Facts of the case
President Kassym-Jomart Tokayev of the Republic of Kazakhstan submitted a request to the Constitutional Court to review the constitutionality of two legislative acts adopted by the Senate on March 16, 2023, and presented for his signature on March 24, 2023:
- The Constitutional Law “On Amendments and Additions to Some Constitutional Laws of the Republic of Kazakhstan on Issues of Administrative Reform in the Republic of Kazakhstan.”
- The Law “On Amendments and Additions to Some Legislative Acts of the Republic of Kazakhstan on Issues of Administrative Reform in the Republic of Kazakhstan.”
These legislative acts aim to implement administrative reforms as outlined in the President’s Address to the Nation on September 1, 2022. The reforms focus on decentralizing state power and redistributing functions among different levels of government, including the Government, central executive bodies, and local executive bodies.
Question
Do the Constitutional Law and the Law concerning administrative reform violate the Constitution of Kazakhstan?
Holding
Partially. The Constitutional Court ruled that both the Constitutional Law and the Law are generally consistent with the Constitution of the Republic of Kazakhstan. The court found that the proposed changes align with constitutional provisions regarding the separation of powers, the roles of the President, and the functions of the Government and local executive bodies.
However, the court identified specific provisions that may cause contradictions in implementation, requiring further change to the provisions:
- Transfer of Authority over State Programs: The amendments remove the Government’s constitutional duty to approve certain state programs in coordination with the President, potentially conflicting with the President’s constitutional role in determining the main directions of internal and external policy (Article 44 of the Constitution).
- Policy Formation by Ministries: Assigning ministries the role of forming state policy in specific sectors without clear delineation may blur the separation of powers and infringe upon the constitutional responsibilities of the President and the Government, which are articulated in Article 44 and Article 66 respectively. The law must delineate specifically the scope of exclusive policy-making authority of the ministries, so as to not conflict with the President’s authority to set the “main directions of domestic and foreign policy.”
- Individual Ministers and Ministries: The court also noted that internal contradictions exist in the proposed law that leave unclear the delineations between the authority of individual ministers to set “policy” in a specific area of public policy and the authority of ministries to set “state policy” in a specific area.
The court emphasized that while the laws are constitutional, these areas require attention to prevent conflicts with the Constitution and to ensure clarity in the distribution of powers among the President, Government, and executive bodies. The Court cited requirement identified in its prior decision that the “laws must meet the requirements of legal precision and predictability of consequences; that is, its provisions should be formulated with sufficient clarity and based on understandable criteria that exclude the possibility of arbitrary interpretation of the law’s provisions.” Thus, the court recommended that the Government, before the end of the current parliamentary session, submit revised legislation to the Majilis (the lower house of Parliament) that takes into account the legal positions and concerns expressed in this decision.
Foreign Authorities Cited
- None mentioned.
Metadata
- Judges: Azimova (Chief); Eskendirov; Nurmukhanov; Zhakipbaev; Zhatkanbayeva; Kydyrbaeva; Musin (Rapporteur); Ongarbaev; Podoprigora; Sarsembaev; Udartsev
- Date: March 27, 2023
- Link: Tokayev
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