Omar Aizhan

2nd year student

Specialty: "International law"

International Relations Faculty

Al-Farabi Kazakh National University

Scientific adviser:

Candidate of Law, associate professor Tussupova A.Zh.

The nature and role of the Constitution of the Republic of Kazakhstan

The concept of the Constitution of the Republic of Kazakhstan means higher legislative consolidation of the will and interests of the peoples of Kazakhstan, based on social compromise (agreement) of all social segments and groups, as well as universal values (sovereignty of the people, human rights, social justice, political and ideological pluralism, and so on).

Essential characteristics of the RK Constitution are:

1. Establishing the priority of law over the state and its authorities in order to limit state power and determine its boundaries and limits;

2. Fixing the principle of sovereignty of the people, which proclaims the power of the people, which is the only source and bearer of the supreme state power in it;

3. Classifying human rights and freedoms as the supreme value of the natural-born state, absolute and inalienable;

4. establishing the mechanism of authority based on the principle of division of unified state power into legislative, executive and judicial branches and their interaction with each other with the help of the system of checks and balances.

The Constitution of the Republic of Kazakhstan of 1995 is characterized by the following features:

1 The Constitution of the RK, in our opinion, gives excessive powers to the head of the state;

2 It partly has a formal character, i.e. there is a partial gap between constitutional theory and everyday practice (e.g. between the constitutional declarations of Kazakhstan as a legal and social state and reality);

3 the presence of a certain distance and discrepancy between the constitutional model and the actual embodiment of its rules, which generates a certain tension in the society, which is removed with the development of constitutionalism.

Constitution has a number of specific legal characteristics that distinguish it from all other normative legal acts. These properties are understood ambiguously in the legal literature , however, as a rule, most researchers refer among them: constitutive character; a special legal nature (high normative generalization); the highest legal force and direct effect, stability, solidity - as the basis of the current national legislation; means of targeting the development of all its sources; ideological influence; higher degree of protection by the state; a special procedure for the adoption of amendments and additions. Because of these properties of the constitution, the state provides protection and restoration of violated rights, sets the foundation of the rule of law, and guarantees the fulfillment of the commitments and contracts.

As regards the protection of the constitution of the state, then any state should have a universal control functions arising from the nature of the public authorities, implemented by the special "branch" of power – control branch.

Currently state institutions, the purpose of which is not covered by the concepts of legislative, executive or judicial power are developing in Kazakhstan. These structures include the Constitutional Council of the Republic of Kazakhstan, the prosecuting authorities, the Commissioner for Human Rights and others.

The Constitution of the RK grants the President of the Republic of Kazakhstan the special status of its guarantor. Institute «the Constitution protection" is a set of constitutional and legal norms establishing a coherent system of guarantees that define the legal forms in which security is ensured, and implementation of the norms of the Constitution. Тhe Constitutional Council of the Republic of Kazakhstan and the Procuracy of the Republic of Kazakhstan are intended to serve the protection of the Constitution. However, their activity in this area suggests that this structures are not completely organs of the Constitution protection.

The only jurisdiction and the procedure of the Constitutional Council formation (Section 6) are established in the Constitution of RK. The constitutional regulation of RK prosecutors is limited by the order of appointment of its senior officials. (Article 83).

In its entirety the jurisdiction of controlling structures is mounted in other normative legal acts. Тhe question of the constitutional status of the Ombudsman is not reflected in the constitutional law of Kazakhstan.

Based on the above, we propose to include in the new chapter - "Protection of the Constitution," the relevant provisions: Constitutional Council of the Republic of Kazakhstan, the Procuracy of the Republic of Kazakhstan, Commissioner for Human Rights in order to strengthen the legal basis of the Ombudsman institution, the Human Rights Commission under the President of the Republic of Kazakhstan and other state authorities, human rights NGOs and international organizations in the sphere of human rights protection. This would allow the Ombudsman implement the protection of the human rights functions, imputed by the Presidential Decree of 29.11.2004, "On further improvement of the system of constitutional rights and freedoms of man and citizen” in practice better.

We believe it would be advisable to adopt the constitutional law "On the Ombudsman of the Republic of Kazakhstan" instead of "The Regulation on the Commissioner for Human Rights" approved by the Presidential Decree of 19.09.2002.

Thus, we can conclude that the Constitution of the Republic of Kazakhstan establishes the broad possibilities of using legal remedies, but these measures have not helped to overcome the distrust of the justice system. Therefore, it is necessary for the Republic of Kazakhstan to further improve the implementation of the right shape and form of the legal mechanism for implementing the legislation.