NORMATIVE RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of October 15, 2008 No. 8

About official interpretation of Article 54, subitems 1) and 3) Item 3 of Article 61, and also some other regulations of the Constitution of the Republic of Kazakhstan concerning the organization of public administration

The constitutional Council of the Republic of Kazakhstan as a part of the Chairman Rogov I. I., members of council of Bakhtybayev I. Zh., Belorukov N. V., Zhailganova A. N., Malinovsky V. A., Nurmagambetova A. M., Stamkulova U. M. with participation:

representatives of the subject of the address:

responsible secretary of the Ministry of Economy and Budget Planning of the Republic of Kazakhstan Shazhenova D. M.,

Vice-Minister of Justice of the Republic of Kazakhstan Kustavletov D. R.,

representative of Administration of the President of the Republic Kazakhstanzaveduyushchy state and legal department of Administration of the President of the Republic of Kazakhstan of Donakov T. S.,

representative of the Senate of Parliament of the Republic Kazakhstanzamestitelya of the chairman of the Senate of Parliament of the Republic of Kazakhstan Sudyin A. S.,

the representative of the Majilis of Parliament of the Republic of Kazakhstan - the deputy of the Majilis of Parliament of the Republic of Kazakhstan Abenov M. A.,

the representative of the Supreme Court of the Republic of Kazakhstan - the judge of the Supreme Court of the Republic of Kazakhstan Baishev Zh. N.,

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

considered the address of the Prime Minister of the Republic of Kazakhstan Masimov K. K. in open session. about official interpretation of Article 54, subitems 1) and 3) Item 3 of Article 61, and also some other regulations of the Constitution of the Republic of Kazakhstan concerning the organization of public administration.

Having heard the message of the speaker - the member of the Constitutional Council Malinovsky V. A., performances of participants of meeting, having studied expert opinions: academician of National academy of Sciences of the Republic of Kazakhstan, doctor of jurisprudence, professor Suleymenov M. K., doctor of jurisprudence, professor Podoprigora R. A., the doctor of jurisprudence, professor Uvarov V. N., having studied the conclusions of Al-Farabi Kazakh National University, Eurasian national university of name L.N. Gumileva, the Kazakh humanitarian and legal university, Institute of the legislation of the Republic of Kazakhstan, professor of University of Bremen Knipper R. (Germany), other materials of the constitutional production, 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 about interpretation of number of regulations of the Constitution of the Republic of Kazakhstan concerning the organization of public administration with statement of the following questions arrived on September 15, 2008:

"1) what semantic contents and ratio of the terms "competence", "powers", "functions", "areas of jurisdiction" used in the Constitution of the Republic of Kazakhstan;

Whether regulations of the Constitution of the Republic of Kazakhstan in the laws allow to determine 2) the exhaustive list of functions or the exhaustive list of functions shall be determined in the relevant provision, the approved bylaw;

3) in case of reflection in the laws only "competence bases" that it is necessary to carry to them;

4) that subitems 1) and 3) of Item 3 of article 61 of the Constitution of the Republic of Kazakhstan regarding fixing provide in the laws of the major public relations establishing the fundamental principles and regulations concerning:

- legal personality of legal entities, rights and freedoms, obligations and responsibility of legal entities;

- bases of the organization and activities of state bodies and local government bodies, public and military service;

Whether 5) the Constitution of the Republic of Kazakhstan at state bodies allows to keep both control, and supervising functions, or the single subject of implementation of supervising functions are bodies of prosecutor's office;

Whether 6) contradicts regulations of the Constitution of the Republic of Kazakhstan (Item 3 of Article 3, Item 2 of Article 45, Item 1 of Article 49, the subitem 5) Articles 55, the subitem 10) Articles 66, the subitem 5) Articles 67) consideration of the state functions as the state services".

In the additional address which arrived on October 9, 2008 the Prime Minister of the Republic of Kazakhstan, reducing amount of the initial address, asks to give official interpretation of Article 54, of subitems 1) and 3) of Item 3 of Article 61, and also some other regulations of the Constitution and to answer the following questions:

"Whether 1) follows from contents of Article 54, of subitems 1) and 3) of Item 3 of article 61 of the Constitution of the Republic of Kazakhstan that competence of state bodies shall be determined only by the laws of the Republic of Kazakhstan;

Whether 2) the Constitution of the Republic of Kazakhstan at state bodies allows to keep both control, and supervising functions, or the single subject of implementation of supervising functions are bodies of prosecutor's office;

Whether 3) match on constitutional legal content of the concept "state functions" and "state services".

Having analyzed regulations of the Constitution of the Republic of Kazakhstan in relation to subject of the address, the Constitutional Council proceeds from the following.

1. According to the subitem 3) of Item 3 of article 61 of the Constitution the Parliament has the right to issue the laws which govern the major public relations, establish the fundamental principles and regulations concerning bases of the organization and activities of state bodies and local government bodies. Article 54 of the Constitution provides that concerning the competence "The Parliament in Separate Meeting of Chambers by Consecutive Consideration of Questions in the Beginning in the Majilis, and then in the Senate Adopts the Laws".

Earlier Constitutional Council this interpretation of regulations of subitems 1) and 3) of Item 3 of article 61 of the Constitution in interrelation with other regulations of the Constitution (Resolutions of March 10, 1999 No. 2/2, of November 3, 1999 No. 19/2 and of July 9, 2001 No. 12/2). So, in the Resolution of March 10, 1999 to No. 2/2 "About official interpretation of Items 1 and 2 of Article 14, of Item 2 of Article 24, of the subitem 5) of Item 3 of article 77 of the Constitution of the Republic of Kazakhstan" the Constitutional Council it is explained that "according to Item 3 of article 61 of the Constitution the Parliament has rights to establish new legal regulations, proceeding from the developed circumstances and feasibility, in that числеустранять shortcomings of legal regulation of constantly changing and dynamic public relations".

The list of the major public relations which can be subject of legislative regulation by Parliament is established by subitems of 1)-11) of Item 3 of Article 61 of the Fundamental law.

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