A.I. Darkenbayev,

Candidate of jurisprudence, associate professor

Al-Farabi Kazakh National University ,

Almaty, Republic of Kazakhstan

A.A.Daurenbekova

‘Kazakhstani nation’ as a legal and constitutional category

There are plenty of unsolved problems in the theory of constitutional law of the Republic of Kazakhstan. One of them is determining the definition of ‘Kazakstani nation’ as category in Kazakh constitutional law. It has general theoretical and practical importance. Nowadays all the developed countries are tend to establish democratic and law-abiding state. One of the main peculiarities of democratic state is that execution is performed by people. Consequently, Kazakhstan whose main target is to develop the democracy must clear up the interference of people to government and cultivate it. All of these conditions lead us to strengthen the concept of ‘the people’ in the context of constitutional law.

In the acting Constitution of the Republic of Kazakhstan adopted on 30^th of August in 1995 the definition of nation is determined, but not explained. Nonetheless, there is a requirement: ‘The people should be the only source of state power. The people shall exercise power directly through an all-nation referendum and free-elections as well as delegate the execution of their power to state institutions’ [1, 7 p.]. As we can see, the definition of people is not clarified on constitutional level. Therefore, we have to determine the general definition of people and nation. In one of the native philosophical dictionaries not the meaning of people, but the meaning of people’s place is examined there. It is written: ‘People’s emplacement is humankind’s, group of nations’, specific nations’, these nation’s particular local branches’ bevy of people living in a particular social environment. From the philosophical, sociological concept people’s emplacement is the subject and the object of communal manufacture.

In social economics people’s emplacement is the source of labor and the object of consumption; in demography it is a settlement of people that differ by amount, age and gender; in geography it is certain group of people locating and making replacements in a particular territory [2, p. 470.].’ According to this we can define the concept of the people from different aspects. One of academic-constitutionalists Nurpeisov D.K. widely explained the concept of people in different directions: ‘The people – 1) in the science of constitutional law definition usually refers to the entire population of particular state, which forms a single socio-economic and political entity, regardless to the division of it to any national communities. In this sense, modern constitutions consider people as "the bearer of sovereignty and the only source of power" in the state. The concept of people can also mean a separate national and cultural community, which may not be connected to territory of any state (in this case, the term "the people" sometimes is a synonym of the term "the nation" ) . 2)in historical materialism it is the subject of history, the collaboration of those classes and social groups of the society, which are based on productive and transforming power as the main driving force of social development. In narrow specific sociological sense people are the set of social groups involved in mass activities of the social division of labor (primarily - in material production). People are unified in social units, which have common historical destiny, the essential features of a similar lifestyle and customs as well as a sense of belonging to a single historical community. 3)it is a subject of the international legal system of the rights of people. People first became a subject of international law in 1945 as a result of the UN Charter’s principle of "equal rights and self-determination of nations" (see the principle of self-determination). Now international law secured a wide range of people rights, which are summarized in various conventional and effective-declarative acts (see the right of people). However, the conventional definition of the word ‘the people’ recognized by the international community still does not exist. Not only in international law, but also in ethnographic literature the discussions on this topic are held from XIX century." [3, p. 110]. As we can see, the issue of the people has not found the answer any sphere. One of the recent explanations of the Constitution of the Republic of Kazakhstan gives a legal constitutional interpretation of the people like “Kazakh nation is a socio-legal unit of citizens of the Republic of Kazakhstan that perform power directly through an all-nation referendum and free-elections as well as delegate the execution of their power to state institutions.

According to the article 3 part 3 of the Constitution power of the Republic of Kazakhstan cannot be occupied by anyone.

The constitutional definition of ‘Kazakh nation’ means a group of people organized on a base of unified multistaged economy and customs steadily developed on Kazakh territory, considered as a socio-ethnic unity with Kazakh nation’s historical destiny with one and common desire, which strengthen specific Kazakh national peculiarities, national, confessional and civil equality determined by constitution, equally used state’s official languages, varied Kazakh culture and mentality, flashbacks and expectations[4, p. 21-22].”

In the constitutional and legal development of the Republic of Kazakhstan there is a definition of the people from legal aspect. In article 6 of the constitutional act of the independence of the Republic of Kazakhstan signed on 16^th December in 1991 the definition of people is given as ‘Historical destiny’s cahoot of Kazakh nationality connected with all other nationalities of the republic makes up the unified nation, this nation is the owner of the sovereignty of the Republic of Kazakhstan and the source of the state’s power. There is a state authority that execute power through direct and self-elected state bodies based on acts and the Constitution of the Republic of Kazakhstan” [5, p.133]. It can be easily seen that these conceptions established the foundation of the acting constitution.

The importance of determining the concept of people from legal aspect is that academics of theory of state and law consider people as one of the main features of a state. Of course, there are some opinions that contradict to this statement. For instance, one of Russian academics Chirkin V.E. explained his understanding as: “however, in itself a statement of the population of the territory does not indicate the state, as it is considered from the point of view of classical (arithmetic) approach to the concept of the state " [6, p . 93] –adding thought about the relations between people and a state: "There are other forms of relations of the population with a state, including features of citizenship and non-citizenship of people on a particular territory of the state, including the order of state regulation of the legal position of certain communities of people with natural causes (such as ethnic groups, young people) or created in accordance with their beliefs or other factors (e.g. political parties or unions of writers), and others [7 , p.93]." No matter what is the answer to this question but there is no state without people. That is why defining the concept of the people from legal aspect is a significant issue. There are plenty of academics compounding the concept of people with sovereignty of the state. One of our well-known academics Kotov A.K. said one noticeable thing that phenomenon of Kazakhstani people, forming multiethnic population of Kazakhstan equal citizens with different nationalities, united with historical fate of the indigenous nation as consolidating core of this multi-ethnic community and constantly managing Kazakh land, can be called as social demographic basis of state sovereignty of the Republic of Kazakhstan. On the one hand it’s ethno-political base defines state sovereignty, on the other hand the socio-demographic basis determines the state sovereignty of the Republic of Kazakhstan, and together they with their interpenetration and complementing each other in a dynamic equilibrium form the united authority of Kazakhstani society, the source of which is just being an organic integrity as a historical nation, the people of Kazakhstan" [8, p.96]. It’s not hard to notice that definitions of people in the acting Constitution were found by our academics. To conclude all previous definitions, the importance of the legal-constitutional concept of Kazakhstani nation is in the legal and political relationship of it with a state. This appears to be the basis of the state’s nation.

One of the other important sides of defining the concept of Kazakhstani people is how people perform state’s power. The opinion of Tabanov S.A. and Orazova A.E about it: “After all, we can see that people’s execution is divided into two fractions (all-nation referendum and free elections) and representative democracy (delegating the execution of power to state institutions). Despite huge gap between representative and direct democracy, by these two ways people participate in management of the state, governmental and local institutions, also they have a right to submit individual and collective applications. In addition, state citizens have rights to be elected or vote for local and state institutions, participate in all-nation referendum and join communities” [9, p.117]. This description of how people perform the execution power was determined in the Constitution of the Republic of Kazakhstan.

Nowadays in our opinion, the issue of people, nation is turning into something significant what concerns us. Recent appearance of alter of words ‘Kazakh’ and ‘Kazakhstani’ is connected with the fact that these problems are not determined in juridical sphere. Concluding this, we should define the concept of the people and the nation on legal constitutional level. Nowadays Kazakh nation is the one that founds the state and the one who is responsible for it. Undoubtedly, this problem needs to be protected politically. To union all the nationalities that live in Kazakhstan we should develop Kazakhstani patriotism. All the countries have passed this situation. As the Republic of Kazakhstan is nation-state, all of Kazakhstani citizens have to make contribution to the development of the state. It can be counted that these questions have found their full answer from constitutional aspect.

Generally setting the definition of the people from legal constitutional aspect can be considered as one of the bases of implementation it. Determining concepts of Kazakhstani people and Kazakh nation from legal and constitutional aspect contribute to the extension of the proper and beneficial use of acting legislation.

In conclusion, from legal political aspect Kazakhstani nation is the community of people unified on the territory of Kazakhstan

Summary

This article examines the constitutional and legal essence of the category of "the people."

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