Сancelled  in whole!

 

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

 

Normative resolution of the Constitutional Council of the Republic of Kazakhstan of March 6, 2013 № 1 "Of the official interpretation of the norms of paragraph 8 Article 62 and paragraph 1 Article 83 of the Constitution of the Republic of Kazakhstan"

 

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 Minister of Justice of the Republic of Kazakhstan Baymoldina Z.H.; representative of the Senate of the Republic of Kazakhstan - deputy of the Senate of the Parliament of Kazakhstan, Secretary of the Committee on constitutional law, the judiciary and law enforcement agencies of the Republic of Kazakhstan Senate Poltorabatko L.G.; representative of the Republic of Kazakhstan Majilis - deputy of the Majilis of Kazakhstan Sarpekov R.K.; representative of the Supreme Court of the Republic of Kazakhstan - a judge of the Supreme Court of the Republic of Kazakhstan Ak -kuovoya 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 the National Security Committee of the Republic of Kazakhstan - Deputy Chairman of the National Security Committee of the Republic of Kazakhstan Amrin G.K.; 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 an appeal of the Prime Minister of the Republic of Kazakhstan Akhmetov S.N. of the official interpretation of the norms of paragraph 8 of Article 62 and paragraph 1 of Article 83 of the Constitution of the Republic of Kazakhstan.

Having heard the rapporteur - a member of the Constitutional Council of the Republic of Kazakhstan Malinovskiy V.A., participants of the meeting, having read the experts' conclusions - Doctor of Law, Professor of International Law, Faculty of International Relations of Al -Farabi Kazakh National University Ayupova Z.K., Doctor of Laws, Professor of the Caspian Public University Podoprigora R.A., specialists of Al -Farabi Kazakh National University (Director of the Institute of State and Law, PhD, associate professor Salimgerey A.A. and researcher at the Institute of State and Law, PhD Dr. J. Bitabarova O.), LN Gumilev Eurasian National University (Doctor of Law, Professor, Head of the Department of Theory and History of State and Law, constitutional law Busurmanov J.D.), the Kazakh Humanitarian Law University (Head of the Department of Constitutional Law and Public Administration, PhD, associate professor Zhumadilova A.B., Head of the Department of Theory and History of State and Law, PhD, associate professor Shakenov M.A., Director of the Research Institute of Legal Policy and constitutional Law , doctor of Law, Professor Udartsev S.F.), D.A. Kunaev Humanities University of Law and transport (Doctor of Law, Professor Kopabaev D.C. and LL.D. Aitkhozhin K.K.), and with other materials of constitutional proceedings, the Constitutional Council of the Republic of Kazakhstan

 

ascertained:

 

The Constitutional Council of the Republic of Kazakhstan on                          6 February 2013 received a petition from the Prime Minister of the Republic of Kazakhstan Akhmetov S.N. of the official interpretation of paragraph 8 of Article 62 and paragraph 1 of Article 83 of the Constitution of the Republic of Kazakhstan. In his appeal the following questions are set:

1) What is the constitutional content of the concepts of "other normative legal acts", "other normative acts", which are foreseen in paragraph 8 of Article 62 and paragraph 1 of article 83 of the Constitution of the Republic of Kazakhstan? Does the concept "legal acts" include normative legal acts?

2) does the rule of paragraph 8 of Article 62 of the Constitution of the Republic of Kazakhstan mean, that the subject of a special law can be expressed in this norm of the Constitution only for questions of normative legal acts, or the scope of the subject of a special law can be expanded to include the rules regulating the order of development and adoption of legal acts that are not normative?

3) Whether the order of development, submission, discussion, enactment and publication of laws and other normative legal acts of the Republic referred to in paragraph 8 of Article 62 of the Constitution, are comprehensive subject of legal regulation of a special law? ".

While interpreting of the considered rules of the Basic Law, the Constitutional Council, in relation to issues raised in the appeal proceeds from the following.

The Constitution of the Republic of Kazakhstan has not disclosed the contents of the concepts of

"other normative legal acts" and "other legal acts". Meaning and content of paragraph 8 of Article 62 and paragraph 1 of Article 83 of the Constitution, in which the notions are used can not be explained apart from a number of other constitutional provisions that relate to the subject of the appeal under review.

In accordance with the Constitution, the President of the Republic of Kazakhstan, the Government and other public bodies and officials take (publish) legal acts, both normative and not normative. Acts of the President of the Republic are the decrees and orders (paragraph 1 of Article 45 of the Constitution), the Government – resolutions, of the Prime Minister - orders (items 1 and 2 of Article 69 of the Constitution), Maslikhats – decisions, akim - the decisions and orders (paragraph 1 of Article 88 of the Constitution). The notion the "acts" also refers to laws adopted by Parliament, resolutions of Parliament and its Chambers (paragraph 1 of Article 62, paragraph 1 of Article 72 of the Constitution). The complete list of legal acts is not established at the constitutional level. The Constitution regulates only certain issues, connected with relation of such acts to the current law (paragraph 1 of Article 4), the order of adoption of laws (Article 61 and other articles), some kinds of acts of state bodies and officials.

Constitution in a number of norms sets that not all legal acts are included in the current law. According to the resolution of the Constitutional Council of the Republic of Kazakhstan of October 28, 1996 № 6/2, the acting law is regarded as a system of norms contained in the taken by eligible subjects normative legal acts. In the resolution of the Constitutional Council of March 6, 1997 № 3 it is determined what legal acts are referred       "to other normative legal acts" indicated in paragraph 1 of Article 4 of the Basic Law. Conclusion that the concept of "legal acts" for its content also covers legislative and other normative legal acts stems from a number of other resolutions of the Constitutional Council (of 31 May 2000 № 3/2, of February 27, 2008 № 2 , of September 24, 2008 № 7 , August 20, 2009,   № 5 , November 5, 2009, № 6).

In the decisions of the Constitutional Council it is also pointed out what acts do not apply to the normative legal acts. Thus, in its resolution of October 29, 1999 № 20/2 it is indicated that the letter from the Chairman of the Supreme Court and Acting General Prosecutor can not relate to the normative legal acts. The Constitutional Council also explains what acts are legal, based on the content of paragraph 1 of Article 83 of the Constitution. The decisions of March 6, 1997 № 3, of June 5, 1998 № 3/2, of August 5 2002 № 5 noted that the constitutional provision "prosecutors appeal against the laws and other legal acts that contradict the Constitution and law of the Republic " includes the right of prosecutors to appeal against decisions of the courts, and according to the decision of the Constitutional Council of July 31 1997 № 3/4, the prosecutor may also appeal against the sublegal normative acts.

Thus, the Constitutional Council considers that the concept "other legal acts" used in paragraph 1 of Article 83 covers the notion "other normative legal acts", contained in other provisions of the Constitution, including Article 62, paragraph 8.

2. Constitutional content of normative legal acts and legal acts, that are not normative is disclosed in the laws of the Republic of Kazakhstan of March 24, 1998 № 213 -I «Of normative legal acts» and of November 27, 2000 № 107 -II "Of administrative procedures". Their analysis shows that the normative and not normative legal acts have both common and essential features. In accordance with subsection 11) of Article 1 of the Law "Of normative legal acts" normative legal act is the official written document of a definite form, adopted at referendum or by an authorized body or official of the state, establishing the rule of law, modifying, terminating or suspending their action . In turn, the norm of law implies the obligatory rule of conduct of permanent or temporary nature, designed for frequent application, extending to an indefinite number of persons individually in the frames of controlled public relations (sub 10 ) of Article 1 of the Law).

By the law "Of normative legal acts" the order of development, submission, adoption, enactment, action, publication, modification, supplement, termination of regulations adopted in accordance with the law, but which are not normative legal acts, and having a meaning of the right to be realized and applied (paragraph 4 of Article 2 of the Law) are not determined.

In accordance with the Law "Of administrative procedures" legal act of state bodies and officials refers to acts of individual application, is a written official document of a prescribed form and is designed for one-time or other time-limited application, applies to individually defined persons applies and (or) realizes legal rights and duties of individually defined persons. Legal acts of individual application are not included in the legislation of the Republic and do not belong to the normative legal acts (paragraphs 2 and 3 of Article 4 of the Law).

Similarities and differences between two groups of legal acts define conceptual approaches of a lawmaker to their constitutional and legal regulation.

Because of the special importance of normative legal acts Constitution also sets out obligatory requirements to the laws and other normative legal acts (paragraph 3 of Article 2, paragraph 4 of Article                       4, Article 9, paragraph 2 of Article 12, paragraph 2 of Article 15, paragraph 2 of Article 16, paragraph 2 article 18 and others). Thus, in accordance with paragraph 8 of Article 62 of the Constitution of the order of development, submission, discussion, enactment and publication of laws and other normative legal acts should be determined by a special law and regulations of the Parliament and its Chambers.

Despite the fact that the Constitution does not contain a special rule providing for legislative regulation of issues related to the development of acts that are not normative, the legislator, according to the Constitutional Council shall be entitled to do so, using powers provided in paragraphs 2 and 3 of Article 61, paragraph 2 of Article 45, subparagraphs 3) and 4 ) of Article 53 of the Basic Law.

Constitutional Council supposes that paragraph 8 of Article 62 of the Constitution does not mean that the subject of legislative regulation of a special law can not be the questions of development, presentation, discussion, enactment and publication of other legal acts which are not normative. This constitutional provision does not limit the sphere of the special law application and allows the possibility of extension of subject of regulation of social relations by this law.

The list of questions, settled by this norm that can be regulated by a special law, is not exhaustive and does not include the right of lawmakers to fix the law in such a law the order of development, submission, discussion, enactment and publication of acts that are not- legislative and other normative legal acts.

At the moment, as it mentioned above, as well as in decisions of the Constitutional Council of October 29, 1999 № 20/2 and 18 April 2007 № 4 the special law in this area is the Law of the Republic of Kazakhstan dated to March 24, 1998 № 213 -I "Of normative legal acts". The above mentioned decisions of the Constitutional Council adopted for the specific subject of other appeals and do not limit the choice of Parliament in the name and subject of legislative regulation of procedures for the development, submission, discussion, enactment and publication of normative legal acts and legal acts that are not normative. In this regard, the opinion of some participants of the constitutional procedure that mentioned above judgment of April 18, 2007 №r 4 hinders the possibility of extension of the special law regulation, the Constitutional Council considers baseless.

On the bases of set forth and following subparagraph 4) of paragraph 1 of Article 72 of the Constitution of the Republic of Kazakhstan, subparagraph 1) of paragraph 3 of Article 17, Articles 31-33, 37 and subparagraph 2) of paragraph 1 of Article 41 of the Constitutional Law of the Republic of Kazakhstan dated to December 29, 1995 № 2737 "Of the Constitutional Council of the Republic of Kazakhstan" , the Constitutional Council of the Republic of Kazakhstan

 

enacts:

 

1. In paragraph 8 of Article 62 and paragraph 1 of article 83 of the Constitution of the Republic of Kazakhstan "other normative legal acts" shall mean any legal acts that are not legislative acts. The term "legal act" in its content is wider then term "normative legal act , "as used in paragraph 1 of Article 83 of the Constitution the concept of "other normative acts" includes all other acts bearing a normative character, and those which have no have the specified feature.

2. In accordance with paragraph 8 of Article 62 of the Constitution of the Republic of Kazakhstan order of development , submission, discussion, enactment and publication of laws and other regulatory legal acts should be determined by a special law and regulations of the Parliament of the Republic of Kazakhstan and its Chambers. The Constitution does not limit the subject of legal regulation of the special law except the order of development, presentation, discussion, enactment and publishing of legislative and other normative legal acts referred to in paragraph 8 of Article 62 of the Constitution. It may also include other issues of lawmaking and law enforcement state agencies and officials, including the regulation of the procedure of elaboration and adoption of legal acts that are not normative. If necessary, the legislator may do so using powers under the Constitution.

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