FORMATION OF THE LEGAL SYSTEM OF INDEPENDENT KAZAKHSTAN
G.T. GAINAKBAYEVA — Candidate of pedagogical sciences, ass. professor Kazakh National
Pedagogical University named after Abay
The Republic of Kazakhstan is a former Soviet Union country located in Central Asia. With the population barely reaching 16 million people, it’s territory covers 2 724 900 square kilometers making Kazakhstan 9th largest country in the world by territory. The capital city is Astana since 1997. The official language is Kazakh although Russian is used equally by the majority of population.
October 1990 and December 1991 are marked by adoption of two pivotal documents – Declaration of the State Sovereignty of Kazakh Soviet Socialistic Republic and Constitutional Law “On State Independence of the Republic of Kazakhstan” respectively. The two documents are considered to be a new milestone in the development of Kazakhstan’s legal system. The new independent state had to solve complicated problems of transition period and legal system transformation was among the first priority questions. On the one hand that time existing legal system was based on so called “socialist” pillars; on the other hand Kazakhstan was eager to follow the democratic development way based on the rule of law.
On January 28, 1993 the Supreme Council of Kazakhstan adopted the first Constitution of the newly independent state. The first constitution is getting lots of backlashes nowadays, as being of a contradictory character, i.e. being a compromise with the old Soviet constitution and at the same time having revolutionary traits bearing the principles of the rule of law. Despite the abovementioned backlashes the majority understands that the first Constitution was the perfect match for its time for several reasons. If the first Constitution turned out to be entirely based on the new democratic principles it would have caused enormous resistance from so called “Soviet nomenklatura” and would have never passed the “draft” phase. On the other hand there were too few people understanding the true values of democratic changes in legal system and therefore there were too few people who could have led the way of entirely democratic changes in the legal system.
On August 30, 1995 after a nation-wide referendum the Constitution was changed to its contemporary state. The new Constitution proclaimed Kazakhstan as a democratic state where individual life, rights and freedoms were considered the most important values of the society. It also guaranteed the equality of all citizens. Private and state properties were also under guarantee, along with foreign investments, public unions and Mass Media. Under the Constitution people of Kazakhstan is the only source of state power. The Constitution itself and relevant laws and regulations administrate the state’s power. The Constitution established three separate and independent branches of power: legislative, executive and judicial. The legislative branch consists of the Parliament of the Republic of Kazakhstan. The executive branch consists of the Ministries, state committees, and other central and local executive bodies. The judicial branch consists of the Supreme Court, Constitutional Council and local courts. The Constitution defines the state of Kazakhstan as a state with the presidential form of governing.
In October 1998 the Parliament passed the “Law on amendments to the Constitution of Kazakhstan”. The law mainly dealt with such issues as the president’s term of office, succession of the presidential authority, age restrictions of the president and the terms of the Parliament members.
Subsequent changes made to the Constitution in May 2007, on the other hand, dealt with such issues as strengthening the power of the Parliament, presidential term of office reduction, increasing the number of MPs, increasing the role of political unions, providing more autonomic powers to local authorities, increasing efficiency of judiciary system, improvement of human rights protection mechanisms.
The President of the Republic of Kazakhstan is the head of state and the highest official in the state. The role of the president includes determining the main directions of the domestic and foreign policy of the state and representing Kazakhstan within the country and in international relations[1]. According to Article 40 of the Constitution, he shall ensure by his arbitration the concerted functioning of all branches of state power, as well as the responsibility of the institutions of power before the people. The President is elected every five years on the basis of country-wide suffrage. One person may not be elected President of the Republic more than two times in a row. However, according to Article 42 of the Constitution, this restriction does not apply to the First President, Nursultan Nazarbayev who became the President in April of 1990, On December 1, 1991 the first general elections of the President were held, and Mr. Nazarbayev was reelected as head of the state. A nation-wide referendum of April 29, 1995 confirmed this decision. This referendum also extended the powers of the President until the year 2000. On January 10, 1999, Nazarbayev was elected again as President of Kazakhstan, supported by 79.78% of voters. On December 4, 2005 nation-wide elections for the Presidency of the republic were held again, where Nazarbayev won the support of 91.15 % of voters.
Legislative branch of Kazakhstan is formed by bicameral Parliament that consists of the Senate and Mazhilis[2]. The Senate consists of 47 deputies (two from each region, town and the capital of the Republic), elected at the joint meeting by the deputies of the representative organs of the Republic.
The President appoints seven senators. Majilis consists of 107 deputies 9 of whom are elected by the Assembly of the People of Kazakhstan, a presidentially appointed advisory body designed to represent the country’s ethnic minorities. The majority of them are elected from the geographical electoral districts directly by voters. Ten of the deputies are elected on the basis of party lists according to the system of proportional representation and on the territory of the national electoral districts. The deputies of the Senate are elected for six-year (but elections are staggered with half of the members up for re-election every three years) and the deputies of Majilis are elected for five-year terms of office. According to the Constitution, the Parliament has the power to initiates laws in the spheres of its competence. The Parliament also has the right to pass a vote of no confidence regarding the activity of the Government. When the Parliament does not adopt a law initiated by the Government, the Prime Minister also has the right to raise a question of no confidence and The President of the Republic has the power to dissolve the Parliament when the Parliament expresses a vote of no confidence for the Government. When the Parliament refuses twice to give consent for the appointment of the Prime Minister, the President can also dissolve the Parliament. The same thing can occur when a political crisis caused by the insuperable differences between the Houses of the Parliament or the Parliament and other branches of state power evolves. The Parliament has the right to remove the President of the Republic in the case of high state treason.
A new constitution adopted by the referendum in 1995 placed the judiciary system under the control of the President and the executive branch. There are local and oblast (regional) level courts, and a national-level Supreme Court and Constitutional Council. A special arbitration court hears disputes between state enterprises. There is also a military court system. Local level courts serve as courts of first instance for less serious crimes such as theft and vandalism. Oblast level courts hear more serious criminal cases and also hear cases in rural areas where no local courts have been established. A judgment by a local court may be appealed to the oblast level. The Supreme Court hears appeals from the oblast courts. The constitution establishes a seven member Constitutional Council to determine the constitutionality of laws adopted by the legislature. It also rules on challenges to elections and referendums and interprets the constitution. The president appoints three of its members, including the chair. Under constitutional amendments of 1998, the president appoints a chairperson of a Supreme Judicial Council, which nominates judges for the Supreme Court. The Council consists of the chairperson of the Constitutional Council, the chairperson of the Supreme Court, the Prosecutor General, the Minister of Justice, senators, judges, and other persons appointed by the president. The president recommends and the senate as being the upper legislative chamber approves these nominees for the Supreme Court. Oblast judges nominated by the Supreme Judicial Council are appointed by the president. Lower level judges are appointed by the president from a list presented by the Ministry of Justice. The Ministry receives the list from a Qualification Collegium of Justice, composed of deputies from the Majlis (lower legislative chamber), judges, prosecutors, and others appointed by the president). Under legislation approved in 1996, judges serve for life.
The constitution calls for public trials where the defendant has the right to be present, the right to counsel, and the right to call witnesses. There is the presumption of innocence of the accused, and the defendant has the right of appeal. In practice, trials of political oppositionists have been closed, and there is widespread corruption among poorly paid judicial personnel. A new criminal code that took effect in 1998 increases penalties for some crimes but also removed some types of Soviet-era crimes such as parasitism. Establishment of special and extraordinary courts is prohibited, though specialized courts may be created (military, economic, administrative, juvenile, etc). The organization of courts, status of judges and enforcement of justice are regulated by the Constitution, Constitutional Law “About Court System and Judges Status in the Republic of Kazakhstan“ (2000) and other legislative acts. Only courts administrate justice, which gives all the judicial power to judges and jury, acting on behalf of the courts. No other juridical and physical bodies are empowered to perform the duties of a judge and execute judicial power. Judges are independent and submit only to the law.
In order to develop a robust private sector and complete the transition to a market economy, the Government recognized the need to develop and strengthen the country’s legal and judicial systems. During the first five years of its independence, Kazakhstan adopted numerous laws and regulations and tried to restructure its legal institutions to better support ongoing market reforms. Significant assistance was available in the areas of drafting and training. However, this assistance, as well as the Government’s own initiatives, were not well coordinated, nor systematic and were aimed at short-term improvements. Many legal enactments were adopted in an ad hoc manner and were considered to be internally inconsistent and unevenly applied. As the country was entering its second phase of reforms, it became clear that short-term emergency measures to reform the legal system were no longer sufficient. After extensive discussions, involving local and foreign experts, the Government identified a comprehensive legal reform Project to deal with problems identified related to the quality of legal enactments, inadequacies in legal institutions, and weak legal processes.
Preparation of the reform was complex and time consuming. Great care was taken to ensure that the reforms would address country-specific problems, that the legal community had ample chances to discuss legal reform priorities, and in all areas local consultants were engaged to prepare the initial analysis. Simultaneously, skepticism of some parts of the central Government, as well as in Parliament was growing about the wisdom of undertaking rapid reforms.
The reform’s objective was to assist Kazakhstan in the development of legal and regulatory systems and institutions in areas key to the functioning of a market economy. Specifically, the Project aimed to strengthen the Governments’ legal drafting capacity and process, and improve the quality and enforcement of legal enactments; support the development of a more transparent, efficient, effective, and accessible judicial system; and improve the access by Government officials, judges, parliamentarians, members of the legal profession and business community, and the public at large to more reliable, comprehensive and up-to-date legal information, and to increase public awareness of, and involvement in, the legal process.
The reform was well designed to deal with the most critical problems in the legal area. They were clear, realistic, and addressed key needs in the legal and judicial area. At the same time, it must be recognized that reforms in each of these areas are complex and call for major policy commitments and resources, and requires institutional reform to bear fruit. Combining them under one reform complicated the design and management. One alternative approach could have been to have two reforms, one for legal part and one for judicial part. This would have been particularly appropriate if the Kazakhstani judiciary had the legal authority and institutional capacity with respect to the organization and functions of the judicial branch. However, until 2001 the Ministry of Justice (MOJ) was fully responsible for the administrative, organizational, and financial aspects of the courts. Therefore, the decision to address the needs in one comprehensive reform was justifiable. Moreover, at that time, the Government’s commitment to this approach was very strong, and the central role of the MOJ in each of these areas allowed for a relatively straightforward management structure[3].
The stimulus for judicial reforms originated from the Presidential administration and the MOJ, not the courts themselves. After the adoption of major judicial reforms in 2001, and the courts gaining significant more independence, the reform and its objectives were well suited and readily available to support these important initiatives. In fact, in line with these reforms, the Supreme Court assumed direct responsibility for the judicial strengthening component in 2001.
Legal Drafting and Institutional Strengthening Component of the reform envisaged providing support to Government’s efforts at the national level to improve the quality, efficiency, transparency and effectiveness of laws and regulations, and improving the law-making process, particularly with respect to economic enactments. It was aimed at enhancing drafting capacity across principal Government units with drafting responsibility, and strengthening the organizational and technical capacity of the MOJ and its Institute of Legal Drafting. This component consisted of three principal activities: (1) legal drafting assistance to the MOJ and other Government agencies by local and foreign legal consultants; (2) an assessment of the functional, organizational, and management aspects of the MOJ; and (3) training of Government lawyers from the MOJ, Ministry of Finance, National Bank, and other agencies active in the area of legal drafting.
Two areas stood out as the highest priorities for assistance under the reform. The first was a need for a comprehensive permanent judicial training program, with particular emphasis on areas of law relating to the legal/regulatory system for a market economy. The second was a need for modernization of court administrative systems, including both court administration and case management, with the introduction of appropriate techniques and technologies to permit effective and efficient administration of justice, and to supply the judiciary with legal information necessary for the competent and efficient performance of its duties, especially all current laws and other normative acts and the most important jurisprudence. Capacity-building in the area of enforcement of judgments, publication of court decisions and other measures to increase the autonomy of the court system and enhance its role and influence were also contemplated under the reform.
The goal of the Legal Information and Public Awareness Component was to improve the quality of, and access to, legal information for Government officials, judges, legal education institutions, legal scholars, practicing attorneys, businessmen and society as a whole, especially legal information concerning economic and market reforms and corresponding regulations. The financing of some 30 public access points (at universities or libraries), and the creation of a website making the information available to the public at large was envisaged. This component was also to assist the Government determine the appropriate method of classification and codification of legal information and raise the degree of unification and systematization of legal information. Finally, this component was to create public awareness programs, using mass media, and training programs for journalists on legal topics.
The MOJ was initially the principle agency responsible for the reform (project) implementation. A Project Implementation Unit (PIU) within the MOJ, established in the early stages of Project preparation, was to be responsible for day-to-day technical aspects of Project execution. The PIU had been involved in all of the Project preparation activities, and had been responsible for implementing the Project Preparation Facility (PPF) and the Policy and Human Resource Development (PHRD). The PIU was, therefore, well suited to serve in this additional capacity. Project preparation entailed extensive consultations with legal and judicial experts inside and outside of the Government, local consultants, and other parties. In all aspects the Government was fully involved. Ultimately, the scope of the project was realistic, focused on key priorities, while still flexible to accommodate a spectrum of future needs. The reform objectives represented priority for the country. Its components were well balanced and appropriate although commitment to judicial reform may not be as strong as one would hope. For successful reforms implementation, it is suggested that, efforts should be focused on support to the judiciary in, two critical areas: the establishment of an adequate budget for the judiciary system and ensuring that judges are actually paid their budgeted salaries, and case management procedures be put in place so that judges may concentrate on making judicial decisions while reducing their reporting functions in accordance with predetermined criteria.
Throughout the reform implementation, the authorities of Kazakhstan have held detailed discussions on the slow progress in reform implementation and its overall future. In the context of these discussions, the Government agreed to formally split the Project implementation responsibilities between the MOJ (responsible for legal drafting/institutional development component and for the legal information/public awareness component) and the Supreme Court (responsible for the judicial strengthening component). This step was mutually regarded as a very important step to establish a more effective implementation structure. The September 2000 Presidential Decree on court administration reform transferred the MOJ’s responsibility for court administration to a newly created agency directly under the Supreme Court[4]. This «Judicial Administration Committee» (JAC) is now responsible for court administration, and for upgrading the qualifications for judges and court personnel and for improved enforcement of judicial decisions. In addition, a new Law on the Courts and the Status of Judges became effective in early 2001. Main conceptual changes by that law included: (i) the judicial selection process (except for Supreme Court Judges, all new judges will be selected on the basis of competition which will greatly increase democratization and transparency); (ii) introduction of professional internal training for new judges; and (iii) probation periods before permanent appointments are confirmed. In terms of court organization, the new law introduces court specialization (in 2001, the first economic courts started to function); military judges will no longer be part of the military, and the Oblast level court will in most cases become the highest Court of Appeal. The Supreme Court now deals only with cases that require law interpretation and will issue judicial guidelines that have force of law.
In line with these responsibilities, the Supreme Court/Judicial Administration Committee (JAC) took over all implementation responsibilities with respect to the judicial strengthening component, and particularly with regard to the establishment of the Judicial Training Center (JTC) and the court administration and case management reform program and related court automatization. By the time of reform completion, the first investments in court automatization for the pilot courts (the Supreme Court and one of the new economic courts) were completed, and an electronic database of all Supreme Court decisions had been set up, contributing to enhanced transparency and effectiveness of the court system.
The task of strengthened system of judicial education resulting in more professional and knowledgeable judges and court administrators has been partially achieved. A permanent Judicial Training Institute, to train and retrain judges and court administrators, has been established in 2001 as a permanent budget-supported state institution. It is based on the concept and strategy, business plan and detailed curricula that were prepared under the reforms. For 2002, 26 staff positions were approved and a director appointed. Despite the Government promise to identify a separate building for the institute in Almaty, which would be appropriate for training purposes, as well as offer for boarding facilities, this has not been accomplished. The Institute currently occupies part of the building of the Almaty city court, which arrangement does not fully satisfy the needs of the Institute. The first course started in 2002. In addition, the Government financed a 3-week training program for about 50 judges at the Russian Academy of Justice (which was highly appreciated by the trainees). Moreover, the Supreme Court of Kazakhstan and this Academy have concluded a Memorandum of Understanding, under which Kazakhstani judges will continue to be trained by the Academy in the future, while Russian judges will visit Kazakhstan to learn about its judicial reforms.
The task of achieving increased public awareness of legal rights and greater participation in the legal system was rated unsatisfactory. Although a few of the activities contemplated under the Project have been implemented, including the establishment of a MOJ website, there has been no measurable increase in public participation in the legal system. During regular meetings between the officials and representatives of the civil society, the latter complained consistently about the lack of openness and transparency in the legislative process, and the unwillingness of the Government to actively involve outsiders in the legal reform process. The MOJ expressed interest in addressing public awareness and public relations more effectively in the future, and, as a result, has created a PR/public awareness department in 2001.
The task of improved access by Government officials, judges, parliamentarians, legal professionals, the business community, and the public at large to more reliable, comprehensive legal information. During the implementation period, the Republican Center for Legal Information (RCLI) improved the quality and the completeness of the legal information database somewhat, although many moments remained to be implemented. Some 750 state and court users were connected to the database. The reform financed a local consultant to help prepare the system design and technical specifications of a further expansion of the legal information database. Parts of this report was used in 2001 to connect all local MOJ offices to the database, using a WAN system, and 14 public access points (universities, libraries) have been connected where free access is available. The business community can access the database by subscription, but can also obtain the information through other private providers, some of which have made significant progress over the past few years to offer up-to-date, reliable legal information to its clients.
That time Kazakhstan appeared to be committed to the legal and judicial reform agenda. The Concept of Legal Policy approved by the Presidentdescribed the long-term policies and basic mechanisms of development of the legal system and improvement of law enforcement practice in line with the 1995 Constitution and overall development strategy[5]. Completion of the actions envisaged by the Concept was expected by 2010.
In the area of legal drafting, the Concept envisages improvement of existing legislation, introduction of three-year perspective planning of legal drafting, systematization of legislation by means of its incorporation, consolidation, and codification, and raising the quality of legal drafting at the local level. The inter-agency commission on issues of legal drafting composed of representatives of ministries and agencies, apparatus of Parliament was set up in 2000 to improve legal drafting of the state bodies continued to operate throughout 2000s. The quality of legislation remains important to the authorities. The March 2002 amendments to the Normative Legal Acts Law of March 24, 1998 introduced mandatory expert examination of the draft constitutional laws and codes. The MOJ has developed rules of expert examination of draft legislation (Government Resolution #598 «On Measures to Improve Legal Drafting» of May 30, 2002) and informed all state bodies about existing appropriate expert institutions, one of which is the Legislation Institute under the MOJ. The assessment and analysis of current legislation to identify possible inconsistencies, and an inventory of international treaties and agreements to ensure their consistency with national interests and domestic legislation had been conducted.
The 2003 annual budget increased MOJ funding for legal information, as compared to previous year. For the first time, a significant amount had been allocated to fund legal information to the public to support the work of the newly created Department on legal information («propaganda»), development of state language, and liaison with the public. The MOJ continued to maintain its website which was developed with loan funds, but the full database of legal information was not available on the web, as was originally planned by the reforms. The legal information database maintained in the Kazakh and Russian languages by the Republican Center for Legal Information (RCLI) currently includes over 34,000 acts. It is available to the general public by subscription. RCLI was working on its mandate to ensure access of all state bodies to the database at both the central and local level, e.g., the Supreme Court and all Oblast courts already have access to the database; but only 26 out of over 300 rayon (city) courts had been connected by 2003. Therefore, substantial work remained to be done to ensure the access to the database by all rayon (city) courts, and further development of the network.
To satisfy local training needs, MOJ and the Kazakh State Law Academy have founded an Institute for training and retraining of staff of justice bodies, state and other organizations which received registration in June 2001. In the area of judicial reform, the Concept of Legal Policy envisages measures aimed at strengthening independence of judges, training of judges and court personnel, simplification and speeding of the case management procedures, and improvement of enforcement legislation. Further development of the institute of economic, administrative, and juvenile specialized courts was envisaged, based on the evaluation of performance of the two pilot economic courts during 2001. Specialized economic and administrative courts are expected to lower the workload of the rayon courts, improve the quality of the judicial process, and make it more accessible to the public. The electronic database containing 3,000 Supreme Court decisions was established using loan funds, and it is publicly available at the Supreme Court webpage. The next step — establishment of a database of about 60,000 judicial decisions of Oblast level courts — was funded by the national budget, and the Supreme Court is in the process of selecting consultants to perform this assignment. The terms of reference of the consultants include training of staff at the Oblast level courts to maintain and update the database.
The judiciary has been studying thoroughly international experience of various existing models of judicial enforcement in order to identify the one most appropriate for Kazakhstan needs. Projectrelated preparation activities were launched based upon strong and consistent expressions of interest from the MOF and MOJ officials, and equally strong interest expressed by the Deputy Prime Minister responsible for legal reform.
As the result of the Project the staffed employees of the Supreme Court gained a certain operational experience in applying negotiating procedures, procurements, expenditures, financial management which can be later used in similar projects. A more important result is that Project implementation confirmed the necessity to pay a serious attention and assign sufficient financing to delivering a legal reform in the country, strengthening of judicial system in particular. The state budget provided sufficient additional resources for financing judicial system. In general it can be said that nearly all arrangements on the reform planned for implementation by the Government were successfully completed, what has been repeatedly noted both by international institutions. When implementing a component it is important to have appropriate and trained specialists on project management in the field of financial management and procurements which has a positive effect on timely and high-quality development of all Project documents and high-quality fulfillment of works on contracts within the Project.
Almost two decades after acquiring independence with the break-up of the erstwhile Soviet Union, Kazakhstan appears keen to maximize the benefits from globalization and to meet the emerging challenges of the 21st century. In this regard, the Government of Kazakhstan has introduced and developed a legal system to sustain the country’s socio-economic advancement. With President Nursultan Nazarbayev giving his approval to the legal policy framework for the period 2002 to 2010 in August this year, a number of steps have already been taken to qualitatively improve the process of legislation. A significant improvement has been made in the main branches of national law (constitutional, administrative, civil, banking, taxation, financial, customs, environmental, criminal, criminal-procedural, and correctional (criminal-executive) laws). Simultaneously, the Kazakh Government has adopted eight new landmark codes, each targeting focus areas. In 2003, the government introduced four codes — Forest Code, Land Code, Customs Code, and Water Code. The Labour Code and the Environment Code followed in 2007, while the Budget Code and Tax Code were introduced in the following year.Authorities in Kazakhstan, however, are not resting on their laurels or achievements, and do feel the necessity to improve the legislative and law-enforcement process further.
In the first decade of the 21st century, steps have been taken to modify and introduce amendments to the country’s Constitution. Constitutional reform is taking place with the objective of ushering all round development of institutions of civil society, harmonizing relations between the Government and society, removing constitutional restrictions to facilitate more active interaction at all levels. The system of local self-government has been modernized, and is now in total consonance with the country’s internal conditions and requirements. The Government has also reformed the judicial-legal system with the aim of strengthening the independence of courts in pronouncing judgments. The reforms have facilitated a near total abolishment of capital punishment in Kazakhstan, limiting its application exclusively to terrorist crimes involving the loss of human life, or wartime crimes. A system of judicial custody has been introduced and the Constitution prohibits investigation by the Office of Public Prosecutor. These reforms are directed towards further democratization of the institutions of the Government and society.In order to make the legislation activity more effective, the Kazakh Government is in the process of creating a system that would be modern in content and have regulations that vividly reflect all stages of legislation and law-enforcement activity.
Each Legal Act will and is being evaluated as per international standards to ensure that the interests of Kazakh citizens, society and the State are comprehensively and rationally taken into consideration. Efforts are on to evolve a system of legal expertise in accordance with the development of Kazakh society and the Kazakh State. Presently 17 branches of legislation have been identified which require legal codes for their regulation. However, codification is not the only instrument for systematization of legislation. It is necessary to use other instruments like consolidation to regulate certain relations within one single Act. In the Kazakh system, the adoption of any code has to be preceded by huge legislative and law-enforcement practices, thorough monitoring of such practices, their analysis and evaluation on a systemic basis. It is also necessary to constantly improve and raise the level of the technical side of law because the quality of normative legal acts and on the whole the level of work culture while dealing with documents in the Government machinery is dependent upon this technical side. Perfection of the mechanisms of legal regulation is, to a great extent, connected with wide use of information technology in the law making and law enforcement process.
The Government of Kazakhstan is also moving to create a Reference Bank of Standard Legal Acts in digital format. Some more steps are also being thought of to improve and modernize the existing practice of legislation. They include the following. It is necessary to implement further the legal ideas and principles enshrined in the Constitution which should get reflected in the legislative, organizational and other types of measures being taken by the Government. The Governmental and the social service institutions should concentrate their efforts on realizing the creative potential of the Fundamental Law of the country which exists in the Constitution throughout. Improvement of legislation and law-enforcement activity has to necessarily follow the principle of supremacy of the Constitution, and the Acts of lower level ought to conform to the norms of the Acts of higher level.
There is a need of such systemic measures which would ensure rule of law in the country and stability of the legal system, as also gradual development of the national law as per the existing Constitution. A comprehensive approach to the legal policy will help in modernizing the entire legal base in the context of the overall strategy of development of the country, including the formation of a qualitatively new model of the governance based on the principles of performance, transparency and accountability, which will ensure protection of rights and freedom of citizens, interests of the society and the State. The constitutional law is the foundation of the national legal system. Its gradual development is based on the principles and norms of the existing Constitution of Kazakhstan which was adopted as a result of the constitutional reform of the year 2007. The ideas and principles as laid down in the Fundamental Law of the country, determine the basic directions and mechanisms of the development of national legal system, including the Constitutional law, in a long-term perspective. In other words, the most important task is to fully realize the principles and norms of the Constitution, and in the first place, in activities of the Government bodies and the functionaries of the Government, thus ensuring direct application of the Constitution, as also realization of its potential through the current legislation and enforcement of law.
Observance and realization of fundamental principles concerning the activities of the Republic, as laid down in our Constitution (these are: social harmony and political stability, economic development for the welfare of all the peoples, patriotism, and deciding the most important questions of the State life in a democratic manner), will ensure steady socio-economic and politico-legal growth of the country.
In order to further establish the rule of law in the country it is necessary, on the one hand, to achieve realization of the guarantee of Constitutional rights to the maximum possible extent, and, on the other hand, unconditional and full implementation of constitutional duties by all the Government bodies, by the officials, citizens and organizations. For ensuring human rights and freedoms in accordance with our Constitution it is necessary to create such conditions that would guarantee equality of rights and freedoms irrespective of birth, social, official or property status, sex, race, nationality, language, religion, beliefs, place of residence or other any criteria. In the given context the role of legal mechanisms in the preservation and strengthening of the inter-ethnic harmony, maintenance of unity of the multinational peoples of Kazakhstan is going to increase. Kazakhstan is a secular state characterized by religious peace and harmony where the rights of believers and nonbelievers are equally respected and observed. The State does not interfere in religious activities, on the other hand, it has to interact with all the religions and faiths and has to protect the rights of citizens with regard to freedom of religion for which there should be an in-built effective state policy.
One of the important tasks of national law is to ensure modernization of the system of financial control by the Government because such control is an efficacious instrument to manage assets of the Government. It is therefore, necessary to strengthen the legal and procedural aspects of Government departments functioning that are specifically concerned with financial control.
There is need of further perfection, observance and uniform application of the legislation on freedom of worship with regard to regulating the missionary activity, distribution of religious products, and registration of religious organizations.
1. www.akorda.kz — official website of the President of Kazakshtan.
2. www.parlam.kz/ — official website of the Parliament of Kazakhstan.
3. http://www.minjust.kz/ — official website of Ministry of Justice of the Republic of Kazakhstan.
4. Decree # 471 of the President of Kazakhstan on “Court administration system functioning” dated October 12, 2000.
5. Presidential Decree # 949 dated September 20, 2002 on “The Concept of Legal Policy”.
Түйін
Аталған мақалада Қазақстан Республикасындағы құқықтық жүйесінің қалыптасуы, даму мəселелері қарастырылған. Құқықтық жүйенің негізгі құрылымдары тəуелсіздік алғаннан кейінгі жəне бүгінгі күндегі жағдайлары қамтылған. Құқықтық жүйенің алғы шарттары, кемшіліктері мен жүзеге асырылу нəтижелері ашып көрсетілген.
Резюме
В данной статье рассматриваются проблемы ретроспективного и хронологического подхода к описанию вопросов зарождения, формирования и становления правовой системы Республики Казахстан. Описываются основные элементы правовой системы в период после обретения независимости и их эволюция до наших дней. Подробно отражены вопросы реформирования правовой системы, а именно предпосылки, ход реализации, недостатки и результаты проведенных правовых реформ.