N. N. Turetsky

LEGISLATURE
OF KAZAKHSTAN

Almaty 2011

 

Recommended by the Public Chamber under the Parliament Majilis of the Republic of Kazakhstan

 

Reviewed by:

Malinovsky V. А., PhD in law, professor, member of Constitution Council of the Republic of Kazakhstan

Abdirov N. M., PhD in law, professor, deputy of Parliament Majilis of the Republic of Kazakhstan, Chair of Legal Council under PDP NurOtan

 

Legislature of Kazakhstan / Turetsky N. N. - Almaty: Norma-K LLP Publisher, 2011.

 

ISBN

 

This monograph discusses various aspects of operation of the Parliament of Kazakhstan. It analyses the history of Kazakhstani model of parliamentarianism, reviews legal status, specifics of structure and authorities of the Parliament of the Republic of Kazakhstan. This work describes the activities of political fractions of II, III, IV convocations, the Public Chamber under the Majilis and other institutions represented in the Parliament.

The monograph is devoted to 20 years of Independence of the Republic of Kazakhstan. The author of this study is a deputy of IV convocation of the Parliament Majilis of the Republic of Kazakhstan who based on his practical work in the Parliament expresses his view point on the current issues in the law making process and proposes his personal suggestions for improvement open for discussion.

The monograph is good for students of Master and post-graduate programmes and teachers of law schools and for a wide range of readers interested by the issues of parliamentarianism in Kazakhstan.

This issue was made possible with the financial support of OSCE Center in Astana.

The information in the monograph «Legislature of Kazakhstan» does not necessarily reflects the position or opinion of Organisation of Security and Cooperation in Europe Center in Astana.

 

© Turetsky N. N., 2011

© Norma-K LLP Publisher, 2011

 

ISBN 978-601-7263-62-1

 

 

TURETSKY Nikolay Nikolayevich

Director of the Scientific research institute of state and law named after Gairat Sapargaliyev, Secretary of the Kazakhstan Union of lawyers, deputy Chair of the Legal Council of PDP Nur Otan.

PhD in Law, graduated from the S.M.Kirov Kazakh State University, law school. Defended PhD dissertation on «Theoretical problems of circumstances decriminalizing the act under the criminal legislation of the Republic of Kazakhstan».

During 2007 - 2011 was a deputy of IV convocation Parliament Majilis of the Republic of Kazakhstan.

The spheres of research cover: parliamentary law, criminal law, penitentiary law, criminal science, intelligence. Author of 6 monographs and above 300 scientific and methodological works, including:

Comments to the Law of the Republic of Kazakhstan «On prevention of offences» (co-author, 2011); Comments to the Law of the Republic of Kazakhstan «On equal rights and equal opportunities of men and women» (co-author, 2011); «Parliament Majilis of the independent Kazakhstan» (collective monograph, 2011); Parliamentary law of the Republic of Kazakhstan (textbook, co-author, 2011); «Legislature of Kazakhstan (monograph, 2011).

Has state rewards of the Republic of Kazakhstan. Was awarded a sign of the international organization UN Child Fund - UNICEF KAZAKHSTAN for the particular contribution in improvement of children rights and their protection in the Republic of Kazakhstan.

e-mail: tnnik@mail.ru

 

 

 

 

SCIENTIFIC RESEARCH INSTITUTE

OF STATE AND LAW

NAMED AFTER GAIRAT SAPARGALIYEV

 

 

Professor Gairat Sapargaliyev, academician of the National Academy of sciences, PhD in law, Honoured lawyer of the Republic of Kazakhstan headed the Scientific Research Institute of State and Law named after Gairat Sapargaliyev (earlier Scientific Research Institute of Legal Monitoring, Review and Analysis) from January 2009 to July 2010.

The Institute is involved in:

             fundamental and applied research in law;

             scientific (legal, criminological, anti-corruption) review of draft legal and regulatory enactments;

             scientific research on combatting corruption;

             legal monitoring of enforcement practice of legal and regulatory enactments;

             analytical research of the outcomes of legal review.

In 2010 the Institute opened branches in the cities of Karaganda, Kokshetau, Pavlodar, Kostanai, Petropavlovsk, Ust-Kamenogorsk and in 2012 in Almaty city.

The Institute issues periodic magazine «Заңдық Қазақстан/Legal Kazakhstan» (previously bulletin «Сарапшы/Expert») The magazine covers the relevant issues of legal policy of the state in general, anti-corruption and criminological expertise in particular.

The Institute carries out scientific research in combatting corruption and issues comments.

The Institute maintains scientific links with universities of Kazakhstan and a number of CIS universities, takes an active part in the sessions of working groups related to lawmaking held by Parliament Majilis and Senate of the Republic of Kazakhstan, organizes round-table discussion, workshops, scientific conferences in the country.

Address: 23/1 Alpamys Batyr street, Tchubary district, Astana city, Republic of Kazakhstan

Tel./fax: +7 7172 24-39-45, tel.: +7 7172 24-08-76

web-site: www.saraptama.kz e-mail: info@saraptama.kz

 


LEGISLATURE OF KAZAKHSTAN

20 YEARS OF INDEPENDENCE

 

Turetsky Nikolay Nikolayevich

 

Edited by: E.Kikhtenko

Technical secretary: Abdrakhmanova K.

Page-proof: Fyodorov А.

 

Table of contents

 

Introduction by the Head of OSCE Center in Astana A. Keltchewsky  3

Foreword  3

Section 1. Establishment of legislature  3

1.1. Operations of the Supreme Soviet 3

1.2. Formation of the Kazakhstan’s model of parliamentarianism   3

Section 2. Powers of the Parliament of the Republic of Kazakhstan  3

2.1. Parliament - the supreme representative body  3

2.2. Powers of Parliament 3

2.3. Oversight powers of the Parliament 3

2.4. Vote of censure  3

2.5. Parliamentary hearings  3

2.6. International and inter-parliament activities of the Parliament 3

Section 3. Legislative activity of the Parliament 3

3.1. Planning for legislative work  3

3.2. The subjects of legislative initiative  3

3.3. The legislative process of the Parliament 3

3.4. Rule of Law   3

3.5 Review of Draft Laws  3

3.6. Systematization and codification of legislation  3

3.7. Law Monitoring  3

3.8. Interpretation of Laws  3

3.9. Administrative Office of the Majilis (Lower Chamber) 3

Section 4. Public Institutions of the Parliament 3

Transparency of the Parliament’s Activities  3

4.1. Political Factions  3

4.2. Assembly of Nations of Kazakhstan  3

Zhana Kazakhstan (New Kazakhstan) Deputy Group  3

4.3. Public Chamber under the Parliament Majilis of the Republic of Kazakhstan  3

4.4. Publicity and openness of Parliament 3

Section 5. Parliamentary Representations in the Republic of Kazakhstan  3

5.1. Representation of the President of the Republic of Kazakhstan in the Parliament of the Republic of Kazakhstan  3

5.2. Representation Office of the Government of the Republic of Kazakhstan in the Parliament of the Republic of Kazakhstan  3

 

Introduction by the Head of OSCE Center in Astana A. Keltchewsky

 

This monograph is looking at a most important aspect of a democratic and law-based state - the development of Parliament in the Republic of Kazakhstan. The monograph was published and translated into Kazakh with the financial support of OSCE center in Astana and is associated with 20 years of independence of the Republic of Kazakhstan. In a democratic society the parliament is the representative body executing the lawmaking function and acting as a counter-balance to the other branches of state power. The documents enacted under OSCE stress that «the executive bodies are accountable to the legislative body and the constituency» (Copenhagen act, 1990) and «the legislation is drafted and adopted as a result of an open process reflecting the will of citizens directly or through their elected representatives» (Moscow act, 1991) It is worth noting that a true Parliament can only exist and develop under certain political conditions. First of all this requires sufficiently high political and legal awareness of people, high degree of democratization, developed civil society, multi-party as a means of reflecting and representing the views and interests of various groups of society. The current parliamentarianism is being established in Kazakhstan quite fast. During 20 years of independence the Parliament of Kazakhstan has done a lot of work. The parliament was institutionalized and established itself as a legal and political institute, and formed the legal basis for the legislative branch of power. OSCE Center in Astana during many years has been fruitfully cooperating with the Parliament of the Republic of Kazakhstan and providing assistance in the development of democratic institutes. This assistance takes various forms: trainings for members of legislative bodies and staff, organizing study tours, expert support related to parliament management, expert review of draft laws, holding public hearings as well as facilitating liaison with mass media and certain groups of civil society. Publishing this monograph we hope that the deep analysis of the issues of establishment and development prospects of the Kazakhstani model of parliamentarianism, conclusions and recommendations provided by this study would facilitate further improvement of the Parliament institute in Kazakhstan. Alexander Keltchewsky

Ambassador, Head of OSCE Center in Astana

 


Foreword

 

According to Constitution of the Republic of Kazakhstan the Parliament of the Republic of Kazakhstan is the supreme representative body of the country empowered with legislative functions. Parliament is a collegial representative body of power consisting of two chambers: Senate and Majilis both functioning continuously.

During the initial stage of establishment of national identity of Kazakhstan absolutely new legal and regulatory framework was needed to implement deep multi-faceted reforms that would radically change the basic economic and political relations in the Republic. And today one can’t but note the major role that the Parliament played in the implementation of this historical goal. Therefore every time we speak about a Kazakhstani path, victories and achievements that mark this glorious path we should remember the valuable contribution of the Parliament to the implementation of the strategic path identified by the Head of the state.

The first President of the Republic of Kazakhstan, the leader of the nation Nursultan A. Nazarbayev, appreciated the functions of the Parliament and stated: «… today we can be absolutely sure to state that the professional bicameral Parliament as the supreme representative body implementing legislative functions has not just happened but successfully passed the test by time».

After the constitutional reform of 2007 the configuration of the public governance has significantly changed towards more meaningful role of the Parliament and political parties in the system of policy-and-power relations. Strengthening of party and parliament foundation of power Kazakhstan achieved more democratic and institutionally sustainable form of governance. Election legislation of country was modernized; legal mechanism was established ensuring formation of Majilis with participation of at least two parties which is the guarantee of party pluralism. The constitution reform granted the right to the Assembly of the people of Kazakhstan to elect nine deputies to Majilis which became the contribution of this institution into the strengthening of stability, inter-ethnic and inter-confessional concord in the country.

The Public chamber is established under the Majilis harmoniously fitting into the system of collaboration between the civil society, Parliament and public bodies. The Public Chamber has become a dialogue platform for improvement of law-making process based on optimal combination of public and social interests.

The Parliament of I, II, III and IV (4 sessions) convocations adopted 1984 laws regulating the most important public relations. The Parliamentarians of IV convocation adopted an importance set of laws aimed at ensuring financial stability in the country in the conditions of global financial and economic crisis; ratified a number of important international agreements that formed the basis for the Customs Union; adopted the laws reforming enforcement operations and judicial system in the Republic of Kazakhstan.

The bicameral professional Parliament of now forms an integral part of the Kazakhstan society contributing a lot into the successful implementation of socio-economic and political reforms in the country. The country has major future plans meaning that the Parliament will have to operate using the absolutely new format and issue the new generation laws. The President of the Republic of Kazakhstan N.Nazarbayev stated in his speech during inauguration on April 8, 2011: «…We should find most optimal solutions for expanding authorities of the Parliament…»

The monograph «Legislature of Kazakhstan» analyses the history of development of the legislative body of the country, surveys that legal status of the Parliament, its key powers, outlines the Kazakhstani model of parliamentarianism and prospects of development.

The author of the monograph study is the deputy of IV convocation of Parliament Majilis, doctor of law, author of above two hundred publications (including comments, manuals, monographs, guidelines, articles including outside the country).

Based on practical work as a deputy the author expresses his opinion on the current problem aspects of law-making process. Given the relative novelty of the work the author makes controversial but interesting statements and proposes personal solutions for improvement of law-making process and other issues covered by the monograph.

 

Chair

Committee for legislation and judicial and legal reform

Parliament Majilis of the Republic of Kazakhstan,

Master of laws, associate professorR. Mukashev

 


 

Section 1. Establishment of legislature

 

1.1. Operations of the Supreme Soviet

 

The operations of the Supreme Soviet can be conventionally broken down into several periods based on the legislation in particular Constitution. Thus the first period to refer should be the period 1937 - 1978, the second - 1978 - 1993, and the third - 1993 - 1995.

The Supreme Soviet as the supreme representative body was first established based on Constitution of Kazakh SSR of 1937 and later - based on Constitution of Kazakh SSR of 1978 and though the name didn’t change the authorities were significantly revised by the Constitution of the Republic of Kazakhstan in 1993.

1. The representative power as a form of manifestation of democracy has been typical for Kazakh society. It transformed depending on the current political system. Current Kazakhstani Parliament replaced the «single-level» representative body of the Republic of Kazakhstan that was called Supreme Soviet.

The Constitution of Kazakh Soviet Socialist Republic adopted by the X All-Kazakh Congress of the Soviets on March 26, 1937 states: «The supreme body of state power in Kazakh SSR shall be the Supreme Soviet of Kazakh SSR. The Supreme Soviet of Kazakh SSR shall enjoy all the rights granted by Kazakh SSR according to Articles 13 and 19 of Constitution of Kazakh SSR as they are not, in accordance to Constitution, the competence of the bodies of Kazakh SSR reporting to the Supreme Soviet of Kazakh SSR, those of: the Presidium of the Supreme Soviet of Kazakh SSR, Soviet of People’s Commissionaires of Kazakh SSR and People’s Commissariats of Kazakh SSR. According to Constitution of 1937 the Supreme Soviet of Kazakh SSR is the only legislative body of Kazakh SSR»[1].

The first elections to the Supreme Soviet of Kazakh SSR were held on June 24, 1938. The elections were based on universal, equal and direct election right using secret ballot. The Parliamentarian corps was formed with no alternative under stringent control of the Communist party. The candidates to the deputies were chosen based on class, party, ethnicity, nationality, age and gender and other quotas. Highest rank officials of public bodies, heads of party, Komsomol and trade union bodies were nominated as candidates according to their positions. This was the reason for election procedure to be often quite formalistic.

According to Constitution of 1937 the sessions of the Supreme Soviet of Kazakh SSR are convoked by the Presidium of the Supreme Soviet of Kazakh SSR twice a year. Extraordinary sessions are convoked by the Presidium of the Supreme Soviet of Kazakh SSR at its discretion or upon request of one third of the deputies of Supreme Soviet of Kazakh SSR.

Presidium of the Supreme Soviet is a working body of the Supreme Soviet of Kazakh SSR elected by the Supreme Soviet and accountable to the Supreme Soviet of Kazakh SSR for all its activities.

Presidium of the Supreme Soviet of Kazakh SSR shall:

a)       convoke sessions of Supreme Soviet of Kazakh SSR;

b)      provide interpretation of the laws of Kazakh SSR, issue decrees;

c)       carry out national survey (referendum);

d)      cancel resolutions and instructions of the Soviet of People’s Commissionaires of Kazakh SSR and decisions and instructions of provincial Soviets of working class deputies if they are not consistent with the laws;

e)       in between the sessions of the Supreme Soviet of Kazakh SSR discharge from the posts and nominate certain People’s Commissionaires of Kazakh SSR upon recommendation of the Chair of the Soviet of people’s commissionaires of Kazakh SSR so that they are submitted for approval by the Supreme Soviet of Kazakh SSR;

f)        assign titles of honour of Kazakh SSR and issue rewards;

g)       execute the right of free pardon of the persons convicted by the judicial bodies of Kazakh SSR.

At the end of the term of the Supreme Soviet of Kazakh SSR Presidium of the Supreme Soviet of Kazakh SSR shall within maximum two month since the end of the term of the Supreme Soviet of Kazakh SSR schedule new election. At the end of the term of the Supreme Soviet of Kazakh SSR Presidium of the Supreme Soviet of Kazakh SSR preserves its power until the newly elected Supreme Soviet of Kazakh SSR form the new Presidium of the Supreme Soviet of Kazakh SSR. The newly elected Supreme Soviet of Kazakh SSR shall be convoked by the Presidium of Supreme Soviet of Kazakh SSR of the previous convocation not later than a month after the election.

These were the key powers of the Presidium of Supreme Soviet of Kazakh SSR according to Constitution of 1937. In addition to legislative powers it was responsible for other duties. During the second period important historical event happened that in the course of democratic development in the country, USSR collapse and establishment of the sovereign state - the Republic of Kazakhstan - radically changed the authorities of the Supreme Soviet. This is why we will consider the second period in more detail.

2. The Constitution of Kazakh SSR of 1978 was adopted on the basis of the all-Union Constitution. The new Fundamental Law proclaimed the sovereignty of Kazakhstan, basic personal rights and freedoms, the right of free secession of the republic from the Union of SSR, the right of independent external policy.

The 1978 Constitution of Kazakh SSR also defines the Supreme Soviet of Kazakh SSR as the supreme body of state power.

Article 97 of 1978 Constitution of Kazakh Soviet Social Republic provided that the Supreme Soviet of Kazakh SSR is entitled to decide upon all issues that are regarded by USSR Constitution and this Constitution as those under authority of Kazakh SSR.

Adoption of Constitution of Kazakh SSR, revisions to it; approval of national plans of economic and social development of Kazakh SSR, national budget of Kazakh SSR and reporting on their execution; formation of subordinate bodies are the exclusive power of the Supreme Soviet of Kazakh SSR.

The laws of Kazakh SSR are issued by the Supreme Soviet of Kazakh SSR or through people voting (referendum) to be organized under the decision of the Supreme Soviet of Kazakh SSR[2].

According to 1978 Constitution of KazSSR the Soviets, including the Supreme Soviet of the Republic enjoyed the full legal authority. The powers were implemented without distribution into branches though the branches existed at that time to a certain degree. However the implementation and instructing bodies were not identified as an independent system - it was embedded into the system of Soviets and was established and dismissed by Soviets. This right however was only legally established but in fact the Soviets, including the Supreme Soviet also didn’t have the full authority - it belonged to the Communist party, to its supreme bodies, to be exact. Legally the Supreme Soviet would direct the operations of the executive bodies as well including the Government. The Government was accountable to the Supreme Soviet. «Cabinet of Ministers of KazSSR shall be accountable to the Supreme Soviet and reporting to it,» - is a quote from Article 117 of 1978 Constitution of KazSSR[3].

Thus the Soviet state recognized the principle of rule of the Supreme Soviet. It was empowered to decide upon all issues that USSR and KazSSR constitutions referred to the authority of the republic. In other words, the Supreme Soviet has a power to take decisions on all issues аstate life. This was the essence of monocracy of the supreme representative body. The Supreme Soviet of Kazakh SSR wasn’t the Parliament as there was no power sharing and a permanent supreme representative body.

As G.S.Sapargaliyev believes the Supreme Soviet of Kazakh SSR wasn’t a true Parliament as there was no principle of state power division into branches and also because it was reporting to the Supreme Soviet of USSR[4]. This statement however doesn’t mean full denial of its role in the state formation.

As the history shows the late 80-s marked the beginning of the Soviet state collapse. In early 90-s Kazakh SSR and later the Republic of Kazakhstan adopted a set of laws that significantly changed the 1978 Constitution.

Special role in the political history of establishment of the sovereign Kazakhstan was played by the Supreme Soviet of XII convocation. Election took place in March 1990. It was for the first time that in the conditions of continuing influence of the administrative command system the supreme representative body was elected on the wide democratic basis. More than 2,000 applicants competed during election campaign for 360 MP mandates. In the majority of 270 territories the election was with no alternative choice. It was for the first time that 90 deputies were elected by the civil society institutions, and among the elected were the prominent academicians Salyk Zimanov, Orazaly Sabdenov, Gani Kaliyev and others.

As a result of expression of people’s will more than 85% of deputies were elected for the first time. It was for the first time that widest representation of scientific and creative intelligentsia was ensured. Under the Supreme Soviet 14 committees were organised that operated on a continuous basis compared to the previous eleven convocations of the Supreme Soviet when the deputies gathered to sessions only several times a year.

The Supreme Soviet of XII convocation was a law-making body that actively incorporated the elements of professional parliament in its operations.

A pre-condition of success of this Supreme Soviet was that fact that deputies elected by 24 civil society organizations took part in its work.

The XII convocation Supreme Soviet played a special role that resulted in adoption of a number of most important political and legal documents that set the foundation for independence of Kazakhstan, for the establishment of parliamentarianism in the country. During the XII convocation the Supreme Soviet adopted a number of important legal documents that ensured legal framework for the reforms in 1990-s.

They include:

1) Law of Kazakh SSR «On establishment of the position of the President of Kazakh SSR and amendments and revisions to Constitution (Fundamental Law) of Kazakh ЫЫКЭdated of April 24, 1990 that approves the establishment of the position of the President of Kazakh SSR[5];

2) Declaration «On state sovereignty of Kazakh SSR» dated of October 25, 1990 whereby the indivisibility and integrity of the territory is provided for the first time, the country is determined as a subject of international law; citizenship institution and equality of ownership rights are introduced. The Declaration declared for the first time the principle of separation of powers: legislative, executive and judicial. And the Supreme Soviet would only enjoy legislative power;

3) The Constitution law of the Republic of Kazakhstan «On state independence of the Republic of Kazakhstan» dated on December 16, 1991 that proclaimed independence of the country and the principle of separation of powers to legislative, executive and judicial branches;

4) revisions to the Constitution of Kazakh Soviet Socialist Republic dated of April 20, 1978 introduced by the following laws: Law of KazSSR of 24.04.1990; Law of KazSSR of 20.11.1990; Law of KazSSR of 15.02.1991; Law of KazSSR of 20.06.1991; Law of KazSSR of 25.06.1991; Law of KazSSR of 25.08.1991; Law of the Republic of Kazakhstan of 24.12.1991; Law of the Republic of Kazakhstan of 18.01.1992; Law of the Republic of Kazakhstan 02.07.1992.

Thus the Law of Kazakh Soviet Socialist Republic dated of February 15, 1991 «On amendments and revisions to Constitution (Fundamental Law) of Kazakh SSR» part 2 Article 80 read the following: «The Supreme Soviet of Kazakh SSR and local Soviets of people’s deputies shall elect the chairs of the Soviets. The Supreme Soviet has its Presidium»[6].

Later the Law of Kazakh Soviet Socialist Republic dated of June 20, 1991 No. 687-XII «On amendments and revisions to Constitution (Fundamental Law) of Kazakh SSR» introduced significant changes. In our view the most important ones were made to Article 105 of Constitution.

Thus the Presidium of the Supreme Soviet of Kazakh SSR shall:

- prepare the sessions of the Supreme Soviet of Kazakh SSR;

- arrange for planning for preparation of draft laws of Kazakh SSR and introduces suggestions for consideration of the Supreme Soviet of Kazakh SSR;

- coordinate activities of the committees of the Supreme Soviet of Kazakh SSR; establish deputy and other commissions;

- arrange for public discussion of draft laws of Kazakh SSR and other most important issues in state life and a number of other authorities.

The competence of the Presidium of the Supreme Soviet of Kazakh SSR was also revised[7].

In 1992 important revisions were made to 1978 Constitution whereby the subjects of legislative initiative were identified. Thus under the Law of the Republic of Kazakhstan dated on July 2, 1992 No. 1491-XII «On amendments and revisions to Constitution (Fundamental Law) of Kazakh SSR» part 1 article 101 reads the following: «The right of legislative initiative in the Supreme Soviet of the Republic of Kazakhstan shall be granted to the people’s deputies of the Republic of Kazakhstan, Chair of the Supreme Soviet of the Republic of Kazakhstan, committees of the Supreme Soviet of the Republic of Kazakhstan, President of the Republic of Kazakhstan, Cabinet of Ministers of the Republic of Kazakhstan, Supreme Court of the Republic of Kazakhstan, Supreme Arbitration Court of the Republic of Kazakhstan, Prosecutor General of the Republic of Kazakhstan»[8]. We can see the Constitution provides for eight subjects of legislative initiative.

The XII convocation Supreme Soviet during its operation considered and adopted in total more than 250 laws and above 500 resolutions. The majority were adopted for the first time as the laws of independent Kazakhstan. All these revisions and adoption of the new legal documents influenced the follow-up process of new Constitution (1993) drafting.

The opinion of S.A. Abdildin, the Chair of XII convocation Supreme Soviet is: «…by the time of discussion and adoption of the new Constitution the current Fundamental law, speaking figuratively, turned out to look like «patchwork». One can clearly state that its reputation was falling down. As there was no session of the Supreme Soviet that would not consider revisions to Constitution, that is the problem of adoption of the new Fundamental Law that would have absolutely new competences, content and structure became absolutely vital»[9].

It is worth noting the content of 1978 Constitution of the initial period was significantly different from that of its final period of its validity. However despite the radical changes 1978 Constitution preserved «the elements» of the Soviet legal system that hindered the democratic development in Kazakhstan.

3. Adoption of 1993 Constitution of the Republic of Kazakhstan marks off the completion of the legal separation of Kazakhstan from the Soviet-based past and is an important step to the establishment of the new legal mechanism of the sovereign state.

The adoption of 1993 Constitution was preceded by several years of hard work of overcoming stereotypes that formed during dozens of years in people’s minds, addressing a number of objective and subjective problems caused by the radical reform of the state and society. Indeed sometimes out decision were not of holistic nature and often served as a compromise. Errors were made which are inevitable in any new business. All this reflected in the operations of public institutions and legislation of the time which was clearly transitional by nature»[10].

Drafting and discussion of the first Constitution of Kazakhstan was accompanied by political battles; the danger of public discussions turning into open political conflict was quite obvious.

The XII convocation Supreme Soviet adopted the first post-Soviet constitution of Kazakhstan on January 28, 1993. The 1993 Constitution of the Republic of Kazakhstan consisted of 4 main sections and a section with transitional provisions, 21 chapters, 131 articles and the attached list of constitutional laws. Based on the formal parameters the structure of this Constitution was better harmonized with the current practice of constitutionalism than the previous text of the Fundamental law. The sections provided a consistent description of the basic constitutional set-up, rights and freedoms of people, basic set-up of the society, public institutions, and guarantees of compliance with Constitution.

The 1993 Constitution addressed a number of urgent issues. In particular it produced a major effort for establishment of executive power capable of fast response to the changes in the society and management of economic processes and it set up the foundation for overcoming discrepancies between the new presidential regime and the old system of Soviets.

The Constitution opened up the opportunity for positive development dynamics of Kazakhstani community through refusing the mono-party political governance, from state-monopoly-based economic system, from ideology of state authoritarianism i.e. a major legal step was made towards market-based economy.

The preamble now has the statement of the inviolability of Kazakhstan national identity. The Republic of Kazakhstan as such was determined as a form of national identity of the Kazakh nation that found its way. Now only one language is considered the state language - the Kazakh language. The Russian language is determined as the language for inter-ethnic communication.

Kazakhstan was proclaimed as a democratic, secular and unitary state where the only source of power is the people. No ideology is allowed to be stated as the national one. The principle of power separation into legislative, executive and judicial using the system of checks and balances was declared. An important novelty was the formulae of direct application of the Constitution. The international legal documents related to human rights and freedoms recognized by Kazakhstan were now declared as prevailing upon the national legislation.

A separate article 56 was introduced in Chapter 10 of Constitution related to civil society associations whereby the political parties are mentioned in extremely brief way. It also stated that the procedure of formation and termination of parties was to be stipulated by a separate law. However this has never been done in practice.

Section III related to public institutions in general reflected the changed approach to constitutionalism typical for the majority of post-soviet states. The state was proclaimed to be an official representative of people expressing their will, acting within the legally established authorities (articles 59, 60). At the same time this declarative nature of constitutional provisions, as the later events would show, will not become a serious barrier to the powers intending to oppose the provisions of the Fundamental law.

The top body in the list of governance structure according to 1993 Constitution was the Supreme Soviet. Article 62 stated that the «Supreme Soviet shall be the only legislative and supreme representative body of the Republic of Kazakhstan» and Article 67 states that «a deputy of the Supreme Soviet shall be a representative of the people of the country». The Supreme Soviet of the Republic of Kazakhstan was elected for the term of 5 years.

Powers granted by the Constitution to the Supreme Soviet according to articles 64 - 74 quite definitely state that the Supreme Soviet never had the prerogatives typical for a parliamentarian republic. The Supreme Soviet didn’t form the government based on the party that got majority seats and couldn’t independently decide upon the operations of the Cabinet of Ministers. Neither did the Supreme Soviet elect the head of the state though the powers of the latter were far from nominal like in parliamentary republics.

It is extremely important that the Supreme Soviet in accordance to 1993 Constitution had certain control authorities that were however quite far from international standards.

Thus Article 64 provided for the following key authorities to the Supreme Soviet of the Republic of Kazakhstan:

1) adopt Constitution of the Republic of Kazakhstan, issue revisions and amendments to it;

2) issue laws and other decisions; make sure they are enforced;

3) provide official interpretation of the laws of the country;

4) take decisions on reconsidering the borders of the Republic of Kazakhstan; set up the procedure for addressing the issues of administrative and territorial layout of the country;

5) approve the national budget and control its execution, revise the budget, set up the national taxes and charges;

6) determine the monetary system of the Republic of Kazakhstan;

7) take decision on referendum;

8) decide upon state borrowings and provision of economic and other assistance by the country;

9) elect coordinating, working and other bodies under it;

10) issue endorsement to appointment by the President of the Prime-Minister, deputy Prime-ministers of the Republic of Kazakhstan, ministers of exterior, defense, finance, interior, chair of national security committee and heads of diplomatic missions of the Republic of Kazakhstan;

11) elect Constitutional Court;

12) elect Supreme Court, Supreme arbitration court of the Republic of Kazakhstan and decide upon the procedure of formation of the courts reporting to them;

13) appoint the Prosecutor General of the Republic of Kazakhstan;

14) appoint the chair of the National bank of the Republic of Kazakhstan;

15) in the cases and according to the procedure set up by the Constitution and the laws of the country discharge from the positions of the chair and the judges of the Constitutional court, Supreme court, Supreme arbitration court, Prosecutor General, chair of the National bank of the Republic of Kazakhstan;

16) introduce national rewards; establish honor and special titles, highest diplomatic ranks and military ranks of the Republic of Kazakhstan;

17) issue amnesty acts;

18) ratify and denounce international agreements by the Republic of Kazakhstan;

19) approve Presidential decree on imposing emergency rule;

20) decide upon the issues of war and peace; and

21) enjoy other powers entrusted with it by the Constitution of the country[11].

It should be specifically noted that an important prerogative of the Supreme Soviet was the right to adopt Constitution and introduce amendments and revisions to it. This was caused by the text of Constitution Article 64 clause 1 and Article 129 parts 1, 2. At the same time Article 74 provided for the opportunity to arrange a referendum on the most vital issues of the country life including laws. This clarification is extremely important in relation to 1995 referendum on new Constitution.

1993 Constitution Article 88 part 1 stated that the members of Cabinet of Ministers are accountable to the Supreme Soviet in terms of compliance with the laws of the Republic of Kazakhstan. And Constitution Article 85 clearly stated that the government is politically accountable to the head of the state: «Cabinet of Minister is accountable to the President of the Republic of Kazakhstan. Cabinet of Ministers shall abdicate in case of newly elected President.» The President had the right to appoint all the members of the government (Article 78 clause 3); the Supreme Soviet only issued endorsement to such appointments (Article 64 Clause 10). Possible contradictions in case of refusal to endorse were not dealt with by the Constitution whatsoever. It was the President who managed the government in general, he determined the composition, form and terminate ministries and agencies, had the right to revoke validity of enactments of the government and agencies that it consisted of (Article 78 Clause 3). The fundamental wording of Constitution Article 75 was that the President is not only the head of the state but he heads the integrated system of executive power.

The 1993 Constitution of the Republic of Kazakhstan empowered the Supreme Soviet with quite broad authorities having though some internal contradictions.

Academician S.Sartayev noted: «The first Constitution of the independent democratic Republic of Kazakhstan was adopted on 28 January 1993… It has a major deficiency: we didn’t clearly specify the division of state power into legislative, executive and judicial branches and didn’t clearly specify the representation of our President and his rights»[12].

Academician S.Z. Zimanov considers that 1993 Constitution of the Republic of Kazakhstan recognized the Supreme Soviet as the only legislative and supreme representative body the country. The Supreme Soviet was empowered with wide authorities thus almost neglecting the principle of separation of state powers[13]. In addition the system of checks and balances wasn’t provided for. Therefore the 1993 Constitution laid the controversial legal framework for the state power. The Supreme Soviet that functioned in an intermittent way definitely couldn’t cope with its functions though it would be unfair to reprimand the Supreme Soviet of lack of act. The laws that formed the basis for the new national legal system were adopted by the XII convocation Supreme Soviet of the Republic of Kazakhstan. However the Supreme Soviet couldn’t become the Parliament and the parliamentary republic didn’t happen in Kazakhstan. Based on the opinion of N.A.Nazarbayev the parliamentary republic turned out to be unacceptable for Kazakhstan as it didn’t have «…mature traditions and culture of parliamentarianism, the developed multi-party system and, most importantly, the mentality of wider population that would accept all this»[14].

Further reforms revealed the inefficiency of republic bodies of power that were not able to adequately react to the quickly changing events and take adequate decisions. The outcome of functioning of some bodies of the XII convocation Supreme Soviet that functioned continuously also proved the need for the establishment of the professional Parliament. The non-working mechanisms of checks and balances allowed the Supreme Soviet interfere into the functions of the Government or substitute it and this resulted in early termination of the functions of the representative body of the republic[15].

The problems of implementation of state power separation principle was characterized by academician S.S. Sartayev at that stage in the following way: «The economic crisis was growing. To overcome it the Government submits to the Parliament the new anti-crisis programme. The analysis of events of that period allows concluding that the constructive collaboration of the branches of power didn’t work. The inefficiency of the anti-crisis programme developed by the Government became obvious. This caused yet another serious criticism of the Government by the Supreme Soviet that meant that the Government and the Supreme Soviet couldn’t work together anymore»[16].

After heating debates during the session of the Presidium on 30 November 1993 the decision on voluntary dissolution of the XII convocation Supreme Soviet was taken. During the last historical session of the XII convocation Supreme Soviet during 9 - 12 December 1993 the urgent laws were issued including the ones empowering President and heads of local governments with additional authorities for the period of absence of the Supreme Soviet. According to the law the Head of the state was authorized to issue the enactments having power of a law and enjoy a number of other powers of the Supreme Soviet stipulated by the Constitution of the Republic of Kazakhstan. On 13 December 1993 the XII convocation Supreme Soviet was announced voluntarily dissolved and the election was scheduled for 7 March 1994 thus starting the new stage of parliamentarianism in the country[17].

In March 1994 the elections to the XIII convocation Supreme Soviet of the Republic of Kazakhstan took place. The Supreme Soviet shrunk in size. Out of total number of deputies 52% were independent candidates and 48% were representatives of political parties and public associations. It was for the first time in the history of Kazakhstan that the political parties and movements got access to the real levers of power, an opportunity to influence on formulation and adoption of national programmes. Elections that took place on 7 March 1994 facilitated the establishment of multi-party system in the country.

During the session of the Supreme Soviet on 9 June 1994 the President of the Republic of Kazakhstan N.A.Nazarbayev made a speech to the deputies «Towards renovated Kazakhstan through deeper reforms and nationwide concord» and addressed the deputies with «Acceleration of market-oriented transformations and measures of overcoming the economic crisis» where he explained his vision of the prospects and directions for the country development and its structure.

The XIII convocation Supreme Soviet that functioned from April 1994 to March 1995 became a major step towards professional parliament of Kazakhstan where the deputies would work on a continuous basis.

As the Chair of the XIII convocation Supreme Soviet during that period A.Kekilbayev noted: «The establishment of the professional parliament could be undoubtedly considered almost the biggest event in the social and political life of the year. The start of its work will definitely be reflected in the historical calendar of Kazakhstan as a most remarkable stage in the establishment of new national identity and democracy… We’ve never had a professional parliament and we had to take a path of trial and error… Gradually the authorities of the Supreme Soviet are getting crystallized to attain a new status»[18].

The XIII convocation Supreme Soviet was announced illegitimate as the Constitutional court considered some provisions of the election legislation that were followed during the election of the deputies as non-compliant with Constitution[19].

As some legal scholars noted the 1993 Constitution of the Republic of Kazakhstan initially contained the contradictions that were some sort of compromise between the old and new political structure, and reflected the attempt to introduce the western model of democracy that took centuries to build on the post-soviet ground. Director of Institute of State and Law, the academician of the National Academy of Science of the Republic of Kazakhstan G.S. Sapargaliyev stated that «after adoption of the Fundamental law in 1993 it became the core enactment for us. However the fast flow of time, the time of change and development dictate new conditions and require new rules and settings… But these actions do not mean that our Constitution was unstable but, quite the opposite prove the fact that it is developing and growing together with our young state»[20].

Many politicians, law scholars have legitimately raised the issue of the absolutely new approach and structure of the legislative body based on the fact that in Kazakhstan as unitary state can establish a bi-cameral parliament and its structure should not necessarily be determined by the form of governance. The choice of a structure for the parliament in fact was determined by the subjective factor and as G.S. Sapargaliyev claims most likely it was caused by the strive and desire to ensure legislative power in the most fruitful way[21].

To conclude one should note that during these years the opposition between branches of power and within political elite became most acute because the 1993 Constitution didn’t adequately address the issues related to the nature of state order, system of interaction between branches of power and other issues. These problems have implicitly become the keynote of the political discussions of that time.

«Under the influence of this process the overall opposition with the Kazakh elite was getting stronger. The tension between the two branches of power - representative and executive was growing within the existing system of «checks and balances». Further development of this situation has quite logically resulted in crisis within the elite»[22].

The further development of the country required additional changes to the Constitution as the Fundamental Law contained contradictory legal framework of state power. Under the 1993 Constitution of the Republic of Kazakhstan the Supreme Soviet as it was noted before, had quite wide authorities, which made it difficult to implement the principle of separation of power and formation of the system of checks and balances.

The 1993 Constitution of the Republic of Kazakhstan didn’t facilitate the achievement of the key objective - the establishment of the strong state power capable of protecting human rights and stabilizing the public and political situation. The development of new Constitution of the Republic of Kazakhstan started in the most challenging conditions.

And only the 1995 Constitution has unequivocally terminated the soviet system of representative bodies and the main state body - Supreme Soviet that functioned during 58 years left the political life of the country.

 

1.2. Formation of the Kazakhstan’s model of parliamentarianism

 

The term «Parliament» was first provided for in the 1995 Constitution. The Constitution established the bicameral Parliament the need for which have been discussed for a long time in our society but have never been implemented by 1993 Constitution. Therefore here is a brief on how it was adopted and key provisions that it contains.

1. The draft Constitution prepared by July 1995 is opened for nationwide discussion. Around 53 national organizations, public associations and movements take part in the discussion of and provided 678 comments and suggestions to the draft Constitution.

Special role in determining the key provisions of the future Constitution was played by the President of the Republic of Kazakhstan N.Nazarbayev. In his book «Kazakhstan’s path» he noted: «Each provision of the future Fundamental Law was considered in several versions and was thoroughly discussed. Because it was the preparation of the most important document that determined the future of our country it was necessary to take into account all factors, all opinions and select the most appropriate. I encouraged the members of the working group to open expression of their opinions to open debates but only to the point of decision taking and after that it should have been quickly formalized and we should have moved forward»[23].

A referendum was held in Kazakhstan on 30 August 1995 that adopted the new Constitution of the independent Kazakhstan. Around 90% of voters participated in the referendum and 89% of them voted for the new Fundamental Law of the country.

On 5 September the mass media of the country published the information about the results of voting on Constitution of the Republic of Kazakhstan during the national referendum. It stated:

«Central commission announces:

- voting was held at all 10 253 polling stations;

- total number of citizens enlisted for voting - 8 933 516;

- number of people who participated in voting - 8 091 715 or 90.58 %;

- number of people who voted «yes» - 7 212 773 or 89.14 %;

- number of people who voted «no», - 800 839 or 9.90 %;

- number of votes regarded invalid - 78 103.

Based on voting results the Constitution of the Republic of Kazakhstan is considered adopted»[24].

Adoption of Constitution by the nationwide referendum attached a high degree of legitimacy to it and turned out to be a most important, changing event in the history of establishment of the sovereign Kazakhstan[25].

From a predominantly political document that the soviet constitutions tent to be before the 1995 Constitution of the Republic of Kazakhstan became predominantly a legal statute. To a higher degree the focus is made on the legal side of it, legal guarantees including human and citizen’s rights and freedoms[26].

The 1995 Constitution of the Republic of Kazakhstan recognizes the human and citizen’s rights and freedoms and recognizes them in front of the international community by committing to international obligations. Kazakhstan has joined and ratified a major set of international documents related to human rights and freedoms. They include international treaties on civil and political rights, on economic, social and cultural rights.

It laid the foundation for continuously operating Kazakhstani parliamentarianism based on bicameral system that helped establishing the new legal system of the country compliant with the provisions of the Fundamental Law.

The Fundamental Law recognizes as the highest human values the human being, his life, rights and freedoms. It is remarkable that the corner stone of the new Constitution is the citizen’s rights and freedoms and individual rights. Democracy of the state is not only expressed through the high political and legal status of people but also in the legal status of a person and a citizen. Both legally and factually the people of Kazakhstan having adopted by referendum of the Constitution of the Republic acted as a founder of the state power. Constitution Article 1 states: «The Republic of Kazakhstan is constituted as a democratic, secular, legal and social state with the highest values being a man, his life, rights and freedoms». The wide range of democratic rights and freedoms stipulated by the Constitution provide to the citizens the legal opportunity to enjoy the freedom of speech, freedom of conscience, to participate in governance of public bodies, create public associations.

The adoption of the 1995 Constitution of the Republic forms the legal framework for the constitutional setting, recognizes the basic operational principles for both the state mechanism and the public and political institutions, sets up the constitutional status of a person and a citizen, and identifies the basis for the economic layout. The Constitution of the Republic based on democratic traditions of constitutionalism, recognizes the multi-ethnic people of Kazakhstan as the sole source of state power.

The 1995 Constitution proclaims Kazakhstan as the unitary state with presidential form of governance and the constitutional laws «On the Parliament of the Republic of Kazakhstan and the status of parliamentarians», «On the Government of the Republic of Kazakhstan», «On judicial system and the status of judges» are regulating the status and functions of each branch of power.

An important feature of a law-based state is the separation of state power into three branches. The principle of power separation by no means contradicts its unity but suggests the agreed interaction between the branches - legislative, executive and judicial - and makes it impossible to concentrate all the power in any one of them[27]. In the system of separation of the single state power the functions of the Parliament were clearly defined as being focused on legislative activities. These areas is clearly determined by the specific constitutional framework though it is quite wide and is capable of regulating public relations by the law to the full extent[28].

The established bicameral Parliament helped enhancing democratic initiatives in the country and formed the solid legal framework for the parliamentarianism in the Republic of Kazakhstan as the guarantor of checks and balances system. The 1995 Constitution of the Republic of Kazakhstan recognizes that the Parliament is the supreme representative body in the Republic responsible for legislative functions. The Parliament consists of 2 chambers: Senate and Majilis working continuously.

The Senate is formed of the deputies elected (two persons) from each oblast (province-noted by translator), republican city (Almaty - noted by translator) and the capital city of the Republic of Kazakhstan during the joint session of the deputies of all representative bodies of the corresponding oblast, republican city and the capital city of the country. According to the previous wording of the Constitution of the Republic of Kazakhstan seven Senate deputies were appointed by the President of the Republic for the term of the Parliament operation. And Majilis consisted of sixty seven deputies elected within the single-seat territorial constituencies formed in accordance with the administrative and territorial division of the country with approximately equal number of voters.

The 1995 Constitution is a key achievement of the Kazakhstan’s society and it serves as a main stabilizing factor during reforms.

The 1995 Constitution has significantly raised the status of the President and stipulated a constitutional provision about the establishment of presidential form of governance in the Republic of Kazakhstan. The President is now empowered to be a constitutional arbitrator that allows ensuring coordinated functioning of all branches of state power and their accountability to the people.

The 1995 Constitution redistributed the powers focusing on executive power. Control functions of the Parliament were restricted. The President gained sufficient power to implement his policy almost independent of the outcomes of parliamentary elections. The new Constitution sets up the balanced mechanisms of power separation and resolution of possible political crises*).

In other countries with presidential regime in case of political crisis the head of the state is entitled to relieve the government or dissolve the lower chamber of the Parliament. In Kazakhstan the head of the state can dissolve either Majilis or both chambers of the Parliament (Constitution Article 63 clause 1). It should be noted that the legislation of Kazakhstan makes it difficult to revise and amend the Constitution; this requires three forth of votes of deputies of both chambers[29].

According to the 1993 Constitution of the Republic of Kazakhstan (Article 71) «the right of legislative initiative in the Supreme Soviet of the Republic of Kazakhstan is granted to the deputies of the Supreme Soviet, President, Cabinet of Ministers, Supreme court and the Supreme Arbitration court of the Republic of Kazakhstan». The 1995 Constitution made this list of entitlement narrower. Article 61 Clause 1 stipulates that the right of legislative initiative is granted to the deputies of the Parliament, Government and is implemented by Majilis only.

The 1995 Constitution of the Republic of Kazakhstan is an absolutely new political and legal document. Its main novelty is manifested primarily in the principles that decide upon its content and form of its institutions. The basic ones are the following ideas proclaimed in the public life: people power and sovereignty, meaning separation of state power; constitutionalism, rule of law and law-based state; natural and integral human and citizen’s rights; unitarianism and free national development; strengthening peace between peoples and states, observation of principles and standards of international law; public concord and political stability; economic development for the benefit of all people; love of country by the Kazakhstani citizens; use of democratic methods for solving important issues of state life including voting by national referendum or in the Parliament.

As Professor S.F. Udartsev claimed: «Constitution is a kind of «genetic code» of the system of relations underlining the entire public life. During the last two hundred years the constitutional enactments have successfully mastered the national and federal levels. If we compare 1993 and 1995 Constitutions of the Republic of Kazakhstan the latter has a higher regulatory capacity of the targeted action»[30].

The core idea of the Fundamental law states that concord and compromise of various public and political forces in the Kazakhstan society should be ensured both for the short-term and for the longer-term historic future. This makes Constitution the main factor of political stability, the guarantor of civil peace, social and national concord.

The provision of Constitution are the legal guidelines of direct application; and they are enforced by the bodies of state power thus creating real opportunities for formation and consolidation of the state.

The Constitution and political principles and legal institutions provided for by it facilitate the incorporation of our society and the state into the global economy and policy system and into the global progress of modern civilization as a whole[31].

The essence and the content of the Constitution that are caused by human values and general democratic principles are fully in line with the recognized principles and standards of international law, European and global standards of constitution making. The Constitution is not only relying upon the experience of the advanced democratic states but also takes into account the practice of current legislative regulation of public relations in Kazakhstan at the current stage.

Compared to the previous ones the 1995 Constitution in principles reflects the factual conditions of the country and real needs of social, democratic, public, political and moral development of the society in the new conditions. It is very important that the period of progressive reforms of the political system of Kazakhstan along the entire duration went in parallel with the establishment of the standards of national identity of Kazakhstan and radical reforms of the economic system of the country.

2. An integral condition for building a democratic, law-based and social state is the efficient parliament operation. The term «parliamentarianism» is often used to characterize the performance of a parliament.

Parliament and parliamentarianism are the words with the same root and the definition of second one stems from the essence of the first one therefore they are interrelated but bear different content load.

Parliamentarianism is a special system of public governance through legislative authorities and control functions.

Parliamentarianism cannot exist without parliament; and its basis is the strong and enjoying pull power parliament. At the same time parliamentarianism is the highest quality of the parliament that it can lose. The parliament can exist without major elements of parliamentarianism which is typical for authoritative regimes[32].

 A legal manifestation of parliamentarianism is the control by the parliament of the performance of the government. This control is executed in different ways in parliamentarian and presidential republics but in any case it expresses the privileged status of the parliament[33].

As many legal scholars believe parliamentarianism is the form of people representation expressed as a body of the elected legislative power granted with certain rights and authorities that stem from medieval times.

Political and constitutional legal literature defines «parliamentarianism» in different ways. Parliamentarianism is a multiform universal phenomenon having specific traits in various countries. Its formation is influenced by objective factors including balance of social forces in the society, traditions and customs of the country, international experience, and form of governance in the state. According to A.K. Kotov parliamentarianism in the wide sense should be understood as an idea and experience of executing the functions of the state in setting up the common enforceable rules in the society through continuous expression of will by the people’s representatives. The well-known legal scholar, in our opinion, is quite right stating that the «inherent», political meaning of parliamentarianism shouldn’t be lost, which represents the institutionalized procedures of executing legislative power by the parliament as a permanent body of the state elected by the people[34].

Parliamentarianism does not only mean the rule of law and legislative power but a high degree of independence and responsibility of other branches of power - executive and some cases judicial. Parliamentarianism means collaboration of powers for the sake of the interests of the state and people.

The authors of the first Russian textbook «Parliamentary law in Russia» note: «Parliamentarianism is a special system of public governance structurally and functionally based on the principles of power separation, rule of law with lead role of the parliament aimed at establishment and development of relations of social justice and law and order»[35].

There are also opinions that parliamentarianism is «the regime of mandatory complete solidarity between the government and the body or bodies that are recognized as resectful expression of people’s opinion»[36].

A Ukrainian political analyst N.A. Syedin justifying the functional model of parliamentarianism in the conditions of modernization states that in the process of his study «he found a proof of the opinion in today’s science there is no single and holistic comparative theory of parliamentarianism regarding its functions, their definition, content and significance»[37].

We share the opinion of the Ukrainian scientist that the legal science lack a single view of the nature and essence of parliamentarianism, legal scholars define the nature of this phenomenon in different ways. A most common opinion is that parliamentarianism is a special type of governance, «this is a kind of institutional and functional form of state power organization whereby the national sovereignty and, therefore, the sovereignty of the state is expressed through the supreme bodies of people’s representation enforcing by the power of law the common interests and needs of social development…»[38].

The issues of the stages of establishment and development of parliamentarianism in Kazakhstan are debatable in the Kazakhstani constitutional and legal literature. The elements of parliamentarianism can be traced in Kazakhstan starting from the moment of establishment of the state. These issues have been studied in detail by historians, legal scholars and political analysts. As the deputy of IV convocation Majilis of Parliament of the Republic of Kazakhstan B.A. Bekzhanov believes in the history of parliamentarianism one can identify the Turk period, the period of Kazakh khanate, pre-revolution, Russian, Soviet and post-soviet periods[39].

Most legal scholars are the same opinion that in our country «the traditions of democratic discussion and decision taking on the most important issues of the state development and law were typical since the first Kazakh khanates. This was the period of steppe democracy that had its specificity and peculiarities. Later when the country was a territory of Russian empire the prominent leaders of Kazakh people participated in the work of State Dumas»[40]. Thus the involvement of representatives of Kazakh intelligentsia in the political processes that took place in Russia after October 1905 facilitated formation of ideas of parliamentarianism in the Kazakh society, - A.K. Kotov writes. - Carriers and mouthpieces of these ideas were the prominent leaders of the steppes who tried to create an autonomous national democratic state formation «Alash» after the February bourgeoisie-democratic revolution»[41].

Typical features of the elements of Kazakh parliamentarianism «that was being created then at the fault of history» included: the historical refusal of the monarchy in any form; non-acceptance of any form of theocratic regime in favor of secular, national by origin and social by content autonomous state formation…»[42].

As A.K.Kotov believes the elements of parliamentarianism in Kazakhstan can be found in pre-October periods (1917). However the ideas of parliamentarianism as well the theory and practice of representative execution of legislative power in the state based on the principle of power separation were destined to grow on Kazakhstani land only after collapse of USSR[43].

We consider that the following view of the legal scholars regarding the history of development of Kazakhstani parliamentarianism deserves attention:

- pre-sovietstage (1905 - October 1917);

- sovietstage (October 1917 - 1990);

- post-soviet stage of revival and formation of Kazakhstani parliamentarianism (1990 - now)[44].

The analysis of earlier stages of historic development of our state allows drawing a conclusion that parliamentarianism is a phenomenon typical for Kazakh people since the moment of birth of national identity. The current condition of parliamentarianism is only a stage in its historic development in our country. The long-term historic development of the forms of people’s representation formed a solid basis for emergence of modern parliamentary democracy in Kazakhstan.

The history of modern parliamentarianism including that of sovereign and independent Kazakhstan is quite diverse. Not long ago parliamentarianism in Kazakhstan was for quite a while identified through the Supreme Soviet as the highest representative body.

Historical and political events related to the collapse of USSR and sovereignty of Kazakhstan, adoption of two Constitutions (1993 and 1995) due to various legal reasons resulted in self-resign of XII convocation Supreme Soviet and illegitimacy of XIII convocation Supreme Soviet based on resolution of the Constitutional Court of the Republic[45]. At the same time it is the work of the Supreme Soviet of the latest convocations that to a great extent predetermined the current condition of parliamentarianism in the Republic of Kazakhstan.

Many legal scholars noted that the special role in the history of parliamentarianism in Kazakhstan was played by the XII convocation Supreme Soviet that adopted a number of the most important enactments that provided the legal and regulatory framework for the reforms in 1990-s. At the same time it should be recognized that the XIII convocation Supreme Soviet formed the prerequisites for the further development of parliamentarianism in Kazakhstan.

The academician S.Z. Zimanov noted that the XII convocation Supreme Soviet of Kazakh SSR though institutionally was based on the Soviet Constitution its content and functions were different from the previous Supreme Soviets…This was an most intellectual parliament in the history of the country. …During almost four years of work (April 1990 - December 1993) the Parliament adopted 265 laws whilst the previous XI convocation Supreme Soviet during five years (1986 - 1990) only adopted 40 laws. This was definitely a major progress. The legal framework was established for the sovereign and independent development of the young state»[46].

An important milestone in the formation of true parliamentarianism in Kazakhstan was the Constitutional law «On state independence of the Republic of Kazakhstan» adopted by the Supreme Soviet on 16 December 1991. Article 9 stated: «Public governance in the Republic of Kazakhstan is built and executed based on the principle of power separation into legislative, executive and judicial». This fundamental principle that serves the basis for parliamentarianism was further developed by the 1993 Constitution that stated: «…public bodies within their authorities are independent, and interact with each other using the system of checks and balances».

Based on the opinion of academician G.S. Sapargaliyev the law «On state independence of the Republic of Kazakhstan» made an important step for the formation of the Kazakhstani Parliament and parliamentarianism[47].

The key dates in the development history of parliamentarianism in Kazakhstan are linked to the adoption of 1993 and 1995 Constitutions. The 1993 - 1995 period was extremely important for the history of formation of Kazakhstani parliamentarianism.

At the same time the XII and XIII convocation Supreme Soviets of the Republic of Kazakhstan that strived to establish a parliamentary republic in the country couldn’t ensure a consistent way of addressing the issues related to the establishment of market-based economy and a law-based state[48]. As the President of the Republic of Kazakhstan N.A. Nazarbayev said, already in early 1995 it became obvious that the defects of the supreme representative body were not of accidental but of principal nature, negatively affecting the pace of reforms and social and political situation in the country. The Constitutional crisis in March 1995 resulted in confrontation regarding the essence and methods of constitutional reform in the republic.

«In fact, - stated in this regard the Head of the state, - we survived the crisis of the entire state system that wasn’t capable to consistently and completely turn away from the soviet ideology and practice. This crisis reached its culminating point in 1995 and required an immediate constitutional solution as the state structures could be no longer efficient and operate without faults. As a result a political decision was taken to carry out a constitutional reform of the entire system of state power including its legislative branch»[49]. The 1995 Constitution became an absolutely new stage in the development of Kazakhstani parliamentarianism having created the important constitutional and legal prerequisites for the establishment of the new parliamentary institutions and forms. The foundation was laid for the modern Kazakhstani parliamentarianism operating on a permanent basis.

The Parliament of the Republic of Kazakhstan is closely collaborating with all supreme bodies of state power and the constructiveness of collaboration determines the positive outcomes of the performance of legislative branch of power.

In his well-known book «On the edge of the 21st century» the President of Kazakhstan N.A.Nazarbayev writes: «Parliamentarianism is an integral part of democracy. However the establishment of parliamentarianism in CIS countries is not easy….in the new conditions the parliament should carry out another function the role of which has increased in the conditions of national identity establishment and transition. This consistency of social and national needs, translating them into the common national interest, the interest of the state and therefore the expression of the will of the nation»[50].

The foundation of parliamentarianism is the idea of recognition of people as the sole source of power. This principle is the basicс one and is provided for in Article 3 of the existing Constitution of the Republic of Kazakhstan which states: «The only source of state power is the people». At the same time the Fundamental law delegates the right to act on behalf of people and the state to the Parliament as well as the President within the constitutional authorities. These principles form the conceptual basis for parliamentarianism[51].

The Kazakhstani parliamentarianism the way it looks today is a comparatively new institution of the political system of our society though the institution of representative power in Kazakhstan has quite deep historic roots. Some researches state that the bi-cameral parliament in Kazakhstan is a historic heritage. The start of the elements of parliamentarianism can be traced back in the functioning of kurultai - an ancient form of parliament that incorporated representatives of all regions and political forces of the Kazakh people. In the conditions of steppes democracy the most important issues of social life were discussed and addressed by kurultais - people gatherings that were attended by the most reputable representatives of the people. «This was a kind of institution of steppe democracy ensuring the required representation and agreement of interests in the Kazakh society», - said the speaker of Parliament Majilis of the Republic of Kazakhstan U.B. Mukhamedjanov at the session of the RF State Duma[52].

3. Thus the 1995 Constitution removed the defects of the previous state structure. It recognizes the Parliament as the supreme representative body implementing legislative functions and eventually terminated the soviet system of the representative bodies.

Let’s look briefly how the supreme representative body was formed in accordance with new Constitution.

On 28 September 1995 the President Nazarbayev N.A. signed a Decree having the power of a Constitutional law «On elections in the Republic of Kazakhstan». The procedure of elections has an impact on formation of the deputy corps.

As of 15 February 2011 the Law was revised and amended 12 times. The election system was adjusted twice by the laws. Whilst from 1995 to 1998 the elections in Kazakhstan followed the majoritarian electoral system[53], in 1998 - 2007 the election to Parliament Majilis of the Republic of Kazakhstan followed the combined election system (when 67 deputies were elected from territories and 10 deputies - based on party lists).

First election to the Parliament Majilis of the Republic of Kazakhstan took place on 9 December 1995. Total 67 deputies were elected based on majoritarian electoral system.

When opening the first session of I convocation Parliament on 30 January 1996 the President of the country N.Nazarbayev noted: «We are now witnessing the event that is to become a remarkable page in the chronicles of Kazakhstan, in the history of establishment of the national identity. In essence we are at the start of establishment of the Kazakhstani parliamentarianism in the true civilized sense. The key political objective of the Parliament that should be consistently implemented through the enactment issued, - to enhance the noticed positive trends, to eventually stabilize the political, economic and social situation so as to get to the stage of the progressive development of our country»[54].

In autumn 1999 according to the constitutional amendments introduced in 1998 the elections to Parliament Majilis of II convocation for the first time followed the combined system that provided political parties with an opportunity to be elected to the Parliament under party lists based on pro rata representation.

As a result of elections to II convocation Parliament Majilis 67 deputies were elected from single-seat constituencies and 10 deputies from parties from the single national territory.

Elections to III convocation Parliament Majilis took place in September 2004.

The III convocation terminated its functions ahead of time (June 2007) due to changes in the Constitution of the Republic of Kazakhstan.

Constitutional reform of 2007 significantly changed the election system: though it could be conventionally called combined but it is absolutely different from the previous combined election system.

Based on constitutional amendments the Constitutional law «On elections in the Republic of Kazakhstan» was revised and amended and became the basis of election to Majilis using the new system on 18 and 20 August 2007. Total 107 deputies were elected to IV convocation Parliament Majilis including 98 deputies from party lists following the system of pro rata representation and 9 deputies from the Assembly of the people of Kazakhstan.

As S.A. Dyachenko considers «the constitutional reform of 2007 became a factor for further transformation of the political system into its current version compliant with the classical features of Western democracy»[55].

Based on the amendments to Constitution the accountability of the Government was enhanced not only to the Head of the state but also to the Parliament to ensure public accountability of the executive power and transparency of its operations. Correspondingly the authorities of the Parliament to control the Government were revised. In addition if the Majilis wants to express the vote of censure to the Government the simple majority of deputy votes would be enough instead of two thirds as before.

The key thing is the setting up of the new rules for formation and functioning of the Government based on Parliament majority. Now the key role of appointing the Prime-minister and therefore the entire Government belongs to the Majilis. This would allow enhancing the role of political parties and what is very important the party of parliamentary majority would be responsible for the performance of the Government.

The composition of parliamentarianism is much dependent on the form of governance: presidential, presidential-parliamentary or parliamentary republic.

Evaluating the changes of 2007 in general it should be noted that their implementation facilitated strengthening parliamentarianism, legislative (representative) branch of power, reputation of parliamentarians and development of civil society. It is not by chance that many political scientists note that Kazakhstan made a major step towards presidential-parliamentary form of governance.

During the years of independence the basis was formed for parliamentarianism which is regarded as a factor for stable development of the state and society. The parliament has developed a holistic system of interaction with the President, Government, and Supreme Court. Today the Parliament is successfully implementing the functions according to the Constitution representing the body of political power and an independent legal institution.

It is important to note that the constitutional and legal status of the Parliament of the Republic of Kazakhstan contains all necessary parliamentary features (representation of people, bicameral structure, legal status, deputy fractions and groups to a certain extent in line with global practice of parliamentarianism and political-legal status)[56].

It is worth noting that parliamentarianism does not only mean the rule of law and legislative power but a high degree of independence and responsibility of other branches of power, primarily executive.

Modern parliamentarianism keeps developing in Kazakhstan. The establishment of the Kazakhstani model of parliamentarianism is a lengthy process. There are many models of the legislative body in the world. The best international practice should be taken into account and adapted to the national traditions, mentality, legal culture for the further improvement of our political system searching for our own Kazakhstani way of development.

The Kazakhstani model of parliamentarianism should be understood as a specific order of Parliament formation in addition to the general features of parliamentarianism:

- to the Senate - via Maslikats (32 deputies); through appointment by the President of the Republic of Kazakhstan (15 deputies given the need for representation in the Senate of the national, cultural and other significant interests of the society);

- to Majilis - based on party lists (98 deputies); from the Assembly of the people of Kazakhstan (9 deputies).

4. The next important step in the development of parliamentarianism system can be considered the on-going changes in the political system of the country in light of preparation of Kazakhstan to presidency in OSCE.

In 2007 in Madrid M.M. Tazhin announced: «We set up the wide scope objectives of political modernization. The recommendations of OSCE and its institutions in this respect are taken into account during the implementation of the programme of democratic reforms». In addition in his speech the Minister of Foreign Affairs of the Republic of Kazakhstan noted that as OSCE recommended Kazakhstan improved its legislation related to mass media, elections, aimed at liberalizing registration requirements to political parties as well as in relation to the system of local self-governance[57].

Kazakhstan is now at the stage of active political progress. Special attention is paid to the issues of immediate political transformations. Since the adoption of major amendments to the Constitution of the country in 2007 the Parliament of the Republic of Kazakhstan approved the suggestions of the President of Kazakhstan to expand the role of legislative power, strengthening the role of political parties and local self-governance bodies.

The Republic of Kazakhstan approaches the reforms of the legal system much deeper. And the changes are implemented consistently and logically taking into account the historic and national background, real status and international experience.

As a result of amendments to Constitution of the Republic of Kazakhstan the need emerged for reviewing the entire legislation of the Republic of Kazakhstan. Thus the amendments and revisions were made to the Constitutional Law of the Republic of Kazakhstan «On amendments and revisions to the Constitutional Law of the Republic of Kazakhstan «On elections in the Republic of Kazakhstan»; the Law of the Republic of Kazakhstan «On amendments and revisions to the Law of the Republic of Kazakhstan «On political parties» and others.

The key point of the amendments made is the establishment of the legal mechanism that would allow forming the V convocation Parliament Majilis with participation of at least two political parties. If only one party is above the 7% threshold to get access to the lower chamber of the Parliament, then another participating party that gets the biggest number of votes is also entitled to be involved in distribution of mandates. Introduction of the guarantee of multi-party Majilis is a very important step in the development of the political system of Kazakhstan.

To expand the opportunity for observation of elections by foreign observers and international organizations the law deletes the requirement to the latter to have the relevant experience of observation of elections.

An important element of democratic elections has always been the mass media. Open and fair elections are not only the ones where a voter can vote within the enabling environment. The election process should guarantee the access to adequate information about parties, the policy proposed by the candidate and about the election process so that the voters could make their choice on the basis of sufficient information.

The Law of the Republic of Kazakhstan «On amendments and revisions to the Law of the Republic of Kazakhstan «On political parties» dated of 6 February 2009 was aimed at improvement of institutional and legal issues in the activities of political parties, development and promotion of democratic processes in the Kazakhstan society, ensuring the formation of the political system compliant with international requirements, enhancement of the role of political parties in all areas of public relations and further development of the political system of Kazakhstan.

The lack of legal regulation of the activities of the organising committees (initiative groups) of establishment of parties, in particular indefinite timeframe for their operation created conditions for the operations of the organising committees during the indefinite period having the status of a political party. To have this issue properly regulated and to ensure transparency of its operations the law provides for mandatory establishment of an organising committee for specific time period to prepare and hold a founding congress (conference).

The law also liberalises the political environment by reducing by 20% the number of members of a political party required for it to be registered. The mechanism of registration of political parties was simplified and improved; the time period for the founding congress was expanded to give sufficient time for preparation and submission of documents for registration by the bodies of justice.

At the moment 10 parties are registered in Kazakhstan, reflecting the entire spectrum of political ideas.

 

Section 2. Powers of the Parliament of the Republic of Kazakhstan

2.1. Parliament - the supreme representative body

 

According to 1995 Constitution Article 3 Clause 4 (hereinafter Constitution) the state power in the Republic of Kazakhstan is unified and is implemented based on the principle of division into legislative, executive and judicial branches. The legislative branch of power is the Parliament.

The Parliament as the supreme representative body has a number of specific features:

- it is only possible in the system of power division;

- is permanent and professional;

- is characterized by special parliamentary procedures[58].

Representing the people of Kazakhstan, on behalf of the people and the state the Parliament enjoys its authorities stipulated by the Constitution.

According to Constitution of the Republic of Kazakhstan Article 3 the sole source of the state power is the people. The basis of the state of the Republic of Kazakhstan, its sovereignty, independence and constitutional form of governance is the people of Kazakhstan as is stated in the resolution of the Constitutional Council[59]. The people execute their power directly through the national referendum and open elections and delegate the execution of their power to the public bodies.

Nobody is entitled to arrogate power in the Republic of Kazakhstan. Arrogation of power is prosecuted by law. The right to act on behalf of the people and the state belongs to the President and to the Parliament of the Republic within its constitutional powers[60].

Recognition of the people of Kazakhstan as the sole source of state power means, firstly, that the state and its bodies are formed according to the will of people. Secondly, the basis for the developing existing national law of Kazakhstan is the governance will of the people of Kazakhstan. Having adopted the Constitution through the referendum on 30 August 1995 the people of Kazakhstan laid the constitutional foundation for the new national law, determined the form of state structure and governance, the structure of the branches of power, the entire state mechanism and democratic principles of institutions and activities[61].

People can express their will directly and indirectly. The indirect expression of the will is executed through:

a)       national referendum;

b)      election of the President of the country;

c)       election of deputies to the Parliament Majilis;

d)      election of the deputies to Maslikhats (municipal or provincial elected bodies - note by translator).

The indirect involvement of people in formation of the state agencies is expressed through delegation of their will to their elects. The people delegate the right of electing the deputies to the Parliament Senate to the deputies to Maslikhats.

As noted above the Parliament speaks on behalf of people and the state within its constitutional authorities. The specifics of the status of the Parliament is that it is a legislative body which expresses the will of the people and the state through laws. Government which is not elected directly by the people can only speak on behalf of the state and only within its authorities. «The delegated authorities» by Constitution mean the ones stipulated by the Constitution, laws, other regulatory enactments determining the status of the Government and other public bodies[62].

Systemic and structural position of the Parliament in the state mechanism is linked to the implementation of legislative power, but the legislative function is not the only one that it executes. The Parliament also implements representative, control and other functions and an important one that we see among them is the representative function that determines the essence of the Parliament as a representative body manifesting the will of people in its activities.

Constitution Article 49 Clause 1 defines the Parliament of the Republic of Kazakhstan as the supreme representative body of the Republic executing legislative functions. As the supreme body the Parliament of the Republic of Kazakhstan serves as the body of representative democracy. The legal scholars have no doubts about the cited constitutional provision of the legislative functions of the Parliament. At the same time the scientists quite rarely try to fully describe the notion of «the supreme representative body».

The legal scholars often state that the Parliament has two functions: representative and legislative. As the supreme representative body the Parliament of the Republic expresses the will and protects the interests of the people of Kazakhstan. Representation of the people of Kazakhstan in the Parliament is ensured in various ways: through direct democratic election system and democratic indirect elections.

Academician G.S. Sapargaliyev believes that this opinion shouldn’t be agreed with. The scientist analyzing the functions of the Parliament wrote: «If we recognize the representative function of the Parliament of the Republic then the question is how it is expressed and what the content of it is? The answer is only one as I believe: there is no special content of it. The representative nature of the Parliament causes its legislative and other functions»[63].

The proof of the this thought of the scientist can be found in the interpretation of the term «status of the Parliament» provided by the defining dictionary of the Constitution of the Republic of Kazakhstan: «…Constitution of our country providing such a characteristics to the status of the Parliament states about its representative nature that is about the body representing the interests of the people of Kazakhstan and determines its functional purpose in the system of state power which is law-making»[64].

A prominent professor Z.L. Fedotova writes that «in the system of state power bodies the parliament is the only body of people representation. The representative nature of the parliament is caused by the fact that it is to take into account the interests of all strata of population, guide the interests of various groups of population into the single path of common national interest. The representation is aimed at ensuring balance of personal and public, regional and national interests and needs. The representation of various social groups and strata of society is ensured through regional and public representation. Public representation is manifested through deputies appointed by the political parties and elected under the party lists. Therefore the idea of representation based on sovereignty principles is embodied in the procedure of parliament formation»[65].

Russian researchers N.I. Biryukov and V.M. Sergeyev note that «the parliament implements all three ideas of representation. Deputies are representatives delegated by the voters. The parliament as a whole is the «representative» of the nation, the so-called miniature of nation. It is also the symbol of nation. The activities of the parliament as an institution is determined by the three ideas of «representation»[66].

In our view the legal literature is fair to note that the most important feature of the parliament that makes it a specific institution is the fact that the parliament is the institute of representative power[67].

For understanding of the representative function of the parliament one should bear in mind the difference between representation in private and public law. This problem raised in the pre-revolution literature already is still the subject of discussion. Whilst in the private law the representation exists on the basis of surety ship whereby a direct legal link is established between the agent and the grantor in the public law it is caused by delegation whereby the direct link between the parties is not there. At the same time the mandate carrier is not linked to those who delegate him to the representative body. Some authors when considering the correlation between delegation and representation note the close link of these legal institutions resulting in the fact that people sometimes regard them as synonyms. However in the cases when the authorities of the representative are of delegated nature and stem from his competence stipulated in the constitution and the laws, it means representation typical for the public law application[68].

In our view interpreting the notion of «the supreme representative body» one should be based on the word «representative» which in Ozhegov S.A. dictionary means «elected based on representation». The word «supreme» in this case should apparently understood that there are other representative bodies in the country - Maslikhats. And the status of «the supreme representative body» should be understood so that among all the representative bodies only the Parliament has a special i.e. the main status.

The democracy of the state is also expressed in the fact that Constitution sets up the legal framework allowing the people to appoint and elect their representatives to the representative bodies. The Constitution of the Republic of Kazakhstan expresses the interests of not a specific class or social group of people but the interests of the people, the entire Kazakhstani society. As each citizen cannot execute the specified functions the institute of people representation is introduced meaning the expression on behalf of the people of the most significant common interests primarily economic and social and is a necessary condition for democracy.

People’s representation is a specific system of public relations. This system of public relations is formed from four sub-systems:

-          relations between the representatives and entities represented forming the basis for the entire system;

-          relations between the entities represented related to the people’s representation;

-          relations between representatives and other entities during the implementation of the will and the interests of those represented;

-          relations within the representative institutions[69].

People’s representation (expression and execution of the people’s will) is the basic principle of democratic states. This principle is implemented through constitution provisioning of the representative function of the parliaments that specifically stipulated by constitutions of most countries of the world. Thus the US Constitution calls the lower chamber of Congress as the Chamber of Representatives (Section 1 Article 1). The fundamental law of the FRG stipulates that the deputies of Bundestag are representatives of all the people (part 1 Article 28). General Cortes of Spain represents the Spanish people (Part 1 Article 66 Constitution). Deputies under Greek constitution represent the nation (part 1 Article 43). The representative function of the parliaments of new constitutions of East European countries specifically stress their representative function. Thus Hungarian Constitution Article 19 part 1 states that the supreme body of state power and people’s representation of Hungarian Republic is the State Assembly. Rumanian Constitution Article 58 reads that the parliament is the supreme representative body of Rumanian people and the only legislative power in the country.

Legal literature identifies various features of the state power in the form of representative democracy. The composition and nature of operations of the representative bodies express, on the one hand, the similar interests of the entire people, and on the other hand the interests of various groups of people.

Being a representative body the Parliament of the Republic of Kazakhstan expresses the will and the interests of the people of Kazakhstan. People’s representation is ensured through democratic election system opening opportunities for each citizen of the country to be elected to the Parliament of the Republic. The representation of the citizens of Kazakhstan is guaranteed from the geographic location or actual residency and based on political interests. Thus according to Constitution some deputies of the Parliament Senate are elected by regions, most of Majilis is elected from lists of political parties for the overall national constituency. In addition the deputies of the Senate in fact represent the regions of the country. Whilst Majilis deputies are elected directly by citizens through direct voting part of Senate deputies, two from each province, republican city and the capital city, are elected by the deputies of the representative bodies - Maslikhats - of provinces, republican city and the capital city. The mandatory condition for being elected to the Parliament Senate is the residency in the corresponding province, republican city or the capital city.

Kazakhstan is a poly-ethnic society. In 2007 following the revisions to the Constitution of the Republic of Kazakhstan the Assembly of people of Kazakhstan became a constitutional body executing a key principle of a democratic state which is strengthening the stability and inter-ethnic and inter-confessional concord. The law of 21 May 2007 set up another institution of people’s representation at the level of Constitution - the election of nine deputies to the Parliament Majilis by the Assembly (Constitution of the Republic of Kazakhstan Article 51).

Scientists are fair to note the bringing the Assembly to the level of Constitution of the Republic its direct representation in the Parliament Majilis and the increase of the number of senators appointed by the President of the Republic after corresponding consultations with the Assembly improve the mission and reputation of the Assembly to a higher stage and would serve further strengthening of peace and concord in our country[70].

However the theory of parliamentary law has developed already the understanding of the fact that the deputies since their election would represent not only the interests of newcomers to the Parliament form any party or the Assembly of the people of Kazakhstan and become representatives of the entire people of Kazakhstan.

Apparently the representation in the Parliament is wider and more diversified as it allows identifying not only the common but also regional interests of the poly-ethnic people of Kazakhstan and the entire range of party and political interests of citizens[71].

The main subject represented in the Parliament is the people of Kazakhstan that serves the social basis for the entire state and in its unity is the subject of constitution law relations. The notion «people» was reflected in article 6 of the Constitutional law of the Republic of Kazakhstan «On state independence of the Republic of Kazakhstan» based on which «the citizens of the Republic of all ethnicities, united by the commonality of the historical fate with Kazakh nation make together the united people of Kazakhstan that is the only carrier of the sovereignty and the source of state power both directly and through the public bodies elected by it on the basis of Constitution and laws of the Republic of Kazakhstan».

The Parliament of the Republic of Kazakhstan is assigned the lead role in the political system and constitutional mechanism of the democratic state. This role is explained by the fact that the Parliament expresses the interests and the will of people that is the population of citizens of the Republic of Kazakhstan as it is formed on the basis of universal participation of people primarily through the universal elections[72]. Representation is typical for Maslikhats and Parliament, but the Parliament in the supreme representative body of the state.

In the current social and political development of Kazakhstan and political and legal establishment of the public institutions the Parliament as an institution representing various social and political movements in the society regulates the important social relations stated in Constitution Article 61 through adopting laws and implements other authorities stipulated by the Constitution.

Thus in our opinion the Parliament is the supreme representative body of the country because the people of Kazakhstan elects to it directly and indirectly its representatives (deputies) thus executing the participation of citizens in public governance. The Parliament as the supreme representative body of power expresses the interests of the majority of people, key social groups and strata.

 

2.2. Powers of Parliament

 

Constitution of the Republic of Kazakhstan Article 49 Clause 2 stipulates that the powers of the Parliament start from the moment of opening the first session and end with the start of first session of the new convocation Parliament. The powers of the Parliament can be terminated ahead of time in the cases and according the procedure stipulated by the Constitution (Article 49 Clause 3).

Powers of the Parliament of the Republic of Kazakhstan are stipulated in Section IV «Parliament» of the Constitution of the Republic of Kazakhstan whereby the exhausting list of parliament and its chambers is defined.

These powers can be conventionally classified into three main groups:

a)       issues related to exclusive responsibility of each chamber of the Parliament;

b)      issues requiring consecutive consideration first by Majilis and then by Senate;

c)       issues considered during the joint sessions of the chambers of the Parliament.

А. Issues related to exclusive responsibility of each chamber of the Parliament

Constitution of the Republic of Kazakhst an Article 56 stipulates that:

«1. The issues of exclusive responsibility of Majilis include:

1) receiving draft constitutional laws and laws and consideration of these drafts;

2) by the majority of votes of the total number of deputies of the chamber agreeing with the President’s appointment of the Prime-minister of the Republic;

3) announcement of the next election of the President of the Republic;

4) implementation of other powers stipulated by Constitution for the Parliament Majilis».

It should be noted that the procedure of consideration of the issues considered to be the exclusive responsibility of Parliament Majilis is set up by the Regulation of Majilis according to which the receiving and consideration of draft constitutional laws and laws by the Parliament Majilisis carried out according to Section 3 «Legislative activities of Parliament Majilis. The procedure for draft laws».

Previously the President of the Republic of Kazakhstan used to appoint Prime-minister of the Republic to the position after endorsement of the Parliament, i.e. both chambers. With the adoption of revisions to the Constitution (2007) the President after consultations with fractions of political parties represented in Parliament Majilis submitted to Majilis for endorsement the candidate to Prime-minister and only after Majilis endorses the Prime-minister is appointed. At the same time it is stipulated that for endorsement the majority of total votes of Majilis deputies is enough. As the chair of Parliament Majilis A.E.Mussin considers «the empowering the Majilis with the function of endorsing the candidate to Prime-Minister and accountability of the members of the Government to the chambers of the Parliament in the cases stipulated by Constitution was an important factor for improvement of the system of parliamentary control of the operations of the executive branch of power»[73].

An example of practical use of this constitutional law is the endorsement by Majilis of the appointment of Prime-minister of the Republic of Kazakhstan K.K. Massimov by the President of the Republic on 8 April 2011.

The regular election of the President are organized every five years on the first Sunday of December of the corresponding year and cannot be the same date as the date of election of the new Parliament. Next election of the President is announced by the decree of the Parliament Majilis not later than the second Sunday of September.

Parliament Majilis would implement other powers stipulated by the Constitution. At the same time neither Constitution of the Republic of Kazakhstan nor the Constitutional law of the Republic of Kazakhstan «On Parliament of the Republic of Kazakhstan and the status of deputies» defines the other powers clearly.

According to Constitution of the Republic of Kazakhstan Article 56 Clause 2 the majority of votes of Majilis upon the initiative of at least one fifth of the total number of Majilis deputies is entitled to express vote of censure to the Government.

Before 2007 reform the Parliament could only express vote of censure to the Government during the joint session of the chambers. The reason for initiation could include major failures in performance of the Government. The vote of censure cannot be expressed by an individual deputy as this is quite a serious issue. This is why the Constitution stipulates that the initiative of vote of censure to the Government should only be initiated by at least one fifth of the total number of Majilis deputies[74].

Let’s consider what is included in the exclusive authorities of the Parliament Senate. These authorities are stipulated in Constitution of the Republic of Kazakhstan Article 55:

«1) election and relief from positions of the Supreme Court and judges of the Supreme Court of the Republic and administration of the oath upon recommendation of the President of the Republic of Kazakhstan;

2) provision of endorsement for appointment of the Chair of the National Bank, Prosecutor General, Chair of the National Security Committee of the Republic of Kazakhstan based on proposition of the President of the Republic;

3) divestiture of immunity of the Prosecutor General, Chair and judges of the Supreme Court of the Republic;

4) deleted[75];

5) execution of the functions of the Parliament related to the adoption of constitutional laws and laws during the temporary absence of Majilis caused by premature termination of its powers;

6) execution of other powers stipulated by the Constitution for the Parliament Senate».

As it was stated above the Constitution Article 55 sets up the issues of exclusive responsibility атне Senate meaning that only Parliament Senate of the Republic of Kazakhstan is empowered to address them. It is worth noting that these issues are also regulated in quite a detail by the Provisions for the Parliament Senate of the Republic of Kazakhstan[76]. Let’s look at them in more detail.

Thus the Chair of the Supreme Court, judges of the Supreme Court are elected and relieved from their positions by the Senate upon the proposition of the President which is based on recommendation of the Supreme Court Council (Constitution Article 82). President of the Republic submits to the chamber the corresponding proposition letter that serves the basis for taking the decision on including this issue into the agenda of the Senate. The candidates to these positions are discussed by the corresponding committee of the Senate in advance. The committee gives conclusions on each candidate under consideration which is then announced at the Senate session. The committee is not entitled to propose other candidates, it can only recommend, approve or reject the proposed candidates with proper justification. Senate can discuss the candidates proposed by the President but cannot start debate unless deputies insist on it. If the Senate takes no appointment decisions on the candidates proposed by the President, the President submits another proposition letter to the Senate for the same or other candidates.

The Senate administers an oath of the Chair of the Supreme Court and the judges of the Supreme Court during the special session. The corresponding committee of the Senate is responsible for preparation of such a session.

Decision on appointment and relief from position of the above persons is taken by the majority of votes of the total number of Senate members. The decision for each candidate is taken separately through open voting if the Senate doesn’t decide otherwise[77].

Let’s consider the procedure of approval to the appointment of the Chair of the National Bank, Prosecutor General, Chair of the National Security Committee of the Republic of Kazakhstan by the President of the Republic of Kazakhstan as set up in Constitution Article 55 sub-clause 2.

The President of the Republic would submit the written request to the Chamber to get endorsement of the Senate to the appointment of the above persons and this request is the basis for taking decision on including the issue into the agenda of the Senate session. The endorsement is issued at the Senate session after preliminary consideration of the appointees at the session of the corresponding Senate committee. The session is attended by the representative of the President of the Republic. When certain appointees are considered by the Senate they are presented by the President of the Republic of his authorized representative.

Debates about the proposed candidate are not started unless specifically requested by the deputies.

The decision of the Senate on endorsement of the appointment is taken by the majority of total Senate membership. Decisions for each candidate are formalized separately by the Senate. If a candidate proposed by the President to certain position is rejected the decision of the Senate should contain the detailed reasoning for rejection[78].

According to Constitution Article 55 sub-clause 3 the exclusive responsibility of the senate includes the divestiture of immunity of Prosecutor General, Chair and judges of the Supreme Court of the Republic.

Divestiture of immunity of Prosecutor General, Chair and judges of the Supreme Court[79]falls under the same procedure as when they are appointed to the positions. Corresponding decision is formalized by the decree of the Senate.

If the Senate doesn’t take the decision of the divestiture of immunity is relation to an official the President is entitled to submit to the Senate the repeated written request on this issue[80].

According to Constitution Article 55 sub-clause 5 the special authority of the Senate is execution of the functions of the Parliament of the Republic of adoption of constitutional laws and laws during the temporary absence of Majilis caused by the premature termination of its powers. This means that if the powers of the Parliament Majilis are terminated ahead of the term the Senate will function as the Parliament related to law-making activities during the period when Majilis is not functioning.

In this respect according to Constitution of the Republic of Kazakhstan Article 55 sub-clause 5, Constitutional law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies» Article 14 Clause 2, resolution of the Parliament Senate of the Republic of Kazakhstan No.626-II dated of 26 June 2007 the Regulations of the Senate were revised and amended. In particular the stated Regulations were amended with a new section 3-1 «Execution of the functions of the Parliament of the Republic on adoption of constitutional laws and laws during the temporary absence of Majilis caused by the premature termination of its powers».

Thus due to the dissolution of the III convocation Parliament Majilis deputies ahead of the term in June 2007 and before the start of the first session of IV convocation Parliament the Senate functioned as a whole Parliament. Total 42 laws were adopted during this period.

The Parliament Senate executes other functions as well provided for in the Constitution. However neither the Constitution nor the Constitutional law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies» nor the Regulations of the Senate provide the explanations as to what is meant by «other functions».

The Constitution of the Republic of Kazakhstan sets up the right of the Parliament chambers to independently appoint the highest positions to the public bodies.

Thus the Constitution of the Republic of Kazakhstan Article 57 stipulates that each Parliament chamber can independently without involvement of the other chamber:

2) delegate half membership of the commission formed by the Parliament in the case stipulated by Constitution Article 47 Clause 1;

3) elect half of the members of the joint committees of the Chambers;

4) terminate the authorities of the deputies of the Chambers and upon request of the Prosecutor General of the Republic of Kazakhstan decide upon divestiture of the immunity of the deputies of the Chambers;

5) hold Parliamentary hearings within the issues of its competence;

6) on the initiative of at least one third of the total number of deputies of the Chamber is entitled to listen to the reports of the members of the Government of the Republic on their activities. Based on the outcomes of hearings is entitled to issue an address to the President of the Republic by the majority of votes of the total number of the deputies of the Chamber on relief from positions of the officials of the Government in case of their non-compliance with the laws of the Republic. If the President of the Republic rejects such an address the deputies are entitled six months after the date of the first address submit to the President of the Republic the second request by the majority of votes of the total number of the deputies of the Chamber on relief from positions of the officials of the Government. In this case the President would relief an official of the Government from his/her position;

7) form coordination and working bodies of the Chambers;

8) issue regulations for its operation and other decisions on the issues related to arrangements and internal procedures for the Chamber»[81].

The cited Constitution Article 57 stipulates a special group of authorities of the Parliament Chambers. Their specifics is that they are executed by the Majilis independently without Senate’s involvement and vice versa Senate without Majilis’s involvement. To some extent these authorities prove the equality of the rights of Chambers in deciding upon institutional and legal issues both within and outside the Parliament. Therefore the independent authorities are stipulated in the same article. However the consideration procedures of certain issues are different between Majilis and Senate[82].

The detailed procedure of execution of the state authorities is provided for in the regulations of the Parliament chambers. Let’s look at them in detail.

Thus the Senate and Majilis independently without involvement of the other chamber appoint two members of the Constitutional Council, appoint for the 5-year term two members of the Central election committee and three members of Accounts committee. The nominees to these positions are proposed by the Chairs of the Chambers. Decisions are taken by the majority of votes of the total membership of the Chambers if another voting procedure is not decided upon by the Chambers. The rejection decision for the nominees should provide the detailed rationale.

Each Parliament chamber can independently without involvement of the other Chamber delegate half membership of the commission formed by the Parliament in the case stipulated by Constitution Article 47 Clause 1.

According to Constitution Article 47 Clause 1 the President of the Republic can be relieved ahead of time of his position in case of sustainable lack of ability to carry out his functions due to an illness. In this case the Parliament forms a commission consisting of the equal number of deputies from each Chamber and specialists from the relevant health care sectors. Following the regulations of the Chambers the candidates to the commission are proposed directly by the deputies of the Majilis and Senate and considered by the plenary sessions of the Chambers. Those candidates who come head of the poll of the deputies of the Parliament Majilis and Senate are elected.

Each Parliament chamber elects half of the members of the joint committees of the Chambers. Joint committees are normally formed to address the issues of relevance for the joint activities of the chambers. Their formation and operations are determined by the Regulations for the Parliament of the Republic of Kazakhstan[83].

According to the Regulations of the Majilis the half membership for the joint committees of the Chambers by the Parliament Majilis should be elected based on the Law of the Republic of Kazakhstan «On committees and commissions of the Parliament of the Republic of Kazakhstan» and Regulations of the Parliament[84].

Next, each Parliament chamber is entitled to terminate the authorities of its deputies in cases stipulated by the Constitution. The Parliament chambers are granted with the right to divest the immunity of their deputies. The procedure for this issue is detailed in the Constitutional law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies» Article 32 «Deputy immunity». To have an endorsement of criminal prosecution, arrest or application of administrative punishment of a deputy as decided by the court the Prosecutor General should submit a request either to the Senate or Majilis which is then sent by the chambers to the Central election committee to prepare for consideration by a session of corresponding chamber. The request should be submitted before filling the accusation to the deputy, issuing an arrest warrant or submission of the administrative delinquency case to the court. The submission of the Prosecutor General and the conclusion by the Central election committee should be considered within two weeks from the date of receipt and the Chamber is entitled to request the corresponding officials to provide supporting information. The chamber will then take an informed decision and send it to the Prosecutor General and the top manager of the public body of the Republic responsible for inquest and pre-investigation within three days.

This issue is also regulated by the Regulations of the Senate para 6 «Termination of powers of deputies and divestiture of immunity» and by Regulations of the Majilis of the Republic of Kazakhstan paras 95 and 96.

Each Parliament chamber would independently hold Parliamentary hearings on the issues within their competence. We are not going to look at this issue in detail here as it is considered later under section 2.5 «Parliamentary hearings».

Constitution Article 57 Clause 6 stipulates the right of the chambers to listen to the reports of the officials of the Government of the Republic on their performance. The procedure of hearing the reports of the Government officials is provided in detail in the Regulations of the Parliament chambers. It should be noted that this right of the Parliament of hearing the reports significantly expands the authorities of the Parliament and enhances the accountability of the Government officials to the supreme representative body of the country.

Each of the chambers can form coordination and working bodies. The coordinating body for each Chamber is the Office reporting to the Chair of the Chamber. The Office incorporates the deputy Chair of Majilis (Senate), chairs of permanent committees. Regulations of Senate and Majilis stipulate the competence of Offices of each Chamber.

The authorities of Majilis Office are to some extent different from those of the Senate Office.

The Majilis Office:

-        ensures drafting of the Majilis action plan for the next Parliament session and submits it to approval of Majilis;

-        considers draft plans for drafting constitutional laws and draft laws;

-        prepares suggestions for the priority of consideration of draft laws and other decisions by the Chamber;

-        approves the list of draft laws to be prepared upon suggestions of the deputies, committees of the Chamber with involvement of research institutions and consultants and the procedure of drafting at the expense of the national budget of the draft laws initiated by the deputies;

-        coordinates the activities of committees and commissions within the Chamber;

-        takes decisions of parliamentary hearing by the corresponding committees of the Chamber;

-        decides upon other institutional issues for the Chamber.

Majilis Office within its competence can issue a decree that can be repealed by Majilis[85].

The Senate Office:

-        coordinates the operations of committees and commissions of the Senate

-        prepares for the Senate suggestions on the priority for consideration of draft laws and other decisions of the Senate;

-        takes decisions on parliamentary hearings by permanent committees of the Senate;

-        approves the structure and staffing for the Senate administration;

-        appoints representatives of the Senate from deputies, administration staff and specialists to the bodies where Senate acts as a claimant or defendant;

-        arranges redressing mechanism;

-        decides upon other institutional issues for the operations of the Senate[86].

The Senate Office can issue decrees within its competence.

Sessions of the Offices of the Chambers are held as and when needed and are considered valid if at least two thirds of the total membership is present. Sessions of the Offices are called by the Chairs and by the deputy Chairs if the Chairs are missing. The sessions of the Chamber Office can be attended by parliamentarians, representatives of the President and Government in an advisory capacity.

According to the Constitution the Senate and Majilis can issue regulations. At the moment the Regulations of the Parliament Senate, Regulations of the Parliament Majilis and Regulations of the Government are issued. The Constitution stipulates that the Chambers can take decisions on the issues related to arrangement and internal procedures for their operations. Thus the Chambers can decide upon procedural issues. Such decisions are taken by open voting by the majority of votes of the deputies present at the plenary session of the Chamber without issuing a decree and are recorded in the short-hand notes of the plenary session. The procedural issues include the following: vacations; postponing plenary sessions; termination of debate; limitation or extension of the time for speeches; approval of the quorum and vote counting.

B. Issues requiring consideration first by the Majilis then by the Senate

Constitution of the Republic of Kazakhstan Article 54 Clause 1 reads:

«The separate sessions of the Parliament chambers through consideration first by Majilis and then by Senate shall:

1) approve of the national budget, amendments and revisions thereof;

2) setup and cancelling state taxes and charges;

3) set up the procedure for addressing the issues of administrative and territorial arrangement of Kazakhstan;

4) constitute state awards, decides on titles of honor, military and other ranks, class ranking, diplomatic ranks of the Republic, determines the national symbols of the Republic;

5) decide upon state borrowings and provision of economic and other assistance by the Republic;

6) decide upon amnesty;

7) ratify and denounce international agreements of the Republic».

Constitution of the Republic of Kazakhstan Article 54 Clause 2 stipulates that «the separate sessions of the Parliament chambers through consideration first by Majilis and then by Senate shall:

1) discuss budget execution reports;

2) carry out repeated discussion and voting on laws or articles of laws that caused objections by the President of the Republic…

3) initiate the national referendum».

The separate sessions of the Parliament chambers through consideration first by Majilis and then by Senate execute the powers stipulated by the Constitution. Taken together these powers are the powers of the Parliament and their execution is regarded the parliamentary activities.

It is worth noting that the Law of the Republic of Kazakhstan dated of 21 May 2007 «On amendments and revisions to the Constitution of the Republic of Kazakhstan» expanded the powers of Parliament Majilis on the issues considered by separate sessions of the chambers through consideration first by Majilis and then by Senate. Majilis now can adopt constitutional laws that are then considered by the Senate. For example previously the constitutional laws could be adopted by the joint sessions of both chambers and Majilis only discussed the national budget and budget execution reports, revisions and amendments of the budget. Now Majilis can approve the national budget, amend and revise it independently. The same way the initiative of national referendum was also considered by joint session of both Parliament chambers but after the adoption of the above law on 21 May 2007 the national referendum can be initiated by separate sessions of the Parliament chambers.

Analyzing the constitutional reform of 2007 academician G.S. Sapargaliyev notes that the enhanced role of Majilis is expressed through the fact that now constitutional or ordinary laws or on some articles thereof that caused objections by the President of the Republic are first the discussed for the second time or voted for separately by Majilis and then by Senate[87].

 

C. Issues subject to consideration by joint sessions of the Parliament chambers

According to Constitution of the Republic of Kazakhstan Article 53 the joint sessions of the Parliament chambers shall:

1) amend and revise the Constitution upon proposals by the President of the Republic of Kazakhstan;

2) approve the reports of the Government and Accounts Committee on control of the national budget execution. If the budget execution report of the Government is not approved by the Parliament this means that the Parliament expresses the vote of censure to the Goervnment;

3) be entitled by two thirds of votes from the total number of deputies of each chamber to delegate to the President upon his initiative the legislative power maximum for one year;

4) decide upon war and peace;

5) take decision based on proposal of the President of the Republic on the use of the armed forces of the Republic for execution of international commitments to support peace and security;

6) listen to annual addresses of the Constitutional Council on the status of constitutional rule of law in the Republic;

7) form joint committees of the Chambers, appoint and relief from positions their chairs, listen to the progress reports of the committees;

8) carry out other authorities of the Parliament empowered by the Constitution.

The procedure of implementation of the above provisions of the Constitution is detailed in the Regulations of the Parliament therefore one should refer to the stated Regulations for more detail[88].

The Constitution provides the exhaustive list of joint powers of the Chambers. Therefore the other enactments can neither expand nor narrow the joint powers of the Parliament chambers.

It should be stressed that the joint sessions consider the issues that in most cases require participation of both chambers.

Let’s look at the example of consideration of an issue by the joint session of the Parliament chambers of the Republic of Kazakhstan.

On 27 December 2010 the Central election committee of Kazakhstan registered a group of citizens initiating a referendum on extension of powers of the President of the Republic of Kazakhstan N.Nazarbayev until December 6, 2020.

The initiating group came up with an open address to the President and the Parliament of the Republic of Kazakhstan to organize the referendum. During two weeks quite of number of signatures were gathered to support the referendum though only 200,000 is required. In addition the parliamentarians initiated amendments to the Constitutions providing for the possible extension of the powers of the President of the Republic of Kazakhstan until 2020 without elections through national referendum. However on 6 January 2011 the President signed decree No. 1134 «On rejection of the initiative of the Parliament of the Republic of Kazakhstan of the national referendum regarding the amendments and revisions to the Constitution of the Republic of Kazakhstan». However the parliamentarians during their joint session of the Parliament chambers on 14 January 2011 adopted the amendments to the Constitution of the country providing for extension of the powers of the current President of the Republic of Kazakhstan through referendum. The head of the state, in turn, didn’t sign the adopted amendments and on 17 January 2011 submitted the law of the Republic of Kazakhstan «On amendments and revisions to the Constitution of the Republic of Kazakhstan» to the Constitutional Council of the Republic of Kazakhstan to check for its compliance with the Constitution of the Republic of Kazakhstan.

The Constitutional Council of the Republic of Kazakhstan found the Law «On amendments and revisions to the Constitution of the Republic of Kazakhstan» providing for referendum for extension of the powers of the current head of the state until 2020 instead of the elections in 2012 adopted by the Parliament on 14 January 2011 non-compliant with the Constitution of the Republic of Kazakhstan[89].

The final decision - not to have the referendum - was voiced out by N.Nazarbayev on 31 January 2011 in his address to the people. The leader of the nation expressed his gratitude to the people for their trust and noted: «Being the President that was elected in a democratic way, guided exclusively by the highest interests of the country I took the decision not to have the referendum. Instead of making the choice between referendum or elections which separates us I propose the formulae that would unite us, that would take into account the commitment of all our people to democratic principles». The head of the state initiated the Presidential election ahead of time.

According to Constitution of the Republic of Kazakhstan Article 53 sub-clause 1, Article 91 Clause 1 the President of the Republic of Kazakhstan submitted to the Parliament of the Republic of Kazakhstan the draft Law «On amendments to the Constitution of the Republic of Kazakhstan» intended to set up the constitutional framework for scheduling and holding the ad-hoc Presidential election in the Republic of Kazakhstan. On 2 February 2011 the Parliament of the Republic of Kazakhstan adopted the law after two readings[90], which was signed by the head of the state the same day.

Thus the Constitution of the Republic of Kazakhstan Article 41 was amended by Clause 3-1 reading: «The ad-hoc presidential election shall be scheduled by the decision of the President of Republic and shall be held following the procedure and within the timeframe stipulated by the constitutional law»[91].

It should be noted that the role of the Parliament was significantly enhanced by amendments and revisions to Constitution made in 2007 in Article 53 on the joint powers of the Parliament chambers. Previously this article had 13 sub-clauses each stipulating separate power. After revisions in 2007 only 8 sub-clauses were left. The new version of Constitution Article 53 doesn’t include the provisions that were stipulated in sub-clause 6 of the old version of the article. This Article 53 sub-clause 6 provided for the Parliamentary right to listen to the report of the Prime-minister about the programme of the Government that the Parliament could approve of or reject. The rejection of the programme would automatically mean the vote of censure. However this constitutional provision about listening to the reports of the Governmental programme was found inefficient.

Thus one can note that the main powers of the Parliament are quite clearly specified in the Constitution of the Republic of Kazakhstan however the issues of expanding the powers of the Parliament in Kazakhstani society are still of active discussion nature. The head of the state has drawn attention to this issue several times. Thus the President of the Republic of Kazakhstan N.Nazarbayev in his speech on 8 April 2011 during inauguration stated the following: «We should find the most optimal solutions to the expansion of the powers of the Parliament…»[92]. We believe that the expansion of Parliament powers would facilitate further strengthening of the role of Parliament in the system of public governance of the country and could help making a new step in the development of the Kazakhstani model of parliamentarianism.

 

2.3. Oversight powers of the Parliament

Oversight is a most important function of any democratic state. It is typical that oversight is expressed through a complex system of checks and balances caused by the principle of division of power, by transparent operations of the public bodies, their accountability to the people and civil society institutions.

Oversight by legislative (representative) bodies follows the objectives: compliance by the executive power and its officials with legislation, ensuring targeted and rational use of budget funds, maintaining stability of state identity, improvement of public regulation performance.

The issues of parliamentary oversight are paid sufficient attention in legal science. At the same time comparing theoretical surveys of this issue and the real application of oversight powers of the Parliament of the Republic of Kazakhstan we should note that the institute of parliamentary oversight is still at the stage of development.

This sub-section provides comparative analysis of the scientific studies, international practice and national legislation in relations to the oversight function of the legislative branch of power.

We start with the scientific definition of «parliamentary oversight». A number of scientists understand parliamentary oversight as:

- a set of various measures implemented by the supreme legislative (representative) body of state power for continuous oversight and check of the system operation[93];

- a system of provisions regulating the established procedure of oversight and check in general of the executive bodies’ operations[94];

- institute of law as a combination of the provisions of law regulating the established procedure of arrangement, oversight and check in general of the executive bodies’ operations[95].

Kazakh scientists consider that understanding of the oversight by legislative power should be considered within the following three aspects:

1) oversight as a systematic and constructive activity of the legislative power, one of the key functions of implementing its competency;

2) oversight as a system of measures ensuring the identification of negative phenomena and trends in the condition and functioning of bodies under oversight;

3) oversight as an end element of the managerial process aimed at systematization of preventive, correction, precluding and sometimes of punitive measures[96].

The wording of French scientists sounds quite laconic: the parliamentary oversight is a set of measures allowing the chambers of the parliament put together an opinion of the performance of the government and depose it in case of deep non-compliance with the policy being implemented[97].

There is a number of other definition of parliamentary oversight but all of them mostly focus on the key component - the oversight of executive branch of power. We would like to refer to the member of the Constitutional Council of the Republic of Kazakhstan V.A. Malinowski on this matter: «…The Parliament should definitely have and it has certain oversight powers but they don’t go beyond the oversight as a method of normal state activity»[98].

In our view the parliamentary oversight is the indirect control through the elected parliamentarians. However the brief analysis of the election system to the supreme legislative body of the country which was first based on majority, then mixed and at the moment it is proportionate and given that the deputies are mostly elected based on party lists i.e. from political parties having their election platform and action programme shows that the parliamentary oversight has a certain degree of party influence on oversight functions of the deputies including those related to execution of pre-election commitments.

In the current conditions the community of Kazakhstan has quite a dubious attitude to the issue of parliamentary oversight. And whilst the control of executive and judicial power is studied quite well by the legal science, the issue of parliamentary oversight in the Republic of Kazakhstan was not paid sufficient attention. The key reason is the fact that the oversight function of the Parliament is not stipulated by separate articles of Constitution or constitutional laws. As a result there is an opinion that the institute of parliamentary oversight is in fact missing in Kazakhstan. Based on the opinion of the ex-Chair of Senate O.Abdykarimov some deputies considered that the Parliament was never entrusted with oversight functions[99].

The opinion of a young Kazakhstani scientist B.A. Taitorina is that in relation to the concept of oversight of the executive power it is not new for the rule-of-law-based-state but unfortunately this concept was not properly applied in Kazakhstan[100]. The fact that the Constitution doesn’t empower the Parliament with the wide range of oversight functions in relation to the executive bodies similar to those that the Supreme Soviet of Kazakh SSR used to have in the Soviet past was also mentioned by G.S. Sapargaliyev[101].

Thus the 1993 Constitution of the Republic of Kazakhstan Article 64 sets up the authorities of the Supreme Soviet on oversight of the national budget execution. The Supreme Council also had such wide powers as endorsement to the appointment of the Prime-minister by the President of the country, election and appointment of the top officials of the state. And we believe that the most important power was stipulated in Article 64 sub-clause 9 - the Supreme Council elected the supervisory bodies.

We tend to agree with the opinions of scientists and practitioners who note that the existing Constitution of the Republic doesn’t empower the Parliament with a wide range of oversight functions in relation to the executive bodies. It is worth noting that the process of establishment of the institute of parliamentary oversight is extremely slow and inefficient.

There are other opinions. A prominent Kazakhstani scientist V.A. Malinowski, trying to prove the existence of this institute in his speech during the international practical and scientific conference and referring to the fact that there is a number of provisions in the Constitution related to oversight function of the Parliament, its chambers and parliamentarians, stated that it is neither right nor attractive to deny the oversight functions of the Parliament[102].

It is well known that the oversight function is directly caused by the representative nature of the Parliament and the people through the Parliament is entitled to control of operations of governmental bodies. The science of constitutional law has three approaches in accordance with which some scholars consider that the Parliament has no oversight functions whatsoever. This opinion, as G.S.Sapargaliyev believes is apparently explained by the fact that Constitution of the Republic of Kazakhstan doesn’t mention «oversight function» as a term[103]. Followers on the opinion however do not provide an analysis of the powers of the Parliament and its chambers that contain the elements of their oversight function. Others consider that the Parliament has oversight functions but there are no implementation mechanisms. This viewpoint in the opinion of academician G.S.Sapargaliyev is partially true. The third group of scientists and specialists believes that excessive powers of the Parliament would result in the misbalance of the branches of state power. This opinion has certain rationale in it. Excessive expansion of oversight functions of the Parliament can result in substitution of presidential form of governance with the parliamentary one. In this case the division of powers would turn into pure formality.

We consider that out of the three approaches referred to above the one that states that the Parliament has the oversight powers but the implementation mechanism is not well defined reflects the current status best of all.

Regarding the number and names of functions of the Parliament of the Republic of Kazakhstan the legal literature has no difference in opinions. However the constitutional recognition of the parliamentary functions is different from the general scientific definition of its functions. Constitution of the Republic of Kazakhstan Article 49 Clause 1 states that the Parliament of the Republic of Kazakhstan is the supreme representative body of the Republic with legislative functions. Therefore in accordance to the Constitution the Parliament of the Republic of Kazakhstan has only legislative functions. The Constitution of the Republic of Kazakhstan stipulates no other functions of the Parliament. Academician G.S. Sapargaliyev asks a question: does it mean that the Parliament has no other functions? The analysis of powers of the Parliament and its chambers allowed the scholar conclude that the Parliament has other functions in addition to legislative ones. Moreover the author speaks about another generally recognized function of the Parliament, the oversight one. It is normally called the function of staff formation for some supreme state bodies. The essence is that the Parliament has a number of powers that can be referred to neither legislative nor oversight functions. These powers are similar by content and are aimed at addressing the issues related to the selection of the top political and other public servants[104].

Therefore despite the fact that the legal literature has no single opinion about the volume of oversight function of the Parliament of Kazakhstan one can identify the single position of political scientists: the activities of the contemporary parliament in principle are carried out within its three traditional functions: representative, legislative and oversight[105].

Other scientists identify various functions of the supreme representative body by grouping homogeneous powers of the Parliament. First of all the position of G.S. Sapargaliyev on the functions of the Parliament of the Republic of Kazakhstan should be separated out: «…the Parliament of the Republic of Kazakhstan at the moment has three types of functions: 1) legislative function; 2) oversight function; 3) the function of formation (identification, appointment, endorsement) of some supreme public bodies with political and other responsible officials»[106].

Given the above and the opinions of scientists as suggest identifying the following functions of the Parliament of the Republic of Kazakhstan: a) legislative, b) representative, c) oversight.

Taking into account that this sub-section considers only oversight powers of the Parliament we are not going to stick to the other two functions as they are covered pretty well in other sub-sections.

In the global parliamentary practice that is followed by the Republic of Kazakhstan as well the oversight function of the parliament is expressed in different ways reflecting the specifics of the structure of a particular state and correlation of branches of state power.

The subject of parliamentary oversight is mostly the executive power and its structures.

This power is typical for practically all foreign parliaments irrespective of the forms of governance and the latter only influences the scope of this power. The oversight function can be either directly stipulated by the legislation or can be a procedure of the parliament. For example, the 1874 Constitution of the Swiss Confederation empowers the Federal assembly (parliament) with the supreme oversight of the federal administration and federal court (Article 85 clause 11)[107].

The oversight of the executive power is of political nature (though it is implemented in legal forms). This means that the subject of oversight in the political activity of the government. In relation to other subjects the nature of oversight is purely legal. The oversight function of the supreme representative body can be expressed through the reports of the government on budget execution, hearings of top officials by the parliament, deputy requests, parliament hearings etc. A prominent Russian political scientist V.E.Chirkin identified 16 methods of parliamentary oversight execution (interpellation, reports or papers by the government and ministers, questions, parliamentary hearings etc.) that are typical all together for the parliaments of various countries and allow them playing an important role in limiting the abuse of executive power and in execution of the tasks of efficient public governance[108].

The existing Constitution of the Republic of Kazakhstan compared to 1993 Constitution has no specific articles stipulating the oversight functions of the Parliament. Still the Fundamental Law contains the provisions stipulating the basic oversight powers of the supreme legislative body of the country.

The comprehensive understanding of the essence of parliamentary oversight of the Republic of Kazakhstan would need referring to the existing legislation and carrying out a comparative legal analysis of a number of law, namely: Constitution of the Republic of Kazakhstan, constitutional law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies», constitutional law of the Republic of Kazakhstan «On the Government of the Republic of Kazakhstan», Law of the Republic of Kazakhstan «On committees and commissions of the Parliament of the Republic of Kazakhstan» and a number of other legal and regulatory enactments.

Thus as we noted before the Constitution of the Republic of Kazakhstan doesn’t stipulate independent provisions setting up the oversight powers of the supreme legislative body of Kazakhstan. As the status of the Parliament as the oversight body is not stipulated in the Constitution its Chambers are entitled to execute corresponding functions within their powers stipulated by the law.

Powers of the Parliament of the Republic of Kazakhstan related to oversight are stipulated by various provisions of 1995 Constitution and corresponding legislation regulating the operations of the Parliament. However the key objective of a set of powers is to ensure the oversight functions of the Parliament chambers.

In addition it should be noted that amendments and revision to 1998 and 2007 Constitution changed some oversight functions. Professor V.A.Malinowsky who studied these changes in detail noted: «…The scope of parliamentary oversight covers the executive branch of power, some part of presidential appointments and the status of the President of the Republic, finance and budget, international relations, implementation of the enactments issued, after the amendments and revisions to Constitution in October 1998.

According to the law of the Republic of Kazakhstan dated of 21 May 2007 the oversight function of the Parliament has been significantly enhanced primarily in relation to the executive power; restructured between the Parliament and its Chambers, between the Senate and Majilis; and obtained a powerful support through engagement of «party channel»[109].

Despite the amendments and revisions to the constitutional laws of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies» and «On the Government of the Republic of Kazakhstan» and regulations of the Senate and Majilis of the Parliament of the Republic in 2007 related to the oversight powers the head of the state has several times drawn attention in his speeches to the need and significance of oversight powers in the activities of the legislative body. In support to the above we would like to cite some statements of the President of the Republic N.Nazarbayev:

- «To enhance the responsibility of the top management of the country and strengthen the role of the Parliament as an independent and absolutely special branch of state power the Prime-minister and the cabinet members should be accountable to the Parliament and report to the deputies and Parliament commissions on a regular basis»[110];

- «Our state identity in its development is gradually approaching the threshold whereby the Parliament should use its powers to a fuller extent as stipulated by the Constitution inter alia in relation to the Government»[111];

- «…as a result of constitutional reform the accountability of the Government to the legislative branch of power was enhanced»[112];

- «We should ensure strict parliamentary oversight of the activities of the enforcement bodies»[113].

Thus the oversight of the Government operations is within the competence of practically all foreign parliaments (irrespective of the forms of governance) which is stipulated in the legislation or could be a procedure of the parliament. The key methods of parliamentary oversight in a number of foreign countries include:

1) raising the issue of trust to the Government;

2) interpellation, i.e. query to the Government;

3) questions oral and in writing;

4) resolution of condemnation (compared to the vote of censure issued upon the suggestion of a chamber);

5) activities by the investigation committees and commissions[114].

In our view the key oversight functions executed by the Kazakhstani Parliament based on Constitution of the Republic of Kazakhstan, constitutional laws of the Republic of Kazakhstan and other legal and regulatory enactments include:

1) impeachment;

2) issuing laws;

3) approval of the national budget and reports of the Government and Accounts committee on control of the national budget execution;

4) vote of censure;

5) deputy queries and questions;

6) endorsement to appointments;

7) Parliamentary hearings;

8) Governmental hour;

9) deputy’s right for immediate reception by officials.

Let’s look in more detail at the enlisted oversight powers of the Parliament of the Republic.

Impeachment

Impeachment (taken from English) is a special procedure of implementation of responsibility of the top officials in a number of foreign countries[115].

In some foreign countries when cases are considered as reasons for impeachment the lower chamber of the parliament should formulate a claim and submit to the corresponding official. The essence of the case is considered by the higher parliament chamber. The punishment cannot be stronger than relief from the position however normally it is stated that the official relieved from a position as a result of impeachment can be further judged by a normal court and can be subject to criminal punishment according to the deed he/she committed. In some countries with the republican form of governance, the impeachment is primarily assumed for the head of the state - president - in case he/she commits treason against the state or attempted abuse of constitution. In USA all civil servants formalistically can be subject to impeachment. In Russian Federation the RF President can also be relieved from position by the Soviet of Federation which is regulated by the provisions of Russian Federation Constitution Article 93.

Constitution of the Republic of Kazakhstan stipulates only one cause for criminal liability of the President - treason against the state.

The issues related to the relief of position of the President of the Republic are regulated by Constitution of the Republic of Kazakhstan Article 47 Clause 2, which reads: «President of the Republic is liable for actions committed during the execution of his duties only in case of treason against the state and for this he can be relieved from the position by the Parliament»[116].

Criminal law of the Republic of Kazakhstan does not differentiate between the criminal and political delinquencies. Treason against the state is considered a crime[117].

The Kazakhstani scientists believe that Kazakhstan has an extremely complex procedure for impeachment[118]. The President can be subject to impeachment for committing a treason against the state and only during execution of his powers. The criminal code of the Republic of Kazakhstan defined the treason against the state as a willful act by a citizen of the Republic of Kazakhstan as a subversion or weakening of the

of the national security and sovereignty of the Republic of Kazakhstan through adhering to the enemy during the armed conflict, or espionage, disclosure of state secrets or any other form of assistance to a foreign state, a foreign organization or its representative in their hostile activities against the Republic of Kazakhstan (Criminal Code of the Republic of Kazakhstan of 16 July 1997 Article 165).

Only the Parliament can relief the President of his position in case of treason against the State during the execution of his duties. In this case we mean the relief from the position of the President in case of treason against the state but not the criminal prosecution. If the President in relieved from position by the Parliament he will be deprived of immunity and in this case the issue of criminal prosecution can be considered.

The impeachment procedure by the Parliament has a number of stages that are not used in many other countries. Thus the decision of filing a charge and its investigation is taken by the majority of Majilis deputies upon the initiative of one third of the deputies. This means that first the issue needs to be initiated by at least one third of Majilis deputies. If this initiative is accepted then according to Constitution the Senate would arrange for an investigation of the charge. The Law on Parliament committees and commissions states that for the Senate to execute its functions under Constitution Article 47 Clause 2 the Senate should form a special ad hoc commission. This commission would investigate the charges against the President of the treason against the state. The Senate would consider the outcomes of the special ad hoc commission work and take a decision in essence. If the majority of total votes of the Senate accepts the outcomes of the ad hoc commission, they would then be submitted to the joint session of the Parliament chambers. The Parliament can take a decision on this case as soon as: a) the Supreme Court issues alleges that the charge is justified; b) Constitutional Council issues an opinion on compliance with constitutional procedures. If the Supreme Court issues negative opinion that is the opinion that the charge is not properly justified the Parliament cannot take a decision about the relief of the President from his position. The same will happen if the Constitutional Council issues a negative opinion on non-compliance with constitutional procedures, the Parliament cannot take the decision on relief of the President from his position.

If the Supreme Court issues an opinion that the charge is well grounded and the Constitutional Council issues an opinion that the established constitutional procedures were followed then the Parliament can issue a relevant decision. The final decision on the issue would be taken by the joint session of the Parliament chambers by the majority of at least three fourth of the total deputies of each Chamber. If this decision is taken the President is regarded as relieved from his position[119].

If within certain time period the final decision is not taken then the charges against the President would be regarded rejected even though the Supreme Court and Constitutional Council might have issued their positive opinions. As the academician Sapargaliyev G.S. believes the Constitution stipulates four possible cases for rejection of charges against the President:

1) if the Parliament issues no decision on committing a treason against the State and on relief of the President of his position including as a result of negative opinion of the Supreme Court or Constitutional Council;

2) if the time span for issuing the final decision on the charge and relief has expired;

3) if the initiative of at least one third of the Majilis deputies on the charge against the President and its investigation is not supported by the majority of the total number of Majilis deputies;

4) if the Senate doesn’t accept the outcomes of the special ad hoc commission investigating the charge against the President by the majority of total votes of Senate deputies[120].

The Constitution of Kazakhstan stipulates temporary restrictions for the procedure of relief of the President of his position. Thus in case the final decision is not issued within two months from the moment of filing a charge would result in rejection of the charge against the President of the Republic. The rejection of the charge against the President of the Republic of committing treason against the state at any stage would cause the recognition that the charge against the President of the Republic is rejected. The rejection of the charge against the President of the Republic of treason against the state at any stage would cause pre-term termination of the duties of the Majilis deputies who initiated the consideration of the case. As some authors of this provision consider the Constitution stipulates that the initiation of the relief procedure in relation to the President can act retroactively that is the duties of Majilis deputies can be terminated[121].

In addition the Constitution stipulates the prohibiting provision. Thus the issue of relief of the President of the Republic from his position cannot be initiated during the period of consideration by him of the issue of pre-term termination of the powers of the Parliament of the Republic of the Parliament Majilis. In the cases stipulated by the Constitution the President would be entitled to consider the termination of the Parliament or Parliament Majilis. It is quite possible that some Parliament deputies to prevent the pre-term termination of their power by the President can initiate the relief of the President of his position. The Constitution prohibits the initiation of relief of the President of the position is the guarantee of the constitutional right of the President to dissolve the Parliament or Parliament Majilis in the cases stipulated by the Constitution. As G.S.Sapargaliyev states such prohibition also prevents a possible political crisis[122].

 

Adoption of laws

Law making by the Parliament of the Republic as well as in other countries assumes continuous tracking of the practice of enforcement, identification of legal gaps and implementation of the powers of the Parliament Chambers is impossible without the analysis of current state of affairs in the corresponding areas and checks of execution of decisions taken by the Chambers. Therefore an integral part of the activities of the Parliament is the parliamentary oversight of the status of laws.

Based on D.A.Kerimov, «the areas of special significance for the representative body in implementing its oversight function is the adoption of laws setting up the general legal framework for the public life; directing the development of the state, determining the content of public bodies’ operations»[123].

The Parliament of the Republic of Kazakhstan is the supreme representative body empowered with the most significant powers of adopting laws. The Parliament is elected by citizens to formalize the will of people through laws. On behalf of the people the Parliament of the Republic of Kazakhstan executes its legislative and other powers within the Constitution (Constitution of the Republic of Kazakhstan Article 3 Clause 3).

The head of the state speaking at the opening of the first session of IV convocation Parliament of the Republic of Kazakhstan drew attention of the parliamentarians to the following: «…To implement these tasks you should develop the new generation laws and ensure effective oversight of their implementation»[124].

According to the Constitution of the Republic of Kazakhstan the subjects of legislative initiative are the President of the Republic of Kazakhstan, deputies and the Government of the Republic of Kazakhstan. At the same time the majority of laws are drafted by the Government. Recognising the adoption of the laws as the oversight power of the Parliament it should be noted that this form of oversight of the executive branch of power is of indirect nature. At the same time we believe that special attention should be paid to the major revisions to the Law of the Republic of Kazakhstan «On legal and regulatory enactments» in 2011 related to the monitoring of legislation: new edition of Article 43 Clause 2-1 «Measures of ensuring legitimacy of legal and regulatory enactments» stipulates the legal monitoring of the legal and regulatory enactments.

 

Approval of the national budget and reports by the Government and Accounts Committee on control of the national budget execution

It is worth noting that as a result of 2007 constitutional reform the Parliament of Kazakhstan has significantly enhanced its powers including in relation to oversight of the national budget execution.

The practice of the Kazakhstani Parliament has proven that the most efficient and effective forms of parliamentary oversight include the approval of the national budget and the reports of the Government and Accounts Committee on the control of the national budget execution.

According to Constitution of the Republic of Kazakhstan Article 54 Clause 1 sub-clause 1 national budget and amendments and revisions to it are approved through consecutive consideration by separate sessions first by Majilis and then by Senate and the same is applied to the discussion of the budget execution reports under the same article Clause 2 sub-clause 1.

National budget, amendments and revisions to it are approved in accordance to the regulations of the Parliament, Senate and Majilis and the approval procedure has no significant differences from the procedure of discussing draft laws. For example Majilis Regulations Clause 61 states that draft constitutional laws and laws submitted to the Parliament Majilis are considered in accordance with Majilis Regulations Section 3 «Legislative activities of Parliament Majilis. Procedure of draft law adoption». The national budget is approved by a law that is first considered by Majilis and then approved by the Senate[125].

Senate Regulations compared to Majilis Regulations stipulate more detailed regulation of the procedure of national budget approval and discussions of national budget execution reports.

Let’s look at the procedure of national budget approval and discussion of the national budget execution reports defined by Senate Regulations Section 5 «Procedure for approval of the national budget and discussion of the national budget execution reports». As soon as the draft law on the national budget for the corresponding year approved by Majilis is submitted to Senate the Senate Office should decide upon the chief committee.

Discussion of the draft law on the national budget includes the reports by:

-          the official authorized by the Parliament on the forecast social and economic development and budget indicators for the country and draft law on the national budget for the corresponding fiscal year;

-          Chair of the National Bank of the Republic - on monetary policy; and

-          a co-report of a representative of the chief Senate committee.

Let us consider how the Government report on budget execution of the last year is considered by the Senate after its consideration by the Majilis.

The budget execution report of the Government for the last year is discussed together with the consideration of the report of the Accounts committee on the national budget execution. This work includes the discussion of reports by: Minister of finance, Chair of the National Bank of the Republic, Chair of the Accounts committee for control of the national budget execution and co-report by a representative of the chief Senate committee.

Reports of independent experts employed by the chief committee can also be heard. Based on the discussions the Senate would issue a resolution that is sent to Majilis. The Senate resolution would state: the Senate committee that was instructed to prepare a co-report to the reports and a parliamentarian who is empowered to speak at the joint session of the Parliament chambers on behalf of the Senate.

The reports of the Government and Accounts committee for control of national budget execution, revisions and amendments to the budget are then approved by the joint session of the chambers after they are discussed first by Majilis and then by Senate.

If the Parliament disapproves of the Government report on the national budget execution this means the vote of censure to the Government by the Parliament (Constitution of the Republic of Kazakhstan Article 53) and if the draft national budget submitted by the Government is not approved the Prime-minister is entitled to raise the issue of vote of censure at the joint session of the Parliament chambers (Constitution of the Republic of Kazakhstan Article 61).

To consider this important function let us look at the practice of the developed countries. For the young developing Kazakhstan we believe it would be advisable to compare, fully analyze and not just copying but adapt these practices into our life taking into account the specifics of the country and our mentality.

The constitutions of foreign European countries where the key element is the principle of power division the most important function is given to the parliamentary oversight of the budget execution and public expenditure. For example the fundamental law of Germany stipulates the responsibility of the Government during the next fiscal year to provide to Bundestag and Bundesrat the reports about all revenues and expenditures and the status of state property and public debt (Article 114 part 1)[126].

In most European countries a special oversight body is established to improve the efficiency of the parliamentary oversight of the budget execution and public expenditure. This is the way such oversight bodies are called in Austria, Belgium, Hungary, Greece, Spain, Italy, Portugal, Rumania, France, Germany. In Poland this kind of body is called Supreme oversight chamber, in Slovenia -Accounts Court, in Finland - Auditing agency.

According to constitutions similar functions are implemented by an official of the Parliament - auditors in Denmark, public controllers in Latvia, Lithuania, Estonia, public auditors in Finland. Constitutions of some European countries refer the accounts chambers to the parliamentary bodies responsible for budget execution oversight. They include Austria and Hungary. In some countries the accounts chambers have the status of independent supreme body of financial control (Bulgaria, Spain, Poland, Germany). In other countries the accounts chambers are empowered to execute some judicial functions. This group includes accounts chambers of Greece, Italy, Portugal, France, Accounts Court of Slovenia[127].

A typical feature of such bodies of budget execution oversight is their accountability to the parliament.

Constitutions and laws issued on their basis empower the bodies of parliamentary oversight with wide authorities of financial control. For example the Belgian constitution entitles the Accounts chamber «to consider and streamline the general management accounts and all those reporting to the public treasury. It makes sure that no expenditure line item of the budget is exceeded and not reallocation from one line item to another takes place. The chamber is also providing overall oversight of transactions related to establishing and charging taxes payable to the state including fiscal revenues. In approves the accounts of various public administrative bodies and is obliged to provide any information and required reporting documents to this end. The summary public fiscal report is provided to the Chamber of representatives with comments by the Accounts chamber» (Article 180).

As in the UK there is no single system of finance management and national budget execution oversight and each component of the budget system would independently plan, consider, approve and execute its budget there are two systems of budget oversight - national and regional[128].

Vote of censure

Vote (Latin votum - will, desire) is the opinion expressed through voting. This procedure is used in the parliamentary practice of some countries to express approval or disapproval of the government or Minister’s performance (vote of censure). In case of vote of censure a government or a minister is supposed to resign[129].

The institute of the vote of censure within the parliamentary law of Kazakhstan has two forms of expression.

Firstly, the issue of confidence in the Government is normally raised by the Prime-minister if the Parliament disapproves of the draft law submitted by the Government. This statement is made at the joint session of the Parliament chambers. In this case the confidence in the Government would mean the adoption of the law if otherwise the law would be considered rejected and the Government should resign. Voting on the issue should be carried out on or before forty eight hours after the issue of confidence is raised. However the Government cannot use this right more than two times a year (Constitution of the Republic of Kazakhstan Article 61 Clause 7).

Secondly the Parliament can express the vote of censure on its own initiative for example if the Parliament doesn’t approve the Government report on the national budget execution (Constitution of the Republic of Kazakhstan Article 53 sub-clause 2).

The issue of the vote of censure would be considered in more detail in sub-section 2.4 «Vote of censure».

Inquiries and queries by deputies

An efficient form of oversight powers of the Parliament is the inquiries and queries by deputies.

Deputy inquiry and query are the most widely used and effective forms of direct oversight by the legislative body in the global practice.

Deputy inquiry is a formal requirement of a deputy clearly addressed at the joint or separate sessions of the Parliament chambers to the public officials to provide during a Parliamentary session a well-grounded clarification or state the position on the issues within the competence of the body or the official.

The Constitutional Law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies» has article 27 on the inquiries and queries that stipulates:

«… Parliamentarian shall be entitled to file an inquiry to the Prime-minister and members of the Government, Chair of the National Bank, Chair and the members of the Central Election Commission, Prosecutor General, Chair of the National Security Committee of the Republic of Kazakhstan, Chair and members of the Accounts committee for control of the national budget execution. However an inquiry addressed to the General Prosecutor should not be related to the issues of criminal prosecution functions. The inquiries filed with the Chair of the National Security committee shall be considered by the secret sessions of the chambers.

…The inquiry can be filed in writing and shall be disclosed at the Parliament session.

…Officials whom the inquiry is addressed to shall be obliged to provide a verbal or written response to it at the Parliament session. The written response shall be provided within maximum one month and shall be disclosed at the session. Debate on the response can be organized. The deputy shall be entitled to express his attitude to the response.

…Based on the response to the inquiry and the discussion of it a resolution of the Parliament or the relevant chamber shall be issued. The inquiry and response to it can be published in media».

The legislation of Kazakhstan provide for quite a detailed regulation of all the procedures related to preparation, filing the inquiries and follow-up actions.

The Parliament Regulations of the Republic of Kazakhstan have Clauses 98 - 103 devoted to the deputy inquiries and the Senate Regulations have Section 13 «Inquiries and queries of deputies» that regulated the issue in detail. Similarly the Majilis regulations of the Republic of Kazakhstan have a separate section 11 «Inquiries and queries of deputies» regulating this issue.

The wording of the three regulations related to the procedure of filing inquiries and getting responses to them etc. are mostly identical.

As for queries the deputies are entitled during the joint and separate sessions of the chambers to address verbal questions to the Prime-minister and members of the Government, Chair of the National Bank, Chair and the members of the Central Election Commission, Prosecutor General, Chair of the National Security Committee of the Republic of Kazakhstan, Chair and members of the Accounts committee for control of the national budget execution. The response to the query is provided during the same session and if additional time is required for preparation of the response it should be provided within a three-day period.

It is worth noting that the Constitutional law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies» Article 25 Clause 8 also provide for the right of the deputy to participate in the debates, ask questions to the speakers and to the president of the session.

The parliamentarians of Kazakhstan quite actively use the query as a form of parliamentary oversight. It should be born in mind that the efficiency of this form of oversight depends on the timeliness and the quality of the follow-up action rather than the number of queries filed.

For example, the II convocation parliamentarians filed almost two and a half thousand deputy queries which is ten times bigger than the 1st convocation parliamentarians.

Based on statistics of the unit for document provision of the Majilis administration during the III convocation the deputies filed 2039 queries and 1802 queries during IV convocation[130].

Senate deputies during III convocation filed 242 queries and 645 queries during IV convocation.

In Russia the «parliamentary query is addressed to a wide range of officials from the top managers of the federal executive bodies to the heads of municipalities on the issues within the competence of these and other bodies and officials compliant with the requirement of non-interference of the chamber into the intelligence and criminal proceedings of the inquest, investigation and judicial operations»[131].

In Russian Federation in addition to the inquiry by a deputy (that could be signed by one deputy or a group of deputies) there are also inquiries made by the chief committee.

A query and an inquiry is understood to be a request of the chambers, individual deputies or groups of deputies to the government, its officials, other public bodies asking to provide information on specific issues. The query normally represent the request aimed at getting the information background or brief comments on the facts available. It doesn’t imply immediate application of direct political sanctions to the ministers. This oversight procedure is aimed at getting clarification from the government officials but is not limited to the voting on the issue raised. Queries to the ministers is an actively applied form of parliamentary oversight globally. In France, for example the parliament would raise more than 400 queries. Constitutional legislation of some countries would set up quantitative limitations. For example in Germany each deputy has the right to ask the Government maximum four queries during one month through the chair of Bundestag[132].

The procedure of the query by a deputy in some countries is called interpellation in the constitutional law[133]. Interpellation is an effective form of parliamentary oversight as it contains the requirement by one or several parliamentarians to government officials to provide clarification on the actions of agency they manage or on the general policy issues[134]. Compared to ordinary queries interpellation, firstly, causes the general debate on the response finished by voting; secondly, would contain the political assessment that is provided in the resolution and states whether the parliament is satisfied or not by the clarification received. To ensure regular opinion sharing between the executive and legislative bodies most countries would allow the parliamentarians to ask questions in the form of interpellation[135]. Interpellation is widely used in the work of the parliament in many countries (Italy, Finland, Japan, Belgium and others).

Endorsement to appointments

The endorsement to the appointments by the President of the country to certain positions and election and appointment by the Parliament of the political appointees is considered a form of oversight in the parliamentary law.

The list of officials of the country to be appointed by the President upon endorsement of the Parliament and those appointed and relieved from their positions by the Parliament is specified in Constitution of the Republic of Kazakhstan Article 55 sub-clauses 1 and 2, Article 56 Clause 1 sub-clause 2 and Article 57 sub-clause 1.

The procedure of endorsement by the Parliament of the appointments proposed by the President, the appointment and relieve from positions of some officials of the country is regulated, in addition to Constitution, by the Constitutional law of the Republic of Kazakhstan No.2529 dated of 16 October 1995 «On the parliament of the Republic of Kazakhstan and the status of its deputies» that includes section IV «Execution by the Parliament chambers of the power of endorsing the President’s proposals for appointment, election, assignment and relief from the positions of officials on the Republic» that regulates the issue in detail.

It should be noted that during the joint sessions the Parliament would not provide endorsement to appointments.

The endorsement procedure for the appointment of top rank officials is also stipulated by the regulations of the Parliament Senate and Majilis of the Republic of Kazakhstan.

For example in USA only the Congress Senate can consider and endorse to the appointment of the top officials of the American administration. In parliamentary republics and monarchies the appointment of the Prime-minister or approval of the government formed by him is the responsibility of the lower chamber.

The issues of appointment are discussed in detail in sub-section «Key powers of the Parliament» of this monograph.

Many political scientists note that endorsement to appointments, election of the top officials should have the reverse nature. We believe that it would be advisable for the Constitution or may another constitutional law to provide for the responsibility of officials to report on their performance to the supreme representative body of the country - the Parliament that expresses the interests of the people. It may attain the real weight to the Parliament in executing the oversight powers.

Parliamentary hearings

Practice shows that the oversight function of the Parliament of the Republic of Kazakhstan can be quite efficiently implemented through parliamentary hearings held by the Parliament chambers within their competences.

Constitution of the Republic of Kazakhstan Article 57 sub-clause 5 states that each Parliament chamber would independently without involvement of the other chamber hold Parliamentary hearing within its competence.

Constitutional law of the Republic of Kazakhstan «On the parliament of the Republic of Kazakhstan and the status of its deputies» Article 12 that regulates the procedure of holding parliamentary hearings stipulates that the Parliament chambers can hold parliamentary hearings within their competence.

The Parliament Senate (clause 93) and Majilis (clause 97) Regulations of the Republic of Kazakhstan provide the detailed procedures of parliamentary hearings.

This issue in discussed in more detail in sub-section «Parliamentary hearings».

Governmental hour

An important role in strengthening parliamentary oversight over the Government performance can be played by the governmental hours held.

According to Majilis regulations clause 96-1 the Parliament Majilis can hold governmental hours according to its action plan and within its competence.

During the governmental hour the deputies would listen to the report of a representative of the Government and, if necessary, a co-report by the corresponding permanent committee and after that the deputies are entitled to ask questions to the representative of the Government. The report on the issue under discussion is to be done within maximum twenty minutes, maximum ten minutes is provided for the co-report and maximum an hour and a half is provided for the discussion (Majilis Regulations clause 96-2).

The Parliament Majilis of the Republic of Kazakhstan has held total 93 Governmental hours[136] (III - IV convocations), and Parliament Senate - 4.

Based on the current international practice of the global parliaments and according to the legislation the Parliament of Kazakhstan has sufficient opportunities both for improvement of the lawmaking and for execution of its oversight functions[137].

It should be note that the significance of the governmental hour as a type of parliamentary oversight is quite public during its discussion. At the same time however the control of implementation of the decisions taken during the governmental hours should be enhanced and for this relevant changes should be made to the regulations of the Senate, Majilis and Government.

The right of the deputy to be immediately received by officials

Constitutional law of the Republic of Kazakhstan «On the parliament of the Republic of Kazakhstan and the status of its deputies» Article 28 reads: «Within the activities of the deputies the deputy shall enjoy the right of free access to public bodies, civil society institutions, state organisations and can be immediately received by their top managers and other officials».

Similar provision is stipulated by the Senate Regulations Clause 138 and Parliament Majilis Regulations Clause 143.

The right of the deputy to be immediately received by officials can be quite conventionally referred to parliamentary oversight. First of all it is the right and not an obligation or a power i.e. it is left to the deputy’s discretion based on his/her active position. Secondly, the formalization of the provision requires a lot of additional work and needs to be stipulated both in the Constitutional law of the Republic of Kazakhstan «On the parliament of the Republic of Kazakhstan and the status of its deputies» and in the Regulations of Majilis, Senate and Government. Thirdly, a set of specific issues need to be identified whereby the deputy can resort to the right to be immediately received.

The right of free access to the public and other bodies by the deputies is formalized in the legislations of Russia, Belarus and other countries.

Summarising the oversight functions we would like to note the following. When comparing the practice of oversight in our country wit international experience the attention is caught by such a type of oversight that is used in a number of foreign countries as investigation committees and commissions.

The institution of parliamentary investigation as a form of parliamentary oversight in foreign countries is quite well developed.

Parliamentary investigations in other countries are formalized in different ways. Normally the system of legal provision for the parliamentary investigations includes the following components:

-          constitution (provisions of the Fundamental law on parliamentary investigations);

-          some enactments (national parliament laws, containing the articles on parliamentary investigations);

-          special provisions on parliamentary investigations in the regulations of the parliaments.

Let’s consider the practice of Russia as an example.

In Russia during 15 years the parliament chambers established parliamentary commissions to investigate the events and phenomena of social significance. Their experience both with the State Duma and in the Federal Assembly not only demonstrates the significance of this mechanism of parliamentary oversight but also revealed a number of major problems related to executing parliamentary investigations. They were largely pre-conditioned by the lack of legal provisions and procedure of parliamentary investigations.

Deputies of State Duma of Russian Federation have tried several times to establish a legal mechanism of parliamentary investigations. However the adoption of the law took a lot of time due to lack of clarity in defining the subject, goals and objectives of parliamentary investigations, the list of entities in respect of which the parliamentary investigation can be carried out and as a result the Law was only issued in 2005.

According to the Federal law «On parliamentary investigation by the Federal Assembly of Russian Federation» the parliamentary investigation can be carried out in respect of: the facts of sever or mass violation of the human rights and freedoms warranted by the Constitution of Russian Federation; circumstances related to man-caused emergencies; circumstances related to negative effects of natural and man-caused emergencies.

In addition it is stipulated that a parliamentary investigation should be carried out on the basis of the principles of legality, respect and observation of human and citizen rights and freedoms, respect of personal honour and dignity, equality of citizens before the law, collegiality, impartiality and openness. The parliamentary investigation cannot replace the inquest, pre-investigation and litigation. The federal law would determine in particular the reasons for starting a parliamentary investigation, the procedure of decision taking for initiation of a case, the procedure for establishment and operation of the parliamentary commission, its rights, the rights of officials and citizens involved in the parliamentary investigation.

The constitutional and legal provision for the parliamentary investigation is stipulated in detail in the Regulations of the Federation Council. The resolution of the Federation Council of the Federal Assembly of the Russian Federation of 24 March 2006 introduced Section 7(1) «Procedure of involvement of the Federation Council in parliamentary investigations by the Federal Assembly of Russian Federation» in the Regulations.

Russian political scientists note that «the formation of the institution of parliamentary investigations is an important pre-requisite for further development of not only Russian parliamentarianism but Russian state identity as a whole. Undoubtedly the introduction of the parliamentary investigations as an element of oversight by the legislative power into the domestic legal system would facilitate the improvement of its performance that would result in further democratization of the Russian society»[138].

Given the current situation in Kazakhstan the introduction of the parliamentary investigations into the legal system of the country is quite a debatable issue.

In conclusion to the sub-section on the oversight powers of the Parliament of Kazakhstan we would like to stress again that the scientists and practitioners do not deny that the Parliament has the oversight powers but provide the rationale for such power however without defining the implementation mechanisms thereof. «The efficient implementation of oversight powers of the Parliament of the Republic of Kazakhstan, - notes U.B.Mukhamedjanov in this respect, - we believe is advisable to primarily enhance the accountability of the executive power to the Parliament for its performance. And a most significant mechanism of enhanced responsibility of the power should be the formation of the well-balanced system of checks and balances within the state structure»[139].

At the same time the analysis of operations of the supreme representative body shows that the development of the parliamentary oversight institution in the Republic of Kazakhstan is quite inconsistent. The analysis of powers of the Parliament of the Republic of Kazakhstan shows that in general its powers, except the legislative ones, are not so directly and apparently stipulated in the constitutional provisions. «Constitutional recognition of the parliamentary functions is not fully in line with the scientific definition of its functions, - fairly notes G.S.Sapargaliyev, - …in accordance with the Constitution of the Republic of Kazakhstan the Parliament of the Republic of Kazakhstan has only legislative functions. The Constitution of the Republic of Kazakhstan mentions no other functions of the Parliament»[140]. Similar legal provisions are also typical for foreign constitutions formalizing the status of parliaments.

The further development requires the improvement through revision of legal enactments related to monitoring of legislation by the Parliament of the country and development of effective mechanisms of implementing the oversight function with a well-balanced assessment of the constitutional principle of division of power into legislative, executive and judicial branches and their interaction using the system of checks and balances.

2.4. Vote of censure

 

Vote (Lat. Votum - will, desire) is the opinion expressed through voting. The parliamentary practice of a number of states use this procedure to express approval or disapproval of the performance of the government or a minister (vote of censure). In case of vote of censure the government or the minister is supposed to resign[141].

In most countries the application of the mechanism of government accountability to the parliament is regulated by Constitution. At the same time the practice used by various states is not the same.

For example in Italy the voting by one chamber against the governmental proposal according to the constitution «would not necessarily cause the resignation» (Constitution Article 95) and in the UK voting by the House of Сommons against any Government proposal would be equal to vote of censure. Therefore in Italy and lack of confidence should be accompanied with the adoption of the well-grounded resolution and in the UK the motivation is not required. However some common features can be identified in legal regulation of accountability principle with some degree of conditionality.

The issue of confidence can be raised either by the government or by the parliamentarians. The prime-minister would raise the confidence issue on behalf of the government. Resolution of the non-confidence (censure) issued by the parliamentarians should normally be signed by a group of deputies (in France, Italy, Spain they should make at least one tenth of parliamentarians). Often the deputies who signed the censure resolution that wasn’t voted for by the majority of parliamentarians would be deprived of the right to initiate the new one during the same session[142].

Legislation of some countries provide for the time interval between the initiation of the censure resolution to the government and voting on it, which in France is two days, in Italy three days, in Spain five days. This time can be used by the government for the background negotiations and putting additional pressure on parliamentarians. For the non-confidence (censure) resolution to be adopted normally the absolute majority of votes. In case the resolution initiated by the parliamentarians is not supported by this majority it is considered rejected. The votes for the government or the abstainers are not taken into account. This procedure is suitable primarily for the government which otherwise could turn out to be a minority.

 

In German practice the «constructive vote of censure» is used. For the censure decision of the parliament to cause the resignation of the government it is not enough that the majority of deputies vote for it. It also requires that the absolute majority elects the new Federal Chancellor. If this condition is not met the Bundestag can be dissolved ahead of time.

In France the oversight of the government related to sanction is only executed by the lower chamber. It can force the government to resign as a result of censure resolution or non-confidence. The Government can request the Senate for confidence and if it refuses the government is not obliged to resign. The issue of confidence can be raised by the government itself in relation to its requirement to the parliament to adopt a governmental programme, general policy declaration or a draft law thus putting pressure on the deputies. In case of no reliance the government should resign and it cannot dissolve the lower chamber (the upper chamber is not subject to dissolution whatsoever) but the president has a «personal» right to dissolve the lower chamber if he considers it necessary[143].

In Russia the vote of censure to the Government of Russian Federation is a form of parliamentary oversight of the performance of the RF Government. The right of vote of censure to the RF Government is granted by the RF Constitution (Article 117 Part 4) to the State Duma. Though the constitution doesn’t provide for the specific grounds for the State Duma to issue the vote of censure to the RF Government. Practice shows that these grounds could include: sharp decline of social and economic conditions; disagreement of the deputies with the pillars and outcomes of the Governmental policy; non-compliance with federal laws; serious offences by the members of the Government etc. The State Duma Regulations set up clear requirements to the initiation of the vote of censure and a number of procedural conditions related to voting. This initiative should be well-grounded, issued in writing and supported by at least 1/5 of the total number of deputies of the State Duma and should be considered within a week time. According to the State Duma Regulations (article 151) the decision on the vote of censure should be taken through open or secret (whatever is the decisions of chamber) ballot. The initiative is doomed to be rejected if it is not voted for by the majority of deputies. The vote of censure by the State Duma to the RF Government doesn’t cause the automatic resignation of the Government. The resignation decision is taken independently by the RF President. During 3 months the State Duma is entitled to issue the vote of censure to the Government again. In this case the President should take one of the decisions - declare the resignation of the Government or dissolve the State Duma[144].

Grounds for the vote of censure by the Parliament of Kazakhstan to the Government are stipulated in Constitution of the Republic of Kazakhstan Article 53 sub-clause 2 that states that «the Parliament during the joint session of the Chambers shall approve the reports of the Government and Accounts committee on the national budget execution. If the report of the Government on the national budget execution is not approved by the Parliament it means the vote of censure to the government by the parliament».

In Kazakhstan before 2007 reform the parliament could only issue the vote of censure to the Government at the joint session. Now it is the independent competence of the lower chamber of the Parliament. Parliament Majilis by the majority of total number of Majilis deputies upon the initiative of at least one fifth of the total number of Majilis deputies is entitled to express the vote of censure to the Government (Constitution of the Republic of Kazakhstan Article 56 Clause 2).

This provision of the Constitution is commented by the scientists as follows: «Majilis deputies of the Parliament are entitled to initiate the vote of censure to the Government. The basis for such initiation could be the significant failures in the Government performance. The vote of censure cannot be initiated by an individual deputy as this is quite a serious issue. Therefore the Constitution stipulates that the vote of censure should be initiated by at least one fifth of the total number of Majilis deputies»[145].

There are other provisions in the Constitution regarding the application of vote of censure. For example Article 61 Clause 7 reads: «If the draft law initiated by the Government is not adopted the Prime-minister shall be entitled to raise the issue of the vote of censure to the Government at the joint session of the Parliament chambers. The corresponding voting shall take place not earlier than forty eight hours since the vote of censure is raised. If the proposal of the vote of censure is not voted for by the majority of total number of votes from both chambers the draft law shall be considered adopted without voting. However the Government shall not be entitled to resort to this right more than two times a year».

The right of the Prime-minister to initiate the vote of censure is applicable in the extraordinary cases when the adoption of the draft law is a pre-condition for the further operation of the Government. At the same time it is important to avoid the opposition in the system of state power. These reasons, we believe, cause the timeframe of forty eight hours since the time the vote of censure is raised till the corresponding voting and the time limit to avoid possible abuse of the procedure. Despite the fact that so far the wording «however the Government shall not resort to this right more than two times a year» hasn’t been applied in practice it needs clarification as it can mean either a calendar year or a year counted as a number of months[146].

For issuing the vote of censure to the Government it should be supported by the majority of total number of votes from each Parliament chamber, otherwise the draft law of the government is regarded adopted without any additional voting. Before 2007 constitutional reform the vote of censure required two thirds of the deputies of the Parliament chambers.

According to the previous*) resolution of the Constitutional Council No.6 Dated of 13 May 2003 «Formal interpretation of Constitution of the Republic of Kazakhstan Article 61 Clause 7 and Article 63 Clause 1» the wording «the draft law initiated by the Government is not adopted» should mean the emergence at any stage of legislative process of such circumstances that would later result in impossibility of adoption of the laws according to all the procedures stipulated by the Constitution and laws, regulations of the Parliament and its chambers. Such circumstances include: rejection of the submitted draft law by the Parliament Majilis; non-approval of the draft law by Majilis, rejection of the draft law by the Senate and approval of Majilis of it; second rejection by the Senate of the draft law again approved by Majilis; rejection by the Parliament of the draft law subject to consideration at the joint session of the chambers; recall by the Government of the draft law initiated by it at any stage of lawmaking process in case of disagreement with the review comments by any chamber or by the Parliament[147].

Constitution of the Republic of Kazakhstan Article 70 has the provision under which the Government would declare to the President of the country on resignation in case the Parliament Majilis or the Parliament issues the vote of censure to the Government.

To look at this provision in more detail we would provide the cites from the resolution of the Constitutional Council of the Republic of Kazakhstan No. 11 dated of 19 November 2003 «Formal interpretation of Constitution of the Republic of Kazakhstan Article 70»: «Constitution of the Republic of Kazakhstan Article 70 Clause 5 sets up the general rule of the constitutional outcomes of the acceptance by the President of the resignation of the Government and its members on the grounds stipulated in clauses 2 and 3 of this Constitution article. In all cases of acceptance by the President of the resignation of the Government or the Prime-minister or corresponding member of the Government the Constitution means the officials of the collegial body of the state managing the system of executive bodies and officials that are direct members of its upon appointment by the President. The acceptance of the resignation means the termination of powers of the Government or the corresponding member of it. The acceptance of the resignation of the Prime-minister means termination of powers of the whole Government» (Constitution Article 70 Clause 5)[148].

If the Parliament issues the vote of censure to the Government (Constitution Article 70 Clause 3) the Government by its collegial decision would declare to the President of the country of its resignation. If the President of the country by his decree decides to terminate the powers of the Government, relieve the Prime-minister or any other member of the Government of his/her position (Constitution Article 70 Clause 7) this would cause termination of powers of the Government or the corresponding official without his/her application for resignation. The grounds for termination of powers of the top managers of other central executive bodies forming the structure of the Government but not being the part of the Government as the collegial body are not regulated by Constitution Article 70.

Academician G.S. Sapargaliyev quite fairly comments on the accountability of the Government to the Parliament that «the provisions of Constitution of the Republic of Kazakhstan like those of the Russian Fundamental law related to accountability of the Government to the Parliament lack the reference to the vote of censure to the Government by the Parliament as a form of its political accountability to the Parliament»[149].

The Regulations of the Parliament Majilis stipulate the procedure that allows the Prime-minister to raise the issue of confidence to the Government with the newly elected Parliament Majilis based on Constitution Article 70 Clause 1.

Let’s look at it in more detail. The issue of the vote of censure to the Government is considered at the Majilis plenary session.

Once the issue is included in the agenda the Majilis Chair would read out the corresponding letter of the Prime-minister. The Prime-minister is entitled to speak to the Chamber. Time limit for his speech is ten minutes. Deputies present at the session are entitled to ask questions to the Prime-minister and express their opinions on the vote of censure to the Government.

Debates on the vote of censure may not be started unless the deputies insist of them.

The decision on the issue is taken by open ballot unless another voting procedure is defined by the Chamber. The decision is taken by the majority of total number of Majilis deputies and formalized as a resolution of the Chamber[150].

There were several cases in the practice of the Parliament of the Republic of Kazakhstan when the vote of censure to the Government of the Republic of Kazakhstan was initiated[151].

This happened in the Parliament of Kazakhstan in 1996, 1999 and 2003.

1. Draft law of the Republic of Kazakhstan «On amendments and revisions to the law of Kazakh SSR «On pension provision of the citizens of Kazakh SSR» that was received by Majilis on 11 January 1996 was considered and rejected by the Chamber on 23 May 1996. The key reasons for rejection of the draft law included the increased retirement age and termination of pension benefits. On 10 June 1996 during the joint session of the Parliament chambers as a result of rejection of the draft law «On amendments and revisions to the law of Kazakh SSR «On pension provision of the citizens of Kazakh SSR» by Majilis the Prime-minister according to Constitution of the Republic of Kazakhstan raised the issue of the vote of censure to the Government. During the joint session of the Parliament chambers on 12 June 1996 the deputies of the chambers expressed the confidence to the Government.

2. The draft law «On the national budget for 1999» was very complex for consideration and adoption as in the condition of the budget crisis it proposed the reduced budget allocations to social sectors including education, health, culture and sports, compared to the previous fiscal year. The deputies claimed that the proposed draft is unrealistic for execution and suggested it being revised but the initiators insisted on their version.

In March 1999 the Government submitted amendments and revisions to the law of the Republic of Kazakhstan «On the national budget for 1999» that provided for further reduction of the budget programmes including those related to low-income groups of population (signed on 1 April 1999, No.359-1). And this draft law wasn’t the last version of the 1999 national budget as in May 1999 the Government presented the new draft yet again providing for certain cuts of the budget programmes.

On 2 July 1999 Majilis considered another draft law «On amendments and revisions to the law of the Republic of Kazakhstan «On the national budget for 1999».

Reduction of revenues and transition to the floating Tenge exchange rate forced the Government to propose another significant cut of the national budget expenses - by KZT18 billion and, primarily, in social sectors, and agriculture and real sector of economy.

On 21 June 1999 the joint session of the Parliament chambers discussed the draft law «On amendments and revisions to the law of the Republic of Kazakhstan «On the national budget for 1999» and none of the proposed decisions of the Prime-minister - adopt, reject, finalized - got the required number of deputies’ votes. The parliament declared the draft law not adopted.

The Government raised the issue of confidence. On 24 June 1999 the voting didn’t reach the required threshold of the two thirds of the total number of deputies from each chamber to issue the vote of censure. Thus the Government was expressed confidence of and the law «On amendments and revisions to the law of the Republic of Kazakhstan «On the national budget for 1999» was adopted without second consideration (signed by the President on 28 June 1999, No.406-1).

3. Government of the Republic of Kazakhstan drafted the Land Code of the Republic of Kazakhstan in 2002. On 16 May 2003 the joint session of the Parliament chambers had the agenda item «On raising the issue of the vote of censure to the Government of the Republic of Kazakhstan by the Prime-minister caused by the recall of the draft Land Code of the Republic of Kazakhstan by the Government».

On 19 May 2003 the secret ballot procedure was approved including the Australian ballot on the vote of censure to the Government of the Republic of Kazakhstan. During voting the deputies didn’t reach the required two thirds of the total number of votes from each chamber to issue the vote of censure to the Government. According to the legislation of the Republic of Kazakhstan the Land Code of the Republic of Kazakhstan is therefore regarded accepted with the compromise wording.

The President of Kazakhstan N.A. Nazarbayev made a speech at the Parliament session and announced that the Prime-minister submitted a resignation application to him on 19 May 2003. He refers his resignation request to the situation with the adoption of the Land Code. On 11 June 2003 after the Land Code was accepted by the Constitutional Council that was submitted to the President for signature based on voting by the Parliament on confidence in accordance with Constitution of the Republic of Kazakhstan the Prime-minister repeated his resignation request and the Head of the State accepted it.

Having considered the international practice related to the vote of censure, the provisions of Constitution of the Republic of Kazakhstan as well as the practice of Kazakhstan of its application one should note that the procedure of the vote of censure is very clearly stipulated in the existing legislation and its practical application causes no legal conflicts.

 

2.5. Parliamentary hearings

 

Parliamentary hearings is a form of Parliament activities involving the hearing of the opinions of the members of the parliament, officials and civil society representatives and experts on a specific draft law or another issue within the competence of the parliament.

The objective of the parliamentary hearings is to provide a deep and critical analysis of the progress of a programme aiming at developing measures for further improvement of legislative, legal and regulatory framework ensuring smooth and efficient execution of the comprehensive development projects and investment projects incorporated into the programme, more active role of deputy corps in their implementation.

Each Parliament chamber would hold parliamentary hearings within its competence and adopt recommendations based on the outcomes that are communicated to all deputies, public, executive bodies and published in media.

Parliamentary hearings would reflect the most diverse, relevant issues of concern for the society. Ideas expressed during the hearings often become the basis for draft laws, become the foundation for the drafting of the legal enactments, and decision taking by the Government.

The role of parliamentary hearings is to help identifying the interests of various groups of people and take into account their opinions when adopting the laws. They foster transparency of the parliament functioning, promote cooperation with civil society organisations, raise confidence of the citizens in the state. At the same time feedback is facilitated so that the people are directly involved in the public life, governance and decision taking.

For example, hearings are a most important form of US Congress functioning. They help the legislature quickly take into account highly professional opinions and various assessments of prominent experts. The objective of hearings for adoption of laws (bills) through the stages of legislative process can be resolving the acute disputes or minimizing them. Participants or, as they are called in US Congress, witnesses and persons providing their expert opinions are invited to the hearing by the committee through a letter, or an invitation through the daily announced bulletin of US Congress.

For the comparison purposes let’s consider the most relevant provision of parliamentary hearings in Russia.

According to Constitution of Russian Federation Article 101 the Federal Council and State Duma would hold parliamentary hearings within their competence.

Parliamentary hearings are held by the State Duma upon the initiative of the Council of the State Duma, its committees and commissions, deputy associations within the State Duma. The arrangement and holding the parliamentary hearings is the responsibility of corresponding committees and commissions of the chamber.

The procedure. Parliamentary hearings would be moderated by the Chair of the State Duma, deputy Chair of the State Duma or upon their instruction the chair or the deputy chair of the corresponding committee or commission of the State Duma. The person presiding the parliamentary hearings would give the floor to the deputies of the State Duma and invitees, monitor the discussions and make speeches.

Parliamentary hearings would start with a brief introduction by the chair of the parliamentary hearings who would inform about the matter of the issue under discussion, its significance, the procedure of the session, and the list of invitees. Then the floor is given to the chair of the committee or commission of the State Duma for up to 20 minutes report on the matter under discussion and then the deputies of the State Duma participating in the hearings and invitees would express their opinions. Parliamentary hearings can result in adoption of recommendation on the issue under discussion.

The Regulations of the State Duma stipulate that the parliamentary hearings can result in the adoption of recommendations on the issue under discussion through approving them by the majority of the State Duma deputies who took part in the hearings.

Recommendations of the open parliamentary hearings can be published in media. The materials of secret parliamentary hearings can only be disclosed to the deputies (members) of the corresponding chambers and public officials who took part in the parliamentary hearings[152].

In Kazakhstan hearings were first formalized in the Regulations of the XIII convocation Supreme Soviet of the Republic of Kazakhstan. The first deputy hearings were held on the draft law «On amendments and revisions to the Law of Kazakh SSR «On pension provision of the citizens of Kazakh SSR». The hearings were initiated by the committee for social and cultural development of the Parliament Majilis of the country. The hearings were participated by 12 ministers, including the ministers of finance, labour and social security, health, in addition to deputies and representatives of Kazakh Soviet of trade unions, Association of veterans, independent trade unions, association of invalids, institute of State and law etc.[153]

Whilst during the 1st convocation Parliament of Kazakhstan four parliamentary hearings were held, during the 2nd convocation seven hearings were held.

The issues discussed during the parliamentary hearings can be classified into three groups:

1)      consideration of the most relevant and socially significant draft laws;

2)      use of hearings as a form of parliamentary oversight over the laws adopted;

3)      discussion of the social and economic issues having the impact on the majority of population.

Constitution of the Republic of Kazakhstan Article 57 sub-clause 5 stipulates that each Parliament chamber would independently without involvement of the other chamber hold Parliamentary hearings within its competence.

Hearing as a form of Parliament functioning in the Republic of Kazakhstan has been institutionalized through the Constitutional law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies». Article 12 of this Constitutional law regulating the procedure for parliamentary hearings stipulates that the Parliament chambers would hold parliamentary hearings within the issues of their competence.

Parliamentary hearings should not be held on the dates of joint or separate plenary sessions of the chambers.

The law of the Republic of Kazakhstan «On committees and commissions of the Parliament of the Republic of Kazakhstan» of 7 May 1997 Article 58 stipulates that the Parliament chambers would hold parliamentary hearings within the issues of their competence. Parliamentary hearings by the Parliament chambers are held upon the decision of the Chamber Offices by the permanent committees of the Chambers. The procedure for organizing and holding the parliamentary hearings are stipulated by the regulations of the Parliament chambers. For example the issue of parliamentary hearings is regulated by Senate Regulations of the Republic of Kazakhstan para 8 «Procedure of parliamentary hearings»[154].

Parliamentary hearings in the Senate are held upon the decision of the Senate Office by the permanent committees and can be organized in the open and secret forms.

Parliamentary hearings are an organizational form of Senate functioning with the objective of comprehensive and objective information about the progress of law enforcement, implementation of national and regional programmes in various areas by the Government, ministries and agencies and a deep analysis of the key issues of internal and external policies of the state.

Upon the decision of the Senate Office the corresponding Senate committees are held responsible for parliamentary hearings. The list of persons invited to the parliamentary hearings is decided by the committee that is responsible for organizing such hearings. The Senate Chair is entitled to amend the list of invitees. The persons invited to the parliamentary hearings would be sent formal notices.

Parliamentary hearings are normally open for media and public. The secret hearing would discuss the issues of state, official and other secrets protected by the law. Media and public are not allowed to the secret parliamentary hearings.

Parliamentary hearings would start with a 5-minute introductory speech of the chair who would advise of the matter under discussion, the procedure of the session and the list of invitees. Then the chair of the committee holding the parliamentary hearings would make a statement on the issue and then the floor is given to the invitees and deputies participating in the hearings. The duration of the parliamentary hearings depends on the nature of the issues under discussion. The committee is entitled to interrupt the parliamentary hearings and decide when they would be resumed.

After the invitees of the parliamentary hearings make their presentations they can be asked verbal and written questions.

Based on the outcomes of the parliamentary hearings the majority of Senate deputies participating in them can adopt recommendations on the issues under discussion.

Recommendations adopted by the parliamentary hearings are communicated to the all the deputies of the Chamber and can be used for the discussion of issues during the Senate sessions.

Parliamentary hearings are taken shorthand and formalized by the minutes. The shorthand notes and the minutes are signed by the moderator of the parliamentary hearings. The materials of the open parliamentary hearings are only meant for the Senate deputies and public official who took part in the parliamentary hearings.

Based on statistics of the Senate Administration as of 1 February 2011 the Senate held 11 parliamentary hearings including: 3 during 2nd convocation, 5 during 3rd convocation and 3 during 4th convocation.

The procedure of parliamentary hearings is defined by the regulations of each Parliament chamber. Similar to the Senate Regulations the Majilis Regulations provide for the detailed regulation of the forms of hearings and stipulates the procedures for preparation and holding that are not much different from that of the Parliamentary hearings in the Senate[155].

Parliament Majilis has held 7 parliamentary hearings including: 5 during 3rd convocation and 2 during 4th convocation[156].

For example the Committee for social and cultural development prepared and held a number of parliamentary hearings including: «On the status of school education in the Republic of Kazakhstan» (28 April 1998), «On the status of health care in the Republic of Kazakhstan» (26 May 1998), «On the status and development prospects of health care in the Republic of Kazakhstan» (20 April 2001), «Legal security of protection of family, maternity and infantry in the Republic of Kazakhstan» (10 October 2003) and others[157].

Based on the hearings held the recommendations were prepared for the Government, ministries and governors of all levels. This work resulted in the drafting and adoption of a number of laws, such as: «On health care system», «On child rights in the Republic of Kazakhstan».

A number of parliamentary hearings were held upon the initiative of the Committee for environment and nature use including: «On provision of potable water to the people of the Republic of Kazakhstan», «Environmental, economic and political aspects of ratification of Kyoto protocol to the UN Framework Convention on climate change by the Republic of Kazakhstan».

The subject of the discussion was the issue of ratification of Kyoto protocol to the UN Framework Convention on climate change that was signed by Kazakhstan in UN in 1999. The relevance and complexity of the issue was caused by equivocal understanding of environmental, economic and political consequences of ratification of the protocol by Kazakhstan. And the ratification of the Protocol is very important for Kazakhstan as it can facilitate the WTO accession[158].

The range of issues raised at the parliamentary hearings is quite wide. The key objective of the parliamentary hearings is getting the comprehensive and reliable information about the enforcement of the laws, public opinion to the draft law etc. As the parliamentary hearings are quite thoroughly prepared by the deputies, due to the deep analysis and generalization by the permanent committees of the actual status of law implementation in various social sectors or in the economy, due to the strict accountability of the government members the parliamentary hearings can become an influential form of oversight by the legislature over the executive bodies. Practice proves the efficiency of parliamentary hearings and their role in expanding the openness of the parliamentarians’ activities.

As the Russian deputies believe the adoption of a new law should be preceded by not only the comprehensive scientific review of the draft law but also its complete discussion in the society including the Parliament. At the same time the deputies of Kazakhstan are not always happy with the outcomes of hearings and propose to develop a new model of parliamentary hearings.

The comparison of legal provisions related to parliamentary hearings in Kazakhstan and Russia gives grounds to believe that they do not regulate the aspect of control of implementation of the recommendations of the parliamentary hearings. In our view the control of implementation of the recommendations of the parliamentary hearings is logically to be made the responsibility of the permanent committees of the Parliament, i.e. the committees that organize and hold the hearings.

 

2.6. International and inter-parliament activities of the Parliament

 

Since independence the Republic of Kazakhstan has been implementing the targeted well-balanced external policy aimed at establishment and development of cooperation with the international community around the key issues of current global setting. The President of the Republic of Kazakhstan addressing to the people of Kazakhstan in 2007 «New Kazakhstan in the new world» noted that «Kazakhstan has been and will remain an active participant of the wide international cooperation…»[159].

Many prominent international politicians highly appreciate Kazakhstan and the international policy it implements. The UN Ex-secretary General Kofi Annan stressed: «Kazakhstan is different from some CIS countries as the country is characterised with peace and stability, and the economic growth. Kazakhstan can serve an example of a country where various ethnicities coexist and where the ethnic diversity is seen as a blessing and not as a curse»[160]. The current UN Secretary General Ban Ki-Moon during his historical visit to Kazakhstan in 2010 highly appreciated the major international initiatives of Kazakhstan such as organizing the Conference on Interaction and Confidence-Building Measures in Asia (CICA), establishment of the Special UN programme for Central Asian economies (SPECA), rehabilitation of the areas of environmental catastrophe of the Aral sea and Semipalatinsk and the activities of our country aimed at development of inter-ethnic and inter-religion dialogue.

«The experience of Kazakhstan deserves the most motivated studying…», this is the opinion of the then President of Russian Federation V.Putin[161].

According to Constitution Article 8 the Republic of Kazakhstan respects the principles and rules of international law, implements the policy of cooperation and friendly relations between the states, their equality and non-interference with the internal affairs of each other, peaceful settlement of international disputes, and refuses to use the armed forces first.

This provision is commented by the scientists as follows. This Constitution article is directly linked to the international law, primarily to the principles of international law stipulated by the Declaration of the principles of international law related to the friendly relations and cooperation in accordance with UN Charter of 24 October 1970. These are the globally recognized principles of international law: the principle of cooperation; the principle of sovereign equality; the principle of non-interference with the internal affairs of other countries; the principle of non-application of forces or threat of force; the principle of peaceful settlement of international disputes and other basic rules of international law.

Having proclaimed in the Constitution the need for the policy of «cooperation and friendly relations between the states» the Republic of Kazakhstan as a subject of international law and as a UN member-country has undertaken to cooperate with other countries for the purpose of supporting the international peace and security, for the economic growth, for assisting the countries in need[162]. For example in 2010 during the OSCE presidency of Kazakhstan significant assistance was provided to Kyrgyzstan.

The Ministry of foreign affairs of the Republic of Kazakhstan is the central executive body within the government of the Republic of Kazakhstan implementing the external policy and managing the integrated system of diplomatic bodies of the Republic of Kazakhstan.

According to the Regulations the key objectives of the Ministry include:

1)      drafting the concept and the key pillars for the external policy of the Republic of Kazakhstan and submission of the corresponding proposals to the President and the Government of the Republic of Kazakhstan;

2)      implementation of the external policy of the Republic of Kazakhstan, facilitation in implementing the external policy and enhancing the international reputation of the Republic of Kazakhstan;

3)      protection of the rights and interests of the Republic of Kazakhstan, its citizens and companies abroad;

4)      implementation of the efforts of the Republic of Kazakhstan using diplomatic means and methods of ensuring international peace, global and regional security etc.

One of the functions of the Ministry of foreign affairs of the Republic of Kazakhstan is promotion of inter-parliamentary links of the Republic of Kazakhstan with other countries[163].

The embassies of Kazakhstan are functioning in CIS countries, in West and East Europe, Asia, America and Africa[164].

The parliamentary component of the external policy of Kazakhstan and involvement of deputies in determining and implementing the single external policy of our country internationally has significantly increased lately.

The external function is executed by the Parliament of the Republic of Kazakhstan through ratification of international treaties that are based on the common international rules of law and to the full extent take due regard of the interests and capabilities of the Republic of Kazakhstan. Thus ratifying the international treaties the Parliament on behalf of the people of Kazakhstan undertakes to comply with the covenants of the treaties[165].

The issue of ratification is regulated by the laws of the Republic of Kazakhstan and regulations of the Parliament and its chambers. It is worth noting that upon request of the President of the country, Chair of the Senate, Chair of Majilis, at least one fifth of the total number of deputies of the Parliament, and the Prime-minister the Constitutional Council is entitled to check the international treaties for their consistency with Constitution before they are ratified.

The Parliament of the Republic of Kazakhstan during its functioning since 1996 has ratified about a thousand of international treaties, conventions and agreements aimed at enhancing cooperation with the international community and improvement of national legislation.

The most important area of activities of the Parliament of the Republic of Kazakhstan in foreign relations is the cooperation with the parliaments of other countries and inter-parliamentary organisations.

Regulations of the Parliament and its chambers regulate the cooperation issues with the parliaments of other countries.

The Parliament Regulations Section 8 «International inter-parliamentary cooperation» states that the Parliament of the Republic of Kazakhstan can sign agreements on inter-parliamentary cooperation with the parliaments of other countries and international parliamentary organisations (clause 125)[166].

The Parliament Regulations Clause 126 stipulates that the Parliament would annually adopt the cooperation programmes with parliaments of other countries. The programmes are drafted by the corresponding committees of the chambers taking into account the opinions of other committees, suggestions of the units of the Chamber administrations and are approved by the Parliament resolution during joint sessions of the Parliament chambers by the majority of the total number of Parliament deputies and are communicated to the Parliament deputies.

According to the programme approved by the Parliament the Chairpersons of both Parliament chambers taking into account the opinions of committees, units of the Chamber administrations on parity basis would decide upon the compositions of the official Parliament delegations to be sent abroad, appoint the heads of such delegations, their alternates and secretaries and the composition of the Kazakhstani representation in the inter-parliamentary committees (of the parliaments and task forces) to cooperate with other parliaments and determine their powers. Members of official delegations from the Parliament deputies would be approved by the resolution of the plenary session by each Chamber. The official delegations of the Parliament can include the administration staff of the Parliament chambers (Parliament Regulations Clause 127).

The provision on the Kazakhstani representation in the inter-parliamentary committees (of the parliaments and task forces) to cooperate with other parliaments and the Provision on parliamentary delegations would be approved by the joint session of Parliament chambers (Parliament Regulations Clause 129).

The Parliament would approve the single procedure for the protocol, financial and logistic/technical provision of foreign parliamentary delegations in Kazakhstan and the deputies traveling abroad to represent Kazakhstan in inter-parliamentary committees or as part of delegations of the Parliament chambers (Parliament Regulations Clause 130).

The international cooperation activities of the Senate are regulated by the Parliament Senate Regulations Chapter 16-1 «Cooperation of the Parliament Senate with other parliament and international parliamentary organisations»[167].

According to clause 173-1 of the abovementioned Regulations the Parliament Senate would cooperate with foreign parliaments and international parliamentary organisations. The Parliament Senate is entitled to conclude agreements of inter-parliamentary cooperation with foreign parliaments (parliament chambers) and international parliamentary organisations and to form the cooperation groups.

The Senate Chairperson would:

-          issue instructions of official and working visits within the inter-parliamentary exchanges and seconding deputies of the Parliament Senate abroad;

-          sign agreements of inter-parliamentary cooperation with foreign parliaments (parliament chambers) and international parliamentary organisations or empower any other person from the Senate to do so;

-          approve the composition of the Parliament Senate delegations sent abroad, if necessary - heads of such delegations, their alternates and accompanying persons.

Speaking about the equality of Chambers it should be noted that Majilis is also entitled to participate in the international and inter-parliamentary cooperation. And this issue is regulated by the Regulations of the Parliament Majilis section 5-1 «International and inter-parliament cooperation of the Parliament Majilis»[168].

Cooperation with international organisations

The Parliament of the Republic of Kazakhstan is a member of a number of regional and international parliamentary organisations.

Parliament deputies take part in the work of 14 international parliamentary structures: Inter-parliamentary Assembly of the member-countries of the Commonwealth of Independent States, Parliamentary Assembly of CSTO, Parliamentary Assembly of Eurasian Economic Community, Parliamentary Assembly of the Organisation of Security and Cooperation in Europe, Parliamentary Assembly of the European Council, European parliament, committee of parliament cooperation «Republic of Kazakhstan - European Union», Parliamentary Assembly of the North-Atlantic Treaty Organisation, Inter-parliamentary Union, Inter-parliamentary Assembly of Orthodoxy, Parliamentary Union of Organisation of Islamic Conference*), Parliamentary Assembly of the Turkic-language speaking countries, Asian forum on population and development.

The delegation of parliamentarians from Kazakhstan takes part in plenary sessions of the Inter-parliamentary Assembly of the member-countries of the Commonwealth of Independent States (CIS IPA)[169], Parliamentary Assembly of the Collective Security Treaty Organisation (PA CSTO[170], Inter-Parliamentary Assembly of the Eurasian Economic Community (EurAsEc)[171].

The subjects of inter-parliamentary collaboration include the issues like formulation of the legal framework for the integrated customs of CIS, drafting new model laws and harmonization of legislations.

Parliamentarians regularly participate in the permanent committees of CIS IPA in the following areas: political issues and international cooperation; defense and security; economics and finance; budget oversight issues; agrarian policy, natural resources and environment etc. The key efforts during the past years were aimed at making the national legislations of the Commonwealth member countries closer and formulation of then common legal framework.

CIS parliamentarians contributed significantly into the development of the model Customs Code and environmental legislation, model law «On freedom of conscience, belief and religion organisations (associations)», model law «On prohibition of propaganda of fascism and Nazi symbols», model law «On joint stock companies», model Code of science and innovations etc.

Delegations of CIS IPA member countries contributed into the implementation of OSCE presidency of Kazakhstan having participated in the international parliamentary conference «OSCE and CIS: new opportunities and prospects» on 28 October 2010 in Saint-Petersburg. Total 17 heads of parliamentary delegations of foreign countries and 14 representatives of international and inter-parliamentary organisations took part and made presentations during the forum.

In the framework of CSTO PA parliamentarians participate in the permanent commissions on defense and security, political issues and international cooperation, social, economic and legal issues. Sector task forces are established aiming at unification and harmonization of the national legislation and implementation of model laws.

Special attention is paid by the Kazakhstani parliamentarians within EurAsEc IPA to bringing national legislation in compliance with international treaties signed in the framework of the Customs Union. In this context the participation of parliamentarians in permanent commissions on legal issues, economic, social and agro-industrial policy, nature use and environment is of paramount importance.

The participation of the Kazakhstani parliamentarians in the monitoring of election processes in the framework of CIS IPA is of political significance.

In the course of preparation of Kazakhstan to OSCE presidency the cooperation under the Parliamentary assembly and other OSCE bodies has dynamically developed[172].

At the initial stage, great importance was attached to establishing interaction with the OSCE Centre in Kazakhstan, the Office for Democratic Institutions and Human Rights (ODIHR), the Office of the High Commissioner on National Minorities, and other OSCE institutions.

The 17th annual session of OSCE, held in Astana from June 29 to July 9, 2008, with the participation of about 600 delegates from over 50 countries in Europe, Asia and America as well as international and parliamentary organizations has become a major international event.

An important tool in the development of cooperation with the parliamentary delegations of the OSCE member countries was the participation of deputies in regular sessions of the Parliamentary Assembly of the OSCE. Parliament was fully involved in the observation missions of the Parliamentary Assembly. Humanitarian cooperation was also being developed actively.

It should be noted that the Parliament of Kazakhstan has made ​​a significant contribution to the success of the OSCE Summit in Astana on December 1-2, 2010. In preparation for the summit the focus of international activity of deputies was placed on the development of the parliamentary dimension of the OSCE, through cooperation with international organizations such as the Parliamentary Assembly of the OSCE, CIS Interparliamentary Assembly, EurAsEC Interparliamentary Assembly, the European Parliament, the Parliamentary Assembly of the European Council, NATO Parliamentary Assembly*).

The OSCE summit held in Astana was the seventh in the history of the OSCE. The summit was attended by heads of states, governments and ministers of international affairs of 56 countries. The participants praised Kazakhstan's chairmanship in the OSCE, the level of organization of the summit and the role of President Nursultan Nazarbayev in the strengthening of stability and inter-cultural dialogue in the world. Turkish President Abdullah Gul said that «Kazakhstan’s chairmanship is another example of the willingness of Central Asian countries to play a more active role in determining the future of our organization».

This summit of the heads of the OSCE states turned an important step in the revitalization of the activities of entire organization and a culmination in the completion of Kazakhstan’s chairmanship in the OSCE.

The summit of the leaders resulted in adoption of an important document entitled «Astana Commemorative Declaration: Towards a Security Community». The document states that»... We reaffirm our commitment to the concept of a comprehensive and co-operative, equal and indivisible security which was initiated by the Final Act and which combines the maintenance of peace with respect for human rights and freedoms and links economic and environmental co-operation with peaceful international relations».

«…We will work hard to ensure that the cooperation between our countries and between relevant organizations and institutions these countries are members of were built based on the principles of equality, partnership, inclusiveness and transparency...»[173].

OSCE Summit is a unique event in the history of democratic and independent Kazakhstan. This is the first OSCE summit in the XXI century and the first summit held on the post-Soviet space, which allowed discussing important regional issues including transnational threats such as terrorism and human trafficking, as well as recent events in Kyrgyzstan and the situation in Afghanistan.

In his closing remarks, the President of the Republic of Kazakhstan Nursultan Nazarbayev noted that «the countries - members of the Organization for Security and Cooperation in Europe intend to develop the OSCE as a security community in the vast area of ​​Eurasia. It is founded on trust and understanding between the nations. We vigorously started moving towards a common goal - security, peace and prosperity. Today, the OSCE strengthens its internal cohesion both geographically and politically. I am sure we will create a reliable protection against transnational threats, will give future generations a priceless heritage - a safe and thriving community.»

You could say the merit of Kazakhstan's chairmanship in the OSCE is the formation of a «Eurasian vector» in the development of the Organization which in the long term shall bring together East and West, North and South.

In the framework of inter-parliamentary cooperation, deputies of the Parliament have been working under the aegis of the Parliamentary Assembly of the Council of Europe (PACE)[174]. Interparliamentary exchanges are an important part of the continuous political dialogue between Kazakhstan and the European Union being the largest trade and investment partner of our country.

The cooperation with the European Parliament[175] had been continuously developing. Regular sessions of the Parliamentary Cooperation Committee «Republic of Kazakhstan - European Union» had been held. As part of the Committee's meetings, annual meetings of Kazakhstan parliamentarians meeting with the European Parliament Delegation for Relations with the Countries of Central Asia, whose members include prominent parliamentarians of the European Union, are held.

Kazakh deputies take part in the work of inter-parliamentary organization - NATO Parliamentary Assembly[176].

Participation of the Parliament representatives in the work of the Interparliamentary Assembly on Orthodoxy (IAO) was an important aspect of interaction with European parliamentarians[177]. Conferences of the Assembly discuss religious traditions as a factor in peacekeeping, the role of traditional religions in addressing the global challenges and regional threats, the spiritual and cultural values ​​as a basis for sustainable development.

Kazakh parliamentarians regularly took part in the sessions of the Inter-Parliamentary Union (IPU)[178], which is the largest international parliamentary organization.

Development of cooperation with the Parliamentary Union of the Organization of the Islamic Conference (OIC PU) focused on the issues of inter-religious dialogue and religious tolerance, of the strengthening of political, economic and cultural cooperation with OIC countries[179].

Since independence the Republic of Kazakhstan has maintained a balanced foreign policy. Cooperation with the Muslim world takes a special place in the broad spectrum of foreign policy interests of our country and its national interests.

During the last ministerial meeting in Uganda, the Republic of Kazakhstan was unanimously supported by the Muslim countries to become the Chairman of the Council of Foreign Ministers (CFM) of the Organization of the Islamic Conference in 2011 and to hold the 38th session of the Council of Foreign Ministers (CFM) of the OIC in Astana.

While delivering his Address to the people of Kazakhstan in the Parliament on January 28, 2011, the President of the Republic of Kazakhstan Nursultan Nazarbayev said: «This year, Kazakhstan will chair the Organization of the Islamic Conference. We put forward initiatives to strengthen the cooperation between the West and the Islamic world, and our chairmanship in the OIC should strengthen the Asian vector of Kazakhstan's foreign policy»[180].

Having joined the Organization of the Islamic Conference (OIC) in 1995 the Republic of Kazakhstan participates in its diverse activities and events and aims to make a positive contribution to the strengthening of the role and importance of the OIC in the modern world. Kazakhstan calls for the revival of the OIC as an effective and influential forum of the Muslim world based on the principles of identifying Islam as a religion of peace and progress.

In the framework of the Organization of the Islamic Conference two-year work was initiated and carried out by scientists and renowned experts, including representatives of Kazakhstan, which resulted in the renewal of the OIC Charter adopted at its 11th summit on March 13-14, 2008 in Senegal. This fundamental document is intended to modernize the organization to improve the efficiency of its bodies and strengthen the authority of the OIC in the international arena. On behalf of the President of the Republic of Kazakhstan, Kazakh delegation delivered a policy statement and expressed our understanding of further development of the OIC[181].

Kazakhstan's participation in the work of the OIC and the positive image of the republic in the Muslim community serve as important prerequisites for further strengthening of bilateral and multilateral relations. We believe that participation in the activities of the OIC and Kazakhstan's chairmanship in the OIC in 2011 will give the opportunity to influence the global agenda more actively, facilitate the resolution of international arguments and conflicts, promote the national interests and gain valuable experience.

Kazakhstan is making a significant contribution to the development of the Parliamentary Assembly of Turkic-speaking states (TurkPA)[182]. The idea to created TurkPA belongs to the President of the Republic of Kazakhstan Nursultan Nazarbayev, which he announced at the 8th Summit of Turkic-speaking countries in November 2006 in Antalya. On April 27, 2011 Kazakhstan became the chairman of the Parliamentary Assembly of Turkic-speaking states.

The Inaugural Meeting of TurkPA in September 2009 in Baku was an example of solidarity of Turkic-speaking countries. The meeting resulted in adoption of a number of documents regulating the activities of TurkPA: Baku Declaration, TurkPA Regulations, Regulations of the Secretariat; the organization's budget was also approved and a decision was made to place TurkPA Secretariat in Baku. The Members of the Parliament as part of the TurkPA missions participated in the observation of the parliamentary elections in Kyrgyzstan in October 2010 and in Azerbaijan in November 2010.

The cooperation with the Asian Forum on Population and Development (AFPPD)[183] has sustainably been developing. Deputies of the Parliament of Kazakhstan take part in the General Assembly meetings, as well as in the annual conferences of the AFPPD.

In September 2009, the Parliament of the Republic of Kazakhstan held the Fifth General Assembly of the International Conference of Asian Political Parties, which was attended by about 200 representatives of political parties from 40 countries of Asia. Speaking at the meeting, the Chairman of the Majilis of the Parliament of the Republic of Kazakhstan U.Mukhamejanov noted that «Asia is one of the main driving forces of the development of the modern world», which implies the establishment of closer mutual cooperation and further strengthening of inter-parliamentary relations. One of the main issues discussed by the Assembly participants was joining efforts to overcome the effects of the global economic and financial crisis. Among the other issues discussed were the development of inter-ethnic and inter-religious dialogue in the Asian continent and the elimination of global economic inequality. As a result of the Assembly the Declaration «Towards the Century of the Renewed Asia» was adopted.

Cooperation with other countries

The main content of international relations is represented by contacts with parliaments of foreign countries. The main form of these contacts - in addition to the exchange of visits, both official and through specialized committees, is the work of deputies in regular inter-chamber parliamentary groups.

It should be noted that various groups for cooperation with the parliaments of about 60 countries function in the Majilis of the Parliament of the Republic of Kazakhstan of IV convocation.

36 groups of inter-parliamentary cooperation with the parliaments of foreign countries have been established and actively functioning in the Senate[184].

Inter-parliamentary co-operation with the Council of the Federation and State Duma of the Federal Assembly of Russia has been actively developing in the framework of the strategic partnership and allied relations between Kazakhstan and Russia. Regular exchange visits between the Speakers of the upper chambers of the parliaments of the two countries take place. Meetings of the Parliamentary Group for Cooperation between the Senate of the Parliament of the Republic of Kazakhstan and the Council of Federation of the Federal Assembly of the Russian Federation are held annually.

«...We highly appreciate the existing multidimensional cooperation and interaction in all the spheres between Russia and Central Asia countries,»- said the former President of the Russian Federation Vladimir Putin[185].

Kazakhstan and Belarus have been developing inter-parliamentary relations in the issues of strengthening of bilateral relations and prospects of development of the Customs Union. Special attention is also paid to the inter-parliamentary cooperation.

The Parliament of Kazakhstan has played an important role in the development of the legal framework of the Customs Union. Creation of the Customs Union of Kazakhstan, Russia and Belarus on July 1, 2010 was one of the most significant events of 2010.

Looking back to the history of the Customs Union, the first agreement on the establishment of the Customs Union was signed in 1995 by the leaders of Russia, Belarus, Kazakhstan, and later - of Kyrgyzstan, Uzbekistan and Tajikistan. It was later converted into the EurAsEC.

On October 6, 2007 in Dushanbe, Belarus, Kazakhstan and Russia signed an agreement on the establishment of a common customs territory and formation of the customs union.

Meeting of the three heads of the states took place on November 28, 2009 in Minsk and marked the commencement of work on the creation of the common customs area on the territory of Russia, Belarus and Kazakhstan since January 1, 2010.

This period was marked by ratification of a number of important international agreements on the Customs Union. Overall, over 40 international treaties were adopted in 2009 at the level of heads of the states and Governments, which formed the basis of the Customs Union[186].

The new Customs Code has been applied in relations between Russia and Kazakhstan from July 1, 2010, and in the relations between Russia, Belarus and Kazakhstan from July 6, 2010.

The main purpose of the Customs Union was to create conditions for further economic development and increase in mutual trade and investments as well as the creation of a favorable business climate and a level playing field.

In addition, member-states of the Customs Union will be able to jointly present their views on trade and economic issues on the international arena which can strengthen our negotiation position on certain issues, including negotiations on the WTO accession.

Positive results of the Customs Union of Kazakhstan, Russia and Belarus were noted by all member-countries. «The Customs Union of Kazakhstan, Russia and Belarus entered into force last year. Only after the first 10 months of 2010 the volume of trade with Russia and Belarus increased by 38%. Export of Kazakhstan's products to the countries of the Customs Union increased by 52.4%. With that, the increase in the budget revenues from customs duties amounted to 25%. These facts show that the Customs Union is a very pragmatic and concrete project, which addresses the economic challenges of our country,"- said the President in his Address to the Nation in 2011[187].

Recently, contacts with parliaments of the countries of South-East Asia and the overall Asian region intensified noticeably. The development of inter-parliamentary dialogue with China is one of the most important areas of international activity of the Parliament of Kazakhstan. Official visits of the Deputy Chairman of the Standing Committee of the National People's Congress of China to Astana in September 2007, of the President of the Senate of the Parliament of the Republic of Kazakhstan to China in January 2008 and of the Chairman of the National Committee of the People's Political Consultative Conference of China to Astana in November 2010 gave an additional impetus to cooperation of the legislature of both countries.»...Political trust between the two countries has reached an unprecedented new level», - emphasized Hu Jintao during his tenure[188].

Particular attention is paid to the development of inter-parliamentary dialogue with the US Congress. Recently, Kazakhstan received a large group of the US congressmen and senators, which undoubtedly contributed to strengthening of the partnership between the two countries. «The United States are also grateful for the friendship and solidarity of Kazakhstan in the global fight against terrorism,»- said the former US president George Bush[189].

The Parliament of Kazakhstan has been actively involved in the implementation of the state program «Path to Europe» adopted in August 2008, which is an important tool in the development of inter-parliamentary cooperation with European countries and key European parliamentary organizations.

Thus, the Parliament of Kazakhstan makes a significant contribution to the activities of inter-parliamentary organizations and development of inter-parliamentary dialogue, strengthening the integration of Kazakhstan into the international community, enhancing its credibility and ability to influence decision-making in accordance with its national interests.

On the one hand, Parliament ratifies international conventions and agreements, thus, creating a legal framework for this cooperation. On the other hand, members of the Parliament participate in international forums, serve as members of international parliamentary organizations, establish inter-parliamentary contacts with different countries. Although international and inter-parliamentary activities of the Parliament of Kazakhstan is not related to the major authorities of the Parliament of the Republic of Kazakhstan, it is an essential component of the activities of the Parliament of Kazakhstan, thereby expanding international contacts and raising the international image of Kazakhstan.

Section 3. Legislative activity of the Parliament

3.1. Planning for legislative work

 

Planning is the most important means to implement a consistent legislative policy. It helps direct legislative activities to achieve the long-term objectives of the state and social development, legislative priorities set out in the Constitution, in the Concept of Legal Policy and other policy documents, and to determine the timing and sequence of the most effective achievement of these goals and priorities.

Plans help systematize the legislative work, identify its main directions, provide for the necessary conditions for scientific forecasting of the effectiveness of the new legislative solutions. Planning for legislative activities is essential to ensure the rational and scientific validity of preparation, review of draft laws and, ultimately, to improve the quality of laws.

In a broad sense, planning is an activity aimed at identifying organizational goals and objectives, as well as at the allocation and reallocation of resources to implement the objectives.

In this context, planning of legislative activities means the process of compilation and approval of special documents (current or future plans), which reflect the name of the law, a public agency-developer and timing of preparation, approval and submission to the Parliament.

Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020, approved by the Decree of the President of the Republic of Kazakhstan of August 24, 2009 #858, serves as the basis for the development of annual and long-term plans of legislative activity of the Government in the coming period, as a landmark for creation of the legislation of a new generation taking into account international standards and conventions ratified by the Parliament. One of the measures taken by the State pursuant to the Concept of Legal Policy of the Republic of Kazakhstan of 2002, which helped bring the rule-making process to a new level, is the prospective planning of legislative activities[190].

Planning of the legislative work is important for consistency and transparency of the legislative process. Publication of plans by subjects of legislative initiative allows for timely informing public associations, academic institutions, and citizens on the lawmaking activities. In addition, the publication of plans of legislative work allows for public scrutiny of their implementation, for organization of public discussions of the most significant draft laws in media, at scientific conferences. These measures contribute to the creation of citizens' sense of belonging to law-making, which is the most essential in the implementation of the provisions of the Constitution on the people's participation in public affairs.

The role of planning in conducting large-scale and complex works aimed at updating and systematization of legislation is essential. Planning allows for timely and effectively addressing of other objectives to improve the legislation: filling gaps in the legal regulation, making timely amendments to the existing laws, while ensuring stability of the legislation. We should note the comment of Professor Sergei Zimanov about overreliance of the Parliament of the Republic of Kazakhstan on making amendments and additions to the earlier adopted laws[191].

Chairman of the Legal Council of the Nur Otan NDP, the deputy of the Majilis of the Parliament of the Republic of Kazakhstan N. Abdirov, while analyzing the work of the Parliament of IV Convocation, stressed that «in the last 3 years, the Land Code was adjusted 12 times, as well as the new Tax Code of December 10, 2008, the Law «On Public Procurement» - 15 times, the Law «On Licensing» and the Code of Criminal Procedure - 18 times, the Law «On Private Entrepreneurship» - 22 times, and the Civil Code - 23 times.

The story of changes to, for example, the Criminal Code of the Republic is a striking illustration of this situation. During the 12 years of its operation 50 laws were adopted and resulted in 368 amendments and additions to the Code. Of the original 393 articles of the Code almost 200 articles were amended, including 86 articles which were amended two or more times, and 10 articles which were amended 4-5 times.

Most probably, this is the case of deficiencies in the required depth and comprehensiveness of work on the drafts as performed by their developers, which often leads to inconsistencies in their future initiatives. All this, coupled with the lack of a full-fledged external expert support, by logic, does not affect the final result in a positive way»[192].

According to our data, since its adoption the Code of Administrative Offences of the Republic of Kazakhstan has been amended 139 times, the Civil Code of the Republic of Kazakhstan - 42 times, and the Criminal Code of the Republic of Kazakhstan - 52 times.

Thus, such frequent changes and additions to the laws negatively affect the stability of the legislation in general. Perhaps part of the problem here is caused by poor planning of the legislative work.

An instruction was made to the Ministry of Justice of the Republic of Kazakhstan at a meeting with the Deputy Head of the Administration of the President of the Republic of Kazakhstan in February 2010 to work out a legislative regulation to provide for a comprehensive amending of the codes while avoiding the frequent presentation of such draft laws in the Parliament.

Despite the high importance of planning for efficiency and scientific validation of the legislative activities, the use of planning of the law-making in Kazakhstan so far has not been substantiated. Russia, where planning is still being built on the basis of the current requirements of the legislative subjects, also faced with the same issue[193]. According to A. Starovojtova, medium and, especially, long-term forecasting and planning of the legislation development is not widely applied. Regulatory and legal regulation of relations in the sphere of planning of law-drafting and legislative activity is incomplete and fragmented; the legal framework of planning of the legislation development is not there[194].

Academician G. Sapargaliyev also noted a bottleneck in the planning of legislative work, «as the subjects of legislative initiative are mainly deputies, who are entitled under the Constitution to introduce draft laws which were not envisaged in the legislative plan. The situation is worsened by another issue. Draft laws initiated by deputies must receive the endorsement of the Government. And the Government plans for draft laws in advance, based on the available financial resources»[195]. In addition, the efficiency of planning is significantly reduced due to the additional «non-planned» draft laws.

One of the most important factors in the development of legislative activities’ planning is the organization of the legislative process and the pace of lawmaking. The general trend shows that the higher the degree of «monopolizing» of the legislative activity by the same subject of the right of legislative initiative, which as a rule is the Government, the less visible role in the planning of legislative activities is given to the Parliament. This rule may have exceptions in cases of very high speed of the lawmaking and a large number of legislative initiatives (e.g., exceptions may be made in the case of formation of the original legislation of a sovereign state, in the case of the constitutional reform, etc.). Planning can provide for a focus on priority draft laws. Planning of the legislative activity as a whole is not an urgent task for MPs, since the regulations of the Parliament and its Chambers do not regulate the issues of planning of legislative activity of the Parliament of the Republic of Kazakhstan[196].

The legislative process in the Republic of Kazakhstan is carried out in stages and is regulated by the Law of the Republic of Kazakhstan of March 24, 1998 #213-I «On normative legal acts». Chapter 2 «Planning for the preparation of draft laws and regulations» of this Law is devoted to planning.

Under Article 7 of this Law, plans for preparation of draft regulations are divided into current - drawn up for one year, and perspective - drawn up for longer periods.

Perspective plans provide for the development of the most important legal acts and regulations, the preparation of which is planned for a period exceeding one year.

Plans for preparation of the regulatory legal acts are drawn up and approved by the public authorities competent to adopt appropriate regulations. The proposals of government and other agencies and organizations, including the research institutions and proposals of other interested parties are taken into account in the course of compilation of the plans for the preparation of draft regulations.

The requirements of the Article 7 of the Law do not apply to the preparation of draft legislation introduced to the Majilis of the Parliament of the Republic of Kazakhstan under the legislative initiative of the President of the Republic of Kazakhstan.

However, the legislation regulates the planning for preparation of normative legal acts issued by the President of the Republic of Kazakhstan (Article 8 of the Law «On normative legal acts»).

Article 9 of the Law regulates the planning for preparation of legislative acts of the Parliament of the Republic of Kazakhstan.

Procedure and forms of planning of the preparation of legislative acts to be adopted by the Parliament of the Republic of Kazakhstan shall be determined by Parliament and its Chambers in accordance with their competence as established by Article 61 of the Constitution of the Republic of Kazakhstan. Thus, the decision of the Majilis of the Parliament of the Republic of Kazakhstan of September 22, 2010 #1403-IV approved the Plan of main actions to implement the powers of the Majilis of the Parliament of the Republic of Kazakhstan of IV convocation for the fourth session, however, this document does not contain a list of draft laws being developed on the initiative of deputies.

Article 10 of the aforementioned Law regulates the planning of legislative activity of the Government of the Republic of Kazakhstan. The Government compiles a perspective and annual plans of lawmaking activities. Draft plans are developed by the Ministry of Justice of the Republic of Kazakhstan and agreed upon with the President of the Republic of Kazakhstan.

So, of the three subjects of legislative initiative, planning of the legislative activity is carried out mainly by the Government of the Republic of Kazakhstan.

In the Rules of the Government of the Republic of Kazakhstan, approved by the Government of the Republic of Kazakhstan on December 10, 2002 #1300, legislative activities are discussed in Section 6 «Legislative activities of the Government» and planning per se - in Subsection 6.1. «Planning for legislative activity.»

Let us consider the planning of legislative activity in the Government. Legislative activities of the Government are performed in accordance with the Plan of legislative activities of the Government. Compilation of current and perspective plans for Legislative Activities of the Government shall be based on assignments and the annual address of the President, the regulatory decisions of the Constitutional Council, government programs and programs approved by the Government, action plans for the implementation of government programs, as well as decisions of the Prime Minister.

The plan constitutes a list of draft laws, including those providing for the introduction of changes and amendments to existing legislation, indicating the government bodies developers of the draft laws, timing of presentation of specific bills to the Ministry of Justice, the government and the officials responsible for the development as well as the timing for introducing the draft laws in the Parliament of the Republic of Kazakhstan.

Draft Plan for the coming year is compiled by the Ministry of Justice on the basis of proposals submitted by the state agencies which present them to the Ministry of Justice before July 1 of each year in the form of a concept of the draft law, and to the Interdepartmental Commission on legislative activities of the Government of the Republic of Kazakhstan[197] and is submitted to the Government by 1 October of each year in accordance with the procedure established for the submission of draft resolutions of the Government. With that, the Ministry of Justice issues a statement accompanying the draft the Plan which explains the rationale for the development of each draft law included in the draft Plan.

A prerequisite for inclusion of a draft law in the Plan is a positive opinion of the Interdepartmental Commission.

Extension of the draft law submission deadlines as envisaged in the Plan, as well as the exclusion of the draft laws from the Plan for the current year, or inclusion of any additional draft laws are decided upon through relevant resolutions of the Government subject to prior clearance by the Presidential Administration.

The grounds for inclusion of additional draft laws into the approved Plan are:

 

- Order of the President or of the Administration of the President of the Republic of Kazakhstan;

- Order of the Government of the Republic of Kazakhstan.

The grounds for exclusion of the draft laws from the approved Plan are:

- Order of the President or of the Administration of the President of the Republic of Kazakhstan;

- Order of the Government of the Republic of Kazakhstan;

- A negative opinion of the Republican Budget Commission on the proposed exclusion of the draft law;

- Combination of several bills on the same subject of regulation.

The inclusion of new mechanisms of legal regulation of social relations into the state and other programs shall be accompanied by the introduction of amendments and additions to the prospective Plan of lawmaking activities.

Overall supervision of the execution of prospective and current plans is performed by the Ministry of Justice of the Republic of Kazakhstan.

In accordance with the Decree of the President of the Republic of Kazakhstan of May 17, 2002 #873 «About Adoption of the Rules for Agreeing the Plans for Legislative Activities of the Government of the Republic of Kazakhstan with the President of the Republic of Kazakhstan and the draft laws being submitted by the Government to the Majilis of the Parliament of the Republic of Kazakhstan with the Administration of the President of the Republic of Kazakhstan», plans shall be coordinated with the President of the Republic of Kazakhstan.

The Rules provide that the draft Plan for Legislative Activities of the Government shall be submitted to the Head of the State with the signature of the Prime Minister by November 15 and shall be approved no later than December 31 of the year preceding the planning year. With that, the draft Plan shall include, in addition to the list of draft laws, a proper explanatory note stating the reasoning and deadline for submission of the draft law to the Majilis of the Parliament.

The changes and (or) amendments to be made in the adopted plans for legislative activities of the Government shall be submitted for consideration of the Administration of the President with a signature of the Head of the Office of the Prime Minister or of a person acting for him. The draft law shall be mandatorily accompanied with a proper explanatory note with the justification of the changes and additions to plans of legislative activities.

Draft plan or draft changes and (or) amendments to the Plan of Legislative Activities of the Government shall be transferred for consideration of the legal department of the Presidential Administration, and other concerned departments of the Administration of the President.

After consideration and preparation of the relevant opinion, which shall be agreed with the Head of the Presidential Administration, the draft plan is submitted to the President of the state. The duration of the examination of the draft plan and of the preparation of an opinion on it in the Administration of the President shall not exceed 10 working days from the date of its receipt by the Administration of the President.

The agreement of the President with the draft Plan is signified by issuance of a specific resolution of the head of the state. The agreed draft plan with proposals and comments (if any) in the form of an opinion signed by the Head of the Administration of the President or - when delegated by such - by the relevant Deputy Head of the Administration, shall be returned to the Government for further approval, taking into account the comments and suggestions of the President.

In the case when amendments and additions are made to the plan after examination and preparation of a proper opinion a draft on the changes and (or) amendments to the Plan of Legislative Activities of the Government is submitted to the Head of the Presidential administration. Approval of the Head of the Presidential Administration of the draft amendments and (or) changes to the Plan of Legislative Activities of the Government is done through issuance of the relevant resolution by the Head of the Presidential Administration. Office of the Prime Minister on a monthly basis, not later than on the 5th day of the month following the reporting period, informs the Administration of the President on the status of legislative work of the Government.

 For example, the Prospective Plan of the legislative activities of the Government of the Republic of Kazakhstan for 2010-2011, approved by the Government of the Republic of Kazakhstan on February 18, 2009 #185, provides for the preparation of 30 draft laws; whereas the Prospective Plan of Legislative Work of the Government the Republic of Kazakhstan for 2012-2013 approved by the Government of the Republic of Kazakhstan on March 18, 2011 #267 provides for the development and submission of 19 draft laws to the Parliament.

As a rule, a prospective plan shall include: the name of the draft law, the government body - developer of the draft, the deadline for submission to the Government and the deadline for submission to the Parliament.

In the Plan of Legislative Work of the Government of the Republic of Kazakhstan for 2011, which was approved by the Resolution of the Government of the Republic of Kazakhstan of December 30, 2010 #1467, provides for the preparation and submission of 36 draft laws to the Parliament.

In conclusion of this sub-section, we would like to note that planning of legislative activities is quite comprehensively regulated by the relevant laws and regulations. The approval and promotion procedure for the plans of Legislative Work of the Government does not give rise to any debate.

3.2. The subjects of legislative initiative

 

The Constitution of the Republic of Kazakhstan states that the right of legislative initiative belongs to the President of the Republic, members of Parliament, the Government and is implemented exclusively in the Majilis (paragraph 1 of Article 61 of the Constitution). The constitutional provisions of this paragraph should be understood in a way that the draft law may be introduced for consideration of the Majilis of the Parliament of the Republic of Kazakhstan by subjects who have such a right. According to paragraph 1 of Article 15 of the Constitutional Law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies», legislative initiative is the formal introduction of an official by the subject of the right of legislative initiative of the text of the draft law or of the other legal act of the Parliament, which is compulsory for consideration by the Parliament.

The implementation of legislative initiative exclusively in the Majilis means that only this chamber of the Parliament is entitled to consider draft laws in accordance with subparagraph 1 of paragraph 1 of Article 56 of the Constitution. The order of implementation of the right of legislative initiative is established in the aforementioned Constitutional Law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its members» (Chapter III «The legislative process in the Parliament of the Republic of Kazakhstan»).

Thus, the right of legislative initiative is executed by the three mentioned subjects under the Parliament of the Republic of Kazakhstan.

The President of the Republic of Kazakhstan

Powers of the President of the Republic of Kazakhstan to implement the right of legislative initiative are regulated by the Constitutional Law of the Republic of Kazakhstan «About the President of the Republic of Kazakhstan» dated December 26, 1995 #2773. According to Article 9 of this Constitutional Law, the President of the Republic under his legislative initiative presents the draft legislation through his special address and has the right to determine the priority of consideration of draft laws, as well as to declare the draft law as urgent, which signifies that the Parliament must consider this draft within one month from the date of its submission. If the Parliament fails to meet this requirement, the President of the Republic has the right to issue a decree having the force of law, which shall be in force until the Parliament adopts a new law in the order as established by the Constitution.

It should be noted that the President of the Republic of Kazakhstan has had the right of legislative initiative only since 2007: «as a result of constitutional reform of 2007 the subject structure of persons having the right of legislative initiative was expanded to include the President of the Republic». Earlier, the President did not have the right of legislative initiative, nevertheless, he could instruct the Government to submit the draft legislation to the Majilis (paragraph 3 of Article 44 of the Constitution), as well as to «give legal instructions» to the Government (paragraphs 7, 14, Article 10 of the Constitutional Law «About the President of the Republic of Kazakhstan»)[198].

For the first time, the right of direct legislative initiative was implemented by the President in May 2007, bringing to the Parliament draft laws on changes and amendments to the Constitutional Law «On the President of the Republic of Kazakhstan», «On the Parliament of the Republic of Kazakhstan and the status of its members,»«On elections in the Republic of Kazakhstan» and «On the Government of the Republic of Kazakhstan» on ensuring the implementation of the updated provisions of the Constitution.

Detailed regulation of the right and order of the President's initiative in the legislative process is established in the Rules for implementation of the right of legislative initiative of the President of the Republic of Kazakhstan, approved by the Decree of the President of the Republic of Kazakhstan of September 21, 2007 #413.

Of considerable interest are the legal norms relating to the process of formation of the position of the President on the issue of legislative initiatives and procedures for the development of legislation. Thus, the Rules for implementation of the right of legislative initiative of the President of the Republic of Kazakhstan stipulate that the legislative initiative of the President of the Republic of Kazakhstan means a formal introduction of the draft legislative act of the Republic of Kazakhstan to the Majilis of the Parliament of the Republic of Kazakhstan by the President of the Republic of Kazakhstan through his special address.

The right of legislative initiative is carried out in the forms of:

- Introduction of draft legislative acts of the Republic of Kazakhstan;

- Introduction of draft changes, additions to the legislation and repeal the legislation.

Development of the draft legislation to be introduced to the Majilis of the Parliament of the Republic of Kazakhstan as a legislative initiative of the President of the Republic of Kazakhstan, is carried out by the Administration of the President of the Republic of Kazakhstan and (or) the Government or other public authorities, as well as non-governmental organizations and citizens on behalf of the President of the Republic of Kazakhstan or the Head of the Administration of the President of the Republic of Kazakhstan, based on the President's instructions. Proposals for the development of such a draft law may be introduced to the President by his administration, by the Government, by local government bodies, local authorities, non-governmental organizations and citizens.

According to Academician G.Sapargaliyev: «This is a new moment, indicating the expansion of the democratic basis for the creation of legislative acts. The President of the Republic is granted the right to involve in the drafting of legislation non-governmental organizations and individuals being, of course, highly skilled professionals. Thus, the legislative process involves a broad range of subjects, which, of course, shall have a positive effect not only to the development of the law, but also to the formulation and solution of the outstanding legislative problems in all spheres of public life and society, many of which are «not getting through» to the state authorities»[199].

The draft law prepared is coordinated with the relevant Departments of the Presidential Administration, and, if necessary, with the relevant government agencies, and may also be subject to scientific examination. The need to coordinate the draft legislative act with other government agencies or to put it through the scientific expertise in the areas is defined by the President of the Republic of Kazakhstan or the Administration. Relevant units of the Administration of the President and state authorities shall consider the draft legislative acts and make proposals on such within ten working days, unless another date was specified when the draft was submitted for coordination.

Prepared and agreed draft legislation and draft special address are introduced to the President.

Representation in the Parliament of the Republic of Kazakhstan of the draft legislative act, which was introduced under the legislative initiative of the President, is carried out on behalf of the President of the Republic by the appropriate official of the Administration of the President or other officer of the State[200].

Opinion of the Government of the Republic on the draft legislative act, initiated by the President, is not required. The Rules emphasize that they apply to the cases of the development, approval and introduction to the Parliament of a draft law providing for the introduction of the amendments to the Constitution by the initiative of the President.

Moreover, we note that, in accordance with Article 53 of the Constitution, the Parliament has the right to delegate legislative powers to the President for a term not exceeding one year. Delegation of legislative powers shall be initiated by the President. The initiative of the President on the delegation of legislative powers to him for a certain period shall be submitted to the Chairman of the Majilis, who shall convene a joint session of the Parliament Chambers. The President has the right to determine the deadline for the consideration of his initiative. The issue of delegation of legislative powers to the President shall be decided by two-thirds of the total membership of each chamber. On this occasion, the Constitutional Council of the Republic of Kazakhstan provided explanations in its normative resolution of 26 June 2008 #5 «On the official interpretation of paragraph 2 of Article 45; sub-paragraphs 3) and 4) of Article 53 of the Constitution of the Republic of Kazakhstan.»

Delegation of legislative powers means that the President within the prescribed period shall have the right to adopt constitutional and ordinary laws and amendments to existing constitutional and ordinary laws. Of course, the procedure of adoption of the laws by the President is different from the adoption of a law by the Parliament[201].


The Parliament Deputies

Deputies of the Parliament of the Republic of Kazakhstan also have the right of legislative initiative. Majilis deputies present their decision to draft a legislative act in a form of statement to the Majilis Chairman, which substantiates the need for drafting a legislative act or amending the existing law.

Majilis Chairman brings this statement to the Majilis plenary session. If Majilis agrees with the need to draft a legislative act, it provides necessary organizational, information and other assistance to the initiator of the draft and defines the responsible committee.

In case Majilis disagrees, it discloses the reason for its negative opinion and informs the initiator of the draft law correspondingly.

The statement on drafting a legislative act shall be considered by Majilis for no more than 15 days from the date when the statement was registered in the General Department of the Majilis. A draft legislative act shall be prepared for consideration by the Majilis within 120 days from the date when the statement was registered in the General Department of the Majilis. The responsible committee shall present the draft at the Majilis plenary session in a timely manner. Then the draft shall be considered in accordance with the Parliament Regulations and regulations of the Parliament Chambers[202].

Chapter 3 «The legislative activity of the Parliament Majilis» stipulates the procedure of drafting laws as well as the procedure of presentation of the draft laws to the Majilis[203].

The Constitution of the Republic of Kazakhstan, the Constitutional Law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies» stipulate the right for the legislative initiative of the Parliament Deputies, but the procedure itself is not spelled out in detail. Only one sentence in Clause 4, Article 14 «On the procedure of drafting legal acts» of the Law of the Republic of Kazakhstan «On regulatory legal acts» is devoted to this issue: «The drafters of the laws prepared under the legislative initiative of the Parliament deputies of the Republic of Kazakhstan shall be the Parliament deputies». Academician Sapargaliyev makes a similar conclusion that issues related to the right for the legislative initiative of the Parliament Deputies are regulated to a lesser extent[204]. The deputies are given a right of the legislative initiative while they are not associated with any government agency, i.e. they draft laws independently.

Certain requirements as stipulated in the Law of the Republic of Kazakhstan «On regulatory legal acts» are applied to the deputy's drafts. For example, all the draft laws including the drafts submitted by the deputies to the Majilis shall pass a scientific review.

Moreover, the Constitution stipulates special requirements to the draft laws being developed by a deputy under the legislative initiative. A draft law envisaging a reduction or an increase in public revenues can be submitted ​​only subject to a positive opinion of the Government of the Republic of Kazakhstan[205].

In this regard, academician Sapargaliyev elaborates that «the Constitution contains provisions which, to some extent, hinder the activities of deputies and give a certain priority to the Government. These provisions were needed at the time when the Constitution was adopted, when the economy of the country «was not feeling well», and when there was a critical shortage of funds. It must be clearly noted that even at that time it was quite clear that such constitutional provision was in contradiction with the status of the Parliament Deputies and was limiting their right of legislative initiative. After all, there are no laws that would not be linked to public expenditures. It is the existence of such a provision that can explain a small number of laws initiated by deputies. Currently, Kazakhstan's economy is growing and has the financial capacity to address the needs of the society. Therefore, the said constitutional provision should be amended so that the government did not have an exclusive right to issue a negative opinion on the laws drafted by the deputies. When considering a draft law Majilis should apply the criterion of whether these drafts are aimed at the regulation of essential social relations instead of being aimed at a reduction of public revenues or an increase in government spending...»[206].

Chapter 11 of the Regulations of the Parliament Senate of the Republic of Kazakhstan is dealing with the right of legislative initiative.

For example, Clause 129 determines that the right of legislative initiative is carried out by the Senate deputies in the form of presentation of draft laws, draft amendments and additions or repeal of the legislative acts of the Republic of Kazakhstan to the Majilis.

The following materials shall be submitted to the Majilis together with the text of the draft law:

- statement of the initiator of the draft with the names of the Senate deputies;

- explanatory notes substantiating the need for its initiation, including projected impacts in case the draft law is adopted;

- feasibility study; the drafts calling for reduction of public revenues or increase in government spending shall be presented ​​only with a positive opinion of the Government of the Republic of Kazakhstan;

- list of laws to be amended or recognized invalid, subject to the adoption of the draft law;

- composition of the working group.

Other issues related to the exercise of the right of legislative initiative are addressed by the Regulations of the Majilis[207].

The Parliament of the Republic of Kazakhstan has been functioning for 15 years. Over these years, the Parliament adopted many laws. Overall, the Parliament of the Republic of Kazakhstan (I-IV convocations) adopted 1762 laws, including 6 that were initiated by the President of the Republic of Kazakhstan, 1648 - by the Government of the Republic of Kazakhstan and 108 - by the deputies of the Parliament of the Republic of Kazakhstan[208].

Let us consider the number of laws adopted by the Parliament of the Republic of Kazakhstan by convocations, with an emphasis on the laws initiated by deputies.

The Ist convocation Parliament adopted 497 laws, including 468 initiated by the Government of the Republic of Kazakhstan and 29 (5.8%) - initiated by the deputies.

The 2nd convocation Parliament altogether adopted 604 laws, including 551 initiated by the Government of the Republic of Kazakhstan and 53 (8,7%) - initiated by the deputies.

The 3rd convocation Parliament adopted 321 laws, including 311 initiated by the Government of the Republic of Kazakhstan and 10 (3,1%) - initiated by the deputies.

The 4th convocation Parliament[209] adopted 340 laws, including 6 initiated by the President of the Republic of Kazakhstan, 318 (93,5%) - by the Government of the Republic of Kazakhstan and 16 (4,7%) - initiated by the deputies.

This analysis reveals that the share of the adopted laws initiated by the deputies of 4 convocations of the Parliament of the Republic of Kazakhstan amounts to not more than 6.1% of the total number of laws adopted. Academician Zimanov in 2007 presented these statistical data and also noted that contribution of deputies in law drafting was insignificant[210].

In our view, the standpoint of scientists Sapargaliyev and Zimanov regarding the existing constraints to the implementation of the right of legislative initiative by the deputies call for a thorough analysis. The main criteria for preparation of draft laws should be regulation of the most important social relations and the establishment of the fundamental principles and provisions.

I would like to support the position of the authors of the book «Parliamentary Law», scientific understanding of which, perhaps, will make a contribution to the improvement of the legislative activities of the Parliament deputies. The Constitution requires a positive opinion. Otherwise, the draft cannot be brought to the session of the Majilis of the Parliament. Most draft laws introduced by the Parliament deputies are associated with spending, as they are social in nature and relate to the protection of the interests of particular groups and the general population. Under these conditions, getting a positive opinion of the Government on the drafts introduced by the deputies is highly problematic and, ultimately, inhibits the legislative initiative of the deputies[211].

For example, Russian Constitution Article 104 states that laws on the introduction or cancellation of taxes, exemption from taxes, on the issue of sovereign loans, changes in the financial obligations of the state, other draft laws providing for the expenditure of funds from the federal budget may be amended only subject to an opinion of the Government. The Russian Constitution does not require the positive opinion of the supreme executive body. From the formalistic legal point of view, it is the fact of the Government’s opinion which is important for the presentation of the draft law. With that the contents do not matter, i.e. it is not essential whether this opinion supports or rejects the provisions of the draft law. The negative opinion of the Government does not prevent the State Duma from consideration of the draft law. The provision of the Russian Constitution is more democratic and acceptable, as it does not make the legislative initiative of the deputies dependent on the Government opinion.

Our studies on the exercise by the deputies of their legislative initiative showed that during the four convocations of the Parliament 257 draft laws were developed upon the initiative of the Parliament deputies, of which only 108 were adopted[212]. With that, out of 257 opinions of the Government of the Republic of Kazakhstan issued to the draft laws designed by the Parliament deputies of four convocations 108 were positive, 89 - negative, and 60 - related to spending[213].

The Government of the Republic of Kazakhstan

The Government of the Republic of Kazakhstan is the third subject of the right for the legislative initiative. That is why it prepares a major share of the draft laws.

Government as the supreme body of the entire system of the executive power represents the main player by the scale of its participation in the legislative process. Given this, we can agree with the opinion of Professor Fedotova that the «executive authority has become a major source of legislative initiative. And it allows the Government to take its «own» or supported draft laws through the Parliament. This situation is largely justified, as the Government has all the necessary capacities for preparation of high-quality drafts»[214].

Legislative activity of the Government is governed by the Resolution of the Government of the Republic of Kazakhstan dated December 10, 2002, No.1300 «On the Regulation of the Government of the Republic of Kazakhstan» and is exercised in accordance with the annual plan of legislative activities of the Government.

All the draft laws introduced by the Government to the Parliament shall be subject to the appropriate scientific review (legal, anti-corruption, linguistic, economic, environmental, financial, etc.) depending on the legal rights regulated by this draft according to the rules of scientific review, approved by the Government of the Republic of Kazakhstan on May 30, 2002, No.598 «On measures to improve regulation-setting activities». At the same time, draft laws the adoption of which could threaten the environmental and radiation safety shall be subject to mandatory environmental review[215].

The developer of the draft law shall make sure that the draft undergoes the appropriate scientific review that should result in the opinion of a recommendation nature.

These opinions shall be submitted ​​by the developer to the Office of the Prime Minister in the Kazakh and Russian languages, along with other materials accompanying the draft. In case of a negative opinion issued by the scientific review panel (except for the comments of the state environmental review that should be incorporated in the draft law) the state body - the developer of the draft law - shall independently make a decision on the finalization of the draft law in accordance with expert recommendations, as well as on conducting a repetitive or an additional review.

If the developer of the draft law does not agree with the expert opinion, he should outline well justified reasons for the disagreement with expert opinion in the data sheet accompanying the draft law.

Consultation with the President’s Office on the draft law introduced by the Government to the Parliament Majilis shall be exercised in accordance with the Decree of the President of the Republic of Kazakhstan of May 17, 2002, No.873 «On approval of the Rules for Reconciliation of the lawmaking plans with the President of the Republic of Kazakhstan and draft legislation introduced by the Government to the Parliament Majilis of the Republic of Kazakhstan with the Government of the Republic of Kazakhstan».

The originals of the draft laws presented to the Parliament Majilis upon the initiative of the Government should be subject to mandatory clearance by the heads of concerned government agencies. The originals of the draft laws shall be presented to the Parliament Majilis in hard and digital form (as an electronic document).

After consultation with the President’s Office of the Republic of Kazakhstan, the Government shall introduce the draft laws of high priority for the consideration of the Parliament Majilis within maximum 10 calendar days, and those that are planned to be announced as urgent - within maximum 7 calendar days.

The draft law announced by the President as urgent shall be submitted to the Parliament Majilis not later than one day after the special address of the President is announced in the Parliament or delivered to the Parliament.

Representative of the Government in the Parliament shall exercise control over the implementation of the requirements of this provision of the Rules and in the case of breaches of the established requirements shall inform the Prime Minister and the Head of the Prime Minister thereof.

If necessary, the state body - the developer of the draft law - shall independently forward the proposals of the Parliament deputies to the relevant consultative and advisory body of the Government.

The state body - the developer of the draft law (or by virtue of its competence) - in coordination with the Ministries of Justice and Finance within five days from the date of adoption of the law shall prepare and submit to the Prime-Minister’s Office an opinion on all the laws adopted by Parliament and presented to the Prime Minister for signing[216].

Resolution of the Government of the Republic of Kazakhstan of August 21, 2003, No.840 approved the Rules for the organization of legislative work in the authorized bodies of the Republic of Kazakhstan, which define the organization of legislative work of the authorized bodies - developers of the draft legislation. Authorized bodies shall draft legislation pursuant to the current Plan of Legislative activities of the Government of the Republic of Kazakhstan, Strategic Plans for Legislative activities of the Government of the Republic of Kazakhstan for the next two years, taking into account the instructions and the annual address of the President, the regulatory decisions of the Constitutional Council, government programs and programs approved by the Government of the Republic of Kazakhstan, action plans for implementation of the government programs and decisions of the Prime Minister of the Republic of Kazakhstan, as well as in accordance with the three-year budget.

Legislative activities of the authorized bodies include the following steps:

1.       Development of the concept of the draft legislation.

2. A scientific review of the concepts of draft laws in accordance with the Rules for scientific review approved by the Government Resolution of May 30, 2002, No.598 «On measures to improve the regulation-setting activities.»

3. Consideration of the concept of the draft laws by the Interagency Commission on legislative activities under the Government.

4. Establishment of a working group. The working group shall consist of representatives of the public institution «Institute of Law of the Republic of Kazakhstan». It is also recommended that representatives of non-governmental organizations, public associations, deputies and academicians of relevant branches of science are invited to participate in the working group.

5. Scientific review of the draft legislation.

6. Reconciliation of the draft legislation with state authorities in accordance with the Government Regulations.

7. Additional scientific review in case the conceptual changes take place in the course of finalization of the draft legislation.

8. Presentation of the draft legislation to the Government of the Republic of Kazakhstan.

9. Organizational and information support to the draft laws in the course of their consideration by the Parliament Chambers.

Implementation of legislative activities at each stage must be approved by the head of the legal service of the authority.

The legislation needs to be drafted in strict accordance with its concept as approved by the Interagency Commission for the legislative activities under the Government. The Commission’s activity, as noted earlier, is governed by the Regulations approved by the Governmental decree of the Republic of Kazakhstan No.1376 «On Measures to Improve the legislative activities of the Government of the Republic of Kazakhstan» dated September 11, 2000 as well as by the Rules for organization of legislative activities by the authorized bodies No.840 approved by the Government of the Republic of Kazakhstan on August 21, 2003.

While developing the concept the developers should:

a) study, compile and analyze the economic, sociological and other necessary information;

b) make necessary financial and economic calculations;

c) analyze the existing legislation in the field of legal regulation, determine the reasons for the lack of effectiveness of existing legal mechanisms (if any), identify gaps in the legislation, outdated provisions, duplication of regulations governing similar legal relations;

d) take into account the practice of application of the legislation in regulated areas of public relations;

d) study international experience.

The Commission shall not be entitled to approve concepts of the draft legislation:

1.       providing for the regulation of legal relations being regulated by the existing legislation;

2.       contradicting with the fundamental principles of law;

3.       subject of regulation of which is not consistent with the public relations referred to in the Constitution of the Republic of Kazakhstan Article 61 Clause 3.

The draft law should define the following issues: 1) the subject of legal regulation; 2) basic principles of legal regulation; 3) basic concepts used in the text of the draft law. Final part of the draft legislation should contain the rules for the enactment of this legal act and for the abolition of the previously published act, if any.

While drafting a law the authorized bodies shall take into account the regulatory requirements to its contents and style of the text. Developers must strictly comply with the legal technique requirements.

Exercising the right of legislative initiative on the draft legislation envisaging a reduction of revenues or an increase in the public spending requires prior registration of its parameters in the course of the public budget planning. That is why such drafts can be presented to the Parliament only subject to a positive opinion issued by the Republican Budget Commission. Opinions on the relevant drafts are formalized by the Governmental decree, by the endorsed Minutes of the Government meetings, or by any other document that reflects the collective legitimate opinion of the Government.

Developed and duly formalized draft law shall be presented to the President's Administration. The document package accompanying the draft law shall contain all the materials required by the legislation and necessary for consideration of the draft. After being considered by the President’s Office, materials accompanying the draft shall be submitted to the Government for the comments. Before the draft law is presented to the Parliament Majilis the Government shall inform the President’s Office of the decisions taken.

Draft laws that are planned by the President as top priority and draft laws developed and to be submitted by the Government to the Parliament Majilis on the President’s instruction shall be subject to prior clearance by the President’s Office.

Considering the range of subjects of legislative initiative, established by the Constitution of the Republic of Kazakhstan, it should be noted that the existing legal framework regulating the process of presentation and consideration of the draft laws by the subjects is quite robust; it clearly outlines the whole procedure for passing the draft legislation.

However, this does not mean that the problems in the field of legislation have been resolved. A few years ago, experts from the European Union examined the legislative process of the Parliament of the Republic of Kazakhstan and produced a number of recommendations and advices. The Academician Sapargaliyev considers the indication of the lack of resources, adversely affecting quality of the laws, the fact that the participation of the President, the Government and the Parliament in the legislative process is unbalanced, the short term of the legislative procedures, failure to anticipate problems and needs that might arise during the implementation of laws etc. as the ones deserving attention[217].

The main document that defines the direction of the national law, namely, the Concept of Legal Policy of the Republic of Kazakhstan for 2010 - 2020, indicates the need for further improvement of the regulation-setting and law-enforcement activities of the state as well as the current practice of law-making[218].

Improvement of the legislative process is continuous, and the Parliament Majilis attaches a paramount importance to the matter.

At the opening of the fourth session of the Parliament of the 4th convocation, the Head of the State - the First President of the Republic of Kazakhstan Nursultan Nazarbayev said: «The results of the third session show the improved quality of the legislative work». The deputies perceive the words of the President as a credit and make every effort to create high-quality legal framework of the country, since the legislation is initiated by the Parliament Majilis.

For comparison, while there are three subjects of legislative initiative in the Republic of Kazakhstan in the Russian Federation the right of legislative initiative is granted to 9 subjects.

According to the Russian Constitution, the right of legislative initiative is granted to the President of the Russian Federation, the Federation Council, the members of the Federation Council, deputies of the State Duma, the Government of the Russian Federation, legislative (representative) bodies of constituent entities of the Russian Federation. It is important to note that these institutions may introduce draft laws on all matters within the jurisdiction of the Constitution of the Federation as well as within the joint jurisdiction of the Federation and its entities.

Moreover, the right of legislative initiative is also granted to the Constitutional Court, Supreme Court and the Supreme Arbitration Court of the Russian Federation. In this case, this right has limitations as the mentioned judicial authorities may use it only within their competence.

However, the President, members of the Federation Council and the State Duma deputies personally decide on presenting the legislative initiative. All other structures possessing this right, take the decision in a collegial way.

The listed subjects of the right for the legislative initiative have different capacities in its implementation. The greatest capacities for this are with the Government and the President of the Russian Federation. The deputies of the State Duma are quite active in exercising the right of legislative initiative, although, as noted by Alexander Shokhin, for a deputy - even if he were a professional lawyer - it is extremely difficult to draft a law that would help to address any significant social problem[219].

Thus, having considered the procedure of execution of the right of legislative initiative in Kazakhstan and having compared it with the experience of the Russian Federation, it should be emphasized that the two branches of the government (executive and legislative) and the President of the Republic of Kazakhstan shall have the right of legislative initiative. With that, the law drafting is regulated independently for each subject whereas the process of the draft law consideration by the Parliament is common to all subjects.

3.3. The legislative process of the Parliament

 

The legislative process of the Parliament of the Republic of Kazakhstan is a process of development, discussion, adoption, signing and effectiveness of the law which takes place in accordance with the Constitution.

Legislation drafting is a very complex process requiring the creation of conditions necessary for careful and quality elaboration of each legislative solution, for collection of the needed preparatory materials, conducting of sociological and other studies, analysis of foreign laws and projected efficiency of the future regulations[220].

The legislative process in the Republic of Kazakhstan is regulated by the Constitution, a number of constitutional and other laws, a special role among which is played by the Law of the Republic of Kazakhstan of March 24, 1998, No.213-I «On regulatory legal acts». This Law defines the procedures of presentation of a draft legal act to the Parliament Majilis of the Republic of Kazakhstan and its recall from the Parliament of the Republic of Kazakhstan (Article 21). This legislation is the ABC of the legislative process. By and large it regulates the procedures for planning, drafting, finalisation, approval and publication of the regulatory legal acts, as well as the questions of the official interpretation, registration and recording of the laws.

Legislative process in the Parliament of the Republic of Kazakhstan is also regulated by the Constitutional Law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies», which defines the organization and functioning of the Parliament of the Republic of Kazakhstan, the legal status of its deputies, details the competence of the Parliament and the organizational forms of its implementation, the issues of legislative process.

The procedures of the legislative activities of the Parliament are also defined in the Regulations of the Parliament of the Republic of Kazakhstan adopted by the Resolution of the Parliament of the Republic of Kazakhstan of May 20, 1996, by the Regulations of the Parliament Majilis of the Republic of Kazakhstan adopted by the Resolution of the Parliament Majilis of the Republic of Kazakhstan of February 8, 1996, and by the Regulations of the Senate of the Parliament of the Republic of Kazakhstan adopted by the Resolution of the Senate of the Parliament of the Republic of Kazakhstan of February 8, 1996.

These Regulations provide the law enforcer with the necessary procedural means through specification of the form of execution of the powers of the Parliament, detailing the constitutional provisions and the provisions of the Constitutional Law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies».

There are different approaches to the stages of the legislative process. For example, Academician Sapargaliyev believes that there are five stages to it:

1.       first - from the moment of presentation of the draft law to the Majilis;

2.       second - acceptance of the draft by the Majilis;

3.       third - discussion of the draft by the Majilis;

4.       fourth - discussion and adoption of the draft law in the Senate;

5.       fifth - presentation of the draft law to the President of the Republic of Kazakhstan for signing[221].

In this case, the first four stages take place in the Parliament, and the fifth is the presentation of ​​the draft law to the President for signature. In our opinion, this approach omits the preparatory stage and does not accurately reflect the entire legislative process.

Professor Fedotova believes that the legislative process in case of a bicameral Parliament can be divided into the following major stages:

1.       legislative initiative;

2.       consideration of the draft law in the Majilis;

3.       consideration of the draft law in the Senate[222].

In our view, this standpoint better reveals the legislative process, however, in our opinion, the stages of the legislative process should look as follows:

1.       preparatory stage;

2.       main stage;

3.       final stage.

1.The preparatory stage

This stage of the legislative process includes the preparation of the draft law and the registration of the whole package of documents by the subject of legislative initiative in accordance with the applicable requirements.

Given the hierarchy of the regulatory legal acts, first of all, we should consider the peculiarities of its implementation as applied to the cases of making amendments and revisions to the Constitution of the Republic of Kazakhstan, which are regulated by the legislative acts in detail. So, the President of the Republic of Kazakhstan on his own initiative and by his own decision shall have the right to present a draft law on amendments and revisions to the Constitution for the national referendum.

Parliament can also take the initiative to present the draft law on amendments and revisions to the Constitution of the Republic for a national referendum. With that, the Parliament shall appeal to the President of the Republic, who takes one of the following two decisions: 1) to support the initiative of the Parliament and present a draft law on amendments and revisions to the Constitution developed by the Parliament for the national referendum; and 2) not to present a draft law on amendments and revisions to the Constitution developed by the Parliament for the national referendum, and forward it for the consideration by the Parliament. In this case, the Parliament decides on the draft law initiated by it in accordance with the Constitution.

The President may reject the proposal of the Parliament on the presentation of the draft law on amendments to the Constitution for a national referendum. In this case, the Parliament has the right to adopt the law on amendments and revisions to the Constitution by at least four fifths of the total votes of the deputies of each Chamber of the Parliament. With that, the President has the right to: 1) sign the law on amendments and revisions to the Constitution adopted by the Parliament; 2) present the draft law developed by the Parliament for a national referendum. The national referendum is considered valid if more than half of the citizens of the Republic, having the right to participate in national referendums, participated in it. Changes and revisions to the Constitution presented for a national referendum shall be deemed adopted if they receive votes of more than a half of citizens eligible to vote in the national referendum in not less than two-thirds of the regions, cities and the capital city.

We would like to note that each subject of the right of legislative initiative has a unique way of legal regulation of execution of this right. Details of regulation of the implementation of the initiative of the President, Parliament deputies and the Government in the legislative process are discussed in the sub-section «The subjects of legislative initiative.»

The legislation of the Republic of Kazakhstan contains general requirements for the draft laws being presented by the subjects of legislative initiative to the Parliament of the Republic of Kazakhstan.

Here follow a few words about the requirements to the text of the draft law. First of all, you need to prepare a quality draft.

The Law of the Republic of Kazakhstan «On regulatory legal acts» specifies the requirements for the content and style of the text of the regulatory legal act. For example, this Law Article 19 Clause 1 stipulates that the jurisdiction, functions and tasks of state bodies related to state regulation of public relations should be established in the regulatory legal acts in accordance with the laws of the Republic of Kazakhstan on administrative procedures with clear distribution by the levels of public administration.

The text of the regulatory legal act should be printed in a single font and spelled out in compliance with the provisions of the literary language, legal terminology and legal techniques. The provisions of the regulatory legal act must be very concise, contain clear meaning preventing multiple interpretation of the terms. The text of the regulatory legal act should not contain provisions of declaratory nature which do not carry a clear message and the legal burden.

Use of outdated and ambiguous words and expressions, epithets, metaphors, abbreviations of words shall not be allowed. The rule of law laid out in the structural element of the regulatory legal act, shall not be repetitively used in other structural elements of the same act.

The text of the legal act shall use official names of the public bodies and other organizations in full, in accordance with the official name and consistently throughout the text.

In order to ensure simplicity and brevity of the text of the regulatory legal act, it is allowed to abbreviate names of the government agencies and other organizations with a specification of acronyms or abbreviations in the text of the regulatory legal act.

The texts of the regulatory legal acts shall not use dashes or other symbols for Clause marking, highlighting or underscoring of individual words or phrases.

The draft law shall be agreed with all concerned government agencies, endorsed by the Interagency Commission and the Republican Budget Commission and then subject to the scientific review.

An exhaustive list of the requirements is set in the Law «On regulatory legal acts» (Article 21-3 Clause 2), as well as in the Regulations of the Parliament Majilis of the Republic of Kazakhstan (Clause 27).

When presenting the draft legal act to the Parliament Majilis of the Republic of Kazakhstan it should be accompanied with the document package containing the following annexes:

1) name of the public body or organization that drafted the law;

2) explanatory note stating the need for the draft law adoption, the detailed description of goals, objectives, main provisions, and for the draft legislation introduced to the Parliament Majilis of the Republic of Kazakhstan under the legislative initiative of the President of the Republic of Kazakhstan - a special address;

3) composition of the working group, if established;

4) check-list of approval of the draft by the concerned government agencies, except as determined by the President of the Republic of Kazakhstan, when draft legislation introduced under the legislative initiative of the President of the Republic of Kazakhstan it should not go through the above approval procedure;

5) opinion on the results of the scientific review and, where appropriate, other expert opinions;

6) list of laws to be changed or recognized invalid due to the adoption of the draft law and the proposals for development of regulatory legal acts necessary for the implementation of the draft law;

7) financial and economic calculations, if the draft law is to reduce public revenues or increase government spending and, as a rule, statistics, forecasts of possible economic, social, legal, environmental consequences of action of the regulatory act being considered, with the exception of draft legislation introduced to the Parliament Majilis of the Republic of Kazakhstan under the legislative initiative of the President of the Republic of Kazakhstan.

When presenting the draft law on amendments to the existing legislation a comparative table of the old (current) and the revised wording of the provisions with relevant justification of the initiative shall be submitted.

When presenting the draft law for the ratification of international treaties the copies of the documents ratification certified by the Ministry of Foreign Affairs shall be submitted.

The aforementioned materials shall be submitted in the Kazakh and Russian languages, and when presenting the draft law for ratification - in the Kazakh, Russian and other languages ​​of their signing.

Execution of the right of legislative initiative by the subject begins with the draft law presentation for consideration by the Majilis of the Parliament. That moment signifies the start of the legislative process in the Parliament[223].

2. The main stage

The main stage of the legislative process starts with the introduction of the draft law to the Parliament Majilis and ends with the adoption of the law by the Senate.

After receipt of the draft law with all necessary attachments, the Majilis Office shall conduct a thorough check for compliance with the requirements applicable. If any of the required attachments is missing, or the texts in the Kazakh and Russian languages is not authentic the Majilis Office returns the documents to the initiator of the draft law without registration to make it compliant with the applicable requirements.

The draft law registered by the Majilis is then forwarded by the Resolution of the Parliament Majilis to the appropriate committee(s) for preliminary consideration of the law and formulation of the follow-up steps. The procedure of the draft law consideration and opinion issuance is determined independently by the relevant committee of the Majilis.

Time required for preparation of an opinion shall be stated in the instruction and cannot be less than thirty calendar days from the date of receipt of the registered draft law by the committee (Regulations of the Majilis Clause 28).

As already noted, in accordance with the Constitution, the President of the Republic has the right to declare the draft law a top priority in his special address.

Legal conditions and procedures for prioritizing the consideration of draft laws, as well as for declaring the consideration of the draft law as urgent are envisioned in the Rules for prioritization of the draft laws’ consideration as well as declaring the consideration of the draft law as urgent approved by the Decree of the President of the Republic of Kazakhstan on April 29, 2003, No.1074, and in the Regulations of the Government of the Republic of Kazakhstan approved by the Resolution of the Government of the Republic of Kazakhstan on December 10, 2002, No.1300. Consideration of the draft legislation as a matter of priority shall be determined by the Head of the State, as a rule, with regards to draft laws which were presented or are ready to be presented to the Majilis of the Parliament.

Certain priority draft laws after prior approval by the relevant government authorities are submitted by the President’s Office within one-month period, and then, within ten days are forwarded to the Majilis for consideration.

The draft law, announced by the President as urgent, shall be submitted to the Majilis not later than a day after the special address of the President was announced in the Parliament or presented to the Parliament. In such cases, the responsible committee shall issue its opinion within maximum seven calendar days.

The Committee is entitled to engage initiators of the draft law, government officials, non-governmental organizations, academic institutions and experts in the working groups. Public opinion is taken into account by means of identifying public views and opinions on the draft laws in the course of their preparation and discussion in the legislative process.

When considering the social factor in the legislative process a special role shall be given to the Public Chamber of the Parliament Majilis of the Republic of Kazakhstan due to its capacity to promote and support civic initiatives aimed at the implementation of constitutional rights, freedoms and legitimate interests of citizens and public associations, the examination of draft laws.

The legislation of the Republic of Kazakhstan provides for the development of alternative draft laws. Such drafts are considered by the committee of the Chamber simultaneously with the main draft. A separate opinion is issued for each of the drafts submitted.

Discussion of the draft laws by the committees is open. Committee informs the deputies five days prior to the discussion of the draft law. Upon the results of the consideration of the draft, the committee issues an opinion (Regulations of the Majilis Clause 30). The draft law prepared for consideration at the plenary session of the Majilis, the accompanying materials, as well as the opinion of the Legislation Division of the Majilis Chancellery shall be sent by the responsible committee to the Majilis Office for inclusion in the plenary of the Majilis. Majilis Office proposes the inclusion of the draft law in the agenda of the plenary session (Regulations of the Majilis Clause 33).

The text of the draft law and the accompanying materials shall be presented to the deputies, not later than ten days prior to its consideration by the plenary meeting (Regulations of the Majilis Clause 35).

The stage of discussion of the draft law at the plenary session is often characterized by the term «reading». The term «reading» is not defined in the legislation, however, its meaning can be derived from the constituent elements of this procedure. Reading - is a discussion of the draft law and the adoption of a procedural decision on it, which is carried out in separate or joint sessions of the Parliament chambers. The number of readings required for consideration of a draft law is determined by the deputies of the Parliament Chambers for each case. The optimal number of readings is decided upon on the basis of the size and contents of the draft law, the intermediate results of the on-going procedures, and other factors.

Regulations of the Parliament Chambers establish a mandatory minimum of two readings on the draft codes, as well as on the draft laws on amendments and revisions to the codes (Regulations of the Majilis Clause 34 and Regulations of the Senate Clause 56). The establishment of such procedure is explained by a greater legal force of the codes as compared to the law.

During the first reading of the draft law, Majilis hears the report of the initiator of the draft law and the supplementary report of the responsible committee, after which the deputies discuss the conceptual provisions of the draft law and offer their comments and suggestions in the form of amendments. Based on the discussion Majilis approves main provisions of the draft law or rejects it. When alternative drafts are presented on the same matter, the Majilis discusses them in the course of the reading and decides which of the drafts under consideration should be taken as a basis for the preparation for the second reading. If the draft law is approved in the first reading and approved by the majority vote of the total number of the Majilis deputies, such decision is formalized through the Resolution of the Majilis.

Possible amendments shall be submitted by the deputies to the responsible committee only in writing and within ten days prior to the second reading of the draft law. If an amendment to the draft law provides for a reduction of public revenue or an increase in government spending, then the responsible committee forwards it to the Government for issuing an opinion within a timeline established by the Government Regulations. The responsible committee finalizes the draft law and submits it to the Majilis for the second reading.

The deputies who do not agree with the opinion of the committee have the right to speak up with a justification of the amendments proposed. At the request of a Majilis deputy the amendment proposed by him shall be presented for voting. Discussion of the draft law is held on an article-by-article, section-by-section basis or as a whole.

During the second reading only the amendments proposed during the consideration of the draft law at the first reading are discussed. Voting is held separately on each article or section or chapter of the draft law with amendments, and then the whole draft. Majilis may decide to vote on the draft law as a whole, if no deputy objects.

Upon consideration of the draft law through the second reading the Majilis takes one of the following decisions: 1) to approve, 2) to return to the committee for revision, 3) to carry out further readings, or 4) to reject[224].

It should be emphasized that the Regulations of the Majilis envisages no time limitations for consideration of the draft law in the chamber. For example, the draft law «On introduction of amendments and revisions to some legislative acts of the Republic of Kazakhstan on the operational and investigation activity» was considered by deputies of the 3rd and the 4th convocations of the Parliament Majilis for 4 years.

The draft constitutional law or the law, considered and approved by the Majilis, along with its resolution sealed with signatures of the chairman of the responsible committee and heads of relevant divisions of the Majilis shall be passed on to the Parliament Senate within ten days from the date of approval.

After the draft law approved by the Majilis is received by the Chancellery of the Senate the latter checks the draft for its completeness and correctness of its annexes and registers it. If any of the necessary annexes is missing the documents are returned to the Majilis without registration.

The draft law received from the Majilis shall be considered by the Senate for not more than sixty days from the date of its registration in the Chancellery of the Senate. Office of the Senate determines the duration of preparation and the committee responsible for issuing an opinion on the draft law, and sends the draft law to committees and divisions of the Chancellery of the Senate. Office of the Senate shall have the right to determine several committees responsible for the draft law consideration. If the President of the Republic in his special address has announced consideration of the draft law as urgent, the opinion must be issued within no more than seven days.

The Senate decides on the number of readings of the draft law. With that, codes, changes and additions to them shall be accepted by the Senate at least within two readings, and shall be considered in accordance with the requirements of Regulations of the Senate Clauses 40-41, 117-118.

Agenda of the meeting of the Senate is preliminarily considered by the Chancellery of the Senate, submitted for discussion of the chamber and approved by open majority of votes of the total number of deputies of the chamber. According to the decision taken by the majority vote, a closed session of the Senate may be held in case issues representing the sovereign, official or other secret protected by the law.

Meetings of the Senate include the following kinds of presentations: report, supplementary report, the final word on the subject under discussion, the debates on the content of the question discussed, etc.

During the debate, the presiding deputy shall ensure the diversity of opinions on the subject under discussion.

The constitutional laws shall be passed by at least two-thirds of the total number of deputies of the chamber. Laws, regulations and other acts of the Senate shall be adopted by a majority vote of the total membership of the chamber, unless otherwise provided by the Constitution of the Republic of Kazakhstan. Rejection of the draft constitutional law and draft law as a whole shall be made by the Senate with the majority vote of the total number of deputies of the Senate.

Senate adopts its decisions by voting. Before the start of the voting the chairperson indicates the number of proposals put to the vote, specifies their wording, clarifies who of the deputies withdraws his amendments, etc. Regulations describe in detail how a vote is held in the Senate, how the voting results are concluded, which bulletins are considered invalid in case of a secret ballot.

Following the discussion, the Senate shall take one of the following decisions:

·          to approve the draft law in the first reading;

·          to approve the draft law as approved by the Majilis;

·          to forward to the Majilis the appropriate changes and revisions to the draft law proposed by the Senate. In this case, draft laws approved by the Majilis which were presented with a view to ensure the enforcement of the main draft law shall be forwarded to the Majilis together with them;

·          to reject the whole draft law approved by the Majilis and return it to the Majilis[225].

The decision of the Senate is formalized through its resolution. Laws passed by the Senate, are endorsed by the chairmen of each chamber, and are forwarded to the President of the Republic of Kazakhstan with a covering letter from the Chairman of the Senate within ten days. If some deputies or the chairman of the Senate do not agree with the decision of the Senate to pass a law, and believe that it is unconstitutional, before the law was signed by the President, the Chairman of the Senate, the Senate deputies accounting for not less than one-fifth of the total number of deputies of the Parliament, may appeal to the Constitutional Council for a check of the law compliance with the Constitution. In this case, the deadline for the law signing gets suspended.

The Senate shall have the right to reject the draft constitutional law or a draft law approved by the Majilis as a whole. In this case, the draft law shall be returned to the Majilis with a reasoned justification for the rejection. Office of the Majilis passes the rejected draft law to the responsible committee which issues an opinion on the grounds of the rejection and makes suggestions to overcome the disagreements for the consideration of the Majilis. If after the re-examination of the draft constitutional law or draft law rejected by the Senate as a whole, the Majilis expressed its disagreement with the decision of the Senate, the draft is put to the vote in the previously adopted version. Majilis decides to renew its initial approval of the draft by two-thirds of votes of the total number of deputies of the Majilis and the Resolution of the Majilis is sent to the Senate. If the Senate rejects the draft law again, then such draft cannot be presented during the same session. If the Majilis has not achieved the specified number of votes, the draft constitutional law or the draft law shall be considered rejected. Additional (repetitive) vote is not carried out, and the draft is returned to the initiator.

Instead of rejecting the draft law the Senate may make changes and additions to the draft. Such changes and additions to the draft constitutional law can be made by the Senate by at least two-thirds of votes of the Senate, and in case of the draft law - by the majority of votes of the members of the Senate. Resolution of the Senate on amendments and additions to the draft constitutional law or a draft law is submitted to the Majilis.

We must say about such an important procedure as a conciliation. It is set in the Regulations of the Majilis. According to Clause 46, if the Majilis while voting on amendments and additions to the draft constitutional law or to a draft law proposed by the Senate does not agree with them by at least two-thirds vote or a majority vote of the deputies, respectively, the differences between the chambers of the Parliament shall be resolved through conciliation.

To overcome the contradictions that arose the Majilis and the Senate shall create a conciliation commission with an equal number of members from each chamber participating. The subject of legislative initiative may participate in the conciliation commission in an advisory capacity. The decision on the necessity to create a conciliation commission and on election of the Majilis deputies as its members shall be made at the plenary session of the chamber by the majority vote of the total number of deputies of the Majilis and shall be forwarded to the Senate. Following an identical procedure for the election of deputies of the Senate as members to the conciliation commission, members of the conciliation commission shall elect a chairman from its members by the majority vote of the members of the conciliation commission.

The conciliation commission shall consider every single objection of the Senate in an attempt to work out a unified text (a compromise provision) of the draft constitutional law or the draft law.

The Commission shall decide by the open voting. The decisions of the conciliation commission shall be made by a majority vote of the total number of its members. In the case of an equality of votes «for» and «against», vote of the Chairman shall be decisive[226].

The conciliation commission based on the result its work shall adopt a resolution containing proposals to overcome the disagreements, which shall be submitted to the Office of the Majilis. The resolution of the conciliation commission shall be accompanied by a comparative table of articles of the draft law to which changes have been made.

At the re-examination of the draft constitutional law or the draft law, the Majilis shall only discuss the proposals contained in the resolution of the conciliation commission. No amendments that go beyond the proposals shall be considered by the Majilis.

Majilis shall decide on each proposal of the conciliation commission separately by a majority vote of the total membership of the chamber. Resolution of the Parliament Majilis and the materials of the conciliation commission shall be sent to the Senate within seven days (Clause 49 of the Regulations of the Majilis).

The Senate may agree or disagree with the proposals of the conciliation commission and the decision of the Majilis. With the consent of the Senate the draft law becomes a law, and within ten days shall be submitted to the President for signature (Clause 76 of the Regulations of the Parliament).

The Constitution of the Republic of Kazakhstan entitles the President to refuse to sign the law by returning the whole law or some of its articles for the repetitive discussion and voting (sub Clause 2 of Article 44 of the Constitution)[227].

Under sub Clause 2 of Article 44 of the Constitution of the Republic of Kazakhstan the President returns the law or some of its articles. This means that the President is entitled to a total or partial rejection of the law. At the same time a complete rejection of the law can be done by the head of state through the process of appealing to the Constitutional Council of the Republic of Kazakhstan (sub Clause 2 of Clause 1 of Article 72 of the Constitution of the Republic of Kazakhstan).

Procedure for reviewing of the objections of the President of the Republic of Kazakhstan by the Parliament is fixed in the Article 20 of the Constitutional Law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies», in the regulations of the Parliament and its Chambers.

Repeated discussion and voting on laws or articles of the law that caused the objections of the President of the Republic shall be held within one month from the date when such objections were presented. Failure to do so constitutes acceptance of the President's objections.

The law or the articles of the law being returned with the objections of the President of the Republic shall be handed for consideration to the appropriate standing committee of the Majilis. Majilis with participation of the representative of the President of the Republic shall issue an opinion and present it together with the law or respectively its articles as well as the objections of the President to the Majilis. The decision of the Majilis adopted by a majority vote of two-thirds of the total membership, together with the objections of the President, and the opinion of the standing committee of the Majilis shall be forwarded the Senate for examination to (Clause 45 of the Regulations of the Parliament). Terms for consideration of the objections of the President of the Republic in the Majilis and of the examination of such in the Senate should not exceed 15 and 10 days, respectively. At the repeated discussion and voting of the law or its individual articles at a joint session of the Parliament chambers the voting shall be held on the law as a whole, if the objection of the President was caused by the law as a whole, or on the articles that caused objections of the President of the Republic (Clause 48 of the Regulations of the Parliament).

Parliament may be unable to overcome the objections of the President; in this case the law is considered as not adopted. Or, if the objections of the President introduced a new version of the law or some of its articles, the law is considered as adopted in the wording proposed by the President (Clause 50 of the Regulations of the Parliament).

So, the important point of the main stage of the legislative process is that the draft law becomes a law after its adoption by the Senate, but it receives its legal force after the signing by the President and the official publication.

3. The final stage

Presentation of the law to the President of the Republic of Kazakhstan for signing is the final stage of the legislative process.

Laws adopted by Parliament, sealed with a signature of the Chairman of each chamber of the Parliament, and, if the draft law was introduced by the Government - of the Prime Minister, shall be submitted within ten days from the date of their adoption to the President of the Republic, who within one month signs the presented law and promulgates it or returns the law or some of its articles to the Parliament for a second discussion and vote. With that, the law which has not been returned within one month shall be considered as signed (Article 19 of the Constitutional Law of the Republic of Kazakhstan «On the Parliament of the Republic of Kazakhstan and the status of its deputies»).

Academician Sapargaliyev emphasizes that the work to analyze the legislation presented for the signature is complex and voluminous. Annually, the President of the Republic of Kazakhstan signs about 150 laws. All of them were sent to the President for signature, analyzed, a substantiated opinion was issued for each of them and a decision was made[228].

Before signing the law, the President verifies compliance of the adopted law with the Constitution. Article 72 of the Constitution of the Republic of Kazakhstan entitles the President of the Republic to appeal to the Constitutional Council with respect to the constitutionality of the law passed by the Parliament prior to its signing.

Thus, the Law of the Republic of Kazakhstan «On amendments and additions to some legislative acts of the Republic of Kazakhstan on Freedom of Conscience and Religious Associations» was passed by the Parliament of the Republic of Kazakhstan on November 26, 2008 and submitted for signing to the President of the Republic of Kazakhstan on December 2, 2008. The draft law was introduced by a group of deputies under the legislative initiative.

Using his constitutional right, the President of the Republic of Kazakhstan appealed to the Constitutional Council of the Republic of Kazakhstan for consideration of the Law of the Republic of Kazakhstan «On amendments and additions to some legislative acts of the Republic of Kazakhstan on Freedom of Conscience and Religious Associations» for its compliance with the Constitution of the Republic of Kazakhstan.

Constitutional Council of the Republic of Kazakhstan reviewed this Law issued its Resolution of February 11, 2009, No.1 admitting its unconstitutionality. In accordance with Clause 1 of Article 74 of the Constitution of the Republic of Kazakhstan the Law of the Republic of Kazakhstan «On amendments and additions to some legislative acts of the Republic of Kazakhstan on Freedom of Conscience and Religious Associations» cannot be signed and enacted[229].

In turn, the state-legal division of the Presidential Administration of the Republic of Kazakhstan officially returned the text of the Law to the deputies of the Parliament of the Republic of Kazakhstan as the initiators of the law. With that, the head of state did not make any objections to the said resolution in the absence of reasons for such. In this connection, the law cannot be signed and is legally null and void.

Let us consider in detail the procedure of passing the law before its signing by President. The Regulation on the procedure for submission for signature and consideration by the President of the Republic of Kazakhstan of the laws of the Republic of Kazakhstan, their registration, disclosure and storage, as approved by the Decree of the President of the Republic of Kazakhstan of July 2, 1996, No.3051, determines that the Law of the Republic of Kazakhstan approved by the Majilis and the Senate of the Parliament and adopted at a joint session of Chambers of the Parliament in the cases envisaged in the Article 53 and in the Clause 7 of Article 61 of the Constitution of the Republic of Kazakhstan, sealed with a signature of the Chairman of each chamber of the Parliament and the Prime Minister, shall be sent to the President of the Republic of Kazakhstan in the Kazakh and Russian languages ​​with a cover letter.

The law presented for signing shall be forwarded by the General Division of the Presidential Administration of the Republic of Kazakhstan to the State-Legal Division for the preparation of an opinion containing proposals for signing of the law or for its return with objections to the Majilis of the Parliament. Copies of the law shall also be sent by the General Division to the relevant structural units of the Presidential Administration.

Taking into account proposals of assistants, advisors to the President, Head of the Delegation of the President to the Parliament, and the relevant structural departments of the President’s Office, the State-Legal Division of the Presidential Administration develops an opinion and submits it along with the original text of the law to the Chancellery of the President.

Chancellery of the President presents the law together with the opinions on it to the Head of the President’s Office, who shall report to the President on the law submitted for signature and on the opinions issued on it. The President of the Republic shall sign the law submitted by the Senate of the Parliament within one month and publish it[230].

These Regulations also govern the order of the law registration, its transfer for publishing in the relevant media, the order of its transmission to the Senate and the Majilis.

The originals of the laws signed by the head of state are kept in the General Division of the President’s Office and transmitted after the specified timeline for a permanent preservation in the archives of the President of the Republic of Kazakhstan. Copies of the laws, certified by the official seal are kept in the General Division of the Presidential Administration together with other materials generated in the course of their discussion and adoption. In due course cases are formed respectively in the Senate and the Parliament Majilis and shall be handed for a permanent keeping in the Central State Archive of the Republic of Kazakhstan.

The signing of the law by the President shows that it has acquired a complete legal form, has taken its place in the hierarchy of legal acts and joined the legal system of the state.

However, the process of law-making completes with the publication of the law. To become and obligatory enactment of the state, the law must be published in the publicly accessible printed media, and this process seems to have a particular importance. Publication of laws is the main premise of their entry into force and the legal basis for the presumption of knowledge of laws. It shall not be assumed that citizens can know the unpublished law and the responsibility for the violation of rules unknown to them cannot be imposed on them.

The publication is the legal way of communication to the public of an adopted legal act, which consists, as a rule, of placement of its full and accurate text in publicly accessible official printed media.

Since the publication has a special legal value for the entry into force and the further application of the legal act, it represents the most important political act and is performed in a strictly defined order.

In accordance with the Article 30 «Obligation of the official publication of regulatory legal acts» of the Law of the Republic of Kazakhstan «On regulatory legal acts» all laws, international treaties to which the Republic of Kazakhstan is a party, shall be published. Official publication of the regulatory legal acts relating to the rights, freedoms and duties of citizens is a prerequisite for their use.

In order to implement Article 30 of the Law of the Republic of Kazakhstan «On regulatory legal acts» the Resolution of the Government of the Republic of Kazakhstan of August 22, 2002, No.938, approved the Rules for further official publication of the texts of regulatory legal acts of the Republic of Kazakhstan. Clause 2 of the Rules stipulates that further official publication of the texts of regulatory legal acts of the Republic of Kazakhstan, types of which are provided for in Article 3 of the Law of the Republic of Kazakhstan «On regulatory legal acts», shall be printed by the media that were awarded with such a right in the manner prescribed by these Rules.

In addition, article 31 «Official publication of the laws» of the Law of the Republic of Kazakhstan «On regulatory legal acts» provides that the laws of the Republic of Kazakhstan officially published in the Bulletin of the Parliament of the Republic of Kazakhstan, as well as in other print media.

Official publication of the legal acts can only be made in the print media that are distributed throughout the territory of the Republic of Kazakhstan.

It should be emphasized that law enforcement practice shall use the published copies of regulatory legal acts. With that, unofficial publication of the regulatory legal acts is permitted only after their official publication[231].

Control over the publication of regulatory legal acts of central and local government bodies is carried out by the Ministry of Justice of the Republic of Kazakhstan and its territorial bodies (Article 35-1 of the Law of the Republic of Kazakhstan «On regulatory legal acts»).

Official Publications are the Bulletin of the Parliament of the Republic of Kazakhstan, the Collection of acts of the President of the Republic of Kazakhstan and the Government of the Republic of Kazakhstan, the Collection of acts of central executive and other central government bodies of the Republic of Kazakhstan. Official publication of the regulatory legal acts shall also be carried out by the print media which have obtained such a right on a competitive basis through a procedure established by the Government of the Republic of Kazakhstan[232].

Article 36 of the Law of the Republic of Kazakhstan «On regulatory legal acts» defines the time of entry into force and the introduction into force of the regulatory legal acts. In particular, the «regulatory legal acts, with the exception of legal acts specified in the second part of this Clause shall enter into force upon their signing». Furthermore, Clause 2 of Article 36 of the stated Law sets out regulations on the date of enactment of the regulatory legal acts.

At the same time, if, due to a significant volume of the regulatory legal act its text gets published in several issues of the periodical, the date of official publication shall be considered the day of publication of the final part of the text of the regulatory legal act. Regulatory legal acts should be published in the print media in the state and Russian languages ​​simultaneously.

It is the publication that completes the process of creating the law. The law starts to regulate social relations and produce certain legal consequences after its entry into force. The order of entry into force of the legislation, including the codes, shall be defined in the laws themselves (the Code) or in the separate laws.

3.4. Rule of Law

 

Law of the Republic of Kazakhstan as of March 24, 1998, «On Legal and Regulatory Framework» is the basis for law making process or to rephrase is the ABC for developing draft laws. Regardless of the fact that Law provides a definition of the term «rule of law « (Article 1 Clause 10) this term, structure of its definition is the most debatable among academia. However academics agree on one thing - a rule of law is a primary document, «a mother cell» of law. Therefore when draft law is developed both developers and deputies, experts from the Parliament Office shall clearly understand the importance and comprehensiveness of this term.

This subsection utilizes the provisions of the Law of the Republic of Kazakhstan «On Legal and Regulatory Framework» but at the same time the information is mostly theoretical.

State and law theory and practice developed plenty of considerations of what the rule of law is and how it shall defined.

On the most elementary and well spread classification of provisions of law is based on separation depending on the nature of relations regulated by them into the provisions of substantive law and provisions of procedural law.

Substantive provisions of law regulate economic, political, social, ideological and other substantive matters; define legal status of citizens, their diverse rights and responsibilities.

Procedural provisions of law unlike substantive ones do not regulate neither political nor other types of matters but simply frame procedural forms (proceedings, rules, order) of exercising and protecting rights stipulated by substantive provisions.

Provisions of law define the code of conduct for citizens, officials, state bodies, civil society institutions etc. i.e. all subjects of law that happened to be parties of such type of public relations that caused the state to show its will by publishing particular rules of conduct.

Provisions of law - are universally obliging rules of conduct set by or sanctioned by the state and secured by its compulsory force. Forms of provisions of law’s existence could be respective regulatory legal acts as well as other sources of law[233].

Professor M.Marchenko believes that in modern legal literature a rule of law is defined as a rule or measure of proper conduct. At the same time there are other formal and legal attributes highlighted and explained.

They include: a) a direct relationship with the provisions of law (issued or authorized by the State), b) expressing a will of the state by them, c) universal and personable-binding character of legal provisions, d) strict formal definition of the requirements contained in the legal provisions, e) multiplicity of application and duration of the force of legal provisions, e) their strict subordination and hierarchy; g) protection of the legal provisions by the state, and h) use of state coercion in case of violations of the dictates contained in the law[234].

Legal provision differs from other social provisions by its close connection with the state, which establishes or authorizes (officially recognizes) legal standards and enforces them.

Law of the Republic of Kazakhstan as of March 24, 1998, «On Legal and Regulatory Framework» contains the following definition: «rule of law (legal provision) - is universally obliging rule of conduct, formulated in the regulatory legal act, designed for repeated use and applicable to all persons within the regulated situation».

So, legal provision is an established or authorized by the state, obligatory and formally defined general rule, which is subject to the state protection and acts as a general regulator of social interactions. Legal rules are abstract models of the righteous behavior, and thus they determine the extent of freedom of participants of public relations. Rules state what may, needs or should not be done upon the occurrence of certain regulatory circumstances.

Let us consider the theoretical aspects of the classification, features, functions and structure of the legal provision.

I. Classification of provisions of law

By legal force. Legal force of the act allows to build a hierarchy of legal provisions and to determine which of them will be used in case of contradiction of the provisions with each other.

Law of the Republic of Kazakhstan as of March 24, 1998, «On Legal and Regulatory Framework» establishes that the Constitution of the Republic of Kazakhstan has a supreme legal force.

Co-relation of legal force of regulatory legal acts other than the Constitution corresponds with the following downward levels:

1) laws introducing amendments and additions to the Constitution;

2) constitutional laws of the Republic of Kazakhstan and decrees of the President of the Republic of Kazakhstan, having the power of constitutional law;

3) codes of the Republic of Kazakhstan;

4) laws of the Republic of Kazakhstan as well as the decrees of the President of the Republic of Kazakhstan having the force of law;

5) regulatory resolutions of the Parliament of the Republic of Kazakhstan and its chambers;

6) regulatory decrees of the President of the Republic of Kazakhstan;

7) regulatory resolutions of the Government of the Republic of Kazakhstan;

8) regulatory orders of Ministers of the Republic of Kazakhstan and other heads of central state bodies, regulatory decisions of the central government bodies, regulatory decisions of the Central Election Commission of the Republic of Kazakhstan and the Accounts Committee for Control over Execution of the Republican Budget;

9) regulatory decisions of Maslikhats, regulatory decisions of local government offices, regulatory decisions of governors.

Outside of this hierarchy are the regulatory decisions of the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan.

By branches of law: rules of civil, financial, criminal, labour, administrative, environmental law, etc.

By nature of the assignment: mandatory (categorical) and discretionary. Mandatory provisions do not envisage a possibility of deviations from the established requirements, whereas discretionary provisions permit regulation of the relations by the parties and apply only in additional (subsidiary) order when the parties have not agreed otherwise.

By nature of the prescribed behavior: authorizing, binding (prescriptive) and forbidding. Authorizing provisions provide the subject of law rules with a choice: to act in a certain way or to refrain from such actions. Binding provisions set a prescription for the subject to do certain things. Forbidding provisions, by contrast, set the inadmissibility of an action.

There are also special rules that are not aimed at regulation of relations between subjects. Instead, they help other rules do so. Specialized rules include:

definitive - contain definitions of legal concepts;

declarative - contain legal principles, goals and objectives;

conflicting - solve the contradiction between the rules and indicate what standard should govern in each particular case.

By persons covered (application scope): general and special. General rules apply to all persons residing in the locality (country, region), and special - to certain categories of persons (civil servants, students, military, etc.).

By the timeframe of action: permanent and temporary. Permanent rules are not limited to a certain period, that is, they remain in force until they have been officially withdrawn - within a certain period of time.

By the coverage area: general and local. General rules apply to the entire territory of the state, local ones act in certain territorial units*.

II. Features of legal provisions

General character of legal provisions should be specifically mentioned among their most important features. The legal provision does not provide for and cannot cover each individual life circumstance in detail. It focuses only on the model circumstances incorporating the features of similar life situations in which a need or demand for its application arise.

An important feature of the legal provision is its representative and binding character. By regulating social relations, the legal provision grants (provides for) one participant of this relationship with certain powers or rights, and puts correlating legal obligations on to the other participant. Legal provision provides one side with a protected and guaranteed by the state behavior (right), and the other side - with a proper behavior (duty) ensured by the threat of the state enforcement.

Professor Marchenko remarks that the specific feature of the legal provision is their protection and security by the state enforcement. We talk here not only and not so much about the actually used state enforcement measures applied to the offender, rather we mean a potential action of the state towards the offender. We distinguish civil, penal, administrative, legal and other measures among the measures of state enforcement. The main purpose of their application depending on the nature of the offense may be punishment of the offender, liquidation of damages brought about by his wrongful actions, restoration of violated rights, as well as fulfillment of outstanding commitments[235]. Other authors also distinguish the following features of legal provisions: compulsory for all, formal, specific, general, public-willed, state-provided character.

Features of the legal provisions coincide with the features of law in general, as law consists of the legal provisions. By interacting and complementing each other, the provisions form the basis of the legal system of the state.

III. Functions of the legal provisions

Orienting and encouraging function of the legal provision. The legal provision acts as a legal criterion of the legitimate and illegitimate behavior. By associating their real actions with a standard model, participants of public relations understand ​​the legality of their actions. The encouraging aspect reveals itself in the fact that the regulatory incentives, such as benefits, privileges, etc., encourage the subjects to exercise their rights, obligations and prohibitions in the legitimate way, thereby contributing to the achievement of socially useful results.

The regulatory function of the legal provision. The rules of law are designed to organize and streamline public relations. By establishing various aspects of public relations in the regulations, they contribute to the implementation of certain policies, which are being implemented by the state in a certain historical situation. The law ensures regulatory certainty, stability and sustainability of public relations.

Protecting function of the legal provision. Legal provisions establish clear boundaries for individual or collective behavior of the subjects, beyond which they do not have the right to act. Violators are subject to state enforcement measures of preventive, preclusive, punitive or right-restoring nature. Provision of legal guarantees and means for protection of their subjective rights also facilitates the protective function of law[236].

IV. Structure of the legal provision

Structure of the legal provision (Latin structura - structure, location, connection) refers to the internal structure of legal rules, their division into components and the connection of these components with each other[237].

Law of the Republic of Kazakhstan «On Legal and Regulatory Framework» Article 18 looks at the structure of a regulatory legal act and details the requirements to the internal structuring of the regulatory legal act.

Thus, the structure of the legal provision is its internal structuring. The complete structure of the legal provision entails three links: a) hypothesis; b) disposition; and c) sanction.

Hypothesis is a list of circumstances which trigger the provision application in real life. The hypothesis sets the terms of the provision application. Legal prohibitions, permissions and responsibilities are not implemented in practice in an arbitrary way. Instead they are applied only in connection with the onset of certain life circumstances which trigger the application of a legal provision. The hypothesis establishes the legal facts (actions, events, status), presence of which in practice triggers the application and implementation of the legal provision disposition.

Depending on their structure, hypotheses can be:

- simple, contemplating only one condition;

- complex, containing two or more conditions that trigger implementation of this legal provision;

- alternative, containing two or more conditions, each of which will be enacted under certain circumstances.

The disposition can be:

- simple, describing a behavior option and not disclosing it;

- descriptive, when a behavior option is named and described;

- referring, when it refers to another legal provision with a view of explaining the behavior option;

- blanket, referring to various instructions and regulations with a view of explaining the behavior options.

Sanction is a part of the legal provision which determines the negative consequences for the offender of the provision disposition. Such violation can be expressed as the non-fulfillment of the legal obligation or non-compliance with the ban. Thus, the sanction establishes legal sanctions applied by the state in the event of breach of the provision disposition by any of the legal relation participants.

We distinguish between absolutely certain and relatively certain sanctions. Absolutely certain sanctions set certain structural elements of the provision in a precise, unambiguous and invariable way. Such certainty is imperative and cannot be changed at the discretion of the parties involved. Permissive legal provisions do not contain any sanctions, because their implementation depends on the discretion of the person. Any threat of the state enforcement is not provided for in here[238].

In conclusion, let us underscore that the legal provision is not the same as the article of the regulatory legal act. Provision is the rule, whereas article of the regulatory legal act is just a form of presentation of thoughts of the legislator. While applying various forms of verbal expression of the legal provision, the legislator is guided by reasons of convenience, cost, credibility, because regulations should be fairly simple, understandable and accessible to perception, as well and compact and repetition free. In addition, not all the provisions of the regulatory legal act represent legal provisions directly regulating social relations, although those provisions are of regulatory and official nature. For example, many regulatory legal acts have a preamble[239], which formulates the principles and objectives of regulation and sometimes gives definitions of the terms used, etc.

Therefore the structure of the legal provision, as a rule, does not coincide with that of an individual article of the regulatory legal act. Moreover, the structural elements of an individual legal provision are extremely rarely presented in a single article of a regulatory legal act. Structural elements of the legal provision can only be defined through the use of techniques and methods of interpretation of the text of the regulatory legal act or of a combination of such acts, taken as a system.

Thus, the legal provision is a general rule of conduct seeking to regulate a certain form of public relations as established or authorized by the state and protected from violations by state enforcement measures.

3.5 Review of Draft Laws

 

In literature the notion «review of draft Laws» is understood as a special examination conducted to assess the quality of draft laws, their compliance with the Constitution and current legislation, to forecast possible impacts of the future law issued based on the current draft law.

The Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 highlights the importance of legal regulation of all kinds of scientific review of the draft regulations by determining applicable criteria, objectives and stages of their implementation. This approach will provide for a full accounting of financial, economic, social and political implications of the regulations in the course of law-making[240].

Appraisal of draft legislation of the Republic of Kazakhstan is regulated by the Law of the Republic of Kazakhstan as of March 24, 1998 «On Legal and Regulatory Framework», article 22 of which stipulates the objectives of the scientific review of the draft legislative acts. Draft legislation can be subject to scientific review (anti-corruption, legal, linguistic, environmental, financial, etc.), depending on the legal relationships governed by these regulations.

Draft regulatory legal acts being presented for consideration by the Parliament of the Republic of Kazakhstan shall be subject to a mandatory scientific review depending on the regulated relations, as well as to the scientific anti-corruption review. The following draft regulations are subject to mandatory scientific anti-corruption review:

1) regulatory resolutions of the Government of the Republic of Kazakhstan;

2) regulatory orders of Ministers of the Republic of Kazakhstan and other heads of central state bodies, regulatory decisions of the central government and regulatory decisions of the Central Election Commission of the Republic of Kazakhstan;

3) regulatory decisions of Maslikhats, regulatory decisions of local government offices, regulatory decisions of regional governors.

Scientific anti-corruption review is not performed for the draft legislative decrees of the President of the Republic of Kazakhstan, regulatory decisions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan.

Draft legislative and other regulatory legal acts, the effect of adoption of which poses a threat to the ecological, including radiation, safety, environmental protection, are subject to mandatory environmental review.

The review is conducted to:

1) assess the quality, relevance, timeliness, validity of the draft, observance of human and civil rights set forth by the Constitution of the Republic of Kazakhstan;

2) determine the potential effectiveness of a regulatory legal act;

3) identify possible negative implications of adoption of the draft law as a legal act.

In accordance with the aforementioned Law, a Resolution by the Government of the Republic of Kazakhstan on May 30, 2002 No.598 «On measures to improve the standard-setting activities» defines the objectives of the review as well as the procedure, terms and conditions of conducting and financing of scientific review. This Resolution approved the Rules for scientific review, according to which draft legal acts should be subject to relevant scientific review (legal, economic, environmental, financial, criminological, anti-corruption, etc.) depending on the legal relationships governed by the draft. Russia and Belarus followed a similar legal way[241].

The Government of the Republic of Kazakhstan takes continuous measures aimed at improving the legislative activities and the quality of draft laws.

So, the Government of the Republic of Kazakhstan adopted a decree «On measures for further improvement of legislative activity» as of February 2, 2009, No.15-P, which stressed that the Ministry of Justice of the Republic of Kazakhstan shall strengthen control over the quality of law-making by improving the quality of scientific and anti-corruption review of the draft laws, constructive discussion of the drafts in the Parliament of the Republic of Kazakhstan, including with participation of experts involved in scientific legal, anti-corruption and other review of the draft laws, etc.

The procedure for preparation, execution, coordination, voting on draft laws is defined in the Regulations of the Government of the Republic of Kazakhstan, which was approved by the Government of the Republic of Kazakhstan on December 10, 2002, No.1300.

According to the regulations of the Government, the developer of the draft law ensures that the draft goes through an appropriate scientific review, the opinion of which is of advisory nature (except for the opinion of the state ecological review, which is mandatory for all legal entities and individuals).

The stated opinions shall be obligatory presented ​​by the developer to the Office of the Prime Minister in the state and Russian languages, along with other materials accompanying the draft law. In case of a negative opinion of scientific review (with the exception of the state environmental review, comments on the results of which must be addressed in the draft law) state body - the developer of the draft law independently makes a decision on the finalization of the draft law in accordance with the proposals of the expert opinion, as well as on a repetitive or additional review.

In case of rejection of the recommendations of the expert opinion on the draft law, the developer must outline a well-grounded rationale for rejection in the data sheet accompanying the draft law.

If the draft laws affect interests of private entrepreneurs, such drafts shall be sent to an accredited association of private entrepreneurs, sectoral interests of which are directly affected by the draft law, to get an expert opinion, which are advisory in nature and represent mandatory attachments to the draft laws before they are adopted[242].

In order to improve performance of scientific review, changes were made (Resolution of the Government of June 4, 2009, No.822 «On Amendments and Additions to Some Resolutions of the Government of the Republic of Kazakhstan») with a view to optimize the procedures of scientific review of the draft laws. In particular, tasks and stages of scientific review were reconfirmed, and timing was reduced from 30 to 15 calendar days. This decree introduces changes and additions to the rules of scientific review as approved by the Government of the Republic of Kazakhstan of May 30, 2002, No.598 «On measures to improve the standard-setting activities», to the Resolution of the Government of the Republic of Kazakhstan of December 10, 2002, No.1300, «On the Regulations of the Government of the Republic of Kazakhstan», and to the Resolution of the Government of the Republic of Kazakhstan of August 21, 2003, No.840 «On approval of the organization of legislative work in the authorized bodies of the Republic of Kazakhstan».

In addition to these regulations governing the review of draft laws prior to admission to the Majilis of the Parliament, the decree of the Office of the Parliament Majilis of the Republic of Kazakhstan of January 27, 2003, No.1741-II BM also approved the Provision on the procedure for scientific review of draft legislation. This Regulation provides that the draft legislation initiated by the Government of the Republic of Kazakhstan and envisaging - in accordance with the Law of the Republic of Kazakhstan «On Legal and Regulatory Framework» - a requirement for a scientific review may be submitted to the Parliament Majilis only in the case of a relevant expert opinion. In case of absence of the stated opinion the Office of the Parliament Majilis returns the draft legislative act to its initiator without registration under the Regulations of the Parliament Majilis of the Republic of Kazakhstan.

In accordance with the said Regulations, scientific review may be conducted for the draft legislation initiated by the deputy (deputies) of the Parliament or by the Government of the Republic of Kazakhstan. It is mandatory to conduct scientific review of the draft constitutional laws and codes, as well as legislative acts on amendments and revisions thereof.

In addition, issues of scientific and other types of review of the draft laws are addressed in separate legislative acts. For example, the Law of the Republic of Kazakhstan «On the Assembly of People of Kazakhstan» stipulates that one of the activities of the Assembly is to participate in social and political review of the draft laws related to the issues of the national policy. The Law of the Republic of Kazakhstan «On International Treaties of the Republic of Kazakhstan» requires a scientific review of international treaties to which the Republic of Kazakhstan intends to become a party.

Mandatory scientific review is conducted for the following types of legislation subject to ratification:

- draft international treaties - before they are signed;

- international treaties to which the Republic of Kazakhstan intends to become a party - before a decision about their ratification or acceding to them by ratification is made.

The strategy of gender equality in the Republic of Kazakhstan for 2006-2016, approved by the Decree of the President of the Republic of Kazakhstan on November 29, 2005, No.1677, noted the need to introduce regulations for mandatory gender review of all current and future regulatory legal acts with a view to reduce social risks and possible damage due to the neglect of gender issues.

However, review of draft laws may involve also representatives of non-governmental organizations, businesses, etc.

The Public Chamber under the Parliament Majilis of the Republic of Kazakhstan, one of whose tasks is to conduct the review of draft laws, takes part in the review of draft laws within its jurisdiction.

Appraisal of draft laws may also involve representatives of various non-governmental organizations, international and independent experts. We should note the active participation in this matter of the Atameken Union NECK which expresses its opinion on various issues related to business, taxation, etc.

It should be noted the role of the Parliamentarianism Institute under the Nur Otan NDP (established on October 29, 2007), whose activities are closely connected with the legislative process.

For more efficient use of modern science achievements in the national law-making it would be useful to examine the relevant experience of other countries, where such practice was incorporated in the political culture long ago and brings very good results.

In Europe, the society can influence the content of the draft laws through the deputies of lower chambers of parliament in the initial stage of preparation in the sectoral (responsible) committee (responsible committee). In Western literature the term «assessment of the draft law» is used more often as compared to «scientific and legal review» - term used in Kazakhstan. However, these concepts can be equalized. As a rule, the assessment of the draft law before and after its adoption involves participation of a special service of the Parliament and the Government, experts, academicians, political parties and citizens.

For example, the European Parliament, the Council and the Commission signed an agreement of December 22, 1998 on the basic guidelines for the quality of legal drafting within the European Union (the agreement was drawn up after the Birmingham Declaration of 1992 and a number of other documents[243]). As a result, various institutions of the European Union are working to improve the skills and knowledge of the staff of special structures for legal drafting: through training and development of uniform standards. For example, one of the training sessions presented the experience of Slovenia, where Parliament has a Legislative and Legal Service, whose mission is to develop the opinions and comments about a particular draft law: its compliance with the Constitution, other laws, legal system as a whole, on compliance of a particular draft law with international law, including the European legislation, on assessment of the rationale for the adoption of the draft law.

The Swiss experience is interesting since it contains several mechanisms for the assessment of the draft laws. First, in 1999, the need to evaluate the draft laws was enshrined in the Constitution of the country (Article 170). Second, since 1996 the country has had a Swiss Association for Legislation Assessment established by the representatives of scientific community. Since 1982, the Swiss Association for Legislation Assessment operates as a non-governmental organization whose members may be physical or legal entities[244]. In 1990, the Parliament established a special body for assessment of draft legislation - Service under the Monitoring Committee (oversees commercial activities of the administration), and the body of the financial audit[245]. In addition to the organizational measures to assess the draft legislation, the Government committed to provide each draft law with a report forecasting how the draft will operate. Also, the mechanism of «experimental laws» which are adopted for a certain period of time works to identify problems and to establish the need for regulation of certain relations by this law[246].

In recent years, Kazakhstan has been paying great attention to the anti-corruption measures, which also include bringing national legislation to international standards.

Let us consider the details of scientific anti-corruption review of the draft legislation, whose objectives are:

1) identification of provisions that contribute to corruption offenses;

2) development of proposals to address the identified gaps in the draft legal act under consideration;

3) development of standards for draft regulations in the form of recommendations that prevent corruption offenses;

4) general assessment of consequences of adoption of the draft legal act in terms of the possibility of corruption offenses;

5) determination of possible effectiveness of combating with anti-corruption offenses[247].

In this regard, we should mention the Anti-Corruption Forum of Nur Otan NDP, held November 6, 2008, where the Head of the State pointed out that»...all laws and regulations should be subject to mandatory anti-corruption review. Status of this review must be secured by law»[248].

Anti-corruption review was included in the review practice not so long ago, but quickly proved its value and soon exceeded the number of other review. The staff of the Kazakh Humanitarian Law University (KHLU) conducted 2551 anti-corruption appraisals in 2007-2010[249].

Scientific review of draft laws and regulations as well as of concepts of draft laws is conducted by scientific institutions and higher educational institutions of corresponding specialization, as well as by experts being scientists and specialists, depending on the content of the drafts and the concepts of draft laws under consideration.

To this end, the Ministry of Justice of the Republic of Kazakhstan organizes annually tenders public procurement of services for the scientific review of draft laws and scientific review of the concepts of draft laws. Today, the main participants in these tenders are: the Institute of Legal Research and Analysis; Institute of Legal Monitoring, Verification and Analysis; Kazakh National University named after Al-Farabi, Eurasian National University named after Lev Gumilev; Kazakh Humanitarian Law University, etc.

In our opinion, the anti-corruption review is an essential element of the national anti-corruption program. Exception of the provisions creating conditions for corruption is the purpose of the anti-corruption review of the draft laws being developed.

The Head of the OSCE Centre in Astana A.N. Keltchewsky noted that the anti-corruption review of regulatory legal acts is a relatively new tool for Kazakh law. Despite some developments, we should recognize that best practices that would allow for efficient review of both the adopted laws and draft laws under preparation, have not been developed yet. The UN Convention against Corruption obliges the state participating in the convention «to periodically evaluate relevant legal instruments and administrative measures with a view to determine their adequacy in terms of prevention and combating corruption». In this regard, the use of preventive anti-corruption measures aimed at identifying and addressing legal prerequisites of corruption can be identified as a priority area for action in the Republic of Kazakhstan. Anti-corruption review must permeate all stages of the legislative process[250].

Taking into account that Kazakhstan is developing a large number of regulations of various levels, and that the implementation of the draft law would require a significant budget, the Republican Budget Commission made a decision for a by-phrase financing of anti-corruption review: it approved the allocation of funds from 2010 on for the anti-corruption review of draft resolutions of the Government of the Republic of Kazakhstan, and from 2011 on - for the draft decisions of the Central Election Commission of the Republic of Kazakhstan, acts of central and local government bodies, the size of which shall be specified in the course of formulation of the national budget for the financial year.

In our view, Kazakhstan today has a legal and regulatory framework governing the scientific review of draft laws, has institutions with qualified scientific staff, however, there are still some problems that need to be addressed. Thus, the disadvantages are:

- no requirement for mandatory participation of some experts in the meetings of working groups of the Majilis and (or) of the Senate to provide explanations on the review opinion;

- no requirement to conduct an additional review after making changes and revisions to the draft law;

- no regulations for sectoral reviews.

Professor J.D. Busurmanov notes that»... reviews carried out and draft laws developed are not always of proper quality, many of them are in serious need of improvement. For example, while considering the outcome of the legal scientific review to the Draft Law of the Republic of Kazakhstan «On amendments and revisions to some legislative acts of the Republic of Kazakhstan on investment and exports», it became clear that almost two-thirds of the text of the opinion is copy-pasted from thesis works of Russian scientists[251]...»

Often, it is not the required scientific legal review that Parliament of the Republic of Kazakhstan gets, instead it gets a high-school write-off. This practice does not help but hinders the legislative work of the deputies of the Parliament of the Republic of Kazakhstan.

 The Head of the OSCE Centre in Astana A.N. Keltchewsky in his speech at the international round table organized by the Legal Board of Nur Otan NDP on «Improving the quality of review of draft laws», drew attention to the following important aspects:

1. Review of draft laws is an essential element of the lawmaking process. For the laws to be universally accepted by the citizens and thus efficiently implemented, the legislative process must be open and transparent. The same also fully applies to the review.

2. Increase citizens’ participation in rulemaking implies awareness of the society about a draft law.

3. Development and support of research centers and national human right institutions which conduct reviews should also be a priority. In many countries, review of draft laws for compliance with key human right treaties is performed, for example, by the Institute of the Ombudsman, provided that such an institution meets the Paris principles and has sufficient resources. Kazakhstan has a potential in this respect for further development of this issue[252].

In order to improve the quality of law-making, the Ministry of Justice as the coordinator of the legislative activities of the Government, and the Parliament hold conferences, seminars, round-tables, and meetings. These events many times discussed the issues of improving the quality of draft laws presented for consideration of the Parliament of the Republic of Kazakhstan, as well as of scientific and anti-corruption reviews being conducted. The issue with the quality of scientific review is very important.

The Committee on Legislation and Judicial and Legal Reform of the Parliament Majilis of the Republic of Kazakhstan has consistently paid its attention to the issues of quality of scientific review of draft laws. In order to fully discuss the issue with representatives of the government agencies, scientists and experts a round-table discussion on «Improving the quality of the review of draft laws» was held in 2010. Comments and suggestions for improving the quality of review of draft laws were presented at this round-table.

The following recommendations were developed in order to improve the efficiency of scientific and legal review of draft laws:

1. Develop uniform, evidence-based approaches to the contents and structure of the review opinion (given the peculiarities of each review type), which will allow for full consideration of the draft laws, more detailed analysis of proposals to improve the draft law, and to objectively assess the quality of the findings of scientific review.

2. The Ministry of Justice of the Republic of Kazakhstan shall organize an annual seminar to train experts providing opinions on draft legislation

3. Make arrangements for the scientific review of the final version of the draft law, that is, immediately before its presentation to the Parliament Majilis of the Republic of Kazakhstan

4. Extend the term of scientific review to 25 days, as the period of 15 calendar days does not allow for a thorough analysis of all the criteria of scientific review.

5. Make participation of representatives of other sectors - in addition to legal and economic, etc. - in the scientific review mandatory[253].

The quality of scientific review is crucial for the deputies. With that, the developers, citing the advice of scientific experts, do not always reflect their opinion or disagreement with certain conclusions of the scientists and specialists in the notes. There is also a need for legislative regulation of this gap. Some scientists believe that the scientific review of draft laws shall be in the form of an independent law, and point to the need for a radical revision of the place of the legal scientific review in the legislative process.

In our opinion, the review of draft laws is an important component of the quality of legal drafting and, therefore, requires personal responsibility and principled position of experts and scientists.

3.6. Systematization and codification of legislation

 

The presence of a large number of regulatory legal documents necessitates their continued processing, ordering, i.e. their systematization.

The Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 determined that in order to improve the effectiveness of rule-making it is necessary to continue systematizing of the current legislation and further consolidation by legislation branches[254].

Activation of law-making and the associated steady increase in the array of regulatory legal acts stipulate the need to improve the systematization of legislation. According to Dr. of Law S.A. Tabanov, it is now not high enough, both institutionally and methodically. Sometimes there is no understanding of the essence of this activity; it is interpreted in multiple ways[255].

Systematization of legislation is sometimes equated with registration and classification[256] of legal acts, and with maintenance of their master copy. According to some authors, the systematization of legislation solves other problems[257].

According to S.A. Tabanov, codification is the highest form of systematization of legislation[258]. However, systematization deals with a ready legislative material, whereas codification is, in fact, the creation of new laws and regulations. That is why it is necessary to recognize that the traditional break down of systematization to the types does not reflect the status quo. Codification does not fit into the framework of systematization. Instead, it is an independent and a fundamental form of improvement of the legislation[259].

Codification is a significant change in the current legislative system. Codification lies either in the development of a new act, which did not exist in the active legislation, or in such a processing of an earlier existing act, which leads to a fundamentally different legal regulations. The codification process cancels outdated legal provisions, develops new provisions, eliminates loopholes in the legislation as well as contradictions between laws and regulations.

The codification is carried out only in a formal manner and by strictly defined state authorities. The most intense codification is associated with certain stages of social development, which bring about significant changes in social relations, requiring a fundamentally new legal assessment[260].

So, if codification is the creation of a legal act based on a number of regulatory legal acts, then, systematization is a harmonization of the existing regulatory material, bringing it into a single system for the purpose of convenience.

Issue of systematization and recoding of the regulatory legal acts is outlined in chapter 9 «Systematization and Registration of the legal acts» of the Law of the Republic of Kazakhstan «On regulatory legal acts».

For example, Article 46 of the stated Law stipulates that public bodies adopting the regulatory legal acts shall conduct registration and systematization of these acts, maintain control copies of the acts adopted by them, and introduce all the current changes and additions to them in a timely manner.

State agencies shall regularly publish collections of the regulatory legal acts they have adopted or shall give instructions on publication of collections to other state agencies and organizations.

According to Article 47 of the aforementioned Law, state registration of the regulatory legal acts shall be exercised by the justice bodies of the Republic of Kazakhstan. State registration includes a centralized collection of such acts, maintenance of the State Registry of regulatory legal acts of the Republic of Kazakhstan and of the reference bank of the regulatory legal acts of the Republic of Kazakhstan.

It is in the competence of the Government of the Republic of Kazakhstan to define the order of maintenance of the state registry of the regulatory legal acts of the Republic of Kazakhstan, as well as the reference bank of the regulatory legal acts of the Republic of Kazakhstan.

To this end, the Resolution of the Government of the Republic of Kazakhstan of April 29, 2006, No.343 approved the Regulations for maintenance of the state registry of regulatory legal acts and of the reference bank of the regulatory legal acts of the Republic of Kazakhstan.

It should be noted that the State Registry of regulatory legal acts of the Republic of Kazakhstan was introduced in accordance with the Decree of the President of the Republic of Kazakhstan on March 4, 1997, No.3379 «On the State Registry of regulatory legal acts of the Republic of Kazakhstan and the measures to streamline their registration» and is maintained by the Republican Center of Legal Information of the Ministry of Justice of the Republic of Kazakhstan and its branches in the regions.

As noted earlier, the Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 associates the prospects for improving legal frameworks with a widespread introduction of information technology in the law-making and enforcement processes.

In our opinion, in order to form the basic components of the e-government infrastructure, to build and effectively manage the data bank of regulatory legal acts it would be optimal to maintain the Reference Bank of regulatory legal acts in the electronic format. At the same time it would be necessary to introduce legislative provisions envisioning an electronic form of regulatory legal act, which will constitute a major step towards informatization of the national law.

At present, in accordance with the Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020, the Government is considering the issue of forming an electronic database of legal acts by transferring the Reference Bank into the electronic format.

According to the Ministry of Justice, a control reference electronic bank of Kazakhstan regulatory acts has been created in the country. However, it is functioning on a commercial basis. It would be correct if the data base is available to the public free of charge. For example, it would be of great convenience if any citizen could print out a needed legal provision marked «from the official source» from home computer, and could use this print-out in the court or in other organizations. Technically, getting a document and an official mark is possible with the help of e-signature and electronic keys which would allow citizens to use the legislation sources in this simple way.

In theory, there are the following forms of systematization of legislation: registration, incorporation, consolidation, codification.

Registration of legislation - means activities aimed at the collection, storage and control maintenance of the state regulations, as well as creation of a search engine that helps search the necessary information in the array of acts registered.

Incorporation of legislation - an activity to streamline existing regulatory legal acts by combining them in a chronological, thematic, alphabetical order (without changing the form and content) in an appropriate official, semi-official or informal collection (digest).

Consolidation of legislation - a compilation of the corresponding set of regulations by one or several interrelated issues into one enlarged act. The new enlarged act fully replaces all the regulations included in it, as it is adopted by the competent law-making body and has all the necessary official requisites of its own. Its peculiarity is that it does not change the content of legal regulation - it only makes changes relating to the form of legislation

Codification of legislation - lawmaking activities of the state aimed at serious quantitative and qualitative processing of the form and content of legislation by creating a new, consolidated, systematic (unified, legally and logically coherent, internally and externally consistent) regulation with increase level of stability.

Let us look at the codification of legislation in more detail as recently scientists and government bodies started to raise questions regarding the codification of law in Kazakhstan.

Codification types:

а) general codification (completes with adoption of the codification acts in all major branches of law);

б) sectoral codification (covers the relevant branch of law: publishes a civil, criminal codes, etc.);

в) special (comprehensive) codification (aimed at issuing acts governing the relevant legislative institutions: Customs, Tax, Forest Codes, etc).*)

In our opinion, the main and the ultimate goal of codification - creation of a new codification act.

It should be noted that there are only a few studies dedicated to the problems of codification, which is confirmed by the Moscow State University Professor L.V. Golovko: «It is true that, essentially, there are no special doctrinal papers devoted to the institute of codification as such in Russia. This is not only strange, but also disturbing, given our passion for the «codes «and «codifications», the number of which is becoming bigger and bigger»[261].

This topic is also relevant for Kazakhstan. According to scientists, no fundamental research has been done in this sphere. For example, Professor M.Ch. Kogamov while analyzing the paper by the famous French civil lawyer, professor of the University of Montpellier Remy Kabriyak «Codifications» and comparing the described situation with the Kazakhstani practice, comes to the following conclusions

«1. There are no thorough verified scientific doctrine and scientific institute of systematization, including those in the form of codification in the country. There is also no solid monographic work of local scientists on the systematization of legislation, including its codification, as well as overcoming the present crisis of sources of law, which are presented as a large collection of international, national laws and sub-laws of the state.

2. The country also lacks a special committee similar to the French one, which needs to be created with a view to develop and implement a special state program on codification per se.

3. The Institute of Legislation of the Ministry of Justice could be a promising venue in this regard, however, it lacks a special research department which would purposefully study the systematization methodology, including the codification of the law»[262].

The Concept of Legal Policy for the period from 2010 to 2020 determines that the adoption of any code must be preceded by solid rule-making and enforcement practices, its careful monitoring, analysis and assessment, delivered on a systematic basis. The branch of law is to «mature» to the level of codification[263].

 French scientist Remy Kabriyak wrote in his book «Codification»: «In ideal case, codification shall take its place after the rule of law achieves an appropriate level of maturity. Fast-cooked codification can disrupt the natural development of prematurely codified legal provisions and bears a risk to result in failure»[264].

For example, codification of Russian legislation has been a very long historical process, which has lasted for centuries. It was not extremely intensive, was slow, but well founded. Thanks to the selfless work of the famous statesman M.M. Speranskii and his followers, pre-1917 Russia had a quite full, reformed and well systematized legislation. The first codification of Soviet legislation was conducted in 1920’s. In 1922, for example, five codes (Criminal, Civil, Land, Code of Criminal Procedure and the Code of Labor Laws) were adopted. The second codification of legislation in the former Soviet Union was carried out in late 1950's - early 1960's, when new basics, codes and other codified regulations in the main branches of law were adopted.

According to S. Moroz, «with regards to codification one can appeal to the Russian practice for systematization of legislation: the proportion of codes has sharply increased over the last decades - there are now about twenty active codes, and regions have their own codes - a library, a museum, a election code».[265]

We believe the correct opinion belongs to Yu.A. Tikhomirov and E.V. Talapin: it is necessary to define the role of codes in the process of development of the legislation, the time of preparation and adoption in the process of accumulation and synthesis of regulatory material; the form of codes should be adequate to the nature and volume of the relations they regulate[266].

Our codified law also corresponds to the modern development trends. Thus in the times of Kazakh Soviet Republic the number of Codes was 12, now we have 17, and this number will definitely grow. After independence the following new codes were adopted: Budget, Tax, Customs and Environmental.

At the same time the process of codifying national legislation is not homogeneous. As noted at the highest level in some law areas the process is quite intense whilst in the other is stagnant with no clear criteria and codification parameters.

Presently the most arguable and problematic issues are those related to codification of Business (Commercial) Code raised both in Russia and other CIS countries.

Russian scientists justify the need for adopting a uniform commercial code.

For instance according to the ruling civil tradition in Europe a Trade Law is separated from the Civil Law and therefore individual commercial codes are adopted. Thus French Commercial Code was adopted back in Napoleon times in 1807, HGB (German Commercial Code) - in 1897. To support the ground for codifying legislation in the area of commerce there is a fact that in USA where the common law (case law) is used there is also a Uniform Commercial Law.

 Academia generally do not support adoption of such a code referring to the high risk of duplication of the same provisions in two codes - in Civil and Commercial. At the same time Kazakhstan National Economic Chamber «Atameken Union» believes in necessity and importance of developing Business (Commercial) code.

The government of the Republic of Kazakhstan was once instructed to develop reconciled position regarding the rationale for elaboration and adoption of Business (Commercial) code. However this task was not completed yet.

On May 19, 2011, during the meeting of Legal Policy Council under the President of the Republic of Kazakhstan the draft Concept of Business Code developed by the Ministry of Justice was approved[267].

Ministry of Justice was intended in 2011 to develop draft Codes of administrative offences, the new edition, and Administrative Procedure Code.

Ex-senator of Parliament of the Republic of Kazakhstan I.D.Merkel noted that «Indeed separating new branches of legislation cannot happen overnight, it requires through analysis of the current legislation and discussions among academia»[268].

Kazakhstan’s academia, practitioners and experts actively discuss problematic issues of systematization of national legislation. Many conferences and round tables are also devoted to this subject.

In 2011 during the Conference «Pressing issues of systematization of national legislation» the following recommendations were derived:

- continue work on systematization of national legislation using various instruments: incorporation, consolidation, record keeping of regulatory and legal acts;

- see the opportunity for reviewing classifier of legislation branches approved by government Statute as of December 26, 2002, No.1378 given the provisions of Legal Policy Concept for 2010 - 2020 and modern challenges;

- elaborate uniform parameters and clear criteria for codification as well as consolidated (complex) laws while taking into account that codification shall cover those mature and relatively stable legislation branches together with branches where there is an objective social need for legal clarity due to presence of a big variety of isolated provisions in isolated regulatory and legal acts referring to the same regulation subject;

- consider an opportunity for reviewing the list of social relations in the Law of the Republic of Kazakhstan «On Legal and Regulatory Framework» currently regulated by codes and allow for covering these social relations by consolidated laws;

- consider an opportunity for systematization of legal enactments and by-laws of the Republic of Kazakhstan by means of incorporation[269].

We agree with the opinion of scientists and practitioners on the absence of doctrine papers, consistency in this type of work and the need for establishing special Commission on Codification etc. Though we might note that one shall take very weighting approach to codification. Legal Policy Concept says: «When it comes to codification then this supreme form of legislation systematization of shall be used in a weighted and quite limited way and mainly covering mature branches of legislation, those areas of homogeneous social relations where is codification is vital for effective legal regulation»[270].

Therefore codification of legislation is very complicated process. It is required to conduct fundamental researches considering lessons learnt, elaborate clear criteria and parameters of legislation codification while defining future codification trends. It is also needed to study international experience especially of France and Germany.

 

3.7. Law Monitoring

 

Legal Policy Concept of the Republic of Kazakhstan for 2010 - 2020 puts special emphasis on forecasting and analytical support of lawmaking activity which will be based on continuous monitoring of law branches and law systems development trends, analysis of enforcement practice of regulatory and legal acts[271].

In the theory of law monitoring is described as systematic activity on evaluation, analysis, forecasting and generalization of legislative activity outcomes and law enforcement.

Given that the heart of society’s legal life is the law itself huge attention is paid to the creation of law (where the rule-making is intermediary). So legal monitoring mainly covers all types of law-making preparatory works. They are aimed at ensuring that law-making process is of a good quality, justified, consider all the variety of current life factors and circumstances. Law being an outcome and product of legislative activity should be rooted in real life, be suited «after the image and likeness» of life, respond to its needs, facilitate satisfying of those needs[272].

However monitoring is not limited to only supporting the law-making activity. Norms elaborated at this stages are not the ultimate goal and do not complete the legislative process. On the contrary the key thing is to ensure that provisions start having regulating, enabling, governing effect on social relations so that their provisions are virtually grow into social processes and impact people’s behavior. In this regard monitoring is aimed at identifying, analyzing and proposing measures ensuring enforcement of law provisions to a greater extent, turning into real life everything that is embedded in those provisions.

According to E.A.Nugmanova, the essence of legal monitoring will differ: 1) monitoring as a condition for success of provision -making activity of the state; 2) monitoring as a process of law enforcement; 3) focus of monitoring activity - optimal balance of national legislation and principles and provisions of international law[273].

Yu.A.Tikhomirov defines legal monitoring as «dynamic organizational and law institution of informative and evaluation nature penetrating in all the stages of management, economic activity, emerging at all the levels of law formation and effect»[274].

Legal monitoring is a generic, multidimensional notion covering several areas of activity on ensuring high quality of all the society legal life processes; some countries applied different models at the same time.

Monitoring process is regulated by the Law of the Republic of Kazakhstan «On Legal and Regulatory Framework». According to Article 43, Clause 1, item 2-1 of the Law one way to ensure legitimacy of regulatory and legal acts is to perform continuous monitoring of by-laws and regulations.

As per item 2 of the same Article the following bodies and state officials ensure legitimacy of regulatory and legal acts within the competence established by the Constitution of the Republic of Kazakhstan and other legal acts:

1) Constitutional Council of the Republic of Kazakhstan;

2) courts;

3) Prosecutor General of the Republic of Kazakhstan and its subordinate prosecutors;

4) Ministry of Justice of the Republic of Kazakhstan and its territorial branches;

5) state bodies - with regard to regulatory and legal acts issued by subordinate institutions;

6) authorized bodies that issued regulatory and legal acts and/or developed them - with regard to by-laws and regulations issued and/or developed by them.

The earlier version of Article 43-1 of the aforementioned Law specified that authorized bodies should perform continuous monitoring of regulatory and legal acts issued and/or developed by them in order to reveal provisions of law that are contradictory to the legislation of the Republic of Kazakhstan or outdated, to assess effectiveness of their administration and timely make changes and/or amendments or declare them to be no longer in force.

Some scientists believe that legal monitoring tasks envisaged by the given Law are much narrower than they should be. The key objective of monitoring measures in lawmaking area is to ensure the highest level of compliance of the law being developed and all its provisions with the current society living conditions, needs of staged country development, nature of economic, social-political, ethnical and demographic, spiritual, interpersonal and other civil relations. Only by meeting this key (substantive) objective an overall success of lawmaking process can be ensured[275].

To this end the following objectives of monitoring laws can be defined:

- evaluating efficacy of operation of laws;

- acquiring information for comprehensive law analysis;

- based on monitoring outcomes elaborating proposals on its further improvement;

- improving law enforcement practice in state bodies’ activity;

- revealing social reasons for law ineffectiveness[276].

We believe that final destination of legal monitoring is establishing effective lawmaking mechanism and elaboration of proposals on improving current legislation.

Another significant monitoring objective is to analyze outcomes of the recently completed legislative regulation in order to continue developing regulatory acts where earlier defined and constantly fine-tuned legislative strategy and tactics will be further embodied[277].

A noticeable work in this area is performed by Federation Council of Russia which for several years in a roll is publishing Annual Report «On the Status of Legislation in Russian Federation» and organizes its public hearings.

Sweden has also positive experience in this area. In this country once some time elapses since law adoption research might be conducted aimed at finding out its real effectiveness. Such researches are performed mainly by respective ministries or ministry. Retrospective evaluation may be carried out by responsible body or special committee. Bodies authorized to control law enforcement are obliged to report on how particular law works and give proposals on its improvement[278].

The earlier version of the Law of the Republic of Kazakhstan «On Regulatory and Legal Acts» mentions the need for monitoring to be conducted by authorized bodies only with regard to by-laws and regulations developed or issued by them. Thus legal enactments and practice of their enforcement by the legislature are not subject to legal monitoring. We assume that all mass of legislation and law enforcement practice shall be subject to monitoring. It is required to implement a full-scale legal monitoring mechanism that would include apart from monitoring of by-laws and regulation, but the whole mass of legislation of the Republic of Kazakhstan including international treaties.

Monitoring of regulatory acts is done based on the Rules for conducting monitoring of by-laws and regulations approved by the Statute of the Government of the Republic of Kazakhstan as of August 25, 2006, No. 817. These Rules establish the monitoring procedure of by-laws and regulations by state bodies that have the right to issue them according to their competence set forth by the legislation of the Republic of Kazakhstan and/or who have developed them[279].

According to those Rules monitoring of by-laws and regulations is continuously performed by structural subdivisions and/or agencies of the authorized body with regard to the regulatory acts developed and/or issued by the respective authorized body (including those on earlier issued regulatory acts implemented by the authorized body). Inside the authorized bodies coordination of operations of monitoring subdivisions is performed by legal departments and in case of absence of eth latter - structural subdivisions defined by the head of the authorized body.

Overall coordination of authorized bodies’ operations on monitoring of regulatory acts is carried out by the Ministry of Justice of the Republic of Kazakhstan.

When conducting monitoring subdivisions consider:

1) by-laws developed and/or issued by the respective authorized body (including earlier issued regulatory acts implemented by the authorized body);

2) regulatory and legal acts including normative resolutions of the Constitutional Council and Supreme Court of the Republic of Kazakhstan related to regulation subject of the by-laws being considered;

3) results of analysis and summing up citizen’s requests as well as considering acts of prosecutor’s supervision, courts’ decisions received by the authorized body, related to administration practice of by-laws and regulations as well as recommendations of the Interagency Commission on improving current legislation in the area of corruption counter-action;

4) data (including statistical data) on enforcement of regulatory acts and proposals on their improvement submitted by other subdivisions as well as upon the request of the authorized bodies by its territorial subdivisions and/or state bodies concerned etc.;

5) mass media publications and postings on internet resources in general access telecommunication networks related to issuing and enforcing by-laws and regulations;

6) recommendations of scientific and practical conferences, workshops, meetings devoted to the issues of current legislation as well as materials presented by non-governmental organizations.

As per the data of the Ministry of Justice of the Republic of Kazakhstan in order to implement Statute of theя Government of the Republic of Kazakhstan as of December 31, 2009, No. 2325 «On Strategic plan of the Ministry of Justice of the Republic of Kazakhstan for 2010 - 2014» and in compliance with the agreed Plan of legal monitoring State Enterprise «Institute of Legislation of the Republic of Kazakhstan» has elaborated analytical notes for 50 regulatory acts based on the outcomes of legal monitoring conducted as of 2010. This Institute has earlier done similar work having monitored 50 regulatory acts in 2008 and 16 laws in 2009.

The Decree of the President of RK on approval of the Rules for development, concurrent review, and submission for signing of draft laws and instructions of the President of RK, enforcement of acts and orders of the President of the RK and monitoring of statutory decrees of the President of RK dated April 27, 2010 (No. 976) serves as the legal framework for monitoring of the statutory decrees of the President of RK.

Statutory decrees of the President of RK are monitored to detect the legal rules, which do not conform to the laws of RK and are obsolete, as well as to evaluate effectiveness of implementation and timely adoption of the measures for making amendments or invalidation. This monitoring is conducted on an ongoing basis by the public authorities that developed these decrees. The decrees developed by the Presidential Administration are monitored by its structural units that developed these decrees at first hand. By the 30th day of the last month of the half-year period, the public authorities provide the Presidential Administration with the information on the findings of monitoring and, if required, proposals on appropriate amendments or invalidation. Requirements to the information to be submitted and the procedure for interaction of the structural units pertaining to monitoring of the decrees are stipulated in the orders of the Chief of the Presidential Administration. The Presidential Administration keeps an electronic register of the decrees to collect, register and store the information about the decrees used for their monitoring.

Kazakhstan scholars and experts addressed the issue of improvement of the legal monitoring procedure and often made critical comments. According to I.D. Merkel[280], «shortcomings of the current system of monitoring of the by-laws, inter alia, include the lack of coordination and departmental approach».

G.S. Sapargaliyev pointed out that the shortcomings of the law making process were related to the lack of monitoring of the legislation (legal, economic, environmental, and sociological, etc.). For instance, in 2009 the Land Code of RK was amended 5 times. Analysis of these amendments showed that an adequate in-depth scientific study and monitoring could have helped avoid the shortcomings of the laws in the process of enactment[281].

We think that the shortcoming of this work is that it was actually limited to monitoring the status of the by-laws and their scope.

The role of legal monitoring is essential, as it is the system of the law and rule making monitoring that serves as an important tool for ensuring proper quality of public decision-making. In fact, the main purpose of the law-making process is to achieve maximum effectiveness of the laws being enacted, i.e. to ensure a positive impact of the laws upon the public relations under regulation, to attain the goals set and to implement the associated objectives. In this case, legal monitoring should also play an important role. In support of this, we would like to cite I.D Merkel, who said that «the process of determining the law effectiveness is also directly related to monitoring of the laws, which should serve as an integral part of the law making and enforcement process».[282]

It should be noted that earlier the Legal and Regulatory Framework Law of RK did not contain the concept of «legal monitoring».

We find it legitimate that significant amendments were made to Article 43, 43-1 of the Legal and Regulatory Framework Law of RK pursuant to the Law of RK dated April 1, 2011 (No. 425-IV) on amendments to some legal enactments of RK pertaining to the legislation improvement. In particular, the concept of legal monitoring of the legal and regulatory framework was introduced - activities of the government bodies carried out on an ongoing basis to collect, evaluate and analyze the information about the status of the legislation of RK, as well as to forecast its development and practical application trends to identify the rules of law, which do not conform to the laws of RK, are obsolete and prone to corruption, as well as to evaluate effectiveness of their implementation.

As mentioned above, continuous monitoring was previously envisaged only in relation to the by-laws, which, from our point of view, was not correct and no wonder that the legislator had to make significant amendments. Currently, sub-Clause 2-1 of item 1 of Article 43 «Measures for enforcement of laws and regulations» stipulates legal monitoring of the laws and regulations.

In addition, Article 43-1 «Legal monitoring of laws and regulations» of the above Law stipulates that «the authorized bodies shall conduct legal monitoring of the laws and regulations adopted and (or) developed by these bodies and take timely actions to amend or invalidate them».

Let us consider the difference between the laws and regulations and by-laws.

The concept of laws and regulations is much broader compared to the concept of by-laws. According to the Legal and Regulatory Framework Law of RK, a legal enactment is an official document written in a prescribed form and adopted in the referendum or by an authorized body or an official of the country, which stipulates, amends, and suspends the rules of law.

Laws and regulations are subdivided into fundamental (Constitution, constitutional laws, codes, laws, decrees of the President of RK that have the effect of laws, other statutory decrees of the President of RK, etc.) and derivative laws (procedural rules, technical regulations, standards of public services, etc.).

Laws and regulations cannot be issued by the regional divisions of the central executive bodies and public authorities directly subordinated and accountable to the President of RK and by local executive bodies authorized by Akims and financed from local budgets.

By-laws refer to other non-legislative regulations issued based and in pursuance of the Constitution and legislative enactments of RK pursuant to the laws of RK (sub-Clause 3 of Article 1 of the Legal and Regulatory Framework Law). Thus, a by-law is a legal action of a government body, which has a lower legal force compared to a law. By-laws are adopted based and in pursuance of laws.

Monitoring of laws is an important tool to achieve their effectiveness. A major purpose of legal monitoring is a comprehensive use of the results of monitoring of the current legislation and law enforcement practice in the law making activities of the Parliament and other government bodies.

Thus, legal monitoring of laws and regulations is a continuous process, which is aimed at improvement of the national legislation and is of a permanent and cyclical nature, as the analysis of legal enactments helps revealing gaps, contraventions, and conflicts and making proposals on amending the laws.

In conclusion, it should be noted, that the legal monitoring institution is relatively new and requires a more comprehensive study. We support the point of view of A. Musin, the Chairman of the Majilis of the RK Parliament, with regards to establishment of an effective system of legal monitoring - consistent actions for evaluation, analysis, forecasting and summarizing of the results of the law making and law enforcement activities[283].

Monitoring of legislation should serve as an important tool to improve quality of the law-making activities, to help avoid concealed lobbying of one’s interests when working on future laws, to enhance the legal drafting methodology, as well as to help conduct an effective anti-corruption review. According to M.T. Baimakhanov, «monitoring should be considered as one of the tools to rectify the current situation in the legal area and as the means for improvement of affairs in the legal system, which were found as a result of the long search[284].

We believe that the above amendments made in 2011 to the Legal and Regulatory Framework Law of RK will make a specific contribution to improvement of the legal monitoring process and will result in a systematic and comprehensive analysis of all the legal enactments, acts of the Government, decisions of central and local government bodies, which form the basis of the national legislation.

 

3.8. Interpretation of Laws

 

Law interpretation is a traditional topic in the legal science and is one of the central elements in the process of law enforcement, analysis of legal rules, legal classification and awarding of judgments. The issue of the general concept of law interpretation is traditional in this sense. It continues to be controversial in the national literature. Key points of view can be classified as follows: а) interpretation is the elucidation of the law meaning; б) interpretation is the clarification of the law meaning; в) interpretation is both elucidation and clarification of the law meaning. It seems that looking at law interpretation as at both elucidation and clarification of the law meaning is the most appropriate and acceptable point of view. As for the first two points of view, they appear to be incomplete, one-sided and do not cover the entire variety of the activities characterizing understanding and explanation of the meaning of legal provisions[285].

Law interpretation implies understanding and explaining its meaning, goals, social purpose and practical relevance.

Interpretation refers to understanding and explaining of something[286]. Law interpretation is a mental process aimed at, firstly, identifying the meaning of law provisions by an interpreter (elucidation) and, secondly, bringing this meaning to the attention of other concerned persons (explanation). Elucidation and explanation of the legal provisions are two important results of the process of interpretation; however, the process of law interpretation is often limited to elucidation, i.e. «one’s own» understanding of the meaning of a law provision without informing other persons of this result.

Interpretation is an essential component of the law enforcement process; moreover, law enforcement cannot exist without interpretation.

In theory and practice there are methods and types of interpretation - special techniques, rules and means for understanding the meaning of the legal provisions used consciously or intuitively by a person to make the legal phenomena clear. Depending on the tasks of the interpreter, the following methods of law interpretation are used:

- the lingual method (linguistic, philological, grammatical). Purview of a legal provision is expressed in the wording of laws and regulations. This method appears to be the initial method of elucidation of a legal provision. It lies in determining the meaning of words and establishing the lexical relations among them;

- the functional method that explores the factors and conditions, under which the provision is being interpreted and implemented;

- the historical method, which lies in identification of the meaning of a legal provision by retrieving the historical data on its adoption, purpose and grounds that preconditioned its introduction into the system of legal regulation;

- the systematic method, which lies in elucidation of the meaning of a legal provision by comparing it with other provisions, identifying its relations in the overall system of legal regulation and a specific place in a regulation, sector or law system[287].

Subject to the legal force of the interpretation results, the scientific literature distinguishes official and unofficial interpretation. Official interpretation is made by competent government bodies and officials, is universally binding or at least is binding to a range of individuals. Unofficial interpretation is made by the persons and organizations, which are not vested with powers of authority, and is of advisory or informative nature.

Types of official interpretation:

- authentic - explaining the purview of a legal provision by the body, which established it;

- delegated (lawful) - interpretation of a legal provision by the body, which did not set it but is authorized to provide such explanations;

- standard - interpretation of a legal provision, which is legally binding for application in practice in all cases, when this provision is used;

- causal - interpretation of a legal provision in the course of consideration a particular legal case, it is binding only in relation to this case.

Unofficial interpretation of law is also differentiated by its parties. Thus, there are the following types: commonplace interpretation (is made by the citizens, who do not have legal degrees, for their own needs), special juridical (is made by lawyers, judge, attorneys, notary officers, prosecutors in the course of their professional activities), and doctrinal (is made by lawyers-scholars in the research process).

Methods and rules for interpretation. Methods of law interpretation are distinguished into general scientific methods of cognition (analysis and synthesis, induction and deduction, abstraction, analogy, modeling, etc.) and special, i.e. legal as such (dogmatic analysis, method of legal comparativistics, historical-legal method, etc.); and subject to the purpose of the specific interpretation, methods of other sciences are used (sociology, linguistics, formal and modal logic, psychology, economics, etc.). Methods of semiotic analysis of the legal texts, which allow for maximum consideration of the cultural context of the source of law being interpreted, stand apart.

Legal science and law enforcement practice have developed a set of rules for interpretation of legal provisions, the most important of which are the following:

-»golden rule» (terms and other words in the text of a statute are given the meaning, which they have in the respective formal language, unless there are grounds for giving them another meaning);

- scientific, technical and other special terms used in the text of a statue are given the meaning, which they have in a respective area of review, unless the statute stipulates another purview of a specific term;

- in case of authentic (i.e. given by the lawmaker) or lawful (i.e. given by an official authorized body) explanation of terms used in the text of a statute, the interpreter should follow this explanation;

- when interpreting an ambiguous text, preference should be given to the most fair (from the point of view of a specific legal system and social relations) possible purview;

- similar constitutional principles, international agreements, practice of the supreme judicial authorities of the country, as well as common generally accepted doctrinal views of experts in this particular area of law should be considered in the course of interpretation;

- in some cases it is necessary to identify the goals pursued by the lawmaker when it developed a particular legal provision [288].

In addition, the fundamental legal principles established in the doctrine and directly or indirectly enshrined in law should be taken into account in the course of interpretation (Lex specialis derogat generali, Lex superior derogat legi interior, Lex posterior derogat lex prior)[289].

The specific nature of law interpretation is based on its relations with the ultimate outcome of elucidation and explanation of the meaning of legal provisions, on which the practical effect of the interpretation is conditional. The following types are distinguished in theory and practice: verbal (adequate), broad (extensive) and restrictive interpretation of law.

Verbal interpretation is the most typical and widespread type of interpretation, when the «spirit» and «language» of the law are congruent, i.e. verbal expression of a legal provision and its actual meaning are identical.

However, when, due to objective or subjective reasons, a verbal expression of the lawmaker’s intention and the actual content of this intention expressed in the legal provision do not match, interpretation is considered to be extensive or restrictive.

In case of extensive interpretation, an actual meaning and purview of a legal provision is broader compared to the verbal expression. Restrictive interpretation is applied when an actual meaning of a provision is narrower than its verbal expression. In the course of extensive and restrictive interpretation an actual intention of the lawmaker’s intention is identified, hence, such an interpretation does not make any changes to the true meaning of the legal provision.

When constructing the meaning of a legal provision, at the same time an interpreter acts as a critic of a provision, that is, establishes whether a provision of the Constitution conforms to other statutes of higher legal force, whether it does not conflict with the regulations of a similar legal force.

The success of the interpretation process is contingent on many factors, including technical improvement of the text of the statute being interpreted, the level of an interpreter’s professional qualifications.

When moving from theory to practice of interpretation, it should be noted that in Kazakhstan there is no special law regulating the issues of interpretation. Russia also lacks this type of law; however, the Constitution of the Russian Federation contains some provisions on law interpretation. Many other countries have statues on law interpretation, for instance, Canada’s Interpretation Act 1975.

The European system involves founding of special or quasi-judicial agencies to interpret the Constitution, which hold a special place in the judiciary hierarchy. For example, the Constitutional Court in Italy, the Constitutional Tribunal in Poland, the Constitutional Council and in part the State Council in France[290].

Interpretation of laws in France is made by the State Council. This body consisting of 300 members is headed by the Prime Minister, who can be deputized by the Minister of Justice[291].

Only one chapter - Chapter 8 «Official interpretation of laws and regulations» in the Legal and Regulatory Framework Law covers the interpretation issues.

Pursuant to Article 44 of the above Law, in case of ambiguity and differing interpretations of a legal enactment, contraventions in the practice of its application, official interpretation of the legal provisions incorporated into this enactment can be made. It is prohibited to make amendments to the legal enactments in the process of their interpretation. Norms of statutes should be interpreted in full compliance with the provisions of the Constitution of RK. The meaning of bylaws should be interpreted in full compliance with the statutes. Official interpretation of laws and regulations is compulsory when implementing the legal provisions incorporated into these laws and regulations, including when applying them.

An important provision is enshrined in Article 45 of the above Law: official interpretation of bylaws shall be made by the agencies or officials that adopted (issued) them.

At the same time, Clause 6 of the Regulation of the Government of RK stipulates that official interpretation of the legal enactments of the Government shall be made by the Ministry of Justice when instructed by the Government or the Prime Minister.

When comparing the provision of Article 45 of the above Law and Clause 6 of the Regulation of the Government, it should be noted that the Regulation does not duplicate the requirement of the Law, but somewhat expands the powers of the Ministry of Justice of RK and entitles it to interpret legal enactments of the Government.

In our opinion, the Legal and Regulatory Framework Law of RK contains major requirements to interpretation. This Law duplicates the article of the Constitution to the extent that the official interpretation shall be made by the Constitutional Council; however, there is no word about the official interpretation of laws, though Clause speaks about the official interpretation of bylaws. Y. Abdrasulov writes the following: «…What has to be done in case of vague understanding of legal provisions, especially its conformity to the Constitution, when it is necessary to clarify on the essence of the legal provisions, but the lawmaker cannot find a single form for verbal expression, which would equally be comprehensible to all - to experts and to citizens? In any case, the legislator will not be able to avoid complex wording that will require explanation. That is where the official interpretation of a statute by a competent body is required, which must be reflected in the Constitution or in the Legal and Regulatory Framework Law»[292].

Let us consider what provisions are enshrined into the Constitution in relation to law interpretation bodies. There are three of them: Constitutional Council of the Republic of Kazakhstan, Supreme Court of the Republic of Kazakhstan and indirectly General Prosecutor’s Office of the Republic of Kazakhstan.

Sub-Clause 4 of item 1 of Article 72 of the Constitution of RK stipulates that the Constitutional Council shall provide for the official interpretation of the constitutional provisions. Article 17 «The scope of functions of the Constitutional Council of RK» of the Constitutional Law of RK on the Constitutional Council of RK stipulates that the Constitutional Council shall provide for the official interpretation of the constitutional provision pursuant to sub-Clauses 4, 5 of item 1 of Article 72 of the Constitution.

For instance, in September, 1997 the Chairman of the Parliament Majilis of RK appealed to the Constitutional Council of RK for an official interpretation of articles 53-57 of the Constitution of RK. The appeal raised the issue whether it possible or impossible to expand the powers of the Parliament, as well as to empower the Parliament with the function of interpretation of the laws of the country, including constitutional laws, as Clause 13 of Article 53 of the Constitution of RK stipulates that «at the joint sessions of Chambers the Parliament shall exercise other powers vested by the Constitution». The grounds for this appeal to the Constitutional Council were the results of discussion of the draft Legal and Regulatory Framework Law of RK of at the plenary session of the Majilis of the Parliament, where it was questions what entity shall provide official interpretation of legal enactments, including laws of the country.

The decision of the Constitutional Council as of October 15, 1997 on the official interpretation of articles 53-57 of the Constitution of RK, which define the powers of the Parliament and its Chambers, articulates that «the Constitution of RK shall establish an exhaustive list of the Parliament’s powers and does not stipulate changing of the scope of its powers by adopting an ordinary or a constitutional law. The procedure for expanding or narrowing the Parliament’s powers is possible only by making amendments to the Constitutional Law of RK according to the procedure established by item 1 of Article 91 of the Constitution of RK.

The conclusion of professor Abdurasylov is quite critical: «…the statement of the Constitutional Council of RK on impossibility to elaborate on sub-Clause 13 of Article 53, which stipulates that «at the joint sessions of Chambers the Parliament shall exercise other powers vested by the Constitution», by using the exhaustive list of the Parliament’s powers in the Constitution of RK as the justification, is not entirely correct both from theoretical and practical perspectives. The Constitutional Council of RK did not ensure implementation of the major rule, which accompanies any interpretation of legal provisions: interpretacio cessat in Claris (interpretation shall be deemed after establishing a clear result). In the course of this interpretation a clear result was not achieved, that is why the legal print media in Kazakhstan still raise the issue of what is an official body for law interpretation? Based on the decision of the Constitutional Council, the Parliament has not established the official body responsible for law interpretation in the Legal and Regulatory Framework Law of RK. The Constitution of RK does not reveal this body either»[293].

Some scholars suggest vesting the Constitutional Council with interpretation of the constitutional laws, in particular, professor A. Kotov notes that the Constitutional Council shall be entitled to official interpretation of the constitutional laws as statutes that continue, develop and supplement the purview of the Constitution of RK[294]. This suggestion calls for a very serious discussion.

Article 81 of the Constitution of RK provides that the Supreme Court of RK is the highest judicial agency for civil, criminal and other cases within jurisdiction of local and other courts, oversees their activities according to the forms of action established by law and provides explanations on the judicial practice.

Accordingly, article 17 «Powers of the Supreme Court» of the Law of RK on Judicial System and Status of Judges of RK stipulates that the Supreme Court of RK shall provide explanations on judicial practice.

It should be noted that the Law of RK on the Prosecutor’s Office dated December 21, 1995 (No. 2709) contains two provisions pertaining to law interpretation. Thus, pursuant to article 18, the system of legal enactments of the Prosecutor’s Office includes: prosecutor’s supervision acts: protest, decision, instruction, statement, sanction, reference, representation, application, notice, construction of the law. In addition to this provision, the Law contains Article 26 «Construction of the law», which stipulates that in the presence of the sufficient grounds to believe that ignorance or wrong understanding of laws by individuals or legal entities can entail its violation of the laws or rights and freedoms of citizens or the general public, the prosecutor shall explain the purview of the law.

In case of non-compliance of the draft legal enactments with the legislation, the prosecutor shall explain the requirements of the law to a body or an official that adopts this legal enactment (for instance, only in 2010 the prosecutor’s authorities provided relevant explanations 10,500 times).

Therefore, the Constitutional Council of RK and the Supreme Court of RK are the entities authorized at the constitutional level to officially interpret the provisions of the Constitutions and to provide clarifications on the judicial practice; whereas the powers of the General Prosecutor’s Office are not directly enshrined in the Constitution. At the same time it should be noted that explanation of the laws by the prosecutors’ authorities cannot be fully viewed as law interpretation, as it is causal.

It should be noted that article 64 of the previous Constitution of RK dated 1993 contained the provision, under which the Supreme Court of RK had to provide official interpretation of the laws of the country. Later, this provision was not incorporated into the Constitution of 1995.

A controversial opinion is set in the Kazakh society in relation to the official interpretation of laws, as the Constitution of the country does not vest any government body with this function; as a result the official interpretation of laws, except for the Constitution of RK, has not yet been legally settled to the full extent.

Thus, the current legislation of RK does not provide for an independent body entitled to officially interpret laws. A number of authors, including both practitioners and legal scholars, put forward an idea about the need for granting this right to the Parliament of RK.

The position of academician G. Sapargaliyev is of interest: «One more gap in the powers of the Parliament of RK. The Constitution does not provide for the right to interpret the laws either by the Parliament as a whole or by its Chambers. The right to interpret the laws is not granted to any supreme government body. The Constitution provides for the right of the Constitutional Council to make official interpretation of the provisions of the Constitution. There is a huge need for interpretation of the current legislation. Authentic interpretation of laws can be exercised only by the Parliament. As the law enforcement practice shows, the lack of official interpretation of laws leads to filling the legal space with competing interpretations from various government bodies. An optimum solution of this problem could be an amendment to the Constitution about the powers of the Senate of the Parliament to interpret the laws.»[295]

Supporters of granting the powers on official interpretation of legal provisions to the Parliament of RK also expressed other positions: «this right is becoming an urgent need for the Parliament, as the current legislation defines the entities for official interpretation of the Constitution and bylaws; however, the issue of the entities vested with the right to interpret the laws is still a significant gap in the law enforcement practice. A number of deputies are also inclined to think that the laws should be interpreted by the branch of government, which adopted them»[296]; «officials and citizens often request the Parliament to interpret various provisions of respective statutes. However, the lack of the legal provision stipulating the entity for official interpretation of statutes gives rise to differing constructions of their purview. The right of official interpretation of laws should be legislatively granted to the Parliament of RK.»[297]

However, some scholars do not support this point of view[298]. First, the current Constitution of RK stipulates the exhaustive list of the Parliament’s powers, where a legislator is not defined as an entity for law interpretation. Second, it is known that the purpose of law making is to establish the rules of law, whereas the purpose of law interpretation is to elucidate and construct its purview. In the course of law interpretation it is not permitted to make new regulatory directions or to amend any current provisions. However, it is quite difficult to meet these requirements in practice. Incorrect construction of legal provisions will always be imminent for the interpreter and as a result it can distort the meaning of some legislative settings. Moreover, in some cases it occurs unconsciously, in other cases it is committed intentionally, when a legislator for some reasons (intention to improve the statute, to reflect the new social setting in the statute, to consolidate the change in its position in relation to a particular problem, etc.) changes the purview of this statute. Besides, this intention of the legislator is quite natural. Having its law making authorities, the legislator does not see anything wrong in actual changing of the law purview through its construction. As correctly mentioned by the prominent Russian scholar S. Pigolkin, this practice is «clearly undesirable and contrary to the interpretation purpose, which is to identify the meaning that was read by the legislator into the existing statute»[299].

The position of professor Zh. Busurmanov is as follows: «There is no need to vest the Parliament of the country with the right to interpret the laws, as the two-chamber Parliament cannot and should not re-interpret the laws adopted by it». He believes that «the Parliament, being a political body, will be more inclined to interpret the laws based on political affiliations at a particular moment, whereas law interpretation calls for a pronounced position with in-depth knowledge of the theory of law being the only criteria - and no policy at all.»[300]

There is also another opinion. Former Chairman of the Supreme Court of RK, K. Mamin, wrote that «the Supreme Court could become an official body for law interpretation», as it was the judicial branch that in practice was exposed to all the advantages and disadvantages of the legislation and could become an official body that would provide clarifications on the laws in case of legal conflicts[301].

Undoubtedly, the role of the Supreme Court of RK in the area of consolidation and analysis of the law jurisdiction is substantial. The outcomes of this activity help the courts in their law enforcement operations. It should also be noted that Article 4 of the Constitution entitles the Supreme Court to adopt regulatory resolutions.

Other opinions are expressed in relation to vesting the General Prosecutor’s Office of RK with the right to officially interpret the laws. The analysis of the current provisions of the Constitution in terms of powers of the General Prosecutor’s Office showed that it could only provide for causal interpretation of statutes in the course of its law enforcement activities, which, of course, should not hold a general meaning. Therefore, vesting the General Prosecutor’s Office of RK with the right to officially interpret the current statutes provokes serious objections.

However, professor I. Bakhtybayev notes that «the law explanation function is not included into the total functions of the Prosecutor’s office recognized by law. But the structural analysis of the actual activities of the prosecution agencies, as well as awareness of the needs for real formation of the legal state acutely calls for its clear definition and statutory consolidation in the Law of RK on the Prosecutor’s Office. Therefore, the appropriate provisions of the Law should define the purpose, powers and legal measures of the Prosecutor’s Office for implementation of this function, which will certainly facilitate promotion of the prosecutors’ activities when performing this important state activity»[302].

The position of A. Daulbayev in relation to the entity for law interpretation is also noteworthy. According to him, «…vesting the President of RK with the powers for official interpretation of legal provisions results not only and not just from having an opportunity to acquire new powers according to the current Constitution without amending the fundamental law of our country. This function of the President of the country derives from his constitutional powers, such as participation in the legislative activities and the opportunity to solely implement legislative powers, etc.»[303].

In conclusion, it should be noted that a definite answer to the question of what government body can interpret the laws has not yet been generated among the Kazakh scholars and practitioners.

Given the fact that law interpretation holds a prominent place in the complex processes of the law influence upon the lives of people, interaction of law with the real relations, with people’s actions through their consciousness, understanding and digestion of legal provisions, it is necessary to work on this issue in depth - of course, through the clear legislative practice. It seems appropriate to make amendments to the Legal and Regulatory Framework Law of RK that would provide for the legal provision on a specific entity for official interpretation of laws.

We believe that introducing the official law interpretation institution in Kazakhstan can help solve one more important issue - reducing the number of laws on amending the current statutes and the number of bylaws - and can contribute to the stability of legislation.

 

3.9. Administrative Office of the Majilis (Lower Chamber)

 

Throughout the history of the activities of the professional, democratically elected, two-chamber Parliament of RK, the efficiency of the law-making process in the Parliament is improving and the legal framework of the country is annually updated with the essential legal enactments aimed at supporting economic, social, political and administrative reforms implemented in our country, which requires the Parliament to work in an accurate and well-organized manner.

The administrative office of the Majilis of RK along with the deputies plays a significant role in this labor intensive process.

It is the staff of the administrative office that implements the hidden part of work. The administrative office of the Majilis exercises an important supplementary function, which generally stays in the background, so to say «behind-the-scenes» of the official reports.

After the Majilis receives a draft law, its administrative office examines it for compliance with all the requirements established by law, carries out an expert review and prepares it for consideration at the plenary session of the House of Parliament of RK.

From the very first days of operations of the two-chamber Parliament of RK, the Administrative Office of the Majilis actively participated in refinement and improvement of the parliamentary procedures, forms and methods of interaction of the Majilis with the Presidential Administration of RK, Government of RK, Constitutional Council and other central and local government bodies.

Another important factor is that during the elections to the supreme legislative authority and transfer of powers to the newly elected members of Parliament it is the Administrative Office of the Chamber that is entrusted to ensure consistency of operations and continuity of the operational outputs of the Chamber and to be the guardian of the well-established parliamentary traditions.

It all goes to show that the Administrative Office is an important element in the law-making process and it is its activity that is completely devoted to and to a large degree contributes to the fact that the Parliament Majilis has taken a noteworthy place in the government system and enjoys a high authority with the Kazakhstan society.

If we look at the past times, the Administrative Office of the Parliament Majilisof RK of the 1st convocation consisted of 9 structural divisions, including the Secretariat of the Chamber’s Chairman, Legislation Department, Organizational Control and Personnel Department, Department for Relations with the Committees, Department for Inter-parliamentary Relations and Protocol, General Department, Public Relations Service, Editing and Publishing Department and Information and Analysis Center, which support activities of the deputies of both Chambers of Parliament.

Based on the experience to date, the structure of the Administrative Office of the Majilis is now arranged in such a way as to meet the requirements of the deputy corps in its law-making and representation activities to the maximum effect.

It should be noted that the structure and staffing levels of the Administrative Office are determined by the Office of the Majilis within the budget allocated to fund the activities of the Parliament.

The total number of staff of the Administrative Office of the Parliament Majilis of the 4th convocation is 245 employees, including more than 100 people with two higher education degrees and 16 doctors of philosophy.

Working for the Administrative Office, of course, requires appropriate qualifications and professional skills, that is why the performance review system is in place and contains clear criteria, which allow for an objective evaluation of staff. Moreover, every year graduates of the Public Administration Academy under the President of RK and foreign universities under the Bolashak international program of the President of RK are recruited by the Administrative Office of the Majilis.

Employees of the Administrative Office of the Parliament Majilis are public employees, enjoy all the respective rights and simultaneously take full responsibility imposed upon them. At the same time, employees of the Administrative Office provide for operations of the supreme legislative body of the country, which results in specific features built in their work compared to the public employees working in the executive agencies.

The Administrative Office of the Majilis has experts specialized in the areas of law, economics, finance, public administration, political science, journalism and in other fields complying with the profiles of sectoral committees of the Majilis of the Parliament. An average age of public employees of the Administrative Office of the Majilis is 39 years. About 50 percent of employees are women. An average length of public service of the employees is 12 years.

The Administrative Office actively works on introduction of new automated systems to support the legislative activities of the Parliament Majilis in all the fields.

Constitution of RK serves as the legal basis for operations of the Administrative Office and its public employees. The key objective of the Administrative Office of the Parliament Majilis has always been and remains a reliable and effective provision for implementation of constitutional responsibilities by the deputies.

The Chairman of the Chamber is responsible for general management of the activities of the Administrative Office of the Majilis of the Parliament.

The Head of the Administrative Office directly leads and organizes the operations[304], he/she is approved for the position, released from office and reports to the Office of the Majilis of the Parliament.

The Administration Office of the Majilis and its structural divisions have been and are still managed by highly qualified managers who have a substantial length of public service and solid practical experience.

Currently, there are 15 structural divisions in the Administrative Office of the Majilis and effectiveness of the law making activities of the Chamber to a large extent depend on their concerted efforts and interaction.

Divisions that support the activities of the standing committees of the Majilis directly provide for implementation of the legislative powers of deputies. They are also responsible for participation in drafting opinions of the committees of the Majilis in relation to the draft laws reviewed by the Chamber, consolidation of the proposals and comments to the draft laws and regulations.

In 2002, to create optimal conditions for the law making activities of the deputies of the Majilis, assistant deputies were instituted. Currently, this category of public employees of the Administrative Office, being as part of the divisions supporting the committees’ operations, is making a strong contribution to improvement of quality of the laws adopted by the Parliament.

The Secretariat of the Chairman of the Parliament Majilis provides an organizational, informational and legal support to the Chairman of the Parliament Majilis of RK and his/her deputies.

The Legislation Department conducts legal reviews of draft laws and regulations, as well as amendments made by the deputies and committees to the draft laws.

It should be noted that every year, in the course of one session only, more than 150 draft laws and regulations submitted for consideration of the Majilis are usually subject to legal review.

The Organizational Control and Personnel Department provides for organizational and protocol support to conduction of joint meetings of the Chambers of Parliament, plenary sessions of the Majilis, meetings of the Office, conciliation and interim commissions, parliamentary hearings, «government hours», as well as handles personnel management activities in relation to the deputies and staff of the Administrative Office and provides them with advice on public service issues.

The Information and Analysis Department of the Administrative Office of the Majilis manages preparation of background materials, analytical reports to the draft laws considered by the Majilis, provides information for the purpose of exercising of the deputies’ rights to legislative initiative, and provides library and bibliographic support to the members of Parliament. Moreover, this Department arranges activities of the Public Chamber, which is an advisory and consultative body of the Majilis of the Parliament.

Editing and Translation Department edits draft laws in Kazakh, translates proposals and comments of the deputies to the draft laws into Kazakh, as well as simultaneously interprets at the plenary sessions of the Parliament, Majilis, Office and working bodies of the Majilis.

Documentation Support Department arranges the introduction of the uniform system of document control system, accepts, registers, records, delivers and dispatches official documents, provides the deputies of the Majilis with the texts of draft laws and other documents submitted to Majilis for consideration.

The Public Relations Service of the Parliament Majilis of RK provides for mass media coverage of the law making and representation activities of the deputies, arranges press-conferences and interviews in print and electronic mass media.

The International Relations and Protocol Department provides for interaction of the deputies of the Majilis with parliaments of foreign countries, international and inter-parliamentary organizations.

Given the great importance of the international experience in refining the administrative and legal procedures in the course of legislative activities, the Administrative Office of the Majilis actively works on strengthening cooperation with administrative offices of legislative bodies of Russia, Ukraine, Turkey, France, Germany, the Netherlands, USA, and various global and regional organizations.

Various activities arranged upon the initiative of the Majilis of the Parliament, during which the staff of the Administrative Office of the Parliament Majilis take important organizational and technical measures, have a substantial positive influence. International forums, conferences and workshops are becoming socially important events, which promote a constructive and meaningful dialogue of the deputies with the executive bodies, scientific community, non-governmental organizations, and foreign parliaments.

It should also be noted that the vast majority of the staff of the Parliament Majilis vigorously perform their duties and are well aware of how high is the privilege and responsibility to directly participate in development of the national parliamentarianism and formation of Kazakh national identity.

The daily hard work of the staff of the Administrative Office that calls for continued attention, responsibility, and commitment helps take care of the logistical support, search for information, feedback provision, solution of organizational issues for the deputies and helps them fully focus on the laws being adopted.

The deputy corps and the Administrative Office are integral. They have one common goal - to prepare laws the quality of which bespeaks how our society will live and develop. Therefore, the work conducted by the Administrative office is an essential element in the law making process. It is worthy to mention a high level of responsibility of the staff of the Legislation Department and the Department for Relations with the Committee for Legislation and Judicial and Legal Reform under the Parliament Majilis of RK when reviewing the draft laws at the meetings of the working groups and committees.

 

Section 4. Public Institutions of the Parliament Transparency of the Parliament’s Activities

4.1. Political Factions

 

Factions in the Kazakhstan parliamentarianism are a completely new legal institution. Factions of political parties hold a prominent place in the parliamentary mechanism of most of the countries. Establishment, international arrangement and functioning of the Parliament in the countries with multi-party systems are closely linked to formation of the deputy associations, where the main criterion for their establishment is precisely the party affiliation of the deputies.

As to the start-up of this institution in general, it should be noted that its historical roots go back centuries. The Roman Senate can be mentioned as an example, the structure of which included prototypes of the contemporary political factions established based on political beliefs of the members of senate groups. As far back as three and a half thousand years ago people’s representatives clustered into organized groups to advocate their interests and interests of voters.

Formation of parliamentary factions was directly related to emergence and development of political parties in Europe and USA in the early XIX century. The first groups of people’s deputies emerged spontaneously and were based on common political attitudes of the latter. Over time there appeared the need for legal regulation of the deputy associations; therefore, the constitutions, laws, regulations of representative bodies provided for certain rights and the scope for parliamentary factions.

What is meant by the parliamentary factions? Various definitions are used in the special literature. According to one of them, a faction (lat. fractio - breaking; English - group, faction; French - fraction) is 1) an organized group of members of a political party pursuing its policy in the parliament, local governments, and public organizations; 2) a separate part of a political party that has its own platform[305].

There are different names for deputies’ groups in legislation and practice of modern states. For instance, in Germany they are also called factions, whereas in France and Italy factions are called parliamentary groups, and in Austria and Poland - party clubs[306].

The parliamentary practice of a number of developed countries shows that party factions are the main centers for discussions and debates within the parties and encourage the parties to further develop and improve their performance.

In Kazakhstan formation of the institution of party representation in the supreme legislative body of the country has a relatively short period, which dates back to the 2nd convocation of the Parliament of RK.

In May 1999, amendments were made to the legislation on election that significantly changed the legal framework of the election system allowing the political parties to actively participate in formation of the Majilis of the Parliament.

In autumn 1999, pursuant to the constitutional amendments, election took place to the Mazhilis of the Parliament of RK of the 2nd convocation based on a mixed scheme (67 deputies under the majority system and 10 deputies by proportional representation), which gave the political parties an opportunity to be elected to the Parliament from the party based on proportional representation.

All the political parties that have a right to submit party lists for election campaigns for 10 seats at the Majilis submitted their lists. Based on the election results, only four parties cleared the 7% threshold - Otan, Civil, Agrarian, and Communist parties[307].

Since the beginning of the 2nd convocation of the Parliament 4 factions of the national political parties (Otan, Civil, Agrarian, and the Aul peasant social and democratic party) and 9 deputy groups have been established. Analysis of the activities of the party factions of the 2nd convocation in the Parliament showed some problems pertaining to the stage of their formation. The truth is that a distinctive feature of the Parliament of this convocation is the lack of the provision in the Regulation that prohibited the deputies elected with the support of a specific political party to change membership in factions. This formed the basis for an essentially new phenomenon typical of many parliaments - «migration» of deputies, which caused the instability of party positions. Deputies often expressed opinions that differed from the general position of a party or a faction. Moreover, many members of the factions of the Civil, Agrarian, and Otan parties belonged to such deputy groups as Parasat, Zher men Yel, and Aul. It also gave rise to inconsistency of the opinions and positions[308].

Elections to the Parliament Majilis of RK of 3rd convocation took place in September 2004. 12 political parties participated in these elections, including 4 - as part of two electoral blocs.

Based on the party lists under the proportional representation system, within the common national electoral constituency the following deputies were elected: 7 deputies from the Otan Republican Political Party and 1 deputy from each of the following parties: Assar Republican Party, Ak Zhol Democratic Party, AIST electoral bloc (Agro-industrial union of workers), the Agrarian party, and the Civil party of Kazakhstan[309].

Since the beginning of work of the Parliament Majilis of RK of the 3rd convocation, two factions and four deputy groups have worked in the Chamber. Factions in Parliament were formed not only based on consolidation of deputies elected by the party lists but also by attracting other deputies on a voluntary basis. This made the composition of the factions unstable and not bound by specific reciprocal commitments and guarantees.

Lobbying of the political parties that had their factions in the Mazhilis of the Parliament of RK gained momentum. It was the political factions that introduced the political ideas, which were widely discussed and, as a rule, generated by the political parties. Factions permanently opposed to the Government, primarily, in the form of discussion of the decisions being made and by sending the deputies’ inquiries. This led to detection of loopholes and errors made by the Government and measurably improved its performance[310].

Analysis of the activities of the party factions of previous convocations shows that a set of ideas and proposals made by the parties in relation to the legislation was quite diverse: from reforming the political system to the initiatives on social attractiveness, which enjoyed public support. Therefore, the initiatives proposed by the faction deputies slightly differed from the political and legislative initiatives of non-party deputies because they were more adjusted in terms of organizational and legal issues, were more prone to social changes, the need in which was reflected in the party programs and political platforms of most of the political parties.

The year 2006 made the political history of the country, as at their congresses Assar Party, Civil and Agrarian Party of Kazakhstan made a decision to merge with the Otan Republican Political Party, and at the 10th extraordinary congress Otan RPP was renamed to the Nur Otan People’s Democratic Party. Thus, pursuant to the resolution of the Office of the Majilis of the Parliament, the deputy faction of the Otan RPP was renamed to the deputy faction of Nur Otan PDP.

Starting from amendments to the Constitution of RK of 2007 our country implemented a practical transition to the political system with a balanced position of all the branches of government, where the role of the legislative branch was significantly strengthened. The constitutional reform and the ensuing elections to the Mazhilis of the Parliament took the parliamentary system of the party representation to a whole new level having heralded a new stage of integration of parties into the government system.

In August 2007, elections to the Parliament Majilis of RK of the 4th convocation took place based on the proportional system. A substantial advantage of the Nur Otan People’s Democratic Party at these elections (it received 5,247,720 votes or 88.41 percent of the total number of votes[311]) led to formation of the one-party Parliament and establishment of one faction of the Nur Otan PDP at the 4th convocation.

A wide cross-section of the Kazakhstan society is represented in the faction of the Nur Otan PDP in the Majilis of the 4th convocation: managers of all levels, agrarians, manufacturers, businessmen, professionals from academic, cultural, and education communities, representatives of mass media, professionals engaged in international relations.

It should be noted that there are well known institutions of legislative bodies, where one party is represented in the Parliament. When reforming the government, i.e. during the transition period, one-party parliaments worked in such countries as Sweden, Japan, and India. At present, one-party parliaments operate in such countries as Singapore, Malaysia, and Turkmenistan.

The international experience of faction operations in parliaments shows that political party factions have a significant effect on activities of the representative body - preparing agenda of plenary sessions, setting directions of debates, voting, using various forms of control over the executive branch. Negotiations in relation to formation of the government are held at the level of factions.

In addition, in many countries the significance of the political party factions goes far beyond the parliamentary activities, as they also actively affect the formation of the governing bodies of their parties and their policies.

It should be noted, however, that strengthening the managerial role of the Parliament, changing the principles of its formation and shifting the center of gravity of the political process towards the party foundation largely altered the architecture of the political system of Kazakhstan. Thus, the status of political parties and their role in the life of the country changed[312].

The international practice shows that activities of parliamentary associations are supported by the staff of Parliaments’ administrative offices and by their own administrative offices, the structure and staffing of which are determined by the factions given their proportional representation in the Parliament. The staff number of the administrative offices is usually proportionate to the number of the faction members: 1 expert supports activities of 1-10 members of the faction. Status of staff of the administrative offices of factions and secretariats differs in various countries - from public employees to technical staff among assistants of the faction deputies hired on a contractual basis in some European countries.

One of the classics of political science M. Duverger, author of the well-known monograph «Political parties», wrote that «the proportional representation system tends to lead to polarized multi-party system with rigid, independent and stable parties». According to Duverger, «a contemporary party is the party capable of exercising the universal right of suffrage and to win a parliamentary majority by normal use of the democratic society institutions[313].

After convocation party faction (groups) are formed in most parliaments. In the modern context, consolidation of the procedure for formation and rights of parliamentary factions is envisaged in a number of new constitutions, especially in regulations of parliaments (chambers).

Some countries have special laws which regulate the activities of parliamentary factions. For instance, in Georgia the legal status, procedure for establishment and operations of factions are stipulated by the Law on Parliamentary Factions, in Ukraine - the Provision on deputy groups (factions) of the Verkhovna Rada, in Switzerland - Law on Parliamentary Factions and their Secretariats, Uzbekistan has the Law on strengthening the role of political parties in renewal and further democratization of state governance and modernization of the country.

Kazakhstan does not have any special law regulating the factions’ activities. Their activities in the Parliament Majilis are regulated by the fundamental documents: Constitutional Law of RK on the Parliament of RK and the Status of Deputies, as well as the regulations of the Parliament and Parliament Majilis of RK.

Pursuant to the Constitutional Law of RK on the Parliament of RK and the Status of Deputies, deputies of the Parliament are entitled to establish deputy associations in the form of political parties and deputy groups.

A political party faction is an organized group of deputies representing the political party, which is established under the Parliament Majilis to express the interests of a respective political party. Deputies of the Parliament Majilis can be members of the political party factions. A deputy is entitled to be a member of only one faction of the political party (Article 34).

Similar provisions are enshrined in item 156 of the Regulation of the Majilis of the Parliament. A minimum number of deputies of the political party faction is seven deputies of the Majilis of the Parliament.

If we turn to foreign experience, many regulations stipulate the minimum number of deputies entitled to form a faction. Thus, in France the number of deputies is 30 members in the National Assembly and 14 in the Senate, in German Bundestag - 15 deputies, in Brazil - 1/10 of the total number of the Chamber deputies. As a result of introduction of this minimum requirement, minority groups of deputies cannot have a combined influence upon various aspects of the parliamentary activities and participate in formation of intra-parliamentary bodies. It is common practice to justify setting of such requirements by the need to improve the parliament’s performance.

Regulation of the RK Parliament (item 123) vests the faction representatives with the rights required for implementation of the faction activities.

In particular, on behalf of the faction they are entitled:

- to make comments and proposals on the agenda of the Parliament’s and Chambers’ meetings and the procedure for consideration and merits of the issues being discussed;

- to express opinions on candidates for officials to be elected or appointed by the Parliament and its Chambers or to express a consent with appointment;

- to propose amendments to the draft laws, resolutions and other statutes adopted by the Parliament and its Chambers;

- to introduce the citizens’ applications, decisions made by the faction or deputy group to the deputies of the Parliament;

- to request materials and documents required for activities of the deputy associations from government bodies and officials;

- when closing debates to insist on speaking on behalf of the deputy association. In this case the presiding body must give the permission to speak[314].

Apart from the abovementioned fundamental documents, activities of factions in the Parliament Majilisare also regulated by the Charter of the Nur Otan PDP and the Provision on the Nur Otan PDP faction in the Parliament Majilis of RK.

The party charter provides for accountability of the party faction in the Mazhilis to the Chairman of the party and its superior and steering bodies. Item 7.7 of the Charter directly stipulates that «...a member of the party elected as a deputy of the representative body shall be a member of the deputy faction in a respective representative body and shall act according to the decisions made by the deputy faction, give explanations of the party decisions at the meetings with voters and report to the respective Office of the Political Council of the Party...»[315].

Activities of the faction in the Parliament Majilis are organized in accordance with the provisions of the Provision on the faction and its respective steering bodies.

The highest steering body is the Assembly of the faction, which determines the strategy and approaches to the faction’s activities in accordance with the party’s position.

The coordination body established under the factions’ head is the Presidium of the faction, which plans, arranges and coordinates activities of the faction, makes decisions on establishment of advisory bodies under the faction and approves the rules for them, as well as discharges a number of other responsibilities related to the activities of the faction[316].

The international practice shows that solidarity voting is typical of the factions formed based on political parties.

Solidarity voting is the party principle of expression of a common position of the faction pertaining to the issues within the competence of the Parliament, Parliament Majilis and faction. Members of the faction must vote in accordance with the decision made by the faction’s Assembly on the solidarity voting at the joint sessions of the Parliament and meetings of the Parliament Majilis of RK on the matter in relation to which a respective decision is made by the faction’s Assembly[317].

A. Musin, the Chairman of the Parliament Majilis of RK noted, «in accordance with the constitutional amendments, the accountability of the members of Parliament is being strengthened along with expansion of powers. The provision on the lack of imperative mandate of deputies was excluded from the Constitution. Thus, a new form of relationships between the deputies and their electorate is established through the party system[318].

In many countries the party factions hold a high position in the parliamentary mechanism. Upon approval of the faction leaders, candidates for steering bodies of the Parliament and its chambers are selected, in addition the lists of chairmen and members of standing and temporary commissions and other bodies of parliament are prepared. All these bodies are usually formed by proportional representation of parliamentary factions.

Most researchers concur that the party representation is one of the democratic methods of organization of the parliament’s activities. It allows for coordination of the activities of the individual deputies, for maximum reconciliation of their attitudes and views and for ensuring the principle of fairness in decision making.

Deputy factions have a great influence upon the activities of the parliament and its chambers. They are involved in setting the agenda of the Chambers, make proposals on the priority consideration of certain draft laws. In some countries voting in parliaments is held by factions, i.e. during the voting the faction head stands up and announces the position of his/her faction - «for» or «against». This occurs, for instance, in the Netherlands. There are also states where factions form the government of the country. Thus, in Great Britain, the leader of the majority faction in the Parliament became the Prime Minister[319].

Sub-Clause 3 of Article 44 of the Constitution of RK stipulates that after consultations with the faction of political parties represented in the Parliament Majilis the President of the Republic of Kazakhstan shall introduce the candidate for the Prime Minister of the country to the Majilis for the purpose of approval and shall appoint this candidate for the position of the Prime Minister with the consent of the Majilis of the Parliament. According to the authors of the academic and research comments to the Constitution of RK, «the most significant aspect of the constitutional reform in relation to the Law dated May 21, 2007, was the fact that prior discussion of the Prime Minister candidate with the factions represented in the Majilis of political parties was brought to the level of the constitutional responsibilities of the President of the country. Only after following this procedure the Prime Minister candidacy can be introduced to the Majilis for approval and further appointment by the Decree of the President of the country (appointment of the current Prime Minister by the President of the country is terminated at his discretion). The main role of Majilis in relation to this key appointment is determined by transformation of this Chamber to the area of concentration of the party representation, which occurs as a result of direct expression of the electorate’s will[320].

In Kazakhstan, the practice of functioning of the deputy factions has a relatively short history. One can say that the legal and empirical basis of the faction activity is still at the stage of formation.

In summary, the suggestions of scholars regarding improvement of the legal framework of the deputy factions’ activities should be noted: «Adoption of a special Faction Law could have a positive impact upon the faction activities; this law should thoroughly address the issues of formation, membership, reorganization and liquidation of these deputy associations»[321].

However, it is necessary to clearly understand that improvement of legal institutionalization of the parliamentary party factions is required as long as it meets the requirements of the today’s socio-political development of the country.

 

4.2. Assembly of Nations of Kazakhstan

 Zhana Kazakhstan (New Kazakhstan) Deputy Group

 

Prior to discussing the role of deputies of the Mazhilis elected by the People’s Assembly, history of its establishment and development should be examined.

When announcing the initiative at the Forum of the People of Kazakhstan (1992), N. Nazarbayev, the President of RK, said, «Not one generation of Kazakhstan created our most important asset - the friendship of people. When rethinking many aspects, we must not squander this wealth and forget our heart-warming tradition. That is why it is necessary to hold this forum on a permanent basis and to establish a new public institution». Thereafter, to strengthen social stability and ethnic harmony, pursuant to the Decree of the President of RK dated March 1, 1995, the Assembly of the People of Kazakhstan was established as an advisory body under the President of RK. The Chairman of the Assembly is the President of RK. Regional assemblies are headed by akims of oblasts and cities of Astana and Almaty.

Since then, the Assembly has become one of the most important institutions of the developing Kazakhstan’s democracy, which is entrusted with the most demanding challenge - to be the guardian of the people’s friendship, harmony and civil peace in the country. The Assembly of the People of Kazakhstan knows no equals in the other countries of the world. Today, the Assembly is a reputable public institution for harmonization of interethnic and interfaith relations. The Assembly and its representatives participate in all important events. Its activities are geared to literally address the vital tasks of the Kazakhstan’s multinational society: forming and spreading the ideas of spiritual unity and preserving friendship of people and ethnic harmony; preventing negative trends in the area of interethnic relations by establishing the uniform system of cooperation of the Assembly with government bodies and non-governmental organizations.

N. Nazarbayev believes that «the Assembly is the cradle of unity and harmony of the country, a blessed «shanyrak» of solidarity and stability»[322]. That is why, since then, the first President of RK has repeatedly taken effective measures to enhance the credibility and efficient performance of the Assembly.

According to A. Vlasov, «the Assembly of the People of Kazakhstan is a unique phenomenon in the post-Soviet space. Russia also has the Assembly, but it does not have the constitutional competence of the Assembly of the People of Kazakhstan.»[323]

«Over the last years the Assembly has come a long way and gained significant experience. It has turned into a fundamental institution for development of interethnic relations and has become a blessed fortress of friendship and mutual respect»[324].

Many famous politicians and public persons point out a high social stability in Kazakhstan. The UN Secretary-General Secretary, Kofi Annan, has called Kazakhstan «an example of ethnic harmony, stable and sustainable development for other countries». When visiting Kazakhstan in September 2001, Pope John Paul II said, «Peace and harmony in the Great Steppe are a pleasant surprise and prove that peace in the multiethnic countries can be preserved.» M. Thatcher wrote, «Pessimists must have thought that the ethnic and religious mix of your people would be divisive and that Kazakhstan would be weakened. But quite the reverse. You stand as an example for others to follow.»

The Strategy of the Assembly of the People of Kazakhstan and a new Provision on the Assembly were approved pursuant to the Decree of the President of RK as of April 26, 2002. These documents define the goals and objectives of the Assembly, the structure and arrangement of activities, as well as main directions of activities.

The working body of the Assembly is the Secretariat, which is a structural unit of the Presidential Administration of RK. The Provision on the Secretariat of the Assembly of the People of Kazakhstan under the Presidential Administration of RK stipulates the tasks and functions of the Secretariat:

- to support powers of the Assembly and its Council in terms of nomination, election, as well as recall and termination of powers of the deputies of the Parliament Majilis of RK elected by the Assembly;

- to support participation of the Assembly in the socio-political review of draft laws on interethnic relations;

- to take part in the review of draft laws, as well as statutes of the Republic of Kazakhstan and acts of the President of RK in relation to interethnic relations submitted for signature of the President of the country.[325]

Meanwhile, formation of the Kazakh identity, participation of the Assembly of the People of Kazakhstan in the processes of democratization of the society and its improvement as an institution for interethnic relations called for additional mobilization of public and community resources. On April 23, 2005 the President of the country issued another Decree on strengthening the institution of the Assembly of the People of Kazakhstan. Functions and powers of the Assembly were expanded by ensuring harmonization of interethnic relations, strengthening of tolerance and trust in relations among members of different ethnic groups; integration of efforts of national and cultural organizations to achieve their goals set. This Decree helped consolidate the rights and responsibilities of members of the Assembly and regional assemblies and raise the status of the working bodies of the Assembly and regional assemblies[326].

In 2007, in accordance with the amendments made to the Constitution of RK, the Assembly of the People of Kazakhstan became a constitutional body that would fulfill one of the major principles of the democratic state - strengthening stability and ethnic harmony, exercising of human rights and freedoms. Sub-Clause 20 of Article 44 of the Constitution of RK stipulates that the President of RK shall form the Assembly of the People of Kazakhstan. Giving it a constitutional status is absolutely justified and legitimate. Pursuant to the Law as of May 21, 2007, another previously unknown institution of national representation was established at the constitutional level - institution for direct election of nine deputies of the Parliament Majilis by the Assembly[327]. Article 51 of the Constitution of RK stipulates that nine deputies of the Majilis shall be elected by the Assembly of the People of Kazakhstan.

Article 4 of the Constitutional Law of RK on the Parliament of RK and the status of its deputies stipulates the following: «Fifteen deputies of the Senate shall be appointed by the President of the country given the need to guarantee representation of the national and cultural and other significant interests of the society in the Senate. Majilis consists of one hundred seven deputies elected according to the procedure established by the constitutional law. Nine deputies of the Majilis shall be elected by the Assembly of the People of Kazakhstan.»[328]

Article 93-1 of the Constitutional Law of RK on elections in Kazakhstan determines the following procedure for holding sessions of the Assembly of the People of Kazakhstan in relation to election of the Majilis deputies: «Voting for deputies of the Parliament Majilis elected by the Assembly of the People of Kazakhstan is held at the session of the Assembly of the People of Kazakhstan convened by the President of RK. The session of the Assembly of the People of Kazakhstan shall be attended by the chairman and members of a respective regional election commission of the capital of the country or the city of the republican status, where the session is held. At least ten days prior to the voting day the Council of the Assembly of the People of Kazakhstan shall notify the Central Election Commission of the place of voting. Facilities for voting for deputies of the Parliament Majilis shall be provided in the premises where the session of the Assembly of the People of Kazakhstan is held. The document acknowledging the session of the Assembly of the People of Kazakhstan on election of deputies shall be the minutes of the session to be submitted to the territorial election commission. The session shall be closed after the respective territorial election commission announces the results of voting held to elect deputies of the Majilis.»[329]

On August 20, 2007, at the regular 13th session, for the first time in the contemporary history, the Assembly fulfilled an important mission - it elected nine deputies of the Parliament Majilis of RK.

At the first open session of the 3rd convocation of the Parliament of RK, when speaking to the deputies, the President of RK noted the following: «For the first time in our history deputies to the Parliament Majilis were elected by the Assembly of the People of Kazakhstan. While representing the interests of all the people of our multinational country, the deputies elected by the Assembly will play a special role in the law making process to preserve and strengthen the interethnic peace and harmony in Kazakhstan.» Since then, the Assembly of the People of Kazakhstan is adequately represented in the Parliament of the country. The deputies elected by the Assembly are not representatives of various Diasporas in the Parliament, but «the envoys of friendship» on behalf of the Assembly.

The need for further consolidation of the society calls for allocation of the parliamentary quotas for the representatives of the Assembly of the People of Kazakhstan - exemplification of the national model of strengthening of the interethnic harmony. «This move is absolutely justified, as it implies active involvement of representatives of various ethnic groups in Kazakhstan in the process of political decision-making. As noted by international observers, such an approach to the complex field of interethnic relations will be also applied by other countries.»[330]

Acquisition of the constitutional status by the Assembly of the People of Kazakhstan and ensuring representation of the Assembly in the Parliament has greatly enhanced its credibility and political heft. Scholars are right when they write that providing the Assembly with the constitutional status, its direct representation in the Majilis of the Parliament, as well increasing of the number of senators appointed by the President of RK after appropriate consultations with the Assembly, bring the mission and authority of the Assembly to the new level and will contribute to further strengthening of peace and harmony in our country.»[331]

Currently, through the group of the elected deputies of the Majilis of the Parliament, the Assembly takes a direct part in the process of reviewing and making the government decisions. This actually implies that all legal enactments adopted by the Parliament are subject to additional review with respect to compliance with the criteria of interethnic harmony, tolerance and equality. The mission of nine deputies of the Majilis is to direct all of their knowledge, energy and effort to further promotion of interethnic harmony, peace and stability in the country. The focus is on legislative activities.

To make the activities of the Majilis more systemic, establishment of the Zhana Kazakhstan (New Kazakhstan) deputy group was initiated. The group consisting of 16 members was registered by the Office of the Parliament Majilis on October 19, 2007. The body of the group includes nine deputies elected by the Assembly. The major goal of this deputy groups is to promote, through law, strengthening of interethnic and interfaith harmony, social and political stability in the country, all-round development of the national cultures, languages and traditions of the Kazakhstan people, formation of Kazakhstan identity by consolidating ethnic groups of Kazakhstan, implementation of the program for Trinity of Languages, and preservation of native languages of the ethnic groups of Kazakhstan[332].

The deputy group developed the draft Law on the Assembly of the People of Kazakhstan. More than 200 proposals were received from the members of the Assembly Council, oblast assemblies from regions and national ethno-cultural organizations. These proposals were taken into account when finalizing the draft law. After completion of the respective procedures in the Parliament of RK, the President of RK signed the Law of RK as of October 20, 2008 (No. 70-IV) on the Assembly of the People of Kazakhstan, which set the legislative framework for legal support of arrangement and operational procedures of the Assembly, regulation of relations of the Assembly with the government bodies, consolidation of the rights and responsibilities of the Assembly, integration of the activities of the territorial structures of the Assembly, regulation of the processes of nomination of candidates for deputies under the quota of the Assembly of the People of Kazakhstan and their election.

Pursuant to the provisions of the Law on the Assembly of the People of Kazakhstan, the Assembly is an organization with no separate legal identity established by the President of RK to facilitate development and implementation of the national policy. It operates over the whole territory of Kazakhstan. Assemblies of oblasts (cities of the republican status, the capital) are organizations with no separate legal identity under Akims of oblasts (cities of the republican status, the capital), their activities are coordinated by the Assembly (article 1).

The goal of the Assembly is to ensure interethnic harmony in Kazakhstan in the process of formation of the Kazakhstan civil identity and a competitive nation based on the Kazakhstan patriotism, civil and spiritual and cultural unity of the people of Kazakhstan with the consolidating role of the Kazakh people (Article 3).

According to Article 4 of the Law, major objectives of the Assembly are as follows:

1) to ensure effective cooperation among the government bodies and civil society institutions in the area of interethnic relations, to create favorable conditions for further strengthening of interethnic harmony and tolerance in the society;

2) to strengthen unity of the people, to support and develop public consensus in relation to the fundamental values of the Kazakhstan society;

3) to assist the government bodies in combating extremism and radicalism in the society and attempts aimed at restricting rights and freedoms of humans and citizens;

4) to form the political and legal culture that draws upon the democratic principles;

5) to ensure integration of efforts of the ethno-cultural and other civil society organizations to accomplish the Assembly’s goals and objectives;

6) to restore, preserve and develop national cultures, languages and traditions of the people of Kazakhstan.

Key principles of the Assembly’s activities are as follows: priority of the rights and freedoms of humans and citizens, priority of interests of the people and the government; equality of rights and freedoms of humans and citizens regardless of race, ethnicity, language, religious and other beliefs or any other circumstances; equality and personal responsibility of the Assembly members for activities under this organization; transparency (Article 5).

Article 6 of the Law regulates main directions of the Assembly’s activities and has an important item 9 covering involvement of the Assembly in socio-political review of the draft laws related to the national policy.

The President of RK has the following powers with respect to the Assembly: 1) to form and reorganize the Assembly; 2) to define the directions of its activities; 3) to appoint and dismiss senior officials of the Assembly; 4) to convene sessions of the Assembly; 5) to perform other activities in compliance with the Constitution and the laws of the republic. The First President of the Republic of Kazakhstan, the Leader of the Nation, has the right to lead the Assembly of the People of Kazakhstan for life (Article 7).

Membership of the Assembly is formed by its Chairman from among the citizens of RK - representatives of ethno-cultural centers and other public organizations, government bodies, as well as other persons taking into consideration their authority among the population and socio-political activity (Article 15). The Assembly includes more than 350 members representing about 40 ethnicities.

The second section of the Law («Structure and governing bodies of the Assembly») combines articles, which define the structure of the Assembly (namely, session of the Assembly, Council of the Assembly, Administrative Office (Secretariat) of the Assembly, as well as the assemblies of oblasts (cities of the national status, the capital) and governing bodies of the Assembly (Chairman of the Assembly, vice-chairmen of the Assembly, are appointed by the President of RK)), membership in the Assembly, powers of the Assembly, the procedure for termination of powers of the Assembly members and deputies of the Parliament Majilis elected by the Assembly.

An important political success for the people of Kazakhstan was the discussion and then adoption of the conceptual document by the Assembly - Doctrine of the National Unity of Kazakhstan. This document is based on common values, the core of which is independence. The provisions of the Doctrine were taken into account when developing the Strategy of Development of Kazakhstan till 2020; measures for its implementation were included into the strategic plans of development of central and local executive bodies, including programs of 12 ministries. Pursuant to the instruction of the President of the country, N. Nazarbayev, the Leader of the Nation, given at the 12th session of the Assembly, the Assembly is currently developing the strategy of its development till 2020.

Since its establishment, Zhana Kazakhstan deputy group has worked in the Majilis. It is taking an active part not only in the law-making activities, but is also using other powers of the deputies stipulated by the Constitution and constitutional laws, as well as by the Regulation of the Majilis. Deputies of the Majilis are members of standing commissions established under the Council of the Assembly. Joint meetings, working meetings, development and implementation of joint plans of activities, working visits to the regions are in practice now. Members of the deputy group actively participate in the creation of the depositary library of the Assembly and in improvement of the official Web-site of the Assembly of the People of Kazakhstan. The deputy group builds its work in close cooperation with the Nur Otan PDP faction and the Public Chamber under the Majilis of the Parliament. Deputies elected by the Assembly became members of all seven standing committees of the Chamber. Close constructive relations are established between the deputy group and the Assembly’s Secretariat.

The deputies elected by the Assembly consider regular meetings with the members of the Assembly, with the heads of the ethno-cultural organizations directly on sites and reception of citizens on personal matters as an important aspect of their practical activities. For the period from 2007 to 2010 twelve oblasts and Almaty City were visited, about 400 meetings were held covering more than 20,000 people, nine deputies of the Majilis met personally with 1,200 persons. To address the vital problems raised at the meetings and personal appointments, about 400 letters were sent to the government bodies. 68 inquiries from deputies were announced at the plenary sessions of the Majilis and sent to the Prime Minister and members of the Parliament. The issues raised at the nationwide level include the following: enhancing the status of the national language and addressing problems of repatriated Kazakhs; improving financing of the ethno-cultural organizations; seismic retrofitting of the cultural and educational facilities; increasing the capabilities of the Palace of Peace and Reconciliation; and improving activities of the national ethno-cultural public organizations, etc.

Deputies of the Assembly actively participate in promoting the policy of the President of Kazakhstan, his addresses to the people of Kazakhstan, Kazakhstan model of interethnic tolerance and social consensus and activities of the Assembly of the People of Kazakhstan both inside and outside the country. Over the past years, members of the Assembly Council and heads of the national ethno-cultural organizations, while being on official delegations of the Parliament Majilis and the Assembly, together with the deputies have implemented these activities within the framework of implementation of the plans for inter-parliamentary relations and image-building trips to Azerbaijan, Austria, Belarus, Bulgaria, United Kingdom, Kyrgyzstan, Iran, Luxemburg, Malaysia, Russia, Saudi Arabia, USA, Ukraine, France, Germany.

It is also important to note that «over the past years since the establishment of the Assembly of the People of Kazakhstan has gained a high international reputation and truly became an intra-Kazakhstan model of UN, an essential element of the political system, a full-fledged and highly efficient institution of civil society, one of the critical instruments of the civilized implementation of the interethnic policy in the country, civil consolidation of the representatives of all ethnic groups… And today it is safe to say that Kazakhstan has successfully implemented a new form of stability of multi-ethnic and multi-faith society - stability achieved as a result of reconciling the interests of all the ethnic groups. This, in turn, serves as the basis for implementation of political and economic reforms in the country.»[333]

In conclusion, it should be noted that Kazakhstan developed all the conditions required to meet the needs and demands of the representatives of all the ethnic groups. Moreover, the measures for protection of civil, political, economic, social and cultural rights fully meet the international standards.

 

4.3. Public Chamber under the Parliament Majilis of the Republic of Kazakhstan

 

The Constitution of RK entrenches the provision that gives citizens the right to participate in management of state affairs.

Item 1 of Article 33 of the Constitution is worded as follows: «Citizens of the Republic of Kazakhstan shall have the right to participate in management of the state affairs directly and through their representatives, to address personally as well as to send individual and collective appeals to the government bodies and local governments.»

Elements of the public participation in the developed democracies tend to be present in the most complete form. This guarantees progressive development of these countries. In this case, initiatives of various social groups or individuals aimed at development of the civil society - civil initiatives - are adequately perceived by the government, as they contribute to improvement of its performance.

In September 2005, at the Civil Forum N. Nazarbayev, President of RK, specified the need for a body capable of active development of the system of dialogue and partnership between the branches of government and non-governmental organizations. The lack of active involvement of the society in the process of making government’s decisions pertaining to the socially significant issues does not allow representative and executive bodies to consider their opinions, interests and needs to a full extent. As the international experience shows, it is the public involvement that allows for greater efficiency in many areas from implementation of the social policy to the public administration area.

In March, 2006, the Chamber of Public Experts was established under the Parliament Majilis of RK of the 3rd convocation. Its initial membership was formed from among representatives of non-governmental organizations. A number of important draft laws of RK were reviewed with involvement of the public experts: On the national budget for 2007; Environmental Code of the Republic of Kazakhstan and a number of other laws.

As the international experience shows, effective work of the Chamber of Public Experts and operations of similar public structures under the parliaments of many countries allow the public to carry out «a threefold mission - to provide for «living force» of the nation in the economic and social policy, to identify problems and make proposals on their solution and to ensure a continuous systemic dialogue.»[334]

In western countries the procedures for public involvement in state affairs go deep and equivalents of our Public Chamber exist in many countries. For instance, they are known as socioeconomic councils and their goal is to build the dialogue between the public and the government in relation to addressing social issues. For example, in France there is a socioeconomic council, which was established more than 60 years ago. Through this body, the French public participates in discussion of the government’s plans, their legislative execution, and review of the outcomes of their implementation.

The Public Chamber of the Russian Federation was established pursuant to the Federal Law of the Russian Federation on the Public Chamber of the Russian Federation as of April 4, 2005. It is elected for a two-year period. The Chamber serves to ensure interaction between citizens and public authorities and local governments. Its goal is to consider needs and interests of citizens, to protect their rights and freedoms when developing and implementing the national policy. Another task is to implement public control over the government’s activities.

In 2007, in the course of the constitutional reform, the role and functions of the Parliament of Kazakhstan suffered substantial changes. Therefore, the Public Chamber was established under the Parliament Majilis of RK, given the current political realities, as well as to retransmit the entire «palette» of public views and opinions to the supreme legislative body of the country.

Pursuant to item 132-1 of the Regulation of the Parliament Majilis of RK, the Public Chamber under the Parliament Majilis of RK, while being an advisory body of the Majilis, is accountable to the Office of the Parliament Majilis of RK in relation to its activities.

The idea of establishment of the Public Chamber under the Majilis, as a unique platform for expression of opinions by citizens and their associations in relation to main issues of the nation-building, is thoroughly reviewed and well-founded. It takes into account such basic values of democracy as the reign of law, free expression and citizens’ participation. And this is the basis of a developed democratic society. By the fact of establishment of the Public Chamber, the government openly and knowingly sent out a powerful signal to the political parties, civil society institutions, as well as a real opportunity to participate in the nation-building.

The Public Chamber under the Majilis acts as an effective instrument for improvement of legislation based on the study and consideration of the public opinion. Experts specify that it is a unique institution, as, while being a non-political and non-government structure and not having appropriate political and coercive powers, it has a major influence upon the sociopolitical climate in the country.

The Public Chamber under the Parliament Majilis allows for retransmission of the entire pluralism of opinion in the society to the supreme legislative body of the country. And the purpose of the Parliament lies in reflection of the views and positions that exist in the society. As is known, an open exchange of ideas, opinions and proposals is required to ensure a stable development of the country.[335]

The Public Chamber provides for a dialogue platform, which enables all the concerned persons to present their visions of certain issues and to offer constructive solutions. An equal dialogue of all participants allows joint seeking of effective ways of economic and political development of the country and further development of the civil society.

Activities of the Public Chamber will be focused on the public review of the draft laws affecting the social well-being of citizens, as well as on forecasting possible effects of adoption and implementation of laws in the context of strengthening of the social focus of the reforms.[336]

Hereinafter, activities of the Public Chamber will be directly related to such priorities as sustainable development of the nation and strengthening of the national identity.[337]

Key objectives of the Public Chamber include the following:

- reviewing draft laws;

- developing recommendations and proposals on the laws being drafted and reviewed;

- forecasting potential effects of adoption and implementation of laws;

- reviewing and assessing proposals submitted to the Parliament Majilis in relation to improvement of the current legislation within its jurisdiction.

Key functions of the Public Chamber include the following:

- to provide advice on draft laws submitted by the deputies of the Parliament Majilis under the legislative initiative;

- to study and sum up the experience of parliaments of foreign countries in the area of law making;

- to arrange and participate in round tables, workshops, hearings, conferences and other events on law making issues.

Activities of the Public Chamber are funded from the budget allocated to finance activities of the Parliament of RK.[338]

Let us dwell on management of the Public Chamber’s activities.

Meetings of the Public Chamber are held as required, but at least once every three months. Meetings of the Public Chamber are duly constituted, if attended by at least half of the total number of members of the Public Chamber (item 13 of the Provision).

Pursuant to item 18 of the above Provision, opinions and other decisions of the Public Chamber recorded in the minutes serve as guidelines and are made at the meetings by a simple majority vote through an open ballot.

If the members of the Public Chamber disagree with the decision made, they have the right to express their own opinion.

The findings of the review of draft laws conducted by the Public Chamber are directed to the standing committees of the Parliament Majilis and are used when working on the draft laws. If the leading committees deem necessary, the opinions of the Public Chamber on the draft laws can be reported by speakers (co-speakers) at the plenary sessions of the Parliament Majilis in the form of recommendations.

By the decision of the Chairman of the Public Chamber, members of Parliament, representatives of the registered political parties, non-governmental organizations and public associations not included into the Public Chamber, scholars and independent experts can be invited to the meetings of the Public Chamber, but they cannot participate in voting.

The Administrative Office of the Parliament Majilis is responsible for organizational support for the Public Chamber (item 23 of the Provision).

The executive secretary of the Public Chamber is responsible for convening and arranging the meetings, as well as for organizing preparation of the deliverables and outcome documents.

Information about the date and place of the meeting of the Public Chamber, as well as the agenda of the meeting are provided to the members of the Public Chamber at least five days prior to the meeting date.

The materials for the meeting of the Public Chamber are delivered to the members of the Public Chamber at least three days prior to the meeting date.

The information containing in the materials delivered for the Public Chamber’s meeting cannot be disclosed through mass media until the Public Chamber makes its decision. The Chairman of the Public Chamber is entitled to request the Office of the Parliament Majilis to exclude any member from the Public Chamber in case he/she violates this Provision.[339]

It is necessary to mention the following aspects of the Provision on the Public Chamber under the Parliament Majilis of RK, which provoke discussion in the society. For example, according to S. Rasov, «the Provision does not contain any word as to who has the rights to be a member of the Public Chamber, about selection criteria, term of appointment, method of rotation of the Chamber’s members, etc., whereas the wording «the information contained in the materials delivered for the meeting of the Public Chamber shall not be disclosed through the mass media until the Public Chamber makes its decision» implies classification as «the information for official use only».[340]

Let us briefly consider the activities of the Public Chamber of the Parliament Majilisof the 4th convocation.

Starting from establishment, members of the Chamber focused their efforts on improvement of the legal framework of the country, addressed meaningfully new tasks, including development of efficient channels for communication between the non-governmental organizations and government bodies, conducted public reviews of the draft laws and developed recommendations for the supreme representative body of the country.

Today, the Public Chamber is an effective «conductor» of implementation of the state policy. The Public Chamber serves to prioritize the public review of the draft laws that affect social well-being of citizens, to develop recommendations and proposals on the laws being drafted and reviewed, as well as to forecast potential effects of adoption and implementation of the laws in the context of strengthening the social focus of the reforms.

The main criterion that governs the Chamber’s activities is the respect for public opinion, interests and needs of every individual and the growing influence of the public institutions on the government.

The Chamber has reviewed 24 draft laws and has sent the expert opinions on them to the relevant committees of the Majilis. A whole range of the draft laws, which have drawn attention of the social activists, can be subdivided into social, economic, political and human rights blocks[341].

The social block includes specific recommendations of the Chamber to the draft documents pertaining to legal regulation of the housing and public utilities, marriage and family, people’s health and healthcare system. Proposals aimed at promotion of employment among the population, support of vulnerable groups in the context of the global financial crisis are of particular importance.

The economic block includes the opinions made in relation to such issues as private business development, support of innovation activities, and taxation, which contribute to legal regulation of the commitments to maintain the sustainable development of the economy and to eliminate the aftermath of the economic crisis.

The political block includes draft laws on political parties, mass media, local government and self-government. The Chamber approved them conceptually and made the decision on the need for urgent consideration by the Majilis, which was one of the incentives for the Parliament to adopt these laws.

The human rights block includes proposals on improvement of legislation in the field of protection of the constitutional rights and freedoms of citizens in terms of legal aspects of imposing the preventive measures in the form of arrest, qualified legal assistance, criminal intelligence, combating domestic violence, safety of the persons involved in the criminal process, harsher punishment for illegal drug trafficking.

About one third (105 out of 337) of the proposals referred to in the opinions of the Chamber’s members are taken into whole or partial account by the deputies of the Majilis in the course of review of the draft laws by the working groups. 55 proposals have already been accepted and reflected in the provisions of eleven laws signed by the President of RK[342].

In addition, the Chamber performs a variety of important sociopolitical functions.

To find the best ways of further improvement of the forms of the civil sector involvement in the public administration, the Chamber conducted a round table discussion on «Public institutions in the context of implementation of the Concept of Civil Society Development in Kazakhstan for 2006-2011. Subsequent to the results of this forum, a serious outcome document was adopted, which was aimed at strengthening and development of mechanisms for cooperation among the government bodies, businesses and the non-government sector and expansion of interaction between the government and the civil society institutions.

The Chamber actually reinforces the feedback relations between the government and the population by developing interchange channels both down the «government - society» and «center - regions» lines. Members of the Chamber duly called themselves as communicators between the society and the government and the Public Chamber appears to perform these functions quite efficiently, professionally and in a responsible manner. Having managed to build the public dialogue, the Chamber has gained the trust and credibility in the society. Deputies of the Parliament, representatives of the Government and government bodies, as well as non-governmental institutions are constantly invited to the events of the Public Chamber. Today, one can legitimately speak of fruitful and concerted efforts of the deputy corps and members of the Public Chamber. And this coordination serves as a required resource for strengthening the up-do-date, progressive and effective policy in the country implemented together with the civil society and in the best interests of the country.

The Chamber made two calls to the public, all the sociopolitical forces, civil society institutions and mass media of Kazakhstan (November 23, 2007, Astana City; February 13, 2009, Pavlodar City) and developed proposals on the draft Doctrine of the National Unity of Kazakhstan (November 25, 2009, Shymkent).

It should be noted that meetings of the Chamber are held in various regions of the country. This, of course, helps consider a variety of points of view and take the regional context into account when making decisions.

The Public Chamber also strengthens the international cooperation. When members of the Public Chamber visited Russia in May 2008, in Moscow the Public Chamber under the Parliament Majilis of RK and the Public Chamber of the Russian Federation signed the Memorandum of Understanding and Cooperation geared to establish the relationships based on regular cooperation between the parties.

Therefore, activities of the Public Chamber under the Majilis serve as a serious factor in developing parliamentarianism on the one hand and in strengthening the full-fledge civil society on the other hand. Owing to the Public Chamber, new systemic principles of the activities of the deputy corps are implemented in practice and interaction among the Parliament, political parties and civil society institutions is becoming more effective.

4.4. Publicity and openness of Parliament

 

Publicity and openness of the legislature is an integral part of any developed democratic society.

President of the Republic of Kazakhstan Nursultan Nazarbayev in his Address to the People of Kazakhstan «New Kazakhstan in the New World» pointed out that one of the key development priorities should be improving effectiveness and transparency of the state authorities[343].

In the modern theory of state mass media started to be identified as «the fourth estate» along with three branches of government (legislative, executive and judicial). The thing is, TV, radio, printed press and other mass media that became accessible nowadays to almost all population categories. They are not only informing the society about various political events, but can impose their point of view on those events, as well as their values, on people and have an opportunity to manipulate public opinion[344]. In the states with high level of democracy «the fourth estate» is a real active information and propaganda power covering the most important events in the country (electioneering, official publishing of laws etc.) recognized by all branches of government.

As of today one can notice that mass media - TV channels, radio, and printed press - are accredited in the Parliament of the Republic of Kazakhstan and present at all plenary sessions of Majilis, meetings of Nur Otan Party fractions, meetings during the «Government hour». According to the regulations governing Parliament chambers, regulation governing Parliament of the Republic of Kazakhstan, Majilis’ plenary sessions shall be open. Draft laws under discussion, reports of the Government members of the Republic of Kazakhstan, deputies’ inquiries, interviews with deputies are all comprehensively covered by mass media.

Constitution of the Republic of Kazakhstan states that joint and separate meetings of Parliament chambers shall be open. Constitution also announced the principle of openness and publicity of state bodies’ operation. According to Article 18, Clause 3 of the Constitution of the Republic of Kazakhstan, state bodies, public associations, officials, and the mass media must provide every citizen with the possibility to obtain access to documents, decisions and other sources of information concerning his rights and interests. The degree of openness and publicity principle implementation in the state bodies’ activity and their interaction is the sign of state’s democratization level, important growth factor of citizens’ political consciousness and streamlining the state bodies’ activity.

Article 8, Clause 1, Constitutional Law of the Republic of Kazakhstan «On Parliament of the Republic of Kazakhstan and Status of Its Deputies» stipulates that sessions of the Parliament of the Republic of Kazakhstan, both joint and separate, shall be open. There are some exceptions prescribed by Regulations stating which sessions can be closed. To implement this provision all sessions of the Parliament Chambers are broadcasted in the real time mode to the Parliament press-center where all accredited journalists may observe (record) the entire legislative process and inform population of Kazakhstan about it via various mass media. As it was mentioned earlier there is a number of TV teams from different TV channels continuously present in the conference rooms who compile news blocks about the work of Kazakhstan Parliament according to their preferences.

President, Prime-Minister, members of the government, National Bank Chair, Prosecutor General, National Security Committee’ Chair, State Secretary and Head of the Presidential Administration of the Republic of Kazakhstan possess the right to attend any open or closed sessions and gain the ear. Indeed the aforementioned high level officials shall have their say with regard to the issues falling under the Parliament’s competence requiring interaction and cooperation with the Parliament.

According to Constitutional Law of the Republic of Kazakhstan «On Parliament and Status of Its Deputies» the Parliament shall conduct parliamentary hearings (round tables, conferences) on various pressing issues of lawmaking with public. Such events are important feedback channels between public and the Parliament allowing for taking public opinion into account related to lawmaking.

To facilitate publicity in Parliament, linking Parliament chambers and their structures with mass media as well as to prepare official materials for printings, TV and radio, press services of the Senate and Majilis of Parliament were formed (Clause 194 of Majilis Regulations, and Clause 181 of Senate Regulations).

Clause 181 of the Senate Regulations states: «To ensure publicity of Senate operations the Senate Press Service shall perform accreditation and work with mass media.

Mass media representatives shall be based in the press center.

Senate shall have the right to make a decision on locating mass media representatives in the Senate meeting room. Mass media representatives during Senate’s sessions shall reside in a separate allocated for their work place. They shall not be allowed to be present by deputies’ workplaces and interview deputies during the Senate’s sessions»[345]. The provision on mass media information containing the date, time and venue of the Parliament session opening is stated in Clause 3 of the Parliament Regulations[346].

Press - services of the Parliament of the Republic of Kazakhstan shall provide information coverage of lawmaking and executive activity of deputies in mass media; organize press-conferences and interviews in printings and electronic mass media.

Press - services of the Parliament[347] shall implement accreditation of the mass media representatives as prescribed by the Law of the Republic of Kazakhstan «On Mass Media» as of July 23, 1999, No. 451-I.

The earlier mentioned Law regulates that state bodies, civil society associations and organizations who accredited certain journalists shall be obliged to inform them in advance about sessions, meetings and other events, as well as to provides them with stenographs and other documents. Moreover accredited journalists shall have the right to attend sessions, meetings and other events held by those state bodies, civil society associations and organizations, who accredited them except for those cases when a decision was made to conduct a closed type of event[348].

The Law also regulated the activity of foreign mass media representatives within the Republic of Kazakhstan. Thus accreditation of foreign mass media representatives and their journalists shall be held by Ministry of Foreign Affairs of the Republic of Kazakhstan.

Overall an enabling environment was created for mass media work.

To ensure openness of Parliament of the Republic of Kazakhstan there is regularly updated Internet site of the Parliament of the Republic of Kazakhstan - www.parlam.kz - accessible by all. This website contains information about lawmaking activity of Senate and Majilis of Parliament. Apart from the information Chambers’ activity personal information about each deputy can also be found on the website. Parliament’s website is the most visited one. It proves that information about lawmaking process is demanded by the society.

Another mechanism to ensure transparency of deputies’ activity is a mandatory requirement to people’s representatives to visit at least four times a year Kazakhstan’s regions for individual and group meetings with constituency. Besides field sessions of permanent Majilis committees are also regularly organized and serve as a platform for deputies to seek for public opinion on draft Laws considered by Majilis and Laws already issued by the Parliament while directly contacting with public.

Transparency of the people representatives’ activity is an integral part of any developed democratic society. The goal of all non-governmental organizations interested in maturing and developing civil society is to facilitate increased level of openness in the work of deputies themselves as well as increased level of transparency of the whole Parliament as representative agency of State power.

Currently in Kazakhstan society constituencies are really interested in accessing the information on activity of Parliament deputies. Some questions are raised by political analysts, international experts, human rights organizations. It’s because by the opinion of some NGOs Parliament’s activity is still not sufficiently transparent, accountability mechanisms for deputies against their constituencies are still undeveloped. Part of the civil society still believes that Parliament of the Republic of Kazakhstan in many areas remains nontransparent and insufficiently open for public. To what extent those statements are fair?

As per the results of 2007 round table held in Almaty City «Ways of improving transparency of the Majilis of Parliament of the Republic of Kazakhstan and mechanisms of interaction with civil society» the participants drew the conclusion that some of the statements about insufficient transparency of the Parliament of the Republic of Kazakhstan are, basically, of a contentious nature.

Participants pointed out that in order to reach the required transparency level of Parliament the following steps are deemed to be correct to pursue:

1.       Provide open access to Parliament sessions to all interested citizens.

2.       Qualitative improvement of Parliament and government’ websites. Not only e-government is required but also effective e-Parliament.

3.       Resuming TV broadcasting of Parliament plenary sessions. It is necessary for people to be able to access intellectual and cultural potential of deputies in a real time mode, to put faces on names and make their judgments based on what they’ve seen and not on «combed» by speechwriters inquiries and reports[349].

From their point of view it would a real interaction, link between civil society and Parliament.

However interaction of state power agencies with civil society institutions (CSI) does not mean their merger or empowering CSI. CSI proposals are of recommendatory nature but shall be carefully considered and reviewed by all branches of government, including legislature, what would emphasize and reiterate its openness, publicity and transparency.

What is the practice of providing information on roll call results of the Parliament in other countries?

The issue of public disclosure of the roll call results at supreme legislative institutions is an arguable one in the practice of Parliament activity democratization. For instance, in Ukraine in 2006 Verkhovnaya Rada has issued Resolution according to which the editor’s office of «Ukraine’s Voice» newspaper shall be obliged to provide the reports of Rada’s plenary sessions on the spot. These reports shall contain as per Rada’s instruction the results of roll calls by party fractions of Ukrainian people’s deputies. In Ukraine the decision has been made to place the results of Rada’s roll call on the website.

In Russia according to State Duma’s Regulations the results of open roll calls are recorded in the stenograph of the State Duma’s meetings and can be published in mass media.

Supporters of this innovation believe that the right for freedom of information recognized in the Constitution creates the need to provide information on deputies’ activity to those constituencies who elected them. Given that it is technically impossible to have all citizens present at the Parliament sessions such a right can be executed with the help of mass media. It is mass media who can convey to citizens on the spot, full and authentic information on the activity of any deputy; check how any given deputy implements its election program in the Parliament, what can be evidenced through deputies’ position in voting on a given subject.

Moreover openness of lawmaking process gives an opportunity for citizens to make sure that they are involved in self-governance in its wide sense. When citizens feel as being an integral part of lawmaking process, when not only positive attitude towards laws is nurtured, but readiness to execute them also grows. When citizens do not know how any given decision (or law) was derived and if there were bad impacts or consequences afterwards from their point of view tend to suspect deputies and Parliament in corruption and ineffective work.

Unfortunately, information on which country disclose or not disclose the results of voting is not available. We believe that this issue is more pressing for the systems with majority principle for Parliament.

Transparency of Parliament deputies and their work is an essential condition for their efficiency to the benefits of their constituencies and citizens in general. People have the right to know the opinions and positions of all deputies and deputies’ fractions on up-to-date issues of social, economic, and public - political life[350].

Speaking about openness of Majilis of the Republic of Kazakhstan one should note that Nur-Otan fraction in Majilis of Parliament of the Republic of Kazakhstan has established three consultative - advisory bodies: Social Council, Council on relations with Maslikhats and civil society institutions, Council on diversification of economy. Chairpersons elected for those Councils are A.Samakova, V.Doskalov, and K.Sagadiyev.

Councils are consultative - advisory bodies comprising of deputies of Parliament of the Republic of Kazakhstan, government members of the Republic of Kazakhstan, representatives of non-governmental, international and other organizations. Presence of civil society in the work of councils underlines the openness of their operations.

Council on relations with Maslikhats and civil society institutions of Nur Otan People and Democratic Party’s fraction in Majilis of Parliament is an important and powerful instrument facilitating effective democratic governance, creating enabling environment for additional impulse to activate public resource and capacity building of all civil society members. Interaction, partnership, broad dialogue and consultations are key principles proposing a number of advantages creating solid channels of building trust between society and ruling party.[351].

Councils’ activity is regulated by provisions of Constitution of the Republic of Kazakhstan, Constitutional Law of the Republic of Kazakhstan «On Parliament and Status of Its Deputies», Law of the Republic of Kazakhstan «On Political Parties», Charter of PDP «Nur Otan», programs of PDP «Nur Otan», Provisions on fraction, decisions of the fraction.

Councils serve as a platform for widening cooperation between government bodies and SCI. All branches of government, bodies not included in the system of government branches of the Republic of Kazakhstan in the course of their activities are actively cooperating with CSI. Constitution of the Republic of Kazakhstan and legislation of the Republic of Kazakhstan stipulate organizational structures, ways, procedural issues related to cooperation between government bodies and CSI, non-governmental organizations.

As for openness of state bodies one should also mention work of such institutions as Permanent Conference on Elaborating Proposals and Further Democratization and Development of Civil Society (2002-2004), National Commission on Democracy and Civil Society Issues (2004-2006). The members of those institutions included heads of political parties, Parliament deputies, representatives from Presidential Administration and Government, civil society representatives.

In order to improve effectiveness of lawmaking process it is essential to further strengthen cooperation between government and CSI where so called public review shall be necessary for all draft laws[352]. Also Chamber of Public Relations Experts in Majilis of Parliament of the 3rd convocation was meant to perform public review of lawmaking activity, ensure systemic dialogue of CSI and Parliament deputies.

To implement Strategic Development Plan for the Republic of Kazakhstan up to 2010[353] The Public Chamber was established in Majilis of Parliament of the Republic of Kazakhstan in line with the need for effective alignment of social and political interests present in the society and need to organize in Parliament regular political consultations between various parties and public-political movements, trade unions including those not represented in the Parliament. The work of The Public Chamber is described in details in subsection 4.3.

Given that country has multi-party system and Majilis of Parliament of the Republic of Kazakhstan of the 4th convocation is a single-party Parliament, it is necessary to build a dialogue with civil society representatives and political parties. A.Musin, Chairperson of Majilis of Parliament of the Republic of Kazakhstan, mentioned that «one of the promising trends for us is to build close cooperation with civil society institutions. The Public Chamber is composed of reputed, emblematic players of Kazakhstan’s society, representatives of parties, civil society and non-government organizations» at the International Scientific and Practical Conference «Parliamentarianism in Kazakhstan: Status and Development Trends»[354].

We shall also remember that there is a representation of Patriotic Party in the Senate and in Majilis of Parliament of the 4th convocation there is a non-partisan group comprising 9 people active who are representatives of Kazakhstan People’s Assembly. This Assembly enjoys the right of performing public - political review of those draft laws touching upon national interests.

Today Parliament can be called a representative of interests of the whole multiethnic society of Kazakhstan. Parliamentary system in Kazakhstan presently possesses all required legal instruments for effective implementation of its constitutional mandate and, what is more important, is aimed at holistic support of the comprehensive modernization process of the country and ensuring Kazakhstan’s entry in the list of the most developed and competitive countries in today’s world.

Transparency of Parliamentary proceedings allow public understanding the essence of Parliamentary discussions and impact the nature of the decisions made more powerfully. Traditional means of ensuring transparency have always been access for public to Parliamentary sessions, publishing final documents of the sessions and coverage of Parliamentary sessions’ resume by mass media.

By participating in international meetings deputies noticed how the work of their peers is built in other countries, as well as their powers and responsibilities, number of assistants, etc.[355] They also paid attention at the object secrecy, i.e. access or pass control systems of the Parliament buildings. For instance, in Washington, D.C. (USA), access to the Congress building is open for ordinary public as well as historical part of the Congress building is open almost daily for tourist groups’ visit with guides. But that part of the building where congressmen work and plenary sessions are held, security level differs.

Similarly, in Berlin (Germany) any citizen (including foreigners) may enter Bundestag building and come up to the sightseeing platform and even see the meeting room where deputies work on-line without any disturbance to the normal operations of the Parliament. And now, completely deviating from our subject of research, let’s make individual observations. When our delegation was coming down from the sightseeing platform in Reichstag we saw quite an elderly German national and as judged by his clothes he was a farmer. His eyes glistened with tears - tears of pride for his country. Who knows, maybe citizens’ comprehension of their participation in governance of their country, in decision making, and issuing laws nurtures patriotic feelings, duty to their country.

Some representatives of civil society place the blame for mode of operation, non-openness on the Parliament referring to Western states. However architecture peculiarities of Kazakhstan Parliament building do not allow for Kazakhstani citizens, tourists, freely access the building for excursions. From our point of view it is necessary to open part of the building for excursions in the future, for instance, in the old Parliament building located on the right bank of Esil River.

A new program of PDP Nur Otan puts as one of the conditions for a comprehensive development of civil society further development of national dialogue where state and society jointly make decisions on the most important state issues to implement national development strategy[356]. Availability of legal and regulatory framework, state’s policy to implement publicity and openness principles of state bodies’ activity stated in the Constitution of the Republic of Kazakhstan overall might serve as a good basement for civil society participation in governing the country.

 

 

Section 5. Parliamentary Representations in the Republic of Kazakhstan

5.1. Representation of the President of the Republic of Kazakhstan in the Parliament of the Republic of Kazakhstan

 

Constitution of the Republic of Kazakhstan states that governmental power in the Republic is united and shall be exercised in accordance with the principle of its separation into legislative, executive and judicial branches and ensuring its coordinated functioning by the Head of the state.

One of the important elements ensuring exercising powers by the Head of the state related to the legislative branch of the government is the notion of representation of the President in the Parliament. Representation of the President of the Republic of Kazakhstan as a notion was established in April 1994.

When new Constitution was approved in 1995 two-chamber Parliament was created in the Republic of Kazakhstan. After that in 1996 by President’s Decree of the Republic of Kazakhstan two independent structural subdivisions were established - Representation of the President in Majilis of Parliament and Representation of the President in Senate of Parliament С принятием новой The Constitution в 1995 году в Республике Казахстан был образован д.

To further improve state administration in January 26, 2001, a single Representation Office of the President was established in the Parliament.

As of now Representation of the President in the Parliament is exercising its powers as per Constitution and laws of the Republic of Kazakhstan, as well as regulations on Presidential Administration[357] and Representation Office of the President in the Parliament.

Key objectives of the Representation Office are:

- represent interests of the Head of the state in the Parliament;

- taking necessary actions to ensure that President fulfills its functions assigned by Constitution and national laws and to exercise powers with regard to Parliament and Parliamentarians.

The constitutional reform 2007 resulted in assigning the right to legislative initiative to the President and this right is partially exercised by the Representation Office as well.

In the course of regular meetings with deputies the Head and staff of the Representation Office explain then the position of the President on the issues considered by the Parliament.

Special attention is paid by the Representation Office to lawmaking process as only by means of developing due regulatory framework it is possible to timely reach goals and objectives set forth regularly by the President.

Head of Representation Office as instructed by the President shall submit to the Parliament those laws returned back with objections by the President.

Ensuring reciprocity the Representation Office in the Parliament regularly informs the President on the status of legislative process and issues considered by the Parliament.

As a result of cooperative work of Parliamentarians and Representation Office of the President they managed to build constructive relationships facilitating timely and effective implementation of the President’s policy on further development of our country.

5.2. Representation Office of the Government of the Republic of Kazakhstan in the Parliament of the Republic of Kazakhstan

 

Government Representation Office in the Parliament of the Republic of Kazakhstan is a structural subdivision of the Prime-Minister’s Chancellery of the Republic of Kazakhstan established in August 1994 by Government Statute. Reason for establishing such a subdivision was that in the conditions of constitutional separation of powers the Government needed an institution that would be authorized to represent government interests and perform continuous interaction with the Parliament chambers, and their coordination and working groups, offices, deputies’ fractions, groups and with deputies individually.

Operation of the Government Representation Office is regulated with due diligence by the Regulation of the Government of the Republic of Kazakhstan and Provision on Representation Office. Key objectives of the Government Representation Office are:

- conduct monitoring over implementation of the government legislative initiative;

- contribution to timely consideration by the Parliament chambers of government legislative initiatives;

- regularly inform the Prime-Minister of the Republic of Kazakhstan, its deputies, Head of the Chancellery on contribution to implementation of the government legislative initiative, on the draft laws’ review status by the Parliament and other issues falling under the competence of executive branch of the government;

- conveying to deputies official position of the Government on the subjects considered by the Parliament and pursuing this position at the meetings of coordination and working bodies of the Parliament chambers, etc.

The structure of the Government Representation Office is characterized by limited staff of the Government Representative in the Parliament of the Republic of Kazakhstan. Since 2001 Government Representative is also at the position of Deputy Head of Prime-Minister’s Chancellery of the Republic of Kazakhstan.

Elevating the status of the Government Representative by assigning to him/her organizational-regulatory powers of Deputy Head of the Prime-Minister’s Chancellery was governed by the need to coordinate activities of the state bodies in the legislative process allowing for on the spot resolving pressing issues raised by the Parliament deputies and reaching mutually acceptable consent with them on disputable subjects.

Representation Office as per Clause 108 of the Regulation No.111 for the Government of the Republic of Kazakhstan implements control over compliance by authorized bodies with the government decisions on draft laws and other issues[358] considered in the Parliament and is guided by the provisions of Constitution of the Republic of Kazakhstan as well as other laws defining the mandate of the Parliament and the Government, Regulations of the Parliament and its chambers.

At the same time staff of the Representation Office by everyday participation in the work of Parliament working bodies take actions to prevent violations by stakeholders of the requirements stated in the Regulation of the Government of the Republic of Kazakhstan prohibiting granting consent without prior approval by senior government officials with regard to introduction of amendments by Parliamentarians related to the concepts of draft government laws or changing their legal content as well as those implying reduction or increase of public expenditures. When deputies introduce conceptual or/and cost related changes and amendments on the draft laws, Representation Office usually during the meetings of Parliament chambers’ working bodies submits proposal on routing such amendments to the Government to get official opinion of the later.

The specified powers of Representation Office are expressed in necessity for the deputies to obtain positive opinion (no objection) of the government on the cost related changes and amendments to the draft laws, pursuant to Article 61 Clause 6 of the Constitution of the Republic of Kazakhstan. On the other hand, given that deputies enjoy the right of passing amendments not related to the cost without Government opinion, Representation Office during the meetings of Parliament working bodies is trying to find compromise on disputable provisions between the deputies and authors of draft laws as well as informs the government about it.

If it is impossible to reach the consensus on disputable provisions Representation Office raises the issue in front of the deputies on the need to develop official position of the government i.e. providing additional government opinion on the particular draft law under consideration.

If government disagrees with the non-cost related amendments initiated by Parliamentarians given that all possible conciliation procedures on reaching compromise regarding disputable issues were exhausted the government shall be eligible to withdraw the respective draft law. However according to the legislative practice two branches of government in the majority of cases manage to find consensus on disputable provisions of the draft laws and it is evidenced by the fact that there were insignificant number of draft laws withdrawn by the government in the entire life of the Parliament due to conceptual disagreement with the deputies.

Representation Office also pursues overall control over the situation with deputies’ inquiries addressed to the Prime-Minister of the Republic of Kazakhstan or government members. Representation Office regularly analyses the quality and time spent by government offices to answer deputies’ inquiries and submits to the Prime-Minister of the Republic of Kazakhstan analytical note with a summary on state bodies’ operations touched upon in deputies’ inquiries.

Representation Office also participates in organizing and conducting meeting between the Prime-Minister of the Republic of Kazakhstan and Parliament Chambers, deputies’ associations, individual deputies, as well government hours in the Parliament and proposes to the Prime-Minister of the Republic of Kazakhstan, government members, heads of state bodies the timing and subjects of their speeches in the Parliament Chambers.

Overall the work of Representation Office is aimed at ensuring robust and smooth coordination of legislature and executive branch of the government, reaching mutual agreement between them on some disputable provisions of the draft laws and other issues related to the government work, as well as on the spot resolution by the executive government branch of acute issues raised by deputies.

 

 

 

 

 


 



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2 1978 Constitution of Kazakh SSR.

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5 Note. The first elected President of the country was Nursultan Abishevich Nazarbayev.

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9 Abdildin S. А. Establishment of parliamentarianism in Kazakhstan. - Astana, 2004.

 [10]Nazarbayev N.А. Kazakhstan’s path. - Karaganda, 2006. - p. 51.

11 Constitution of the Republic of Kazakhstan // Issued on 28 January 1993.

[12] Sartayev S.S. Three peaks of the President // Express K. - 2006. - 16 December.

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[16] Sartayev S.S. Born in confrontation // Юрист. - 2005. - № 8.

17 Kopeyev M.Zh. Development and establishment of parliamentarianism in Kazakhstan// Қазақстандағы Парламентаризм. - 2008. - № 1 (1). - p. 83.

19 Resolution of the RK Constitutional court dated of 6 March 1995.

[20] Sapargaliyev G.S. Constitution is the thing that precedes the state // Vecherny Almaty newspaper. - http://thenews.kz. 2009.

21 Sapargaliyev G.S., Mukhamedjanov B.A., Zhanuzakova L., Sakiyeva R. Legal problems of Unitarianism in the Republic of Kazakhstan - Almaty: Жеті Жарғы, 2000. - p. 119-185.

[22] Morozov А. 1990-2007: Evolution of democracy in Kazakhstan // Baiterek. - 2007. - № 3 (24). - http://www.baiterek.kz/

[23] Nazarbayev N.А. Kazakhstan’s path. - Karaganda, 2006. - p. 76.

[24] Shepel V.N., Kassymbekov M.B. First President of the Republic of Kazakhstan Nursultan Nazarbayev. Work chronicle (1.06.1993-30.06.1997). - Almaty, 1997. - p. 262.

[25] Tleugabylova Zh.Zh. To 15th years of Constitution of the Republic of Kazakhstan // http://pvloblsot.kz. 2010.

[26] Malinovsky V.А. RK Constitution: common traits and specifics in the conditions of political modernization. Digest of the roundtable: “Constitution of the Republic of Kazakhstan - 10 years”. - Almaty, 2005. - http://www.kisi.kz.

[27] Zhumabayev E.Zh. Constitution of the Republic of Kazakhstan: stages and prospects of development // Speech at the international scientific and practical conference “Constitution is the basis for democratic development of a state”, 2010 // http://www.irstar.kz.

[28] Nazarbayev N. А. Kazakhstan’s path. - Karaganda, 2006. - p. 81.

[29] Starting from 1995 up to now the RK Constitution was amended and revised three times: in 1998, 2007 and 2011.

[30] Udartsev S.F. Constitution: seven years of action. Constitution is not the by-laws // Novoye pokoleniye - 2002. - № 35 (223) // http://www.np.kz.

[31] Makhambetova-Kalykova А. The history of establishment of RK Constitution, 2009 // http://ug.zanmedia.kz.

[32] Mishin А. А. Constitutional (public) law of other countries: textbook for universities. - 14th edition, revised and amended - М.: CJSC Yustitsinform, 2008. - p. 23.

[33] See previous note.

[34] Kotov А. К. Constitutionalism in Kazakhstan: the establishment and efficiency of the mechanism of power. - Almaty: Publisher KazSLS, 2000. - pp. 90-91.

[35]Parliamentary law in Russia: Textbook // Edited by I.M. Stepanov, T.Ya. Khabriyeva. - М.: Юристь. 1999.

[36] Gorylev A.I. Parliamentarianism: theory and practice // www.gduma.ru.

[37] Syedin N.A. Specifics of establishment and development of parliamentarianism in Russia and Ukraine. (Comparative political analysis). Dissertation abstract, candidate of sciences (politics). М., 2002. - p. 12.

[38] Batsev Yu.N. Parliamentarianism in Russia: theoretical, legal and institutional aspects. Dissertation abstract, candidate of sciences (law).М., 1998. - p. 12.

[39] Bekzhanov B.А. Parliamentarianism in Kazakhstan: current condition and prospects of development. Dissertation abstract, PhD. Astana, 2010. - p. 19.

[40] Mukhamedjanov U.B. Short-hand notes of the session of RF State Duma // http://www.akdi.ru/gd/PLEN_Z/2006/04/s27-04_d.htm

[41] Kotov А. К. New Constitution of Kazakhstan and establishment of parliamentarianism in a republic with presidential regime // MPA Bulletin. - 1996. - #3. - pp. 35-42.

[42] See previous note. - p. 35-42.

[43] Kotov А. К. Constitutionalism in Kazakhstan: the history of formation and efficiency of the mechanism of power. - pp. 90-96.

[44] Aitkhozhin К.К. Kazakhstani parliamentarianism (general methodological issues) // International scientific and practical conference “Prospects of Kazakhstani parliamentarianism as the most important institute of democratization and sustainable development of the country”. - Astana, 2005. - pp. 178-179.

[45] Resolution of the Constitutional Court of the Republic of Kazakhstan of 6 March 1995.

[46] Zimanov S.Z. Constitution and Parliament of the Republic of Kazakhstan. - Almaty: Жеті Жарғы, 1996. - p. 123-124.

[47] Sapargaliyev G.S. Constitutional Law of the Republic of Kazakhstan. - 2005. - p. 319.

[48] Aitkhozhin К.К. Kazakhstani parliamentarianism (general methodological issues) // International scientific and practical conference “Prospects of Kazakhstani parliamentarianism as the most important institute of democratization and sustainable development of the country”. - Astana, 2005. - p. 179.

[49] Nazarbayev N.А. The first bicameral Parliament of Kazakhstan - new stage in the law-making of the country // Kazakhstanskaya pravda. - 1996. - 31 January.

[50] Nazarbayev N.А. On the edge of 21st century. - Almaty, 1996. - p. 182-183.

[51] Bekzhanov B.А. Parliamentarianism in Kazakhstan: current status and development prospects. Dissertation abstract, PhD. Astana, 2010. - p. 19.

[52] Mukhamedjanov U.B. СShort-hand notes of the session of RF State Duma // http://www.akdi.ru/gd/PLEN_Z/2006/04/s27-04_d. htm

[53] Majoritarian electoral system (from French Majoritee - majority) - the election system whereby the deputies are doomed to be elected if they get the majority of votes of the voters in the specific territory where they stand in elections.

[54] Speech by N.A. Nazarbayev at the opening of the first session of I convocation RK Parliament. 30 January 1996 // www.akorda.kz.

[55] Dyachenko S.A. Party parliament foundation for the political system of Kazakhstan: facts, capabilities and prospects // Қазақстандағы Парламентаризм. - 2008. - № 1. - p. 37.

[56] Aitkhozhin К.К. Kazakhstani parliamentarianism (general methodological issues) // International scientific and practical conference “Prospects of Kazakhstani parliamentarianism as the most important institute of democratization and sustainable development of the country”. - Astana, 2005. - p. 179.

[57] Tazhin М.М. Speech by the RK Minister of foreign affairs at the 15th session of the minister of foreign affairs of OSCE member-countries. Madrid. 2007.

[58]Constitutional law of the Republic of Kazakhstan // Edited byА. Т. Asheulov, key editorМ. S. Narikbayev. - Almaty: KazSLU, 2001. - p. 429.

[59] Decree of Constitutional Council of 1 December 2003. “Official interpretation of Articles 10 and 12 of Constitution of the Republic of Kazakhstan”.

[60] Regulation of the Constitutional Council of 26 June2008. № 5 “Official interpretation of Article 45 Clause 2, Article 53, sub-clauses 3) and 4) of the Constitution of the Republic of Kazakhstan”.

[61] Sapargaliyev G.S. From the book “Constitution of the Republic of Kazakhstan. Scientific and practical comments”. - Almaty: Raritet, 2010. - p. 17.

[62] Sapargaliyev G.S. From the book “Constitution of the Republic of Kazakhstan. Scientific and practical comments”. - Almaty: Raritet, 2010.-pp. 16-18.

[63] Sapargaliyev G.S. Parliamentary law of the Republic of Kazakhstan: Monograph. - Astana: RK Legislation Institute LLP, 2009. - p. 86.

[64] Defining dictionary of the Constitution of the Republic of Kazakhstan. Almaty: Жеті жарғы, 1996. - p. 151.

[65] Fedotova Z.L. Development of the most important elements of Kazakhstani parliamentarianism // Prospects of Kazakhstani parliamentarianism as the most important institution of democratization and sustainable development of the country. - Astana, 2005. - pp. 191-192.

[66] Biryukov N.I., Sergeyev V.M. Establishment of the representative power institutions in modern Russia. - М.: Agency “Издательский сервис”, 2004. - p. 15.

[67] Biryukov N.I., Sergeyev V.M. Establishment of the representative power institutions in modern Russia. - М.: Agency “Издательский сервис”, 2004. - p. 14.

[68] Kirichenko P.N. Parliament as the body of representative power //Publisher PARAGRAPH

[69] Scientific and information handbook “Prospects of Parliamentarianism development: global experience and Kazakhstan”. Astana, 2007. - p. 98.

[70] Malinovsky V.А., Mailybayev B. А. in the book “Constitution of the Republic of Kazakhstan. Scientific and practical comments”. - Almaty: Raritet, 2010. - p. 214.

[71] Abdrassulov E.B., Doskalov V. А., Abdrassulova G.E. Parliamentary law: Manual - Astana, 2008. - pp. 62-70.

[72] Sapargaliyev G.S. Problems of coordinated functioning of the public bodies of the Republic of Kazakhstan and the system of checks and balances. - Almaty: Publishing house of KazSLU, 2006. - p. 155.

[73] Mussin A.E. Parliamentarianism in Kazakhstan: status and development prospects. Materials for scientific and practical conference. - Astana, 2007. - p. 5.

[74] Sapargaliyev G.S. In book “Constitution of the Republic of Kazakhstan. Scientific and practical comment”. - Almaty: Raritet, 2010. - p. 252-253.

[75] Constitution Article 55 sub-clause 4 was deleted by the Law of the Republic of Kazakhstan dated of 21 May 2007 № 254-III, it stipulated pre-mature termination by the Parliament Senate of the powers of the local representative bodies in accordance with legislation of the country.

[76] See: Regulations of the Parliament Senate of the Republic of Kazakhstan // Adopted by the decree of the Parliament Senate of the Republic of Kazakhstan dated of 8 February 1996.

[77] See: Regulations of the Parliament Senate of the Republic of Kazakhstan // Issued by the decree of the Parliament Senate of the Republic of Kazakhstan dated of 8 February 1996.

[78] See also: Regulations of the Parliament Senate of the Republic of Kazakhstan // Issued by the decree of the Parliament Senate dated of 8 February 1996.

[79] Note. Thus in April 2011 during the plenary session of the RK Parliament Senate the issue of relief from the positions of 6 judges of the RK Supreme Court was considered upon request of the President of the Republic of Kazakhstan based on their non-compliance with the requirements to the judges. After discussion the Senate deputies took the decision to relief 6 judges of their position meaning the divestiture of their immunity. The decision is formalized by the decree of the Senate.

[80] See: Regulations of the Parliament Senate of the Republic of Kazakhstan // Issued by the decree of the Parliament Senate dated of 8 February 1996.

[81]Constitution of the Republic of Kazakhstan dated of 30 August 1995.

[82] Sapargaliyev G.S. From book “Constitution of the Republic of Kazakhstan. Scientific and practical comment”. - Almaty: “Raritet”, 2010. - p. 255.

[83] See: Regulations of the Parliament Senate of the Republic of Kazakhstan// Issued by the decree of the Parliament Senate dated of 8 February 1996.

[84] See: Regulations of the Parliament Majilis of the Republic of Kazakhstan// Issued by the decree of the Parliament Majilis dated of 8 February 1996.

[85] See: Regulations of the Parliament Majilis of the Republic of Kazakhstan// Issued by the decree of the Parliament Majilis dated of 8 February 1996.

[86] See: Regulations of the Parliament Senate of the Republic of Kazakhstan// Issued by the decree of the Parliament Senate dated of 8 February 1996.

[87] Sapargaliyev G.S. Constitutional, legal and institutional problems of political reforms in the conditions of modernization of the political system of the society. - Almaty, 2010. - p. 38.

[88] See: Regulations of the Parliament of the Republic of Kazakhstan // Adopted by the decree of the Parliament of the Republic of Kazakhstan on 20 May 1996.

[89] See: Regulatory decree of the Constitutional Council of the Republic of Kazakhstan dated of 31 January 2011 No. 2 “Checking the Law of the Republic of Kazakhstan “On amendments to the Constitution of the Republic of Kazakhstan” for compliance with the Constitution of the Republic of Kazakhstan”. URL: http: // www.constcouncil.kz/rus/resheniya/?cid=10 rid=644 (date of address: 21.06.2011).

[90] RK Law № 403-IVdated of 2 February 2011.

[91] Previously the RK Constitution before it was amended and revised in 1998 had a provision stating that the issues of exclusive responsibility of Majilis include the announcement of the ad-hoc Presidential election of the Republic of Kazakhstan and scheduling the ad-hoc Presidential election (Article 56, Clause 4).

[92] Speech by the RK President N.Nazarbayev at inauguration. (08.04.2011). URL: www.akorda.kz/

[93] Utyashev M.M., Kornilayeva A.A. Oversight functions of the regional parliaments: comparative analysis // Law and politics. - 2001. - № 1. - p. 26-30.

96 Contemporary parliament: theory, global experience, Russian practice / Overall editing by O.N. Bulakova. - М.: Exmo, 2005. - p. 81.

[95] Parliamentary law in Russia: textbook - М.: Exmo, 2006. - p. 137.

[96] Taitorina B.A. Public oversight in the Republic of Kazakhstan: constitutional and legal issues. Synopsis of a thesis of PhD in legal sciences. А., 2010. - p. 107.

[97] Executive power, legislative power, judicial power in France: information and training materials. - New series: № 6 / Embassy of France in Russia. MoE France. - М., 1996. - 118 p. - (Russian - Frenchseries).

[98] Malinovsky V.A. Parliamentary oversight in the Republic of Kazakhstan: background, current status and prospects // Materials for the international scientific and practical conference “Parliamentarianism in Kazakhstan: status and development prospects” (22 November 2007). - Astana, 2008. - p. 113.

[99] Abdykarimov О. Parliament: on the way to perfection // Kazakhstanskaya pravda. - 2001. - 12 December.

[100] Taitorina B.A. Public oversight in the Republic of Kazakhstan: constitutional and legal issues. Synopsis of a thesis of PhD in legal sciences. А., 2010. - p. 101.

[101] Sapargaliyev G.S. The issues of the consistent functioning of the public bodies in the Republic of Kazakhstan and the system of  checks and balances. - Almaty: Publishing house of KazSLU, 2006. - p. 165.

[102] Malinovsky V.A. Parliamentary oversight in the Republic of Kazakhstan: background, current status and prospects // Materials for the international scientific and practical conference “Parliamentarianism in Kazakhstan: status and development prospects” (22 November 2007). - Astana. 2008. - С.112.

[103] Sapargaiyev G.S. Parliamentary law of the Republic of Kazakhstan: Monograph. - Astana: RK Institute of legislation LLP, 2009. - p. 86.

[104] Ibidem. - p. 87.

[105] Parliamentary law of Russia: Textbook // Edited by I.M. Stepanova, T.Ya. Khabriyeva. - М.: Юристь, 1999. - p. 34.

[106] Sapargaliyev G.S. Functions of the Parliament of the Republic of Kazakhstan // Prospects of Kazakhstani parliamentarianism as the most important institute of democratization and sustainable country development. - Astana, 2005. - pp. 17-18.

[107] http://works.tarefer.ru/21/100005/index.html.

[108] Tchirkin V.E. Constitutional law: Russia and foreign experience. - М.: Publisher «Зерцало», 1998. - p. 360-366.

[109] Malinovsky V.A. Parliamentary oversight in the Republic of Kazakhstan: background, current status and prospects // Materials for the international scientific and practical conference “Parliamentarianism in Kazakhstan: status and development prospects” (22 November 2007). - Astana. 2008. - С. 116.

[110] Address by the President of the Republic of Kazakhstan N.A. Nazarbayev to the people of Kazakhstan. 30.09.1998 г. URL: http://www.akorda.kz/ (date of address: 12.04.2011).

[111] Address by the President of the Republic of Kazakhstan N.A. Nazarbayev to the people of Kazakhstan. 29.04.2002 г.URL: http://www.akorda.kz/(date of address: 12.04.2011).

[112] Speech of RK President N.A. Nazarbayev at the opening of the first session of IV Convocation of RK Parliament. 02.09.2007. URL: http://www.akorda.kz/(date of address: 16.04.2011).

[113] Address by the President of the Republic of Kazakhstan N.A. Nazarbayev to the people of Kazakhstan. 29.01.2010.URL: http://www.akorda.kz/ (date of address:16.04.2011г.).

[114] Investigation committees and commissions in case of special public interest the Parliament (or its chambers) can carry out parliamentary investigations through the creation of a special parliamentary commission with almost unlimited powers to collect the required information and therefore to carry out oversight.

[115] Great Law dictionary // Edited by A Ya. Sukhareva, V.D. Zorkina, V.E. Krutskikh.. М.: INFRA-М, 1997. - p. 242.

[116] 1995 Constitution of the Republic of Kazakhstan.

[117] Malinovsky V.A. From book “Constitution of the Republic of Kazakhstan. Scientific and legal comment” - Almaty: Raritet, 2010. - p. 225.

[118] Abdrassulov E.B., Doskalov V.A., Abdrassulova G.E. Parliamentary law. - Astana, 2008. - p. 112.

[119] Sapargaliyev G.S. In book “Constitution of the Republic of Kazakhstan. Scientific and legal commentary”. - Almaty: Raritet, 2010. - p. 225-227.

[120] Ibidem. - p. 225-227.

[121] Abdrassulov E.B., Doskalov V.A., Abdrassulova G.E. Parliamentary law. - Astana, 2008. - p. 112.

[122] Sapargaliyev G.S. In book “Constitution of the Republic of Kazakhstan. Scientific and legal commentary”. - Almaty: Raritet, 2010. - pp. 225-227.

[123] Kerimov D.A. Legislative activities of the Soviet state. - М., 1988. - 326 p.

[124] Speech of the RK President N.A.Nazarbayev at the opening of the first session of IV convocation RK Parliament. 02.09.2007. URL: http://www.akorda.kz/ (date of address: 16.04.2011).

[125] Note. One should bear in mind that before the Parliament Regulations were amended and revised the national budget was approved by the joint sessions of the Chambers.

[126]http://www.ez2www.com.

[127] Ibidem.

[128]http://www.ez2www.com.

[129] Russian legal encyclopedia. М.: Infra-М, 1999. - p. 160.

[130] Statistics of the Unit for documentary provision as of 10.02.2011.

[131] Bulakov O.N. Bicameral Parliament of Russian Federation. - SPb.: Legal center Press, 2003. - p. 73.

[132] Kotelevskaya I.V. Contemporary parliament // State and law. - 1997. - № 3. - p. 5-13.

[133] Interpellation (Latin interpellatio - interruption in speech, complaint to the court, claim, requirement) in some foreign countries (mostly with parliamentary form of governance) is a request to the government or a minister by a group of deputies to provide clarification on the internal or external policy of the agency or on specific issue. Interpellation is different from verbal or ordinary written inquiries primarily due to the procedure of filing and legal follow-up. The response of the government (minister) to interpellation is not only accompanied by additional questions but can also cause general debate on confidence in it.

[134] Constitutional law of foreign countries: Manual / General editors M.V. Baglay, U.I. Leibo, L.M. Entin. - 2nd edition, revised. - М.: Norma, 2008. - p. 315.

[135] Modern dictionary of foreign words. М.: Russian language, 1992. - p. 242.

[136] Statistics by the Unit for logistics, control and HR work of the Majilis Administration of the Parliament of the Republic of Kazakhstan as of 17.05.2011.

[137]Abdrassulov E.B., Doskalov V.A., Abdrassulova G.E. Parliamentary law. - Astana, 2008. - p. 143.

[138]http:// www.pvlost.ru.

[139] Mukhamedjanov U.B. Believing in future // Kazakhstanskaya pravda. - 2005. - December 3.

[140] Sapargaliyev G.S. Functions of the Parliament of the Republic of Kazakhstan // Prospects of Kazakhstani parliamentarianism as a most important institution of democratization and sustainable development of the country. - Astana, 2005. - pp. 17-18.

[141] Russian legal encyclopedia. М.: Infra-М, 1999. - p. 160.

[142] Constitutional law of foreign countries: Manual for universities / General edition by correspondent member of RAS professor M.V. Baglay, PhD of law professor U.N.Leibo, PhD in law professor L.M.Entin. - М.: Norma, 2004. - p. 288-289.

[143] Tchirkin V.E. Constitutional law of foreign countries: Manual. - 5th edition revised and amended. - М.: Юристъ, 2008. - p. 431.

[144] Tchirkin V.E. Constitutional law: Russia and foreign practices. - М.: Publisher “Sertsalo”, 1998. - p. 394.

[145] Sapargaliyev G.S. In book “Constitution of the Republic of Kazakhstan. Scientific and practical comment”. - Almaty: Raritet, 2010. - p. 253.

[146] Zhakayeva L.S., Sarsembayev M.A. In book “Constitution of the Republic of Kazakhstan. Scientific and practical comment”. - Almaty: Raritet, 2010. - p. 275-276.

[147] Resolution of the Constitutional Council No.6 Dated of 13 May 2003 “Formal interpretation of Constitution of the Republic of Kazakhstan Article 61 Clause 7 and Article 63 Clause 1”

[148] Resolution of the Constitutional Council of the Republic of Kazakhstan No. 11 dated of 19 November 2003 “Formal interpretation of Constitution of the Republic of Kazakhstan Article 70”.

[149] Sapargaliyev G.S. The issues of coordinated functioning of the public bodies of the Republic of Kazakhstan and the system of checks and balances. - Almaty: Publisher of KazSLU, 2006. - p. 187.

[150] Regulations of the Parliament Majilis of the Republic of Kazakhstan // Adopted by the resolution of the Parliament Majilis of the Republic of Kazakhstan of 8 February 1996.

[151] In the Knesset of Israel the frequent use of the vote of censure is the subject of criticism of the Government. For example the 11th convocation Knesset filed the record number of vote of censure 165, and the 14th convocation Knesset made 84 proposals like that.

[152] Dumsky Vestnik. - 1994. - № 1. - pp. 17-22.

[153] Silkina T. Forms of Parliament functioning // Materials of scientific and practical conference “Lawmaking process in the Republic of Kazakhstan: status and the problems” (Almaty, 27 - 28 March 1997). - p. 154.

[154] See: Regulations of the Parliament Senate of the Republic of Kazakhstan dated of 8 February 1996 // Parliament bulletin of the Republic of Kazakhstan. - 1996. - № 3.

[155] See details in: Regulations of the Parliament Majilis of the Republic of Kazakhstan dated of 8 February 1996 // Parliament bulletin of the Republic of Kazakhstan. - 1996. - № 3.

[156] Statistics by the Unit for logistics, control and HR work of the Parliament Majilis Administration of the Republic of Kazakhstan as of 17.05.2011.

[157] Parliament Majilis of the independent Kazakhstan - Astana, 2011. - pp. 102-103.

[158] Parliament Majilis of the independent Kazakhstan. - Astana, 2011. - p. 129.

[159] Nazarbayev N.A. Address to the people of Kazakhstan “New Kazakhstan in the new world”. URL:www.аkorda.kz/(date of address: 28.02.2007).

[160] XXI century: global elite about N.A.Nazarbayev.- Astana, 2005. - p. 56.

[161] Ibidem. - p. 14.

[162] Sarsembayev M.A. In book “Constitution of the Republic of Kazakhstan. Scientific and practical comment”. - Almaty: Raritet, 2010. - p. 40.

[163] Regulations of the Minister of foreign affairs of the Republic of Kazakhstan. Approved by the Governmental decree of the Republic of Kazakhstan № 1118 of 28 October 2004 // Official site of RK MFA.

[164] Total about 70 countries // Official site of RK MFA.

[165] Resolution of the RK Constitutional Council No.2 of 18 May 2006 “Official interpretation of Constitution of the Republic of Kazakhstan Article 54 sub-clause 7”.

[166] See: Parliament Regulations of the Republic of Kazakhstan // Adopted by the resolution of the Parliament of the Republic of Kazakhstan of 20 May 1996.

[167] See: Parliament Senate Regulations of the Republic of Kazakhstan // Adopted by the resolution of the Parliament Senate of the Republic of Kazakhstan of 8 February 1996.

[168] See: Parliament Majilis Regulations of the Republic of Kazakhstan // Adopted by the resolution of the Parliament Majilis of the Republic of Kazakhstan of 8 February 1996.

[169] Inter-parliamentary Assembly of the member-countries of the Commonwealth of Independent States (IPA CIS) was established on 27 March 1992 in Alma-Ata. The agreement signed by the heads of parliaments of the Republic of Armenia, Republic of Belarus, Republic of Kazakhstan, Republic of Tajikistan, Republic of Uzbekistan, Kyrgyz Republic and Russian Federation established the Inter-parliamentary Assembly as a consultative body to draft legislative documents of mutual interest. In 1993 - 1995 the Inter-parliamentary Assembly was joined by Azerbaijan Republic, Georgia, and Republic of Moldova. In 1999 the Alma-Ata agreement was joined by Ukraine.

[170] CSTO IPA was established on 15 May 1992 in Tashkent (Republic of Uzbekistan). The heads of 7 states  - Republic of Armenia,  Republic of Kazakhstan, Kyrgyz Republic, Russian Federation,  Republic of Tajikistan and Republic of Uzbekistan - signed the Collective Security Treaty (CST). The CST objective is to prevent using joint efforts and if necessary liquidate the military threat to the sovereignty and territory integrity of the Treaty member-countries. In 1993 the Collective Security Treaty was joined by Azerbaijan Republic, Republic of Belarus and Georgia. On 20 April 1994 the Collective Security Treaty became effective in all nine countries.

[171] IPA EurAsEC was established on 10 October 2000. This international organization was joined by 6 member-countries: Republic of Belarus, Republic of Kazakhstan, Kyrgyz Republic, Russian Federation, Republic of Tajikistan and Republic of Uzbekistan. The objectives include: legal provision of functioning the Eurasian Economic community, harmonization (unification, making closer) the legislations of the Community member-countries and bringing it in compliance with treaties signed within EurAsEC.

[172] The OSCE Parliamentary assembly (OSCE PA) was established in Madrid in 1991 based on the OSCE summit in Paris within the OSCE institutionalization process. The Assembly is an advisory and consultation body whose decisions are not binding for the member-countries. The OSCE PA consists of above 300 parliamentarians of all OSCE countries. OSCE PA is an important link between OSCE and deputies of the legislative bodies of OSCE member countries.

[173] Astana Declaration: Towards a Security Community. URL: www.ukimet.kz (date: December 2, 2010).

[174] Parliamentary Assembly of the Council of Europe (PACE) was founded in 1949 and represents one of two main bodies of the European Council, which in turn is the oldest body of interparliamentary cooperation in Europe. Representatives of parliamentary structures of 46 democratic states-members of the European Council cooperate under the aegis of PACE. Their purpose is to consider prominent issues of the community and international policy.

[175] European Parliament is the legislative body of the European Union, which is elected directly by the citizens of the states - members of the Union. Together with the Council of the European Union parliament forms the bicameral legislative branch of the EU authorities and is considered one of the most powerful legislatures in the world. It was founded in 1957. Since 1979 has been elected by the people. Parliamentary elections are held every 5 years. Deputies of the European Parliament are divided into party fractions that represent international party associations.

[176] NATO PA - international parliamentary organization established in 1955 (up to November 1966 referred to as NATO Parliamentarians Conference; in 1966-1998 - North Atlantic Assembly). The members of the NATO PA are parliamentarians delegated by national parliaments of the NATO member-states in proportion to the population of each state. Delegations with the status of associate members take part in the work. The main objectives of the organization are: to strengthen cooperation and understanding between NATO member-nations, to provide for the official channel of communication between the national parliaments and NATO governing bodies.

[177] Interparliamentary Assembly on Orthodoxy (IAO) was established in 1993 on the initiative of the Greek Parliament. MAP members are Australia, Albania, Armenia, Belarus, Bulgaria, Greece, Georgia, Kazakhstan, Cyprus, Jordan, Latvia, Lebanon, Lithuania, Moldova, the Netherlands, Palestine, Poland, Russia, Romania, Serbia and Montenegro, Syria, Slovakia, the United States, Uganda, Ukraine, Finland, Estonia. IAO goals are: strengthening the role of Orthodoxy in the European Union as a significant and necessary cultural and spiritual expression in the formation of the European reality, and maintaining the unifying role of the Orthodox culture in Eastern Europe; facilitating contacts between parliamentary, political, religious, scientific and spiritual leaders in the development of the Orthodox cultural heritage; and finding solutions to the problems of modern European society.

[178] The Inter-Parliamentary Union (IPU) is the oldest international parliamentary organization. IPU was established in 1889. Members of IPU are parliamentary groups from over 150 countries. The main objectives of the IPU: promotion of peace and the peaceful settlement of disputes, development of cooperation among nations; strengthening the position of parliamentary institutions, etc.

[179] The Organization of the Islamic Conference was founded on September 25, 1969 by the Conference of Heads of Muslim countries in Rabat (Morocco). OIC currently unites 57 countries with a population of about 1.2 billion people. The main objective of the organization is to ensure Islamic solidarity in the social, economic and political spheres, in the struggle against colonialism, neo-colonialism and racism, and to support the Palestine Liberation Organization.

[180] Address to the Nation of Kazakhstan by the President of the Republic of Kazakhstan N.Nazarbayev. URL: http://www.akorda.kz/ (date January 28, 2011).

[181] M.Tajin. Kazakhstan - Organization of the Islamic Conference: Tolerance Paradigm. July 19, 2008. URL: www.kazpravda.kz/

[182] Agreement on the establishment of the PA of Turkic-speaking countries was signed on November 21, 2008 at the First Conference of Presidents of Parliaments of Azerbaijan, Kazakhstan, Kyrgyzstan, Turkey, Uzbekistan and Turkmenistan held in Istanbul. The Parliamentary Assembly of Turkic-speaking countries (TurkPA) is a parliamentary association between the Turkic-speaking countries, the aim of which is to achieve a common mechanism in the form of a parliamentary association between the Turkic-speaking countries and matching political views, exchange of experience, joint projects. Currently TurkPA includes Azerbaijan, Kazakhstan, Kyrgyzstan and Turkey.

[183] AFPPD was organized on the initiative of the United Nations Fund for Population and Development in 1981 at the Asian Conference of Parliamentarians on Population and Development, held in Beijing, and was formalized at a board meeting held on March 8-9 in New Delhi (India). At the meeting held on August 2-3 in Manila (Philippines), it was decided to carry out a general assembly of AFPPD once every three years. New Delhi was chosen as the venue of the first assembly.

[184] The Senate cooperates with: the National Assembly of the Republic of Austria, the Milli Mejlis of the Azerbaijan Republic, the National Assembly of the Republic of Armenia, the Parliament of the Islamic Republic of Afghanistan, the National Assembly of the Republic of Belarus, the Federal Parliament of Belgium, the Parliament of the United Kingdom of Great Britain and Northern Ireland, the State Assembly of the Republic of Hungary, the Greek Parliament, the Parliament of Georgia, Knesset of the State of Israel, the Rajya Sabha (Council of States) of the Parliament of India; Medzhilis of the Islamic Republic of Iran, the Senate of the Cortes Generales of the Kingdom of Spain, the Senate of the Italian Republic, the Senate of Canada, National People's Congress of the People's Republic of China, the National Assembly of the Republic of Korea, the Seimas of the Republic of Latvia, the Sejm of the Republic of Lithuania, the Senate of Malaysia, the State Great Hural of Mongolia, the Senate of the Republic of Poland, the Council of Federation of the Federal Assembly of the Russian Federation, the Senate of Romania, the Consultative Council (Majlis Shura) of the Kingdom of Saudi Arabia, the Parliament of Singapore, the Congress of the United States of America, the Grand National Assembly of Turkey, the Verkhovna Rada of Ukraine, the Senate of the French Republic, the Federal Parliament of the Federal Republic of Germany, the Parliament of the Republic of Croatia, the Senate of the Czech Republic, the Parliament of the Republic of Estonia, the House of Councilors of Japan.

[185] XXI century: World Elite about Nursultan Nazarbayev. Astana, 2005. P.14.

[186] Report «Results of Performance of the Ministry of Economic Development of Russia in 2009 and goals for 2010” // Ministry of Economic Development of Russia, 2010. URL: www.economy.gov.ru/.

[187] Address of the President of the Republic of Kazakhstan N.Nazarbayev to the Nation of Kazakhstan. URL: http://www.akorda.kz/ (date January 28, 2011.

[188] XXI century: World Elite about N.Nazarbayev. Astana, 2005. P.12.

[189] XXI century: World Elite about N.Nazarbayev. Astana, 2005. P.8.

[190] Concept of the Legal Policy of the Republic of Kazakhstan for 2010-2020 // Approved by the Order of the President of the Republic of Kazakhstan on August 24, 2009, #858.

[191] S.Zimanov. Parliament of the Republic of Kazakhstan: Experience and Issues // Collection of speeches of the participants of the International Scientific and Practical Conference «Parliamentarism in Kazakhstan: Status and Development Prospective”. Astana, 2008. P. 19-20.

[192] N.Abdirov. Collection of speeches of the participants of the International «Round-Table” On Improvement of the Quality of Draft Legislation Expertise”. Astana, 2010. P. 132-133.

[193] Since early 90s planning of legislative activities has also received considerable attention both in research activities and in practice in Russia. Factors such as the expansion of the circle of subjects of legislative initiative, a sharp increase in the flow of legislative initiatives, a low share of the Government among the subjects of the right for legislative initiative lead to formation of a need for planning of the legislative initiative, which at the initial stage was legally fixed in the Rules of the State Duma of 25 March 1994 in the form of a sample program of the lawmaking activity of the State Duma. In 1998, the new Regulations of the State Duma were adopted. These Regulations more clearly defined procedural aspects of planning of the legislative activity.

[194] A. Starovoytov. Planning of Law-making and Legislative Activities. Thesis: PhD in Law: 12.00.02. Moscow, 2004. P. 198; RSL OD, 61:05-12 / 320.

[195] G. Sapargaliyev. Constitutional, legal and organizational problems of the implementation of political reforms in the modernization of the political system of the society: Monograph. Almaty, "Publisher" Norma-K" LLP, 2010. P. 15.

[196] In some Eastern European countries (Hungary, Romania), and in most of the CIS countries planning of the legislative activities is done for each session of Parliament. In Denmark, planning of the legislative activities of the Folketing is done for a sessional year, but the country discussed the introduction of long-term planning. The advanced system of planning of the legislative activity for four years - the term of the Parliament - (Legislatur-plannung) originated in Switzerland. As a rule, the norms of legislative planning are established in the Regulations of Parliaments or their chambers (for example, in Italy, France, Hungary, Denmark), and sometimes - in the legislation (in Switzerland).

[197] Inter-Ministerial Committee on Legislative Activities, as an advisory body to the Government of the Republic of Kazakhstan, established by the Government of the Republic of Kazakhstan of September 11, 2000 #1376. Commission is chaired by the Minister of Justice of the Republic of Kazakhstan

[198] L.Zhakaeva, M.Sarsembayev. Book "The Constitution of the Republic of Kazakhstan. Scientific and practical comments”. Almaty: Rarity, 2010. P. 270.

[199] G. Sapargaliyev. Constitutional, legal and organizational problems of the implementation of political reforms in the modernization of the political system of the society. Almaty, 2010. P. 62-63.

[200] Rules of the right of legislative initiative of the President of the Republic of Kazakhstan, approved by the Decree of the President of the Republic of Kazakhstan of September 21, 2007 #413.

[201] G.Sapargaliyev. Book "The Constitution of the Republic of Kazakhstan. Scientific and practical comments". Almaty: Rarity, 2010. P. 244.

[202] See: Regulations of the Parliament of the Republic of Kazakhstan / / Adopted by the Resolution of the Parliament of the Republic of Kazakhstan on May 20, 1996.

[203] See: Regulations of the Parliament of the Republic of Kazakhstan / / Adopted by Resolution of the Parliament of the Republic of Kazakhstan on February 8, 1996.

[204] Sapargaliyev: Parliamentary Law of the Republic of Kazakhstan: Monograph. - Astana "Institute of Legislation of the Republic of Kazakhstan" LLP, 2009. - P. 105.

[205] Prior to the official submission of the draft Law to Majilis it should pass through two commissions: Interagency Commission (IAC) and the Republican Budget Commission (RBC).

[206] Sapargaliyev: Constitutional, legal and organizational problems of the implementation of political reforms in conditions of modernization of the political system of the society. - Almaty, 2010. - P. 14.

[207] Regulations of the Senate of the Parliament of the Republic of Kazakhstan / / Adopted by the Resolution of the Parliament Senate of the Republic of Kazakhstan on February 8, 1996.

[208] Reference Data of the Information and Analysis Division as of January 1, 2010.

[209] Reference Data of the Information and Analysis Division as of January 1, 2010.

[210] Zimanov: On increasing the efficiency of the Parliament Deputies in the new environment / / Zanger. - 2007. - No.4. P. 11.

[211] Abdrasulov, Doskalov, Abdrasulova: Parliamentary Law: Textbook. - Astana, 2008. - P.68.

[212] Reference Data of the Information and Analysis Division as of January 1, 2010.

[213] Reference Data of the Information and Analysis Division as of January 1, 2010.

[214] Fedotova: The modern parliamentarism: status and capacity reserves / / Kazakhstanagy Parliamentarism. - 2008. - No.2. - Pp. 33-36.

[215] Regulations of the Government of the Republic of Kazakhstan / / Approved by the Government of the Republic of Kazakhstan on December 10, 2002, No.1300.

[216] See details: Regulations of the Government of the Republic of Kazakhstan / / Approved by the Resolution of the Government of Kazakhstan on December 10, 2002, No.1300.

[217] Sapargaliyev: Parliamentary Law of the Republic of Kazakhstan: Monograph. - Astana "Institute of Legislation of the Republic of Kazakhstan" LLP, 2009. - P. 117.

[218] Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 / / Approved by Presidential Decree of August 27, 2009, No.858.

[219] Shokhin: Interaction of the authorities in the legislative process. - M., 1997. - P. 16.

[220] Fedotova: Procedures of legislative activity (issues) / / The legislative process in the Republic of Kazakhstan: status and problems: Proceedings of the International Scientific and Practical Conference. March 27-28, 1997 - Almaty. 1997. - P. 28.

[221] Sapargaliyev: Parliamentary law of the Republic of Kazakhstan: Monograph. - Astana "Institute of Legislation of the Republic of Kazakhstan" LLP, 2009. - Pp. 109-116.

[222] Fedotova: Procedures of legislative activity (issues) / / The legislative process in the Republic of Kazakhstan: status and problems: Proceedings of the International Scientific and Practical Conference. March 27-28, 1997 - Almaty. 1997. - P. 29.

[223] It should be noted that the implementation by the Senate of the Parliament of the Republic of its functions on the adoption of constitutional laws and laws during the period of temporary absence of the Majilis as a result of a premature termination of its powers (Constitution Article 55 Clause 5) does not preclude from the exercise of this right in the Senate. The Regulations of the Senate contain provisions establishing the procedure for presentation of the draft law by the subject of legislative initiative to the Senate.

[224] See: Regulations of the Majilis of the Parliament of the Republic of Kazakhstan / / Adopted by the Resolution of the Majilis of the Parliament of the Republic of Kazakhstan of February 8, 1996.

[225] Regulations of the Senate of the Parliament of the Republic of Kazakhstan / / Adopted by the Resolution of the Senate of the Parliament of the Republic of Kazakhstan of February 8, 1996.

[226] See: Regulations of the Majilis of the Parliament of the Republic of Kazakhstan / / Adopted by the Resolution of the Majilis of the Parliament of the Republic of Kazakhstan of February 8, 1996.

[227] Veto (Latin veto - forbid) is an act suspending or preventing from enactment of a collective body decision. Of particular importance is the right of the head of state to veto laws passed by parliament. We distinguish between absolute (or Resolute) veto, when the Head of State shall be entitled to a final rejection of the law adopted by the Parliament, and the relative (suspensory) veto when the refusal of the Head of State to sign a law only suspends its entry into force, as the Parliament has the right to take its second vote. We also distinguish between the general and partial (selective) veto. The former means a possibility to reject an act as a whole, the latter - of its parts or articles / /Large Law Dictionary / Ed. Sukharev, Zorkin, Krutskih. Moscow: INFRA-M, 1997. - p. 80.

[228] Sapargaliyev: Problems of coordinated functioning of public authorities of the Republic of Kazakhstan and the system of checks and balances. - Almaty, 2006. - p. 102.

[229] Regulatory Resolution of the Constitutional Council of the Republic of Kazakhstan dated February 11, 2009, No.1, "On the verification of the Law of the Republic of Kazakhstan "On amendments and additions to some legislative acts of the Republic of Kazakhstan on Freedom of Conscience and Religious Associations" for compliance with the Constitution of the Republic of Kazakhstan".

[230] Regulations on the procedure for submission for signature and consideration by the President of the Republic of Kazakhstan of the laws of the Republic of Kazakhstan, their registration, disclosure and storage, approved by the Decree of the President of the Republic of Kazakhstan of July 2, 1996, No.3051.

[231] The Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 (approved by the Decree of the President of the Republic of Kazakhstan on August 27, 2009, No.858) noted the need for the formation of the Reference bank of regulatory legal acts in the electronic format. At the same time, it is necessary to introduce new provisions to the legislation providing for an electronic form of regulatory legal act, which would be a major step towards the informatization of the national law.

[232] Resolution of the Government of the Republic of Kazakhstan of October 11, 2002, No.1118, "On Approval of the Rules for the competition for the right of the official publication of the regulatory legal acts".

[233] Great Law Dictionary, Edited by A.Ya.Sukhareva, V.D.Zorkina, V.Ye.Krutskih; INFRA-M, 1997, p. 420.

[234] Marchenko: Theory of State and Law: Textbook. - 2nd ed., Rev. and add. - M: TC Welby, “Prospect” Publishing House, 2008, p. 569-570.

[235] Marchenko: Theory of State and Law: Textbook. - 2nd ed., rev. and add. - M: TC Welby, “Prospect” Publishing House, 2008, p. 573.

[236] Theory of State and Law. The manual on the theory of state and law / / Diyakonov. - Allpravo.ru. - 2004

[237] Extensive criticism of the tri-pillar structure of the legal provision was given by Pigolkin. However, according to the author, the different purposes of the provision (provision  - the principle, legal definition, provision - a rule of conduct, etc.) also determine the different connections between the elements of the provision , its divergent parts: there cannot exist a single, universal structure applicable to all the norms (see A. P. Pigolkin: Theoretical problems of the law-making activity in the USSR. Abstract.... PhD Thesis - p. 23).

[238] G.A. Borisov: Theory of State and Law: Textbook / G.A. Borisov. Belgorod, Publishing House of the Belgorod State University, 2007. p. 176.

[239] Paragraph 8 of Article 17 of the Law "On regulatory legal acts" stipulates: "In cases where it is necessary to clarify the goals and reason for adoption of a regulatory legal act and main challenges it faces, stipulation of the legal norms shall be preceded by an introductory part (preamble)".

[240] Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 / / Approved by Presidential Decree of August 27, 2009, No.858.

[241] Resolution of the Government of the Russian Federation as of March 5, 2009, No.195 approves the regulations of the examination of draft legal acts and other documents with a view to identify their provisions facilitating the creation of conditions for corruption. Decree of the President of the Republic of Belarus of 2007 approved the Regulations for the examination of the laws of the Republic of Belarus and developed Guidelines for the examination of draft laws of the Republic of Belarus.

[242] See: Resolution of the Government of the Republic of Kazakhstan of December 10, 2002, No.1300 "On the Regulations of the Government of the Republic of Kazakhstan".

[243] Online resource: URL: http://ec.europa.eu/dgs/legal_service/legal_reviser_en.htm/ (date accessed: 17.05.2011).

[244] Online resource: URL: http://www. ncpi.gov.by / ncla / shveic.html / (date of access: 17.05.2011).

[245] Online resource: URL: http://politanaliz.ru/files/Evaluation_of_legislation3.ppt No. 270.11, Slide 11 / (date accessed: 17.05.2011).

[246] Sania Lehr. Experience of draft laws’ assessment in North America and Europe / / Proceedings of the round-tables on improving the efficiency of scientific and legal appraisal of draft legislation. - Astana, 2010. - P. 52.

[247] See: Guidelines for implementation of anti-corruption appraisal of regulatory legal acts (drafts), approved by the 2nd meeting of the Interagency Commission for the improvement of the current legislation in terms of fighting corruption.

[248] Address by the President of Kazakhstan Nursultan Nazarbayev to the Anti-Corruption Forum of Nur Otan NDP, as of November 6, 2008.

[249] See: The current archive of KHLU for 2007-2010.

[250] Opening remarks by A.N. Keltchewsky, Ambassador, Head of the OSCE Centre in Astana / / Proceedings of the round-tables on improving the efficiency of scientific and legal review of draft laws. - Astana, 2010. - P. 138.

[251] J.D. Busurmanov: Place and role of the legislation institute of the Republic of Kazakhstan in the legal framework  supporting the activities of the state / / Improvement of legislation in the light of the Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020: Proceedings of the International Scientific Conference (19.11.2010). - Astana: Institute of Legislation of the Republic of Kazakhstan, 2010. - P. 94.

[252] Opening remarks by A.N. Keltchewsky, Ambassador, Head of the OSCE Centre in Astana / / Proceedings of the round-tables on improving the efficiency of scientific and legal expertise of draft laws. - Astana, 2010. - P. 135.

[253] Recommendations of the international round-table on "Improving the quality of the appraisal of draft laws" of June 4, 2010 / / Proceedings of the round-tables on “Improving the efficiency of scientific and legal appraisal of draft laws”. - Astana. 2010. - P. 70.

[254] The Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 / / Approved by the Presidential Decree of August 27, 2009, No.858.

[255] P.A. Tabanov: Systematization as the major form of improvement of legislation: the theory and practice of the Republic of Kazakhstan. Thesis. Doctor of Law. Science, Almaty, 1999.

[256] Classification of documents means assigning the document with a theme based on the Classifier.

[257] See: E.A. Kovshik: Organizing the existing legislation: organizational prerequisites / / Bulletin of CAMS. - 2007. № 3. URL: http://www.vestnik-kafu.info/journal/11/403/ (date accessed: 11.04.2011).

[258] P.A. Tabanov: Organizing as the major form of improvement of the legislation: the theory and practice of the Republic of Kazakhstan. Thesis. Doctor of Law. Science, Almaty, 1999.

[259] General Theory of Law / / Ed. By V.K. Babaev. - Nizhny Novgorod, 1993. - P. 332.

[260] Ibid. - P. 333.

[261] R. Kabriyak: Codifications / / Translated from French by L.V. Golovko. - Moscow, 2007. - P. 11.

[262] M.Ch. Kogamov: Institute of codification in the book by Remy Kabriyak "Codification": guidelines and approaches. - 2011.

[263] The Concept of Legal Policy of the Republic of Kazakhstan for the period from 2010 to 2020 / / Approved by Presidential Decree of August 27, 2009, No.858.

[264] Remy Kabriyak: Codification / / Translated from French by L.V. Golovko. - Moscow, 2007. - P. 391.

[265] P. Moroz: Problems of codification of legislation of the Republic of Kazakhstan / / Lawyer.- 2004. - No.10.

[266] Yu.A. Tikhomirov,  E.V. Talapina: On codification and codes / / Journal of Russian law.- 2003. No.3 (75). - P. 48-49.

[267] Meetings of meeting Legal Policy Council under the President of the Republic of Kazakhstan as of May 19, 2011, No.51-7.3.

[268] I.D.Merkel “Laws need monitoring” //Materials of International Scientific and Practical Conference “Monitoring of legislation as a tool for quality improvement of legislative activity”, Astana City, 2007, p. 25.

[269] Materials of International Scientific and Practical Conference “Pressing issues of systematization of national legislation”, Astana City, Institute of Legislation under Ministry of Justice of the Republic of Kazakhstan, 2011.

[270] Legal Policy Concept of the Republic of Kazakhstan for 2010 - 2020 // Approved by the President’s Decree of the Republic of Kazakhstan as of August 27, 2009, No. 858.

[271] Ibid.

[272] E.A.Nugmanova “National model of legal monitoring of the Republic of Kazakhstan // Institute of Legislation’s Bulletin of the Republic of Kazakhstan, 2007, No. 3 (7). - P. 34-35.

[273] Ibid.

[274] Yu.A.Tikhomirov “Organization and conduction of legal monitoring” // Law and Economics, 2006, No. 10, P. 13.

[275] M.T.Baimakhanov “On role of monitoring in improving rule-making activity // Legal monitoring as an instrument for improving quality of rule-making activity: Information package of International scientific and practical conference (October 30, 2007). Astana City 2007. P. 53-58.

[276] N.A.Sartayeva “Effectiveness of laws: problem statement // University scientific notes of Khmelnitskiy University of Management and Law, 2007. No. 2. P. 51-54.

[277] A.K.Shaymurunova “Some issues of monitoring” // Institute of Legislation of the Republic of Kazakhstan, Bulletin, 2010. No.4 (20). P. 95.

[278] Stephan Magnusson. // Materials of experts’ meeting “Improving effectiveness of scientific and legal appraisal of draft laws: local practice and international experience”, Almaty City, 2008. P. 62.

[279] See Methodological recommendations on conducting legal monitoring of regulatory and legal acts and developing concepts and drafts of regulatory and legal acts. Astana City, 2008.

[280] I.D. Merkel. On some compelling issues of legal monitoring. // Information package of the international research and training conference (October 30, 2007). - Astana. 2007. - p. 30.

[281] G.S. Sapargaliyev. Constitutional, legal and organizational challenges of implementation of political reforms in the context of the political system modernization: Monograph. - Almaty: “Norma-K” Publishing House, 2010. - p. 67.

[282] I.D. Merkel. On some compelling issues of legal monitoring. // Information package of the international research and training conference (October 30, 2007). - Astana. 2007. - p. 30-32.

[283] A. Musin. Parliamentarianism in Kazakhstan: evolvement and development outlook. // International conference “Parliamentarianism in Kazakhstan: evolvement and development outlook” (November 22, 2007). - Astana, 2007. - p. 55.

[284] M.T. Baimakhanov. On the role of monitoring in improvement of law making. // Legal monitoring as a tool for improvement of the law making quality: Information package of the international conference (October 30, 2007). - Astana, 2007. - p. 53-58.

[285] General theory of law. // Under the general editorship of V. Babyev. - Nizhny Novgorod, 1993. - p. 369.

[286] Great dictionary of the Russian language. Saint-Petersburg, 1998. - p. 1328.

[287] General theory of law. // Under the general editorship of A. Pigolkin. - 2nd edition, amended. - Publishing house of the Moscow State Technical University named after N. Bauman. 1998. - p. 158.

[288] General theory of law. // Under the general editorship of A. Pigolkin. - 2nd edition, amended. - Publishing house of the Moscow State Technical University named after N. Bauman. 1998. - p. 167.

[289] Note. «Lex specialis derogat general» (A special law overrides a general law), «Lex superior derogat legi interior» (A statute of a higher legal force takes precedence over a statute of a lower legal force), «Lex posterior derogat lex prior» (The younger law overrides the older law), etc.

[290] B. Straushn. Constitutional (state) law of foreign countries. - Moscow, 1996. - p. 73.

[291] B. Straushn. Constitutional (state) law of foreign countries. - Moscow: Norma, 2006. - p. 393.

[292] Y. Abdrasulov. Some issues of interpretation of laws and Constitution in Kazakhstan. // Journal of the Russian Law. - 2002. - No. 2.

[293] Y. Abdurasulov. Interpretation of the laws and norms of the Constitution: theory, experience, procedure: Monograph. - Almaty: Orkeniet, 2002. - p. 245.

[294] A. Kotov. Constitution and constitutionalism. // A legal reform in Kazakhstan. 2000. No. 2. p. 5.

 

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[299] General theory of law. Under the general edition of A. Pigolkin  - 2nd edition. - M.: Publishing House of the Moscow State Technical University named after N. Bauman. 1998. - p. 177.

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