of May 31, 2000 No. 3/2
About official interpretation of item 4 of article 88 of the Constitution of the Republic of Kazakhstan
The constitutional Council of the Republic of Kazakhstan as a part of the Chairman Kim Yu. A., members of council of Akuyev N. I., Busurmanova Zh. D., Esenzhanov A., Omarkhanov K. A. and Shopina V. D., with participation of the representative of the subject of the address - the Vice-Minister of Justice of the Republic of Kazakhstan Kotlov A. N., based on the subitem 4) of Item 1 of article 72 of the Constitution of the Republic of Kazakhstan, the subitem 1) of Item 3 of Article 17 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan" considered in open session the address of the Prime Minister of the Republic of Kazakhstan of May 10, 2000 about official interpretation of item 4 of article 88 of the Constitution of the Republic of Kazakhstan.
Having heard messages of speakers - members of the Constitutional Council Esenzhanov A. and Shopin V. D., speech of the representative of the subject of the address, having got acquainted with the available materials according to this address, the Constitutional Council of the Republic of Kazakhstan established:
In the Constitutional Council of the Republic of Kazakhstan the address of the Prime Minister of the Republic of Kazakhstan Tokayev K. K. arrived on May 10, 2000. about official interpretation of item 4 of article 88 of the Constitution of the Republic of Kazakhstan.
The address is motivated that in court practice on the disputes concerning powers of local executive bodies there is to repeal independently opinion on incompetence of akims the earlier adopted acts as about it it is directly not specified in item 4 of article 88 of the Constitution of the Republic of Kazakhstan. According to the subject of the address such understanding of the constitutional regulations limits the akim's rights to decision making and orders on questions which are settled by earlier adopted acts of the same level.
With respect thereto the address contains request when giving official interpretation of item 4 of article 88 of the Constitution of the Republic of Kazakhstan to provide the answer to question: whether akims have the right to independently cancel the decisions and orders made by them.
In case of official interpretation of item 4 of article 88 of the Constitution in relation to the question raised in the address of the Prime Minister, the Constitutional Council proceeds from the following.
The constitution of the Republic of Kazakhstan, determining types of the normative and other legal acts published by the President of the Republic of Kazakhstan, the highest and local representative, and also executive bodies not always establishes opportunity and procedure for cancellation (recognition voided) these acts. Except the consideration of the item 4 of article 88 of the Constitution specifying bodies and officials which is subject competent to cancel decisions and orders of akims, Item 3 of Article 88 provides possibility of cancellation judicially of decisions of the maslikhats which are not corresponding to the Constitution and the legislation of the Republic of Kazakhstan.
Both in item 4 of article 88 of the Constitution, and in above-mentioned constitutional regulations it is not told about possibility of cancellation of the acts called in them by the bodies which published them or officials.
The constitutional Council believes that absence in the given regulations of the Constitution of direct specifying about the right of relevant organs and officials to repeal the acts issued by them, does not testify to incompetence of these bodies and officials on such cancellation. At the same time the Constitutional Council recognizes what is right representative and executive bodies of the state, and also officials, including akims, to cancel, in case of need, the acts adopted by them follows from them enshrined in the Constitution and the laws of powers according to the publication of the relevant acts and is one of forms of realization of these powers.
Other interpretation of the stated above constitutional regulations, that is denial behind state bodies and their officials, in particular akims, the rights to cancellation of the acts issued by them would represent unreasonable restriction of competence and powers of the specified subjects, would deprive of them opportunity to consider the changed circumstances, to correct the made mistakes, etc. that usually assumes need of amendment, change or recognition voided earlier adopted acts. Besides, the current legislation - Item 1 of article 27 of the Law of the Republic of Kazakhstan "About regulatory legal acts" of March 24, 1998, recognizes that in connection with acceptance of regulatory legal act are subject to recognition invalid, to change or amendment all earlier adopted regulatory legal acts or their structural parts if they contradict the rules of law included in the new act or are absorbed by them. According to the subitem 4) of Item 2 of article 40 of this Law the regulatory legal act (its part or parts) stops the action in case of recognition of the act or its part (parts) voided by the body which adopted this act.
Competence of state bodies and their officials on cancellation of the acts adopted by them follows also from regulations of other legal acts. In Items 1 and 2 of Article 19 of the Presidential decree of the Republic of Kazakhstan, the valid law, "About prosecutor's office of the Republic of Kazakhstan" of December 21, 1995 it is written down: "1. The prosecutor brings protest on the contradicting Constitutions, to the laws and acts of the President of the Republic normative and other legal acts, decisions and actions of state bodies and officials.
2. The protest is brought in the body or higher body which accepted it...". The right of the prosecutor to bring protest on the illegal act in the body which accepted it follows also from contents of Article 286 of the Code of civil procedure of the Republic of Kazakhstan. Obliging the prosecutor to bring protest on the illegal act in the body which accepted it or to the official who issued the act the called precepts of law undoubtedly recognize that these bodies and officials are competent to repeal own act.
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