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Resolution No. 1 of 11th February 2003 of the Constitutional Council of the Republic of Kazakhstan

Concerning the Official Interpretation of Paragraph 5 of Article 50, Paragraph 5 of Article 51, Paragraphs 4 and 5 of Article 52 of the Constitution of the Republic of Kazakhstan

The Constitutional Council of the Republic of Kazakhstan composed by Chairman Yu.A. Khitrin, members of the Council Kh.A. Abishev, K.Zh. Baltabaev, S.F. Bychkova, A. Essenzhanov, A.K. Kotov and K.A. Omarkhanov with participation of: representative of the subject of appeal - deputy of the Majilis of the Parliament of the Republic S. Abdrakhmanov; member of the Central Election Commission of the Republic V.K. Foos, judge of the Supreme Court of the Republic Zh.P. Baishev; Deputy General Public Prosecutor of the Republic A.K. Daulbaev, Vice-Minister of Justice of the Republic R.Sh. Shamsutdinov, has considered in open sitting the appeal of a group of deputies of the Parliament of the Republic of Kazakhstan concerning official interpretation of paragraph 5 of Article 50, paragraph 5 of Article 51, paragraphs 4 and 5 of Article 52 of the Constitution of the Republic of Kazakhstan.
Having examined available materials, having heard the speaker - member of the Constitutional Council K.Zh. Baltabaev, speeches of the representative of the subject of appeal and participants in the meeting, the Constitutional Council of the Republic of Kazakhstan have fixed:
The Constitutional Council of the Republic of Kazakhstan has been applied by a group of deputies of the Parliament of the Republic for official interpretation of paragraph 5 of Article 50, paragraph 5 of Article 51, paragraphs 4 and 5 of Article 52 of the Constitution of the Republic of Kazakhstan. The subject of appeal asks to explain the following questions:
1) Should the term of powers of a deputy be counted from the moment when, in accordance with paragraph 5 of Article 51 of the Constitution of the republic, the candidate for deputies is recognised as elected, since the Constitution does not define other approaches to determination of the beginning of the term of powers of deputies of the Parliament?
2) Does the phrase 'the candidate shall be considered as elected' suppose the obligation of immediate registration after the summarisation of results of elections, except for the case of suspension of registration in accordance with paragraph 1 of Article 73 of the Constitution of the republic?
3) Does the term of powers of deputies of the Senate - six years, term of powers of deputies of the Majilis - five years fixed in paragraph 5 of Article 50 of the Constitution of the republic mean the length of the term of powers only after conducting of regular elections of deputies? Does the Constitution suppose a shorter term of powers for deputies elected during special elections? How must the term of powers of deputies of the Senate appointed by the President of the republic at the beginning and during the course of the regular convocation, be determined?
4) Does the rule of the Constitution of the republic stated in paragraph 4 of Article 52 mean that after the end of the term of powers a deputy of the Parliament may be made answerable under appropriate responsibility without consent of the Chamber for actions committed by him during the period of the term of deputy powers?
5) Does the word 'mandate' in paragraph 5 of Article 52 of the Constitution of the republic mean the expression of results of elections and grant to the deputy of appropriate powers by the electorate?
When interpreting paragraph 5 of Article 50, paragraph 5 of Article 51, paragraphs 4 and 5 of Article 52 of the Constitution of the Republic of Kazakhstan the Constitutional Council, in application to the questions set in the appeal, proceeds from the following:
1. Paragraph 5 of Article 50 of the Constitution of the Republic of Kazakhstan fixes the term of powers for deputies of the Senate - six years, and ones of the Majilis - five years; it foes not indicate the beginning of the term of deputy powers.
When solving the said situation one shall be governed by paragraph 4 of Article 49 of the Constitution, according to which organisation and activity of the Parliament, legal status of its deputies are determined by the constitutional law.
In accordance with the said rule of the Constitution the law maker fixes in paragraph 2 of Article 24 of the Constitutional Law of the Republic of Kazakhstan 'Concerning the Parliament of the Republic of Kazakhstan and the Status of Its Deputies' that powers of a deputy of the Parliament begin from the moment of his registration as a deputy of the Parliament by the Central Election Commission of the Republic.
The Resolution of 14th July 1999 of the Constitutional Council of the republic 'Concerning the Official Interpretation of Paragraph 2 of Article 49 of the Constitution of the Republic of Kazakhstan' fixes that powers of the Parliament as a collective state body by its duration do not coincide with powers of its deputies. The Council notes that powers of a deputy of the Parliament begin from the moment of his registration by the Central Election Commission. That legal position also ensues from the sense of paragraph 1 of Article 73 of the Constitution. Powers of the Parliament begin from the moment of opening of its first session which is to be called not later thirty days from the day of publication of results of elections.
2. According to the Constitutional Council's opinion, the obligation of immediate registration of the deputy does not ensue from the sense of the words 'the candidate shall be considered as elected' indicated in paragraph 5 of Article 51 of the Constitution of the republic. That provision fixes criteria of determination of the elected candidate but not the procedure for taking the position and granting of powers of the deputy of the Parliament.
Having received the bigger number of votes of voters or electors, to obtain subjective rights and obligations of the deputy as a representative of the whole people, the candidate, who is considered as elected in a concrete election district (region), needs a series of legal factors which legitimate him on that position to be occurred. They comprise:
fixation and publication of results of elections; submission of an application for declining of obligations incompatible with the status of a deputy of the Parliament in accordance with paragraph 3 of Article 52 of the Constitution and laws of the republic;
registration of the deputy on the basis of protocols of appropriate election commissions and taking the oath to the people of Kazakhstan. Accordingly, the grant of powers to the deputy does not coincide with his election.
The Constitutional Law 'Concerning Elections in the Republic of Kazakhstan' fixes the deadline for publication of a communication concerning results of elections of deputies of the Parliament as not later ten days from the day of their conducting, but it does not fix the term of registration of deputies. Such an approach of the law maker to that issue in the Constitutional Law 'Concerning Elections in the Republic of Kazakhstan' gives a ground to the Central Election Commission to fix the time of registration of deputies, which adopts regulatory legal acts within its competence.
3. The term of powers of deputies of the supreme representative body of the republic fixed by Article 50 of the Constitution is single for the deputies elected both during regular and special elections.
The basis for conducting of special elections may be a dissolution of the Parliament by the President of the republic stipulated by paragraph 1 of Article 63 of the Constitution. According to paragraph 5 of Article 52 of the Constitution, the dissolution of the Parliament is one of the grounds for termination of powers of deputies ahead of time.
In case of dissolution of the Parliament one half of the deputies of the Senate must be elected during special elections for the period of three years, and the other - for the period of six years that ensues from rules of paragraph 5 of Article 50 as well as paragraph 2 of Article 51 of the Constitution stipulating periodical rotation of a half of the elected deputies of the Senate.
When a deputy is elected to the position of the removed one, the issue shall be solved as follows. Article 50 of the Constitution does not define the term of powers of the Parliament and speaks about the term of powers of deputies of each of the Chambers (paragraph 5). Such content of the Constitution of the republic should not be understood as each deputy of the Parliament, irrespective of when he was elected - during the period of general elections to the appropriate Chamber or instead of the removed deputy, may exercise his powers during the whole term stipulated by Article 50 of the Constitution. Such interpretation of the constitutional rule concerning the term of powers of deputies would not correspond to the organisational integrity and constitutional term of powers of the Parliament, relationships between the Parliament as a two-chamber legislative body and deputies forming it.
Paragraph 2 of Article 50 of the Constitution of the republic states that seven deputies of the Senate are to be appointed by the President of the republic for the term of powers of the Senate. However, neither the Constitution itself nor the Constitutional Law 'Concerning the Parliament of the Republic of Kazakhstan and the Status of Its Deputies' contain rules concerning the term of powers of the Senate. In application to the cases when a deputy of the Senate is appointed by the President at the beginning of the regular convocation, the vagueness of the definition 'term of powers of the Senate' does not influence upon fixation of the term of powers of a certain deputy-senator, since that term is directly indicated by paragraph 5 of Article 50 of the Constitution.
The rule of paragraph 2 of Article 51 of the Constitution concerning re-election of a half of the elected deputies of the Senate each three years does not cover deputies to be appointed by the President. Accordingly, regular renewal of those deputies shall be made upon the expiration of the term of their powers in each six years. If somebody of the deputies appointed by the President leaves within that term on appropriate grounds, then the person appointed to the vacancy shall have deputy powers to be valid only during the period remained to the expiration of the six-year cycle.
4. In accordance with paragraph 4 of Article 52 of the Constitution of the republic a deputy of the Parliament holds immunity 'during the term of his powers'. That means that after the termination of powers the deputy may be made answerable according to appropriate responsibility on general grounds. In this case the time of commitment of offenses - during the period of the term of deputy powers, before or after their termination - is not important.
During the period of the term of their powers deputies bear civil law responsibility in the full volume and on general grounds. The issue concerning administrative responsibility imposed according to the off-court procedure shall be solved in the same way.
5. Paragraph 5 of Article 52 of the Constitution says that a deputy of the Parliament 'shall be deprived on his mandate' when certain circumstances occur.
The mandate certifies lawfulness of powers of the deputy of the Parliament as a representative of the people but not a certain region or election district. Electors do not legally determine the position of the deputy.
Thus, in paragraph 5 of Article 52 of the Constitution the word 'mandate' should not be understood as powers of a deputy of the Parliament, which are legally fixed by registration by the Central Election Commission, as stipulated by the Constitution and constitutional laws. In the context of that rule of the Constitution the words 'deprived of the mandate' are analogous to the words 'deprived of powers' according to the sense.
On the basis of the stated and being governed by subparagraph 4) of paragraph 1 of Article 72 of the Constitution of the Republic of Kazakhstan, Article 1, subparagraph 1) of paragraph 3 of Article 17, Articles 31-33, Article 37 and subparagraph 2) of paragraph 1 of Article 41 of the Edict of the President of the Republic of Kazakhstan, having force of the Constitutional Law, 'Concerning the Constitutional Council of the Republic of Kazakhstan', the Constitutional Council of the Republic of Kazakhstan decrees:
1. That in accordance with paragraph 4 of Article 49 of the Constitution of the Republic of Kazakhstan the legal position of deputies, including the beginning of the term of their powers, shall be regulated by the constitutional law.
According to paragraph 2 of Article 24 of the Constitutional Law of the Republic of Kazakhstan 'Concerning the Parliament of the Republic of Kazakhstan and the Status of Its Deputies', powers of a deputy of the Parliament shall begin from the moment of his registration as a deputy of the Parliament of the Republic of Kazakhstan by the Central Election Commission.
2. That the words 'the candidate shall be considered as elected' in paragraph 5 of Article 51 of the Constitution of the Republic of Kazakhstan shall not suppose an obligation of immediate registration of elected persons as deputies after the summarisation of results of elections.
3. That paragraph 5 of Article 50 of the Constitution of the Republic of Kazakhstan fixes the term of powers of deputies of the Senate - six years, the term of powers of deputies of the Majilis - five years. That maximal term of powers of deputies of the Parliament of the Republic of Kazakhstan shall be fixed for deputies elected during special elections as well.
During special elections, after the dissolution of the Parliament, a half of the deputies of the Senate, in accordance with paragraph 2 of Article 51 of the Constitution of the Republic of Kazakhstan, shall be elected for the period of three years.
The term of powers of a deputy of the Senate appointed by the President of the Republic of Kazakhstan, according to paragraph 5 of Article 50 of the Constitution of the Republic of Kazakhstan, shall be six years. Regular appointment of those deputies shall be made upon the expiration of the term of their powers in every six years. If during that period someone of the appointed deputies has powers terminated ahead of time, then the person appointed to his position shall be granted powers for the term remained to the expiration of the six-year period.
4. That according to paragraph 4 of Article 52 of the Constitution of the Republic of Kazakhstan, a deputy shall have the immunity only during the term of his powers after the termination of which he may be made answerable under appropriate responsibility on general grounds.
5. That in paragraph 5 of Article 52 of the Constitution of the Republic of Kazakhstan the word 'mandate' shall be understood as deputy powers which were legally fixed by registration by the Central Election Commission. In the context of that rule of the Constitution the words 'deprived of the mandate' according to the sense shall be analogous to the words 'deprived of powers'.
6. That in accordance with paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan the Resolution shall enter in force from the day of its adoption and it shall not be appealed, it shall be obligatory in the whole territory of the Republic and final with respect to the case stipulated by paragraph 4 of Article 73 of the Constitution of the Republic of Kazakhstan.
7. That this Resolution shall be published in the Kazakh and Russian languages in official republic's printed editions.


Chairman of the Constitutional Council
of the Republic of Kazakhstan
Yu. Khitrin
 
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