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Subject: Basic concepts of the constitutional law of the Republic of Kazakhstan

Plan:

- Constitutional law – is the leading branch of the law of the Republic of Kazakhstan. Constitutional law of the Republic of Kazakhstan is a branch of the law and the legal science. Constitutional and legal norms and their types. Legal institutions.

- The Constitution of the Republic of Kazakhstan - is the highest law of the state. Principles of the Constitution of the Republic of Kazakhstan. The essence of the Constitution. General characteristics of the Constitution of Kazakhstan .

- About correspondence of the Constitution and laws. Correspondence of the Constitution norms with the norms of international agreements. The stages of constitutional legislation development.

Keywords: the constitution, a branch of law.

Constitutional law is the main branch of a national legal system of the Republic of Kazakhstan. Constitutional law defines the relationships making the basis of the society and the state, relationships connected with the execution of public authority and also relationships between the state and the person.

Constitutional law is formed of legal norms defining and regulating social relations that represent the main concepts of the constitutional system of the Republic of Kazakhstan, the legal status of the person and the citizen, and a system of state power and control bodies.

The source of the constitutional law of the Republic of Kazakhstan is understood to be normative legal acts acting within the territory of the Republic of Kazakhstan and regulating society structure and state power organization.

The source of the constitutional law, i.e. of the outer form of representation is, first of all, the Constitution, constitutional laws, laws and other regulatory acts, legal customs, normative agreements.

The main source of the constitutional law of the Republic of Kazakhstan is the Constitution. It can be explained by the fact that the Constitution has an external legal force and direct effect within the whole territory of the republic. All other sourced are derived from the norms of the Constitution and should not contradict it.

The Constitution is the main state law. The word “constitution” has Latin origin; “constitution” can be translated from the Latin language as a “body”, “establishment”. Being the main law of the state the Constitution appeared with the development of bourgeois states. Constitutions can be classified according to various characteristics. It can be rigid and flexible according to the type of changes and amendments. Rigid constitutions are adopted by the general voting by referendum or by special constitutional procedure, constitutional meetings or by Parliament.

Flexible constitutions are adopted and amended within the adoption of usual laws.

According to the shape Constitutions can be written and unwritten. Written constitution is a single legal document. Unwritten constitution includes several unsystematized acts of constitutional character, judicial precedents and legal customs.

The Constitution has a special position in the legal system of a modern democratic state and is one of essential characteristics of the legal state. To have a constitution – is an obligatory factor of the law, rule of law and stability of the government institution.

Constitutions have specific legal characteristics: supreme legal force, direct operation, constituent character, special way of adoption and amendments.

The Constitution is a legal act of a constituent character. The Constitution of the Republic of Kazakhstan was approved by nation-wide voting thus the nation will is realized in the constitutional norms which are of constituent character i.e. primary character. The Constitution regulates basic, fundamental relationships that appears in the society and covers all spheres of life: political, economic, social and cultural.

The Constitution of the Republic of Kazakhstan has supreme legal force and is in the head of the system of legal acts in the country. Supremacy of the Constitution is that none of laws or legal acts should contradict the norms of the Constitution. Law or other legal acts that contradicts the constitutional norms are subject to the abolition in the manner prescribed by the laws. Direct operation of the constitutional norms means that norms are applicable directly while regulation of the public relations. The Constitution is an acting legal act; norms of the Constitution are applicable within the whole territory of the Republic of Kazakhstan. Direct operation of the constitutional norms means that public bodies and officials must follow the Constitution. Citizens and their associations in case of their rights protection should invoke only the constitutional norms.

The Constitution being the highest law is characterized by the stability thus it has special procedure of its adoption and changes. Article 91 Section 2 of the Constitution of the Republic of Kazakhstan stipulates that basic fundamental principles may not be changed. They are: the unitary status and territorial integrity of the Republic and also the forms of government of the Republic of Kazakhstan. These principles can be changed only by the adoption of a new constitution. Additions to the Constitution may be introduced only by an all-nation referendum held by the decision of the President of the Republic. Amendments and additions may be introduced by the Parliament in case the President decides to pass it to the consideration of the highest representative body. The draft of the amendments to the Constitution shall be considered within a joint session of both Chambers. Amendments and additions are considered to be adopted if not less than two-thirds of the total number of Parliament deputies vote for them.

Constitutional development of Kazakhstan. The question about the period of time when the constitutional development of Kazakhstan began is a subject of discussions among scientists of law, historians and etc. It is assumed that the first attempts to create a constitutional state were taken by the representatives of the alashsk movement in 1916-1919 years. Such lawyers of Kazakhstan as Nurpeisov E.K., Kotov A.K. suppose that “the activity of the Alash Horde government appears to be interesting as a state beginning the constitutional evolution of Kazakhstan to sovereignty”.

The next stage of the constitutional development of Kazakhstan is represented by the Soviet constitutionalism that began when Soviet came to power. Three Constitutions were adopted during that period: the Constitution of the Kazakh Autonomous Soviet Socialist Republic (KASSR) dated the 18^th of February 1926, the Constitution of the Kazakh SSR in 1937 and the Constitution of the Kazakh SSR in 1978. The peculiarities of the mentioned above Constitutions are formal democratic character and at the same time a significant divergence with the reality. In general, the constitutional law of 20-30s did not reflect the realities of the totalitarian – oppressive regime set up in Kazakhstan. As for the latter constitutional law of the soviet period it is necessary to note that it was based on the principle of the state priority over the person. It can be also mentioned that legal norms did not correspond to their implementation in a real life.

The modern stage of the constitutional development begins with the proclamation of state sovereignty of the Republic of Kazakhstan on the 25^th October 1990. The Declaration of the state sovereignty of the Kazakh SSR and the constitutional law “On state independence of the Republic of Kazakhstan” were adopted at that time. The milestone of the constitutional evolution was the adoption of the Constitution of the Republic of Kazakhstan on the 28th January, 1993. It was a significant step in the democratization of the Kazakh society, the Constitution made a civilized constitutional state from a new independent one. The Constitution of 1993 has not defined the shape of state governmental rule in the text, at the same time from the meaning of the Constitution it was easy to assert that the Republic of Kazakhstan moved more towards a parliamentary republic. For the first time a principle of separation of authorities was the constitutional one, the system of checks and balances in the organization of state was fixed and it was represented by the following elements: presidential veto and mechanism to overcome it, the resignation of the President and Vice - President, the resignation of the Cabinet of Ministers and etc.

The modern Constitution of the 30 August 1995 consolidated presidential form of government in Kazakhstan and thus became the symbol of the newest stage of constitutional evolution of the Republic of Kazakhstan. Constitution of the Republic of Kazakhstan was adopted by nation-wide voting by national referendum dated the 30 August 1995. Due to the further establishment of the state character of the Republic of Kazakhstan on the 7^th October 1998 the Constitution was amended and added by the Constitutional law adopted by the Parliament of the Republic of Kazakhstan. The Constitution of the Republic of Kazakhstan consists of a preamble and nine chapters. Preamble reflects the constituent nature of the Constitution and indicates a special party who received it - the people of Kazakhstan. The first section, called the “general provisions”, provides the basis of the Republic system, the fundamental principles of the Republic of Kazakhstan activity.

Constitution made from Kazakhstan a democratic, secular, social and legal state (Article 1). The Republic of Kazakhstan is constituted like a unitary state with a presidential form of government. It is emphasized that the only source of the power is the people. Constitution establishes the principle of powers separation into three branches: legislative, executive and judicial. Moreover, the Constitution establishes a strong power of the President. The presidential form of government is set forth in the Constitution. The second section, called “The Individual and the Citizen” provides the basis of the legal status of individuals and citizenship of citizens of Kazakhstan. The third section fixes a constitutional status of the President of the Republic of Kazakhstan and it is called “The President”. Sections IV, V and VII are devoted to the definition of the constitutional and legal status of the Parliament, the Government and the courts of the Republic of Kazakhstan. The Section number Six defines the status of the Constitutional Council apart. The eighth chapter is devoted to the base of a local government and self-government in the Republic of Kazakhstan. And the last IX section defines the final and transitional provisions.

Lecture 5.