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Resolution No. 11 of 19th November 2003 the Constitutional Council of the Republic of Kazakhstan

Concerning the Official Interpretation of Article 70 of the Republic of Kazakhstan Constitution

The Constitutional Council of the Republic of Kazakhstan represented by acting Chairman K. A. Omarkhanov, Council Members Kh. A. Abishev, K. Zh. Baltabaev, S. F. Bychkova and A. K. Kotov, with the participation of: representative of the petitioner, Parliament Mazhilis Deputy V. B. Kosarev, representative of the Republic's Government, First Vice Minister of Justice of the Republic of Kazakhstan I. D. Merkel, Deputy Chairman of the Republic of Kazakhstan Agency for Issues of State Service G. R. Abdrakhimov, in its open session has considered the petition from a group of Republic of Kazakhstan Parliament deputies for the official interpretation of Article 70 of the Republic of Kazakhstan Constitution.
Upon examining available materials, having heard the speaker who is a Constitutional Council Member A. K. Kotov, and the representative of the petitioner and session participants, the Constitutional Council of the Republic of Kazakhstan, established the following:
A group of the Republic of Kazakhstan Parliament deputies petitioned to the Constitutional Council of the Republic of Kazakhstan for the official interpretation of Article 70 of the Republic of Kazakhstan constitution, in which the petitioner requested to explain the rules of said Article as to whether political state employees of the Prime Minister Office, central executive bodies and departments, who are not members of the Government, to file resignations in the case of resignation of the Government.
When interpreting the rules of Article 70 of the Constitution concerning the issue raised in the petition, the Constitutional Council of the Republic of Kazakhstan emanated from the following.
In paragraph 1 of Article 64 of the Constitution, the Government is determined as a body of the state which exercises the executive power of the Republic of Kazakhstan, surmounts the system of executive authorities and guides their activities.
The Resolution No. 9/2 of 15th June 2000 of the Constitutional Council "Concerning the Official Interpretation of Paragraph 6 of Article 61 of the Republic of Kazakhstan Constitution" specifies that the Government is a collective authority.
In accordance with paragraph 1 of Article 65 of the Constitution, the Government is formed by the Republic of Kazakhstan President in accordance with the procedure specified by the Constitution. The President, in accordance with subparagraph 3) of Article 44 of the Constitution, pursuant to proposal of the Prime Minister appointed by him with the approval of the Republic of Kazakhstan Parliament, shall determine the structure of the Republic of Kazakhstan Government, appoint to office and release from office members of the Government, as well as form, abolish and reorganise central executive bodies of the Republic, which are not part of the Government.
It ensues from the above constitutional provisions that the Constitution differentiates the concepts of "the structure of the Government" meaning by them the state bodies headed and guided by the Government and the "membership of the Government" which by its meaning covers only the officials of the Government as members of the collective body of the state, which adopts appropriate acts. Such understanding of said categories is also established in paragraph 2 of Article 65 of the Constitution, where it is specified that proposals concerning the structure and membership of the Government shall be submitted to the President of the Republic within ten days after the appointment of the Prime Minister.
The Constitution recognises the procedure of determining the organisation and functioning of the Government as subject to legal regulation of the constitutional law (paragraph 4 of Article 64 of the Constitution).
The Constitutional Law "Concerning the Government of the Republic of Kazakhstan", paragraph 3 of Article 3 specifies that the structure of the Government is formed of ministries and other central executive bodies. According to paragraph 4 of Article 3 of the above Constitutional Law, the membership of the Government comprises the Prime Minister, his deputies, ministers and other official persons of the Republic.
In order to implement the Constitution, the structure of the Government is approved by the Edicts of the President of the Republic; official persons to be members of the Government are appointed by the President of the Republic individually, also by appropriate Edicts.
Paragraph 5 of Article 70 of the Constitution establishes the general rule on constitutional consequences of the Republic President's acceptance of the resignation of the Government or its members on the grounds specified in paragraphs 2 and 3 of this Article of the Constitution. In all cases of the acceptance by the President of the Republic of the resignation of the Government or the Prime Minister, or certain member of the Government, the Constitution means the membership of the collective body of the state surmounting the system of executive authorities, as well as official persons who are part of it pursuant to the appointment by the President. "The acceptance of the resignation means termination of powers of the Government or its certain member. The acceptance of the resignation of the Prime Minister means the termination of the powers of the entire Government" (paragraph 5 of Article 70 of the Constitution).
Paragraph 2 of Article 70 of the Constitution entrusts to the Government and any of its members the right, upon their initiative, to file resignation by way of declaring it to the President of the Republic, when they believe it is impossible to exercise the functions entrusted to them. In the case of expression by the Parliament of the non-confidence vote to the Government (paragraph 3 of Article 70 of the Constitution), the Government by its collective decision declares its resignation to the President of the Republic. If the President of the Republic by his act decides to terminate the powers of the Government, release from office the Prime Minister or any member of the Government (paragraph 7 of Article 70 of the Constitution), that entails the termination of powers of the Government or of that official person without their expressing desire to resign. The reasons for the termination of powers of heads of other central executive bodies forming the structure of the Government, but which are not part of the Government as a collective body, are not regulated by Article 70 of the Constitution.
Subparagraph 8) of Article 66 of the Constitution puts the appointment to office and release from office of the heads of central executive bodies which are not part of the Government into the scope of the Government of the Republic. The grounds for that must be established and may be specified by legislative acts concerning state service and the procedure for state service.
Thus, setting forth the official interpretation of provisions of Article 70 of the Constitution, the Council observes that issues of resignation of other state servants who are not members of the Government are not subject to regulation by those provisions.
Based on the above, and guided by subparagraph 4) of paragraph 1 of Article 72 of the Republic of Kazakhstan Constitution, Articles 31-33, 37 and subparagraph 2) of paragraph 1 of Article 41 of the Edict of the President of the Republic of Kazakhstan, having the force of a constitutional law, "Concerning the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council of the Republic of Kazakhstan resolves:
1. That the provisions of Article 70 of the Republic of Kazakhstan Constitution, which underlie the right, bases and consequences of resignation of the Republic of Kazakhstan Government, its members or the Prime Minister, should be understood as the rules which apply to the members of the Government as a collective body of the state, individually appointed by the President of the Republic of Kazakhstan in accordance with the procedure established by the Constitution.
The grounds and procedure for the resignation of other state servants of the office of the Prime Minister, central executive bodies and departments, who are not members of the Government, are established and changed by legislative acts.
2. That in accordance with paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, a resolution shall enter into force from the date of its adoption, it shall not be subject to appeal, it shall be obligatory in the entire territory of the Republic and final in view of the case specified by paragraph 4 of Article 73 of the Republic of Kazakhstan Constitution.
3. That this Resolution shall be published in the state language and the Russian language in official publications of the Republic.


Acting Chairman of the Constitutional
Council of the Republic of Kazakhstan
K. Omarkhanov
 
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