Ahatbek Symbat
2nd year student
Specialty:
"International law"
International Relations Faculty
Al-Farabi Kazakh
National University
Scientific adviser:
Candidate of Law, associate professor Tussupova A.Zh.
Place and role of law in constitutional rights source system
Law is regulatory act adopted by highest agency of State
power in accordance with established procedure. It has highest legal effect
than other regulatory acts (ordinances, decrees, etc). It is major source of
justice in present time.
Above all other domestic law, we are going to give consideration to the
law, which is source of constitutional rights and leads area of law of the
Republic of Kazakhstan.
The main regulatory act and also source of constitutional rights in
Kazakhstan is law as supplementary to Constitution. Existing laws are acts
adopted collectively.
Let’s consider peculiarities of law of the Republic of Kazakhstan which
make changes and amendments to Constitution of the Republic of Kazakhstan.
Only President of Kazakhstan can initiate reconsideration of
Constitution (Art. 53 of Constitution). We think that practice of making
changes and amendments to Constitution demands improvement. Law about making
changes and amendments to Constitution is adopted only if required, that is in
case of appearing needs to change in social regulations. Three such regulation
acts had been adopted in Kazakhstan: Law of the Republic of Kazakhstan dated
October 7, 1998, May 21, 2007, February 2, 2011.
In 1993, for the first time ever, Constitution of the Republic of
Kazakhstan divided laws to constitutional and ordinary. In 1995 Constitution of
the Republic of Kazakhstan changed statues of constitutional law having defined
its place between Constitution and ordinary law and having drawn a line between
constitutional law and law which makes changes and amendments to Constitution
(p. 1 Art. 53).
In our point of view, Law about
regulatory acts became official act which is used by Parliamentary body of the
Republic of Kazakhstan for explanation of relation between legal force of
constitutional and ordinary law. According to Art. 62 of Constitution of the
Republic of Kazakhstan, “law” expression, designating form of regulatory act,
adopted by Parliamentary body of the Republic of Kazakhstan, includes
“constitutional law” also. This is also confirmed by p.1 Art. 13 of Law about
Parliamentary body of the Republic of Kazakhstan, according to which
Parliamentary body adopts regulatory acts in the manner of laws of the Republic
of Kazakhstan including constitutional.
In our opinion, statues of constitutional law had to be developed by
following focus area:
First. Constitutional laws must capture
issues about legal status of citizens. We think that classification of
constitutional law contradicts to Art. 2 of Constitution of the Republic of
Kazakhstan: “Man and his rights and freedom are supreme value of nation”. There
are not laws involving human rights and freedom as “supreme value” among
constitutional laws listed in Constitution. “Recognition, observance and
protection of man rights and freedom” is regulated by ordinary law which is
dedicated for regulating less important issues than social regulations provided
by constitutional law. Legislation of the Republic of Kazakhstan does not
regulate the issues about order and results of consideration of annual reports
of Authorized body on man rights and this reduces importance of this establishment.
Second. The law “About public emergency” does not own status of constitutional
law. Granting this status to this law could maintain not only nation’s
stability in emergency situations, but also guarantee observance of rights,
freedom and legitimate interests of people as required by Constitution of the
Republic of Kazakhstan of 1995.
Third. Status and functioning of supreme
government institutions must be regulated by Constitution and constitutional
laws of the Republic of Kazakhstan in natural sequence. For instance, in
present time structure of Prosecution service of the Republic of Kazakhstan is
established only by Law of the Republic of Kazakhstan “About Prosecution
Service the Republic of Kazakhstan” and this is insufficient.
Forth. The issues about citizenship of the
Republic of Kazakhstan are regulated by ordinary law. Constitution of the
Republic of Kazakhstan had not elevated Law of the Republic of Kazakhstan about
citizenship to constitutional law. Consistent with European
legal standards such relations had
to be regulated by constitutional law. That is why in content of Art. 92 of
Constitution of the Republic of Kazakhstan, this law should get status of
constitutional law.
Fifth. In view of significance of hierarchical
arrangement of acts in Law about regulatory acts, this law had rather get
status of constitutional law and this will improve constitutional law.
Sixth. It makes most sense to adopt
constitutional law “About ombudsman institution in the Republic of Kazakhstan”
instead of “Regulation about Authorized body on human rights” approved by
Ordinance of President of the Republic of Kazakhstan dated September 19, 2002.
According to p.4 Art. 62 of Constitution of the Republic of Kazakhstan,
Parliamentary body has right to adopt constitutional laws concerning issues
provided by Constitution. At the same time it cannot conduct law-making process
on remaining constitutional issues. References to laws of the Republic of
Kazakhstan about national referendum, which regulates this institution of
instant democracy, are incontestable. It is necessary to proceed from not only
p. 10, Art. 44 of Constitution of the Republic of Kazakhstan, but also its
conditions about roles of declaration of man intent in p. 2, 3, Art. 3 and s.p.
1-2 Art. 33. In that regard it is necessary to divide laws adopted by the
results of referendum to separate category.
Therefore, this type of
constitutional rights as law is law-governed phenomenon for development of
constitutional acts and principals, supporting supremacy of Constitution and
for law-making and law-enforcement practice in Kazakhstan.