RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of May 29, 1997 No. 13/2

About official interpretation of Item 3 of Article 45 and subitem 2) article 44 of the Constitution of the Republic of Kazakhstan regarding circle of the officials obliged to fasten with the signatures acts of Parliament before their signing by the President of the Republic

The constitutional Council of the Republic of Kazakhstan as a part of the Chairman Kim Yu. A., members of the Constitutional Council of Akuyev N. I., Ikhsanova U. K., Mamonova V. V., Temirbulatov S. G., Shopin V. D., with participation of representatives of the subject of the address - Kotova A. K. - secretary of Committee on the legislation and judicial and legal reform of the Senate of Parliament and Mukhamedzhanov E. B. - the head of department of the legislation of the Office of the Senate of Parliament, considered in open session 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" the address of the Chairman of the Senate of Parliament of the Republic of Kazakhstan O. Baygeldi about official interpretation of Item 3 of Article 45 and subitem 2) of article 44 of the Constitution of the Republic of Kazakhstan.

Having heard the message of the speaker - the member of the Constitutional Council Ikhsanov U. K., speeches of representatives of the subject of the address Kotov A. K., Mukhamedzhanova E. B., having studied the expert opinion of Kopylenko M. M. and other 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 Chairman of the Senate of Parliament of the Republic of Kazakhstan O. Baygeldi about official interpretation of Item 3 of Article 45 and subitem 2) of article 44 of the Constitution of the Republic of Kazakhstan arrived on May 7, 1997. The address is motivated as follows.

During legislative activities there was practice when the law adopted by Parliament before representation for the signature to the President of the Republic of Kazakhstan goes the Senate to the Government to fastening the signature of the Prime Minister. This procedure, according to the subject of the address - the Chairman of the Senate - is not based on the provisions fixed in item 4 of Article 61, the subitem 2) of Article 44 and Item 3 of article 45 of the Constitution and besides belittles action of the principle of separation of branches of the government.

For the stated reasons the Chairman of the Senate asks to give official interpretation of Item 3 of Article 45 and subitem 2) of article 44 of the Constitution "in the part concerning the matter" that is regarding circle of the officials obliged to fasten with the signatures acts of Parliament before their signing by the President of the Republic.

In case of official interpretation of the constitutional regulations specified in the address of the Chairman of the Senate of Parliament of the Republic taking into account the questions which formed the basis for the address, the Constitutional Council proceeds from the following. According to Item 3 of article 45 of the Constitution of the Republic of Kazakhstan the acts of Parliament signed by the President of the Republic and also the acts of the President issued at the initiative of the Government are fastened previously respectively with the signature of the Chairman of each of Chambers of Parliament or the Prime Minister on whom legal responsibility for legality of these acts is conferred.

The grammatical turnover used in this constitutional regulation "respectively the signature of the Chairman of each of Chambers of Parliament or the Prime Minister" means that acts of Parliament, before their signing by the President of the Republic, are fastened only with signatures of Chairmen of Chambers of Parliament, and the Prime Minister fastens with the signature only acts of the President (decrees, orders) published at the initiative of the Government. The specified conclusion is confirmed also by the conclusion of the linguistic examination appointed by the Constitutional Council for this constitutional production.

Need of preliminary fastening the signature of the Prime Minister of acts of Parliament before their signing by the President of the Republic does not follow also from other regulations of the Constitution. So, according to item 4 of article 61 of the Constitution the project accepted by a majority vote from total number of deputies of the Senate becomes the law and within ten days it is submitted to the President for the signature. According to the subitem

2) article 44 of the Constitution President of the Republic "... signs the law provided by the Senate of Parliament..."

That circumstance that practice when the laws adopted by Parliament before representation for the signature to the President of the Republic go to the Government for preliminary fastening their signature of the Prime Minister, is based on Item 2 of Article 19 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law "About Parliament of the Republic of Kazakhstan and the status of his deputies" of October 16, 1995, cannot form the basis for interpretation and application of the constitutional regulations, in contradiction with their content. The constitution has the highest legal force and direct action in all territory of the Republic.

If the Government of the Republic comes to conclusion that the law adopted by Parliament does not correspond to the Constitution, it has the right to bring about it to the attention of the President of the Republic, competent to return the law or its individual clauses in Parliament for repeated discussion and vote, or the Prime Minister according to Item 1 of article 72 of the Constitution can address to the Constitutional Council. The obligatory direction of the law adopted by Parliament for fastening the signature of the Prime Minister not only contradicts provisions of Item 3 of Article 44, but also will not be approved with the principle of separation of the government established in item 4 of article 3 of the Constitution in the Republic of Kazakhstan on legislative, executive and judicial branches.

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