Kazakhstan and Higher Judicial Council.

Decrees of the President of the Republic may also accomplish the legal regulation of the organization and activities of government bodies on matters not falling within the jurisdiction of Parliament, the Government and other state bodies. Organization of interaction of the President with branches of state power, individual public bodies is governed by Constitution, constitutional laws and acts of the President.

Kazakhstan Government exercises executive power, heads the executive bodies system and direct their activities (paragraph 1 of Article 64, subparagraphs 6), 7) and 8) of Article 66 of the Constitution).

Listed above elements of organization and activities basis of government bodies systematically set out in the Model Regulations of the state body (Decree of the President of the Republic of Kazakhstan of October 29, 2012 № 410 "On adoption of the Model Regulations of the state body of the Republic of Kazakhstan").

3. State body functions are one of the main elements that make up the basis of the organization and content of its work. They derive directly from the goals, objectives and functions of the state, linked with them and provide a stable and complete implementation of the goals and objectives of the state authority, protection the constitutional values ​​of a single state machine.

Normative resolution of the Constitutional Council of October                   15, 2008 № 8 drew attention to the application in the number of articles of the Constitution, in relation to public authorities, of the term "function", defined the fundamental characteristics of the functions of the state body, which is fulfilled by a state body in accordance with its competence, has public – legal nature, applies to unlimited number of subjects that can be based on state coercion" (the second part of paragraph 3 of the resolution).

The exact definition of the relevant normative legal act as a state body acts as one of the original principles and guarantees the fulfillment of its mission, the correct establishment of authority and responsibility that provides focused and coordinated activities of the state.

Thus, the functions of state bodies established by Constitution, constitutional laws, laws and decrees of the President of the Republic , the governmental resolutions and other sublegislative acts of authorized state bodies.

Several articles of the Constitution stipulate that public authorities operate, along with enshrined in the Constitution, and other functions defined not only by laws, but also by other legal acts. Thus, according to paragraph 10) Article 66 of the Constitution the Government performs other functions assigned to it by Constitution, laws and acts of the President. The maslikhats in accordance with the legislation include the implementation of other powers to protect the rights and legitimate interests of citizens and local executive bodies - in the interests of the local government of other powers delegated to local executive bodies by the legislation of the Republic (paragraph 5) of paragraph 4 of Article 86, subparagraph                     4) paragraph 2 of Article 87 of the Constitution).

Constitutional Council considers that the criteria of the government functions to those that may be the subject of regulation of law, covering issues related to, inter alia, the expression of the will of the people and the exercise of state authority, the Constitutional rights and freedoms of man and citizen, the implementation of the fundamental principles of the activity of the Republic of Kazakhstan, the Republic form of governance, strengthening of the sovereignty, territorial integrity and unitarity (articles                1-9 of the Constitution).

According to the Constitutional Council at the sublegislative level functions derived from functions defined by Constitution and laws and aimed at their detalization and realization can be set.

When taking a decision of regulation of social relations by law and sublegislative act the following requirements must be observed. The rights of the President of the Republic to determine the functions and powers of public authorities arising from the constitutional competence of the head of state to form state bodies is not to be restricted (paragraph 3), 5), 12), 18) - 20) Article 44 of the Constitution). The government defines the functions of state bodies only within its powers established by the Constitution, laws and acts of the Head of State (subparagraph 6), 8), 10) of Article 66 of the Constitution). At sublegislative level the functions of public authorities are set within the powers of the subject issuing the relevant sublegislative legal act.

On the bases of set forth and following subparagraph 1) of paragraph 1, paragraphs 2 and 3 of Article 35 and Article 41 of the Constitutional Law "On the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council of the Republic of Kazakhstan

 

enacts:

 

"The basis of organization and activities of state bodies", laid down in subparagraph 3) of paragraph 3 of Article 61 of the Constitution of the Republic of Kazakhstan, shall mean the fundamental principles and norms defining the basic approaches to the content of the legal status (sphere of governance, mission, main tasks, functions and powers), order of formation, abolition, reorganization and organization of the activity of state bodies.

2. The functions of state agencies that form the basis of their organization and activities, as well as function, the implementation of which affects the most important public relations referred to in paragraph 3 of Article 61 of the Constitution are set in law. This concerns, including questions of legal personality of individuals and entities, measures of law -restrictive character, as well as relations between state bodies with non-governmental organizations and individuals, including the establishment of law enforcement, control and supervisory functions and resolving order of specific kinds of activities.

3. The functions, the implementation of which does not affect the public relations, listed in paragraph 3 of Article 61 of the Constitution are set at the sublegislative level. This can concern a mechanism of definition for implementing the functions laid down in a law, internal organization and operation of state bodies, adoption (publishing) of technical and technological norms. At sublegislative level the functions of state bodies are established only within the powers of the subject issued by the relevant law.

3.According to paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan the resolution comes into force from the day of its adoption, may not be appealed, is compulsory on the whole territory of the Republic and final considering the case under paragraph 4 of Article 73 of the Constitution of the Republic of Kazakhstan.

4. The given normative resolution shall be published in Kazakh and Russian languages in official republican printing editions.

 

Chairman

of the Constitutional Council

of the Republic of Kazakhstan

I.Rogov