RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of August 19, 2005 No. 5

About official interpretation of Items 1 and 3 of Article 41 and Item 1 of article 94 of the Constitution of the Republic of Kazakhstan

The constitutional council of the Republic of Kazakhstan as a part of the chairman Rogov I. I., members of council of Abishev H. A., Baltabayeva K. Zh., Belorukova N. V., Bychkova of Page F., Nurmagambetova A.M., Stamkulova U. M. with participation:

the representative of the subject of the address - the deputy of the Majilis of Parliament of the Republic of Kazakhstan Kotovich V. N.;

the representative of the Government of the Republic of Kazakhstan - the vice-Minister of Justice of the Republic of Kazakhstan Kustavletov D. R.;

representative of the Prosecutor General's Office of the Republic Kazakhstanzamestitelya of the Attorney-General of the Republic of Kazakhstan Daulbayev A. K.;

the secretary of Central Election Commission of the Republic of Kazakhstan there is Foosa V. To

considered in open session the address of group of deputies of Parliament of the Republic of Kazakhstan about official interpretation of Items 1 and 3 of Article 41 and Item 1 of article 94 of the Constitution of the Republic of Kazakhstan.

Having studied materials of the constitutional production, having heard the message of the speaker - the member of the Constitutional council Bychkova of Page F., speeches of the representative of the subject of the address and participants of meeting, and also experts - the academician of National academy of Sciences of the Republic of Kazakhstan, the doctor of jurisprudence, professor, the head of the department of the theory and history of state and law of the Kazakh humanitarian and legal university Baymakhanov M. T., doctor of jurisprudence, professor, head of the department of the constitutional and administrative law of Al-Farabi Kazakh National University Kenzhaliyev Z. Zh. and the doctor of jurisprudence, professor, the vice rector for study of Academy of law - the Higher school of the right of "Adilet" of Udartsev of Page F., the Constitutional council of the Republic of Kazakhstan established:

The group of deputies of Parliament of the republic appealed to the Constitutional council to give interpretation of Item 1 of Article 41 and Item 1 of article 94 of the Constitution of the Republic of Kazakhstan and to determine - what of the specified regulations of the Constitution have priority and, respectively, by what of them it is necessary to be guided in case of establishment of date of regular elections of the President of the Republic of Kazakhstan and the announcement of this date by the Majilis of Parliament of the Republic.

Availability in the Constitution of regulations which, according to the subject of the address, differently determine terms of holding the regular presidential elections formed the basis for the address, namely: "If to be guided by Item 1 of article 41 of the Constitution of the republic which can be regarded as regulation, general for all cases of presidential elections then the regular such elections shall be held on the first Sunday of December, 2005 as the seven-year term of office of the acting Head of state expires on January 20, 2006, that is in day when 7 years ago the elected President of Kazakhstan took the oath (the moment of bringing of the oath, according to Item 1 of article 42 of the Constitution of the republic, is the moment of assumption of office of the elected Head of state).

If to be based on Item 1 of article 94 of the Constitution which, undoubtedly, is the regulation of single application that is expected case of the regular presidential elections after the expiration of powers of the acting Head of state elected following the results of the elections which took place on January 10, 1999 then in this case elections should be held on the first Sunday of December, 2006. At the same time the term during which the incumbent president will perform powers will be equal to 7 years and more than 11 months that in the context of requirements of article 41 of the Constitution can be regarded as non-compliance with seven-year constitutional term of presidential powers".

At meeting of the Constitutional council the representative of the subject of the address, using the right provided by the subitem 1) of Item 3 of article 21 of the Constitutional law of December 29, 1995 No. 2737 "About the Constitutional council of the Republic of Kazakhstan" declared the petition for interpretation in relation to subject of the address also of regulations of Item 3 of article 41 of the Constitution and determination in the final decision of Council of specific date of the regular presidential elections in Kazakhstan. This petition was satisfied with the Constitutional council.

In case of interpretation of Items 1 and 3 of Article 41 and Item 1 of article 94 of the Constitution in relation to the questions raised in the address, the Constitutional council proceeds from the following.

1. Item 1 of Article 41 of the Fundamental law containing in the Section III "President" determines that the President of the Republic of Kazakhstan is elected according to the Constitutional law full age citizens of the republic on the basis of general, equal and direct suffrage in case of secret vote for a period of seven years. According to Item 3 of this Article regular elections of the President of the republic are held on the first Sunday of December and cannot match on terms with elections of new structure of Parliament of the republic.

Regulations of Items 1 and 3 of article 41 of the Constitution determine the seven-year term for which the President of the republic is elected that he at the same time means frequency of presidential elections, and also specify the day which is the beginning of cycle of elections of the Head of state.

According to Item 1 of article 94 of the Constitution (the Section IX "Final and transitional provisions") "The president of the Republic of Kazakhstan elected according to the legislation of the Republic of Kazakhstan existing at the time of the introduction of the Constitution in force acquires the powers of the President of the Republic of Kazakhstan established by it and performs them during the term established by the decision made on republican referendum on April 29, 1995".

The law of the Republic of Kazakhstan of October 7, 1998 No. 284-1 "About modification and amendments in the Constitution of the Republic of Kazakhstan" Item 1 of article 94 of the Constitution is added with regulation: "With the consent of the President of the Republic of Kazakhstan this term of office of the President of the republic can be reduced by the resolution of Parliament of the republic, accepted on joint sitting of its chambers by a majority vote from total number of deputies of each of chambers. In that case the Majilis of Parliament within one month appoints election of the president of the Republic of Kazakhstan. The president of the Republic of Kazakhstan elected following the results of these elections takes the oath within one month from the date of publication of results of elections and performs the powers before the inauguration of the republic chosen at the regular presidential elections which shall be held after seven years on the first Sunday of December".

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