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§ 3. A role of the President of Republic Kazakhstan in legislative process. The legal nature and kinds of certificates of the President of Republic Kazakhstan

The president of Republic Kazakhstan as the higher official carries out function under the edition of the standard legal acts having higher (after laws) a validity, and in the cases directly provided by the Constitution of Republic, acceptance by the President of the certificates having equal force with the law is possible.

The Pravotvorchesky role of the president is expressed in various scales and volumes. In Kazakhstan law-making of the President began to be formed from the moment of occurrence of the given institute, and it is possible to allocate a number of stages of this process.

The Supreme body Kazakh CCP has passed on April, 24th, 1990 the Law «About establishment of a post of the President Kazakh CCP both modification and additions in the Constitution (Organic law) of the Kazakh Soviet Socialist Republic». New chapter 12 «President of the Kazakh Soviet Socialist Republic» has been entered Into the constitution Kazakh CCP. The president has been recognised by the head of the Kazakh Soviet Socialist Republic. A number of powers which had the direct relation to law-making has been given the president. The president has got a following driver's licence:

1. The right to sign Laws of the Kazakh Soviet Socialist Republic. It became constants.

2. The right of the relative veto. The president had the right not later than in fortnight term to return the bill with the objections in Supreme With? *лет Kazakh CCP for repeated discussion and voting. If the Supreme body from the general number of deputies confirmed with the two-thirds majority of voices decision earlier made by it, the President signed the law. It is necessary to tell, that researchers did not pay attention to historical value of the veto power of the President. Meanwhile this right has punched the first impressive gap in absolute power of the Supreme body. It was one of means of controls concerning the Supreme body and essential display yet not recognised principle of division of the government on a branch.

3. The right of the President to bring objection in Committee of the constitutional supervision of the Kazakh Soviet Socialist Republic, the Constitution of the USSR and the Kazakh Soviet Socialist Republic, in case of infringement by the laws accepted by the Supreme body of the USSR of "interests of the Kazakh Soviet Socialist Republic». The absolute power of the Supreme body of the USSR has been put the end. For the first time has appeared

Concept interests of the Kazakh Soviet Socialist Republic which is not coinciding with interests of USSR.

4. The right of the President Kazakh CCP to address to the President of the USSR with the petition for stay of action of decisions and orders of Ministerial council of the USSR contradicting interests of the Kazakh Soviet Socialist Republic. Till this moment of the decision and the order of Ministerial council of the USSR had a binding force in all territory of Union CCP and nobody dared to doubt their legality.

5. The right to protest in Ministerial council of the USSR certificates of the controls subordinated to it contradicting interests Kazakh CCP and to suspend oprotestuemyh of the certificates in territory of the Kazakh Soviet Socialist Republic. This right of the President testified to essential changes in double subordination system sojuznorespublikanskih the ministries which should be considered now C as interests of the Kazakh Soviet Socialist Republic.

6. The right to suspend decisions and orders of Ministerial council of the USSR, certificates of the ministries and the state committees of the USSR in case of discrepancy of their Constitution and to laws of the Kazakh Soviet Socialist Republic. Under the Constitution Kazakh CCP 1978 such right belonged to Presidium of Supreme body KazSSR. This right also was display of the outlined division of the government on a branch.

7. The right of the President to carry on negotiations and to sign international treaties. Realisation of this right promotes integration of norms of international law in the law in force of Kazakhstan.

8. The right of the President to publish decrees, binding republics in all territory. Under the Constitution 1978г. This right belonged to Presidium of the Supreme body of the Kazakh Soviet Socialist Republic, which else remained. C that moment standard decrees of the President

Kazakhstan have taken a strong place in hierarchy of standard legal acts after laws.

9. The power to initiate legislation of the President in the Supreme body of the Kazakh Soviet Socialist Republic. Using this right, the President has started to bring projects of laws in the Supreme body of the Kazakh Soviet Socialist Republic.

Thus:

1) the President has taken a visible place in system of the state bodies as the subject forming the law in force, the national legislation;

2) in spite of the fact that Kazakh CCP was in structure of the USSR, the President has been allocated by the right of protection of the Constitution of the Kazakh Soviet Socialist Republic, interests of the country from unconstitutional normotvorcheskoj activity of allied bodies, thereby it promoted development of the allied and republican legislation focused on protection of interests of Kazakhstan;

The president allocated with the right of signing of international treaties of Republic, thereby has received legal possibility to promote an establishment Kazakhstan of legal relations with the foreign states, with the international community.

So, the Law Kazakh CCP from April, 24th, 1990 was the first stage of formation of the presidential power. At this stage the President carried out normotvorcheskuju activity only as the head of the state and according to this status had normotvorcheskie powers.

On October, 25th, 1990 the Supreme body Kazakh CCP has accepted «the Declaration on the state sovereignty of the Kazakh Soviet Socialist Republic». It was called just till December, 10th, 1991 this day Kazakh CCP «the Law has been passed About change of the name of the Kazakh Soviet Socialist Republic» which consists of two points:

1. To rename the Kazakh Soviet Socialist Republic into Republic Kazakhstan.

2. To bring respective alterations in the Constitution (Organic law) of the Kazakh Soviet Socialist Republic, laws and other certificates of the state bodies Kazakh CCP [232].

According to the Law from December, 10th, 1991 the given historical document followed to name «the Declaration on the state sovereignty of Republic Kazakhstan». As a rule, to the historical document do not make change. But the fact remains the fact.

C "Declaration" acceptance the status of the President has essentially changed. In the Declaration for the first time it is accurate, it has openly been proclaimed, that the government in republic is carried out by a principle of its division into legislative, executive and judicial branches. Legislature it was carried out by the Supreme body. The president was the head of republic and possessed the higher rasporjaditelnoispolnitelnoj the power; the higher judicial authority belonged to the Supreme Court of the Kazakh Soviet Socialist Republic. Thus, though the Declaration is not only legal, how many the political document, the new stage begins with it. If earlier in the absence of division of the power the President was only the head of the state with acceptance of a principle of its division the President has been recognised still by the owner of the higher executive authority.

On the basis of the Declaration «the Law on November, 20th, 1990 has been passed About perfection of structure of the government and management in Kazakh CCP both modification and additions in the Constitution (Organic law) of the Kazakh Soviet Socialist Republic» [233].

The law has already legally established, that the President Kazakh CCP is the head of the Kazakh Soviet Socialist Republic, its higher executive and administrative power. In this connection some have changed pravotvorcheskie powers of the President. As the President presided now at Cabinet activity, to it has been accorded a right cancellations of the governmental orders, certificates of the ministries, the State Committees in case of their discrepancy of the Constitution and to Republic Kazakhstan laws. Power of the President has been added by essentially new moment: it defined the Policy of Law. And in the law Kazakh CCP from August, 25th, 1991 « About modification and additions in the Constitution (Organic law) of the Kazakh Soviet Socialist Republic »it is written directly down, that« with a view of the further development of political in republic political and economic transformations, strengthenings of its state sovereignty and institute of the presidential power bring new norms, in which number of norm about power of the President on «formation of the Policy of Law» [234].

It meant granting to the President of the right to define ways of realisation of legal reform. Hence, the President not only kept the rights on participation in law-making (legislative activity), but also has been allocated by power to define legal strategy and by that to influence conceptually legislative activity of the Supreme body.

One more innovation brought by the considered law in the status of the President, consisted that it, along with decrees of standard character, could accept decisions and orders, binding republics in all territory. The cabinet also had the right to accept decisions. Certainly, decisions of the President had the big validity, than Cabinet decisions.

So, the considered laws have accurately fixed the tendency to strengthening pravotvorcheskoj roles of the President. To execute the powers the President accepted certificates, participated in legislative activity of the Supreme body of republic, bringing powerful, positive, historical value the contribution to formation of independent national legal system of Kazakhstan.

The constitutional law from December, 16th, 1991 «About the state independence of Republic Kazakhstan» has confirmed earlier fixed status of the President, including it pravotvorcheskie powers. Besides, in the given historical law it is noticed, that along with the Declaration on the state sovereignty it forms a basis for working out of the new Constitution of Republic. For this purpose the Constitutional commission which was headed by the first President of Republic Kazakhstan N.A.Nazarbaev has been created.

Under the guidance of N.A.Nazarbaeva the big work on preparation of the project of the new Constitution of Republic Kazakhstan has been done. Before developers there was a challenge - to rethink former legal values and for creation new to use democratic state-legal institutes which were known only from the theory, from experience of other states. The President of Republic Kazakhstan also aimed at it. The project was constantly considered at session of the Constitutional commission under the guidance of N.A.Nazarbaeva. By project working out the special attention addressed on natural deaths and freedom of the person, on their guarantee, on distribution of powers of various branches of the power, on creation of the mechanism of controls and counterbalances between them. Especially it is necessary to underline aspiration of the President to create real mechanisms of controls and counterbalances. However the majority of deputies of the Supreme body, it is necessary to tell directly, counteracted it as were afraid, restrictions of absolute power of the Supreme body. Fears were not groundless for division of the government into branches should limit the Supreme body to frameworks of legislative activity. The presidential idea about the two-chamber Supreme body also has not been supported by the majority of deputies etc. Nevertheless the Constitution of Republic Kazakhstan of 1993 has been developed and accepted under a direct management of President N.A.Nazarbaeva and has put in pawn the important constitutional bases of the new independent state Kazakhstan.

In the Constitution of 1993 have been recognised pravotvorcheskie the powers of the President fixed by the previous laws, and two important positions are added. The first if the President did not return to the Supreme body the law presented to it for the signature in fortnight term the law was considered as the signed. It enhanced the responsibility the President for quality законі., a recognition of results of legislative work of the Supreme body. At the same time loading of the President in lawmaking sphere has increased. C the moment of acceptance of the Constitution on January, 28th, 1993 before self-dissolution in December 1993г. Supreme body PK the President not simply has accepted tens the major laws in the field of the state building, transition to market relations etc. signed them, and made to them changes and additions.

The second, the Constitution of 1993 has accorded the President a right to address with the message to the people of Kazakhstan and the Supreme body. Messages of the President of a steel the special form of expression of political and legal ideas which then were materialised in laws, decrees of the President and other standard legal acts.

The third, the Supreme body worked posessionno, i.e. from time to time, and society reforming needed operative acceptance of laws. On October, 28th, 1993 the Supreme body has accepted the decision «About measures on protection of economy of Republic Kazakhstan» according to which the President has been allocated by the right in case of urgent necessity during the period between sessions Supreme

Council to realise the power provided in point 6 of article 78 of the Constitution. And point 6 provided, that the President defines an order, terms and conditions of functioning of national currency. Only the Supreme body had in essence a legislative power to define monetary system RK. This right has been delegated to the President which has been realised by it and the national currency [235] is entered.

However the Supreme body selected in the conditions of the Soviet power, were a unique legislature and having unlimited powers, was not entered in new, more free, democratic and dynamical relations, the most important thing in a principle of division of the government. Comprehension of it has led to Supreme body self-dissolution in December, 1993 Before dissolution Supreme body PK on December, 10th, 1993 «the Law has passed About time delegation to the President of Republic Kazakhstan and heads of local administrations of additional powers». SHCH zidentu PK the legislative power, i.e. power on acceptance of the decrees, effective as law (constitutional law) have been delegated also. In the law from December, 10th, 1993 time on which this power was given, - for the term up to the beginning of work of the first session of again selected Supreme body has been reserved. But the history has disposed in own way, that again selected Supreme body could not function long, has been recognised by illegitimate and the Law on delegation of powers to the President automatically is dismissed again on the basis of the decision of the Constitutional Court in March, 1995 has entered a validity on March, 6th, 1995 and has ceased the action in the beginning of 1996, from the date of the work beginning any more the Supreme body, and Parliament RK. It was the special period pravotvorcheskoj (legislative) activity of the President. For this time the President has accepted tens the decrees which are valid the constitutional and usual laws, in the field of the state building, economy, social, cultural and other spheres. They promoted formation of the law in force, present structure of the state bodies, development of market relations. Many of them continue to operate till now and have appeared so qualitative and effective, that already the Parliament alternating cast only made changes and additions to some of them. While only instead of the Decree which is valid the constitutional law, «About vessels and the status of judges» the Constitutional law «About the judiciary and the status of judges of Republic Kazakhstan» has been accepted on December, 25th, 2000

So, the President carried out legislative activity on quite constitutional basis even after Constitution acceptance on August, 30th, 1995 as elections of new Parliament have taken place only in the beginning of 1996

What the new the Constitution of 1995 in pravotvorcheskie has brought powers of the President?

In the Constitution of Republic Kazakhstan of 1995 to the President are fixed:

- Direct legislative power;

- The delegated legislative power;

- Own normotvorcheskoe power;

- Indirect legislative power.

The Republic Kazakhstan constitution in article 61 defines the certificates accepted on all questions, not carried to the competence of Parliament of Kazakhstan, as subordinate legislation. A number of researchers challenge the constitutional norm, referring on experience of France and a number

The African countries [236] in which the standard legal acts accepted on all questions which konstitutsionno do not come under to settlement in the form of the law, do not admit subordinate legislation as are published not on a basis and not to execute the law, and according to independent normotvorcheskimi the powers directly given by the Constitution to the head of the state or the government of the country. Similar contest though has a foreign substantiation, mismatches traditions of development of legal system of modern Kazakhstan. These traditions of the romano-German school of law apprehended by Kazakhstan through the Russian and Soviet school of law, start with understanding, that the given kind of certificates is subordinate legislation regulation.

The legal nature of certificates of the President is caused by many factors as which it is possible to consider objective. These factors depend on character of presidential board. The presidential board means, that the President of Republic Kazakhstan is:

1. The head of the state.

2. The higher official of the state.

3. A symbol and the guarantor of unity of the people and the government, firmness of the Constitution, the rights and freedom of the person and the citizen, and also

4. Provides the adjusted functioning of all branches of the government and responsibility of authorities before the people.

As the head of the state, the President of Republic Kazakhstan has the right to speak on behalf people and state name. The people are a unique source of the government. It means, that the people, first, directly takes part in establishment

Representative bodies - Parliament and local maslihatov; in - the second, elects the President, giving to it the right to speak on behalf people name; thirdly, the people solve the most important questions of the state life on a republican referendum.

In first two cases nobody can replace the people, nobody can usurp its rights to be the founder of the higher legislature, the President, local representative bodies. Founding the specified public authorities, the people allocate with their powers which they carry out on behalf of the people. It means, that the President can pass according to the Constitution the decision of the most important questions on the Republican referendum or Parliament. In these cases the President operates on behalf of the people. That the president did not usurp or did not abuse the right to speak on behalf people name, the Republic Constitution provides system of controls and counterbalances. So, changes and additions in the Republic Kazakhstan Constitution can be brought the republican referendum spent under the decision of the President, accepted by it under own initiative, under the Parliament or Government offer. In this case on behalf of the people the Parliament, and the Government acts not only the President, but also. The president can transfer the project of changes and additions in the Constitution to Parliament consideration. In that case the President himself brings the project of changes and additions in the Constitution and acts with the corresponding report. So was in October, 1998 Here there is a question which is not designated in the Constitution though procedure of its decision and is provided. It is a question on the power to initiate legislation of the President to make change and additions in the Constitution. The president not itself makes changes and additions to the Constitution. The president has the right to offer a bill about change and addition in the Constitution, first, for consideration in

Parliament, secondly, for consideration on the Republican referendum. In the procedural relation there is an essential difference. The bill about changes and additions in the Constitution, brought by the President in Parliament, passes a number of stages: 1) the report of the President on a bill on changes and additions in the Constitution; 2) discussion by deputies of Parliament of a bill about changes and additions in the Constitution; 3) offers of deputies are possible) about changes of the project of the President, the new offers directed on change and Constitution addition etc. practically such procedure already took place in October 1998г. However this procedure is not provided yet Parliament Regulations, the law «On standard legal acts», other standard legal acts. Such procedure should be legitimised and is better in the constitutional law «About Parliament and the status of its deputies» as legislative activity of Parliament is regulated with mentioned the constitutional law.

Procedure of the Republican referendum essentially differs from procedure of consideration of a question on changes and additions in the Constitution in Parliament. The president under own initiative develops a bill about changes and additions in the Constitution and takes out it on a republican referendum. That the republican referendum was considered taken place in voting than half of citizens of the Republic should take part more, having the right to participate in a republican referendum. And additions in the Constitution, taken out on a republican referendum, it is considered changes accepted if for them has voted more than half of the citizens who have taken part in voting. The most essential difference of a republican referendum concerning modification and additions of the Constitution from consideration of this question in Parliament consists that on a republican referendum is not discussed the taken out questions, offers are not made, and voted: Either to accept, or not to accept.

From the told it is necessary to draw the following conclusions:

1. The president is allocated by the Constitution of Republic Kazakhstan the power to initiate legislation on bill entering about changes and additions in the Republic Kazakhstan Constitution. 2. The president has the right to bring a bill about changes and additions in the Constitution on Parliament consideration. In this case deputies of Parliament have the right not only to discuss the bill in essence brought by the President about changes and additions in the Constitution, but also to make the offers on changes and additions in the Constitution, not provided in the bill of the President. The constitution directly does not regulate this question. The constitution provides, that the President leaves the bill of Parliament which accepts one of two decisions: 1) if not less the four fifth voices from the general number of deputies of each of Parliament Chambers will be submitted for the bill of the President the bill is considered accepted; 2) if the bill will not type necessary voices of the deputies provided by the Constitution the bill of the President will be considered not accepted.

So, the bill of changes and additions in Constitution PK is transferred by President PK to Parliament consideration. Carrying out not less than two readings concerning modification and additions of the Constitution necessarily. During two readings deputies express the opinion, make the offers. Deputies can 1) in the course of two readings only to express the consent with the bill of the President and to accept it without change; 2) or to state additional offers, to disagree with the separate

Positions of the bill and having reached a consensus to accept it with changes; 3) or not to approve the bill.

Thus, the bill about modification and additions is developed also by the President. Acceptance or nonacceptance of such law depends on Parliament or a republican referendum. In case of an adoption of law though it will be considered as the certificate of Parliament or a republican referendum, rules of law, ideas and other positions are presidential and show it pravotvorcheskuju activity on development of the constitutional legislation.

The president participates not only in development of the constitutional legislation. The constitution provides possibility of acceptance by it of standard legal acts at level of laws.

First, the right of the President concerns lawmaking to define an order of consideration of projects of laws, and also to declare bill consideration urgent.

Parliament PK should consider a bill declared by the President as urgent within month from the date of its entering. As the President does not possess the power to initiate legislation, it introduces the urgent law through the Government about what it will be told in the subsequent.

At illumination of the given question it is necessary to be guided first of all by the Republic Kazakhstan Constitution, then the constitutional law «About the President of Republic Kazakhstan», and also special law PK «On standard legal acts».

In article 4 of Constitution PK it is said, that the right in Republic Kazakhstan norms of the Constitution, laws corresponding to it are operating, other standard legal acts etc. Normotvorchesky activity of President PK has the direct relation to all listed three aspects: 1) Above we have considered a role of the President in Constitution development. Thus the President has right the constitutional legislative leadership of submitting for examination of Parliament or a republican referendum of a bill about modification and additions in the Constitution. In case of acceptance of such bill it becomes a part of the Constitution which is a law in force kernel in Republic Kazakhstan. In it the place of the main certificate of the President in law in force system is shown. 2) after acceptance of Constitution PK of 1995 the role of President PK in development of the legislation corresponding to the Constitution was showed in two directions: In a direction of active use delegated Supreme the Councils PK in December, 1993 of the right of time realisation of legislative activity up to 1996 that is election of Parliament of Republic Kazakhstan and the beginning of its legislative activity. Though to the President the right has been temporarily delegated to carry out legislative activity in the end of 1993 practically President has started to use this right only after acceptance on a republican referendum on August, 30th, 1995 Constitutions RK. Till this moment the President accepted the decrees which are effective as law which have lost force after Constitution acceptance.

After acceptance of Constitution PK of 1995 the following decrees which are valid the constitutional law have been accepted:

1. About the President of Republic Kazakhstan.

2. About Parliament of Republic Kazakhstan and the status of its deputies.

3. About the Republic Kazakhstan Government.

4. About the Constitutional Council of Republic Kazakhstan.

5. About Vessels and the status of judges.

6. About the Republican referendum.

7. About elections in Republic Kazakhstan.

The above-named Decrees of the President of Republic Kazakhstan are Constitutional laws. From them only one, namely

The decree «About vessels and the status of judges», has been updated and accepted already by Parliament as the constitutional law. Other decrees operate almost ten years and have not undergone to essential changes. It testifies to their quality, that they have correctly defined prospects in their organizational and kompetentsionnom relations. Therefore they have taken a strong place in system of the law in force of Republic Kazakhstan not only as the certificates standing after the Constitution on the validity, but also as the certificates defining the status of the constitutional bodies to which there should correspond the usual laws concerning these bodies.

Now acceptance of the decrees which are effective as law, is possible only in the cases provided by point 2 of article 61 of Constitution RK. If the such occurs, then the decrees of President RK which are effective as law, will be equal to the laws accepted by Parliament RK. The decrees of the President which are effective as law, will operate until the Parliament will not accept the novel in the order established by the Constitution. The novel on idea of the Constitution should replace the decree of the President which is effective as law. As hypothetically there is a possibility of acceptance by the President of the decrees which are effective as law, it is necessary to solve two questions: 1) if the President will accept the decree which is effective as law, whether the Parliament to accept the novel to replace with it the decree of the President who is effective as law is obliged, or not obliged? This question, in our opinion, can be solved proceeding from the constitutional position about Parliament. In point 1 of article 49 of the Constitution it is said, that the Parliament carries out legislative functions. In Constitution PK of 1993 it was said, that Supreme body PK is a unique legislature. Owing to such constitutional position no state body possessed the right of acceptance of laws, except the Republic Supreme body. The constitution of Republic Kazakhstan of 1995 first, does not contain

Positions about that the Republic Kazakhstan Parliament is a unique legislature; secondly, in the Constitution position about possibility of delegation to the President, though and for the term up to one year, Parliament legislative powers contains; in - the third, the presidential form of government at which the President is the head of the state is established, has the right to speak on behalf people and state name; this right means, in particular, in cases provided by the Constitution, to pass laws or the decrees which are effective as law; fourthly, the Constitution reserves a temporality of legislative powers only delegated to the President, and in other cases she does not establish time limits for action of the decrees which are effective as law. Owing to the specified circumstances if the President accepts the decree which is effective as law, the Parliament can accept the novel if will see, what the decree has essential lacks, not effectively regulates public relations etc. If the decree of the President has high quality and operates highly effectively, what for to accept the novel, to charge Parliament?

2) In case the Republic Kazakhstan Parliament will consider necessary instead of the operating decree of the President who is effective as law to accept the novel the novel should replace only the form, that is instead of the decree to name the law or can change and the maintenance, volume, supplementing, changing decree positions? The answer to this question, it appears, contains in the Constitution. First, in the constitution it is spoken not simply about replacement of the form of the standard legal act, and about acceptance of the "new" law; thereby the Constitution focuses Parliament on acceptance of not simply law, and the novel which not simply should replace the decree of the President, and can be new both under the maintenance and on volume. Secondly, the novel should be accepted in the order established by the Constitution. Here one question is not clear. After all it is a question not of cancellation, and replacement of the operating standard legal act - the decree of the President who is effective as law. If it is a question only of replacement of the form of the certificate procedure can be simplified. If it is a question of acceptance of the novel instead of the operating decree which is effective as law, business is more difficult. In both cases there is a question: who will be the initiator? The deputy (deputies)? The government? In both cases there will be unethical an initiation instead of the operating decree of the President, the effective as law novel. Therefore replacement of the decree of the President who is effective as law, the novel, it is expedient to spend only in a case ustarenija him in whole, its separate positions, norms and other lacks.

Let's sum up to the aforesaid. The president of Republic Kazakhstan in the cases provided by Constitution RK, has the right to accept the decrees which are effective as law. Such decrees on a validity are equated to the usual laws accepted by Parliament RK. In the legislation (in law PK «On standard legal acts») it is provided, that the decrees of President RK which are effective as law, take in hierarchy of standard legal acts the third place after the Constitution, constitutional laws, the decrees of the President which are valid constitutional laws.

There is opened one more question. According to the law «About standard legal acts», codes PK (them already more than 10) have higher validity, than usual laws. In this connection how to estimate a validity of decrees of the President who is effective as law? It is necessary to tell and that investment of the President with the right to initiate change and addition of Constitution RK, possibility of delegation it Parliament legislative powers, the right in the cases provided by the Constitution to publish the decrees which are valid

The law — whether all it testifies that the President is allocated by powers of creation competing the legislation.

The president of Republic Kazakhstan on a basis and to execute the Constitution and laws publishes decrees and the order, binding Republics in all territory is told in point 1 of article 45 of Constitution RK.

In the resulted position of the Constitution it is spoken only about the Constitution and laws. As to the Constitution all is clear. It is necessary to specify instructions on laws: what laws mean: simply usual laws or the constitutional and usual laws, codes? In point 1 of article 45 of Constitution PK usual laws mean both constitutional, and. In other articles of the Constitution it is specified, that laws happen: 1) making changes and additions in the Constitution; 2) constitutional laws; 3) it is simple laws. In the Constitution it is not spoken about codes which have the big validity, than usual laws. Having allocated codes in special group of standard legal acts, the law «On standard legal acts» has broken the constitutional hierarchy of standard legal acts. Sooner or later this question will arise in practice and it is necessary to return codes on the lawful place: codes should have the same validity, as usual laws.

The constitution does not specify, what kinds of decrees are accepted by the President. In the law «On standard legal acts» it is spoken about standard decrees of the President and their place in hierarchy of standard legal acts is defined. Standard decrees of President PK concern subordinate legislation standard legal acts and are on the first place on a validity. Standard decrees of the President are accepted on a basis and to execute the Constitution and laws.

In word jurisprudence «on a basis» are treated in the widest sense. Words «on a basis» do not comprise the concrete

Instructions and directions of activity also are not particularly kompetentsionnymi. So, for example, being guided by the constitutional position that the higher values of the state are the person, his life, the rights and freedom, the President creates the standard decrees directed on maintenance of natural deaths of the person. The President was the initiator of the moratorium on a death penalty. At the initiative of the President at it the Commission of Human Rights with large powers is created. The standard decree of the President creates Assembly of the people of Kazakhstan which plays an essential role in maintenance of the public consent and political stability. So it is possible to continue. The idea of a lawful state has found reflexion in the decree of the President about the code of honour of the civil servant. After all such power of the President is not provided the Constitution, the constitutional law «About the President». The president the decree can approve or approve the concepts providing reforms in various areas of the state building. For example, in 2002 the standard decree of the President approves «the Concept of the Policy of Law of Republic Kazakhstan». Concepts can be intermediate term and long-term. The analysis of standard decrees of the President approving or approving the concepts of reforms, concern a special kind of subordinate legislation standard legal acts. They authorise carrying out of reforms and serve as the recommendation for Parliament if it is a question of reforming of those or other spheres of the state building by acceptance of laws. They are obligatory for the Government if there is a speech about perfection of forms, methods, a being of its activity, its structure and system. All this normotvorcheskaja work is carried out by the President on the basis of the Constitution, the constitutional and usual laws by their deep studying, revealing of legal ideas containing in them, principles, spirit etc.

The president accepts decrees to execute the Constitution and Republic Kazakhstan laws. Constitution execution means realisation of those powers of the President which are provided in it. To execute the constitutional powers the President of Republic Kazakhstan accepts three kinds of certificates: 1) standard decrees; 2) not standard decrees, 3) orders.

Not standard decrees of the President also are directed on realisation of its constitutional powers. Such decrees of the President are directed on the decision of organizational questions. The following concerns organizational questions: by acceptance of decrees the President: appoints the next and extraordinary parliamentary elections of Republic Kazakhstan, assembles the first session of Parliament, assembles extraordinary joint sessions of Chambers of Parliament, with the consent of Parliament the Prime minister - the Minister of Republic appoints to the post, appoints and withdraws heads of diplomatic representatives of Republic etc.

It is necessary to notice, that the President in 2005 has accepted the Decree «About potential of the Constitution of Republic Kazakhstan» in which recommended to deputies, to Parliament, heads of Chambers of Parliament preliminary to consider and discuss nominees on a number of posts to which the President under the Constitution itself appoints without consideration in Parliament. The legal nature of such decision of the President quite corresponds to democratic spirit, Constitution potential, at all does not break the Constitution. After all the President only recommends to Parliament to consider preliminary nominees on certain posts to learn their opinion on these people. It does not expand power of Parliament, but attaches them to process of formation of the higher officials and raises their moral responsibility. As finally the question dares

The president, the decision of the President does not limit its constitutional powers.

Certificates of the President of Republic Kazakhstan have a binding force in all territory of Republic. It means: 1) the decrees of the President which are valid the constitutional law, regulate those spheres of public relations to which they are devoted; 2) the decrees of the President which are effective as law, should correspond to the Constitution, constitutional laws, regulate the major public relations, establish basic principles and the norms, concerning those questions which are specified in point 3 of article 61 of the Constitution. This point provides powers of Parliament of Republic Kazakhstan in the field of the edition of laws. If in provided by the Constitution of Republic Kazakhstan cases the President accepts the decrees which are valid laws these decrees are equated on a validity to the laws accepted by Parliament.

3) standard decrees of the President are accepted «on the basis of the Constitution», cover the wide range of questions which follow from legal, moral ideas, principles, norms of the Constitution.

4) the standard decrees of the President accepted to execute the Constitution and laws, concern concrete powers of the President. Standard decrees of the President are the subordinate legislation by which the Government and other enforcement authorities should be guided. In the Republic Kazakhstan Constitution it is underlined, that decisions and Government orders should not contradict the Constitution, acts, decrees and orders of the President of Republic.

Normotvorchesky interaction of the President, Parliament and the Republic Kazakhstan Government.

According to the Constitution of Republic Kazakhstan the President provides the adjusted functioning of all branches

The government. Whether the given position concerns the constitutional powers of the President or it something another? We consider, that it is the major power of the President and is allocated separately owing to that, as to all three branches of the government: legislative, executive and judicial. It is impossible to list this power of the President among what are reflected in article 44 of the Constitution of Republic Kazakhstan. It is power of the President of Republic Kazakhstan follows from subparagraph 21 of article 44 of the Constitution where it is told, that the President carries out also other powers according to the Republic Kazakhstan Constitution.

What is understood as «the adjusted functioning of all branches of the government»?

Any state constitutes the uniform mechanism through which the government is carried out. Owing to it the government is uniform. Therefore in the Republic Kazakhstan Constitution it is written down, that the government in Republic Kazakhstan is uniform. But this unity can be realised differently. In the USSR the uniform government was realised by submission of all bodies to councils: to the Supreme body of the USSR, the Supreme bodies allied and autonomous republics etc., certainly under the guidance of communist party. Nobody can deny, that there was no division of functions: with the legislation occupied-; I the Supreme body, justice was carried out by vessels, executive powers were engaged in executive and administrative activity, supervision of legality was carried out by Office of Public Prosecutor. But nevertheless the theory of separation of powers on a branch did not admit. Why? Because was considered, that this theory is bourgeois and this power spends idea of submission of the government of bourgeoisie and as though was divided, all three branches provide bourgeoisie domination. To that

The theory of separation of powers in essence does not divide and cannot divide it as all branches of the power grow on one "tree" - the state.

However the state Kazakhstan in the first constitutional law «About the state independence of Republic Kazakhstan» recognised division of the power into three branches. The constitution of Republic Kazakhstan of 1995 also recognised, that the government is uniform and is carried out on the basis of the Constitution and laws according to a principle of its division into legislative, executive and judicial branches and interactions among themselves with use of system of controls and counterbalances.

The opinion can be created, that as according to the Constitution of Republic Kazakhstan the government in Republic Kazakhstan is uniform also it is carried out on the basis of its division into three branches, in Kazakhstan is not present and there can not be other bodies of the state. However actually it not so. Attentive reading of the Constitution shows, that state bodies are not limited only to three branches: legislative, executive and judicial. In point 3 of article 3 of the Constitution it is written down, that the right to speak on behalf to people and state name belongs to the President, and also Parliament of Republic within the constitutional powers. The government and other state bodies speak on behalf a name of the state within the delegated powers. Apparently, except the Government it is spoken about other state bodies. Their number concern: 1) courts of justice; 2) Office of Public Prosecutor; 3) the Constitutional Council; 4) the Central electoral commission. If courts of justice concern a judicial branch of the power Office of Public Prosecutor, the Constitutional Council and the Central Electoral Commission are out of government branches. We have specially considered all public authorities, as

The president of Republic Kazakhstan concerns all of them, and its certificates concern also to their activity.

Among not settled Kazakhstan the right it is necessary to note institute kontrasignatury officials of the Government of Kazakhstan of certificates who are published by the President of Republic Kazakhstan.

At first we will consider forms and methods of maintenance with the President of the adjusted functioning of branches of the government on acceptance of laws. The president and Parliament are connected not only it is direct, but oposredovanno.

Indirect legislative powers of President PK have interstate and international aspects.

The interstate aspect is expressed that, not having the power to initiate legislation, the President is allocated by the right of rendering of influence to the Government concerning lawmaking. The decree of President PK from June, 19th, 1996 approves Position about an order of the coordination with President PK of plans zakonoproektnyh works of the Government and with Administration of President PK of projects of the laws brought by the Government in Mazhilis of Parliament RK. This Position is based on article 12 of the Decree of the President who is valid the constitutional law, «About Government RK» according to which the plan zakonoproektnyh Government works is represented to the President signed by the Prime minister. The plan Project joins the list of bills and an explanatory note with a substantiation and terms of entering into Parliament Mazhilis. The president or approves the plan project, or returns with remarks to the Government for its subsequent consideration and the statement taking into account offers and remarks of the President. The governmental body monthly informs Administration of the President on a condition zakonoproektnoj works.

The developed bill represents the Government to Administration of the President for study, i.e. for definition of conformity of the Constitution, to interests of a society. In case of approval the Government introduces the bill in Parliament Mazhilis. It is necessary to notice especially, that bills which are planned to declare urgent on behalf of the President, and also the bills which are developed and coming under to entering by the Government in Mazhilis of Parliament on the instructions of the President come under to the obligatory preliminary coordination with Administration of the President. According to the Constitution the President can charge to introduce to the Government the bill in Parliament Mazhilis. To Constitutions there is a speech not about the bill developed by the Government according to the plan zakonoproektnoj of work. The Government brings such bills in Mazhilis independently, without the commission of the President. In the Constitution it is a question of the bill developed under the commission and under the guidance of the President. Hence, the Constitution focuses the President on working out of bills under own initiative, and the President as required uses this right.

The international aspect is expressed in active foreign policy activity of the President on conducting the international negotiations and signing of international treaties. The international treaties signed by the President, are a law in force component in Republic Kazakhstan. It enriches legal system of Kazakhstan which joins the international legal relations.

So, from the short analysis pravotvorcheskoj activity of the President from the moment of its election can draw following conclusions.

1. Special presidential legal powers were formed constantly, regularly and it is possible to tell, that today they are self-sufficient.

2. The president, actively using the pravotvorcheskimi powers, has brought and brings the invaluable contribution to formation of the new, independent national legal system considering historical, geopolitical and other features of Kazakhstan.

3. Presidential law-making is an essential element of the presidential power issued in Kazakhstan as presidential system of board. It harmonises all system of national law-making, actively promoting elimination of arising contradictions in law-making sphere, protecting ideas, principles and norms of the Constitution of Republic Kazakhstan.

The organisation of the control and administrative control of certificates of the President, the Government, the Prime minister, international agreements, and also documents with the commission of the President, the Prime minister, its assistants is carried out according to the Decree of the President of Republic Kazakhstan from October, 2nd, 1998 «About the Position statement about an order of preparation, the coordination, representation for the signature of certificates of the President of Republic Kazakhstan and the control over execution of certificates and commissions of the President of Republic Kazakhstan», Regulations of the Government of Republic Kazakhstan from February, 23rd, 1999 and other standard legal acts.

Responsibility for timely and qualitative execution of certificates of the President and the Government is assigned to the first heads of the state bodies to whom they are directed on execution. In Government Regulations the working out order is in detail stated

Actions for realisation of certificates of the President and the Government and representation of reports on it. [237]

The president of Republic Kazakhstan participates in planning zakonoproektnoj Government activity. In the legal literature value and a role of such planning was marked. Planning of legislative activity of the Government is directed on achievement in advance definite purposes of economic, political, social, cultural character, on legislation streamlining, on creation of internally uniform, consistent law in force, on duplication elimination etc. the analysis of the economic, political, social and other processes occurring in a society, development of scientifically proved recommendations about regulation of public relations and a regulation of activity of the state bodies and public associations by приняіия acts should precede Planning of legislative activity.

The project of the plan of legislative works of the Government on the basis of offers of the ministries, agencies arrives in the Ministry of Justice which transfers it in the Government. On June, 19th, 1996 the decree of the President of Republic Kazakhstan «About the Position statement about an order of the coordination with the President of Republic Kazakhstan of plans of legislative works of the Government of Republic Kazakhstan and with administration of the President of Republic Kazakhstan of projects of the laws brought by the Government in Mazhilis of Parliament of Republic Kazakhstan» [238] has been accepted. Organisation rules zakonoproektnoj works in the Republic Kazakhstan authorised bodies are developed according to norms of the law «On standard legal acts» and

Regulations of the Government of Republic Kazakhstan also are approved by the governmental order from September, 11th 2000г. [239]

According to point 2 of article 61 of the Constitution the President of Republic has the right to define prioritetnost considerations of projects of laws, and also to declare bill consideration urgent. It means, that the Parliament should consider the given project within a month from the date of its entering. At default by Parliament of the present requirement the President has the right to publish the decree which is effective as law which operates before acceptance by novel Parliament in the order established by the Constitution. In the Constitution it is not underlined, in what form the President realises the right. This question dares in the constitutional law «About Parliament and the status of its deputies». In article 17 of this law it is underlined, that the President of Republic the special message to Parliament has the right: 1) to define prioritetnost considerations of projects of laws; 2) to declare bill consideration urgent.

If the President declared bill consideration urgent, the project is considered in standing committee in an order provided in the law of Republic Kazakhstan «About committees and the commissions of Parliament of Republic Kazakhstan» from May, 7th, 1997 the Law does not provide special procedure of consideration of the bill declared by the President urgent. In article 56 of the specified law it is said, that in case the President of Republic the special message declared bill consideration urgent, the term necessary for preparation of the conclusion, cannot be more, than 7 calendar days.

It is hypothetically possible to assume, that on a bill declared by the President urgent, can be prepared: 1) the positive conclusion or 2) the negative conclusion. In both cases the urgent bill is left Parliament Mazhilis. The Mazhilis can not approve declared by the President urgent the bill.

It is necessary to pay attention, that as the Constitution, and the constitutional law «About Parliament and the status of its deputies», speaks about the special message of the President to Parliament. Under the Constitution consideration of a bill is within the exclusive competence of Parliament Mazhilis. Probably, that the Message of the President is addressed to Parliament because the law is accepted by the Parliament Senate.

There is opened a question: what to do, if a bill declared by the President to consideration urgent, it will not be accepted by Parliament Mazhilis? According to point 41 of Regulations of Mazhilis of Parliament if as a result of the second reading by Mazhilis the bill is not approved it comes back to completion. The given point means all bills, including declared by the President urgent. Whether it is correct?

For constitutionality, legality of certificates which are accepted by the President, he answers. But there are certificates which prepare or accepted by Parliament or the Government. It will be a question of responsibility for such certificates. In point 3 of article 45 of the Constitution of Republic Kazakhstan it is spoken about following certificates: 1) the certificates of Parliament signed by the President of Republic, 2) the certificates of the President published at the initiative of the Government.

The Republic Kazakhstan parliament accepts acts, that is laws, decisions of Parliament, the decision of the Senate of Parliament, the decision of Mazhilis of Parliament. From the specified certificates the President signs only laws: 1) the law on modification and additions in the Constitution, 2) the constitutional law, 3) the law. The president not simply signs, and checks their conformity of the Constitution. Before signing of the above-stated laws the President in case of detection of the contradiction with the Constitution returns in Parliament with objections. If the Parliament from the general number of deputies of each of Chambers confirms with the two-thirds majority of voices earlier made decision, the President within seven days signs the law. The president if doubts constitutionality of the law accepted by Parliament, has the right not to sign it and to address in the Constitutional Council. If the Constitutional Council the decision recognises as unconstitutional the law passed by Parliament then there is a question on legal responsibility.

According to the Constitution and the constitutional law «About Parliament of Republic Kazakhstan and the status of its deputies» for illegality of the accepted laws bear responsibility preliminary ratified: 1) the Chairman of the Senate

Parliament, 2) the Chairman of Mazhilis of Parliament, 3) the Prime minister - the Minister if the bill was brought by the Government.

However the legislation does not specify, in what legal responsibility of the above-stated officials and who will make them accountable will consist. This question is not necessary so sharply as bills, having passed some stages of discussion, are checked on constitutionality by the Senate, the President, in case of the reference the Constitutional Council. But as the Constitution provides legal responsibility for legality of certificates the mechanism of the decision of this question should be created. If for ten years of existence of the specified norm it was never applied, it does not mean, that there were no cases of infringement of legality.

The Republic Kazakhstan constitution provides countersign of certificates of the President published at the initiative of the Government. It is necessary to underline, that the President accepts a great bulk of certificates itself on a basis and to execute the Constitution and laws. What means initiation by the Government of certificates of the President? Questions on which the Republic Government initiates certificates of the President, are not within the competence of the Government. In point 1 of article 69 of the Constitution of Republic Kazakhstan it is provided, that the Government of Republic Kazakhstan concerning the competence publishes decisions, binding Republics in all territory. Hence, the Government can initiate certificates of the President only concerning presidential powers.

How many and on what questions for ten years the Government initiated certificates of the President: 1) standard legal acts, 2) individual legal acts. The legislation does not establish any list of questions on which the Government can initiate certificates of the President. K.B.Safinov believes, that, considering, that in many areas inside and the external economic and social spheres the President divides the competence with the Government, on the given questions the Government can be the initiator of the corresponding decree [240]. Not denying affinity of powers of the President with the Government competence, hardly it is possible to agree with opinion that in many areas the President «divides the competence with the Government». If the President divided the competence with the Government the Government would publish decisions on the questions which are within the competence of the President. The assumption of that the President divides the competence with the Government means, that the President transfers a part of the powers to the Government. Such assumption would mean, that the Government carries out some presidential powers. However it contradicts the Constitution.

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A source: Muhamedzhanov Baurzhan Alimovich. the Republic Kazakhstan Form of government: the constitutional model and government practice. The DISSERTATION on competition of a scientific degree of the doctor of juridical science. Moscow - 2007. 2007

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