RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of December 13, 2001 No. 19/2

About official interpretation of Items 1 and 5 of Article 52, subitem 4) Item 1 of Article 72 and Item 3 of article 74 of the Constitution of the Republic of Kazakhstan

The constitutional Council of the Republic of Kazakhstan as a part of the Chairman Hitrin Yu. A., members of council of Akuyev N. I., Busurmanova Zh. D., Esenzhanov A., Kotov A. K., Omarkhanova K. A. and Shopina V. D., with participation:

representatives of the subject of the address - the deputy of the Majilis of Parliament of the Republic of Kazakhstan Kushkaliyev H. D. and director of the Center of legislative activities and monitoring of the office of the Majilis of Parliament of the Republic of Kazakhstan Zhakipbayev K. T.;

member of Central Election Commission of the Republic of Kazakhstan V. K. Foos;

vice-Minister of Justice of the Republic of Kazakhstan Kotlov A. N.,

considered in open session the address of the Chairman of the Majilis of Parliament of the Republic of Kazakhstan about official interpretation of Items 1 and 5 of Article 52, of the subitem 4) of Item 1 of Article 72 and Item 3 of article 74 of the Constitution of the Republic of Kazakhstan.

Having studied the available materials, having heard speakers - members of the Constitutional Council Esenzhanov A. and Kotov A. K., performances of participants of meeting, the Constitutional Council of the Republic of Kazakhstan established:

In the Constitutional Council of the Republic of Kazakhstan the address of the Chairman of the Majilis of Parliament of the Republic of Kazakhstan about official interpretation of Items 1 and 5 of Article 52, of the subitem 4) of Item 1 of Article 72 and Item 3 of article 74 of the Constitution of the Republic of Kazakhstan arrived on December 5, 2001.

The subject of the address asks to explain at the same time:

Whether 1) the provision of Item 1 of article 52 of the Constitution obstacle for political party is to make impact on line item of the deputy of Parliament, the electee on the basis of its list, in case of execution of powers of the deputy by it? Whether the exception of the deputy elected on the basis of the party list, of membership in batch in view of discrepancy of its line item with the political line of batch, attracting the termination of powers of the deputy can be considered as violation of this regulation of the Constitution?

Whether 2) is assumed by the formulation "gives official interpretation of regulations of the Constitution", the specified regulation in the subitem 4) of Item 1 of article 72 of the Constitution of the Republic of Kazakhstan, the right of the Constitutional Council to extensive interpretation and opportunity to make the explanations creating the regulations which are directly not stated in the Constitution?

3) what it is necessary to understand as "finality" of the decision of the Constitutional Council, stipulated in Item 3 articles 74 of the Constitution of the Republic of Kazakhstan? Whether adoption of the new decision by the Constitutional Council for the same regulation of the Constitution is possible?

As it is specified in the address, need of interpretation of these questions is determined by difficulty in application of the above-named regulations of the Constitution and three existing resolutions of the Constitutional Council N11/2 of May 16 and N12/2 of May 23, 1997 and the resolution N7/2 of May 17, 2001.

In case of interpretation of Items 1 and 5 of Article 52, of the subitem 4) of Item 1 of Article 72 and Item 3 of article 74 of the Constitution of the Republic of Kazakhstan, the Constitutional Council proceeds from the following.

1. Excluded

2. 4) of Item 1 of article 72 of the Constitution it is provided in the subitem that the Constitutional Advice of the Republic of Kazakhstan "is given by official interpretation of regulations of the Constitution".

Thereby the Constitution granted exclusive right to give official interpretation of the regulations containing in it to the Constitutional Council of the Republic of Kazakhstan.

Official interpretation of regulations of the Constitution consists in establishment and explanation by the Constitutional Council of content and sense of the constitutional regulations. It is caused by abstractness, characteristic of some of them, and special terminology, and also ambiguity of perception by subjects of the address of separate provisions of the Constitution and contradictions in practice of their application.

Performing official interpretation of regulations of the Constitution, the Constitutional Council is independent and submits only to the Constitution. The legal force of decisions of the Constitutional Council equal to legal force of those regulations which became subject of its interpretation follows from the right to give official interpretation of regulations of the Constitution. Regulations of constitutional right are applied in unity with provisions of the relevant resolutions of the Constitutional Council which Item 1 of article 4 of the Constitution are recognized as source of the law in force of the Republic of Kazakhstan. Suspension, cancellation or change of the constitutional regulation attracts suspension, cancellation or change of the relevant resolution of the Constitutional Council on official interpretation of regulations of the Constitution.

Official interpretation of regulations of the Constitution is normative interpretation which is given by the Constitutional Council according to value of verbal expression of regulations of the Constitution by means of different methods of explanation and extraction of their sense. The amount of interpretation cannot be established in advance, the Constitutional Council is connected in the choice of scientific legal methods of official interpretation of regulations of the Constitution only by the Constitution. The logical interrelation and associativity of regulations of the Constitution to its general provisions and the principles is taken into account.

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