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THE LEGAL SYSTEM
OF THE REPUBLIC OF KAZAKHSTAN

Under the Constitution of August 1995

By Marvin E. Nowicki

Contents

  • BACKGROUND
  • THE CONSTITUTIONAL COUNCIL HIGHLIGHTS
  • COURTS AND JUSTICE HIGHLIGHTS
  • CONCLUSION


    BACKGROUND

    On April 29, 1995, President Nursultan Nazarbayev, the first and only president of the Republic of Kazakhstan, held a national referendum extending his term of office through the year 2000. He had assumed the Presidency in 1991. Following a high voter turnout and overwhelming "yes" to this referendum, the President, without a sitting Parliament, began passing a series of mainly economic laws by decree.

    At this time, Nazarbayev also organized a committee of foreign and local advisors to draft a new Constitution in response to the widespread criticism of the old Constitution during and after the confrontation involving the Court and the Supreme Soviet. A first draft was circulated in early July and a second draft in early August 1995. In between the two drafts, President called for a one-month period of public debate and discussion.

    On August 30, 1995, a national referendum on the new Constitution passed by a majority of about 90% of the voters. It is not clear how political developments will affect the future of Kazakstan in the long term, but the new Constitution clearly outlines the justice system and delineates the powers of the courts in the normative sense.

    The next two sections discuss the August 1995 Constitution and, in particular, the Constitutional Council (Articles 71-74) and the Courts and Justice System (Articles 75-84).

    THE CONSTITUTIONAL COUNCIL HIGHLIGHTS

    Kazakhstan's Constitutional Council represents the supreme law body of the land under the new Constitution; it is made up of seven members with a term of office of six years. Ex-presidents of the Republic have the right to be life-long members. The Chairperson of the Council is appointed by the President of Kazakhstan. The President appoints two members to the Council, the Chairperson of the Senate (upper house of Parliament) two, and the Chairperson of the Mazhilis (lower house of Parliament) two. Half of the membership is renewed every three years.

    The Constitutional Council decides the conduct of elections for the Presidency, the Parliament, and national referendums, the accuracy of parliamentary laws before signature by the President, the constitutionality of international treaties and other matters of legal interpretation. It also considers all matters affecting human rights and liberties appealed from lower courts of laws.

    Article 72 of the Constitution is especially instructive; at the initiative of the President, Chairman of the Senate, Speaker of the Mazhilis, at least one fifth of the members of the parliament or the Prime Minister, the Constitutional Council can decide any disagreement on the legality of elections and national referendums. The Council examines the laws adopted by the parliament before the laws are signed by the President. The Council also examines all treaties prior to ratification . The Council gives official interpretation of the norms of the Constitution and also provides conclusions in case the majority of the Mazhilis decides to accuse and investigate the president for alleged acts of high treason. The Constitutional Council, along with the Supreme Court, will give their respective conclusions about the observance of the established constitutional procedures in such cases.

    Details of the Constitutional Council and its responsibilities are found in Section VI of the Constitution, as follow:

    SECTION VI. THE CONSTITUTIONAL COUNCIL

    Article 71 (Membership and General)


    1. The Constitutional Council consists of seven members whose terms shall be for six years. Ex-Presidents of the Republic are life-long members of the Council.
    2. The Chairperson of the Council is appointed by the President of the Republic, and in case the votes are equally divided, his vote shall be decisive.
    3. Two members of the Council are appointed by the President of the Republic, two by the Chairperson of the Senate, and two by the Chairperson of the Mazhilis (lower house of Parliament). Half of the members are renewed every three years.
    4. The Chairperson and members of the Council shall not be deputies of the Senate or Mazhilis, hold governmental jobs except for teaching, scientific or other creative activities, nor engage in entrepreneurial activity or hold membership of governing bodies or supervisory boards of commercial organizations.
    5. During the term of office, the Chairperson and members of the Council may not be arrested, detained, or suffer administrative punishment imposed by a court of law, or be arraigned on criminal charges without consent of Parliament, except in cases of being apprehended on the scene of a crime or the commission of grave crimes.
    6. Organization and activity of the Constitutional Council shall be regulated by Constitutional Law.

    Article 72 (Responsibilities)


    1. The Constitutional Council, on appeal from the President of the Republic, the Chairperson of the Senate, the Chairperson of Mazhilis, or not less than one-fifth of the total number of deputies of Parliament, or the Prime Minister, shall:
    2. The Constitutional Council shall consider appeals of courts of law in cases stipulated under Article 78 of the Constitution (see below).

    Article 73 (Disputes)


    1. The inauguration of the President, registration of elected deputies of Parliament, or results of national referendums shall be suspended in cases of appeal to the Constitution Council on issues discussed in Article 72 above concerning correctness of elections.
    2. The signing or ratifying of corresponding acts shall be suspended in case of appeal to the Constitutional Council on issues discussed in Article 72 above concerning adoption of laws and ratification of international treaties.
    3. The Constitutional Council shall pass a resolution within one month from the date of appeal. This period of time, at the demand of the President of the Republic, may be shortened by 10 days if the issue is urgent.
    4. The President of the Republic may object in whole or in part to the resolutions of the Constitutional Council. His objections may be over-ruled by two-thirds vote of the total membership of the Constitutional Council. If the President's objections are not over-ruled, the resolution of the Council shall be considered not adopted.

    Article 74 (Laws and Other Binding Acts)

    1. Laws and international treaties recognized as not being in compliance with the Constitution of the Republic of Kazakhstan may not be signed or ratified and thereby brought into effect.
    2. Laws and other regulatory legal acts, recognized as infringing on the rights and freedoms of an individual and citizen secured by the Constitution, shall be canceled.
    3. Resolutions of the Constitutional Council shall take effect the day of adoption, shall be binding on the entire territory of the Republic, are final and not subject to appeal.
    [GO TO NEXT SECTION, PART 2]


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    Updated Dec. 20, 1996/Brad Hillis