The position of president in the system of state administration bodies of the republic of Kazakhstan

Table of contents: The Kazakh-American Free University Academic Journal №2 - 2011

Author: Alembayev Kairat, Kazakh-American Free University, Kazakhstan

The position of president as the head of the state and the executive power appeared for the first time in the United States of America. Nowadays the post of the president of the country is established in many countries. Presidency now is an element of the political systems of many countries. A president is the head of the country in 150 countries out of 216. All the rest of the countries have any monarchic form of government.

In a presidential republic the president has wide powers and a peculiar position. In the opinion of Sapargaliyev G.S., a presidential republic is characterized by the following: the government is responsible before the President who appoints and releases the members of the government from office; the President has the right to make proposals on the legislation, to sign or to put a veto on the laws adopted by the Parliament; to issue decrees having the power of laws; the President is the Commander-in-Chief of the Armed Forces; the President has the right to convoke an extraordinary session of the Parliament, to dissolve the Parliament, and to call the premature elections of the Parliament; the President has the right to call a referendum, to announce the state of emergency, etc. [1].

The analysis of the Constitution of the Republic of Kazakhstan shows that general features of the presidential republic are reflected there with some transformation. According to the theory of the state power division into three branches, each state organ has its own place in the complex system of the state bodies of the Republic of Kazakhstan. It should be mentioned that in the Constitution of the Republic of Kazakhstan dated 1993 the article about the President goes after the article about the Supreme Council [2]. It means that the Supreme Council has wide powers and the republic is gradually becoming a parliamentary one. In accordance with the current Constitution of the Republic of Kazakhstan the President takes the first place in the system of state power bodies. This consolidates the constitutional proposition about the establishment of the presidential system of government in the Republic of Kazakhstan.

After the voluntary dissolution of the XII Convocation Supreme Council of the Republic of Kazakhstan and temporal delegation to the President of some authorities of the legislative organ the President efficiently adopted a great number of decrees having the force of laws and common laws on the important issues of the state life. The given fact is very important for the consolidation of the presidential form of government.

The basis of the characteristics of the legal status of the President is Article 40 of the Constitution. It defines the place of the President in the system of the state power organs. In accordance with the given article the President is the head of the state. The president is the highest official representing Kazakhstan within the country and in international relations. The legislator takes the President out of the state power branches giving him wide powers. At the same time the President is to ensure the concerted interaction of all branches of state power.

The Constitution of the Republic of Kazakhstan as well as the US legislation has the principle of the state power division into three branches: legislative, executive, and judicial. Each branch has its own authorities necessary and sufficient for its functioning. But in the Republic of Kazakhstan there are some state organs that cannot be referred to any branch because of their functional specific nature, e.g. the Procurator's Office, the Constitutional Council. In the USA almost all state organs are functionally distributed among the triad of power branches.

Only in the case of authorities delegation by the Parliament the President may adopt laws for a limited period of time. The President has no right to interfere in the execution of the judicial power. As to the executive power the President can take measures stipulated by law. The checks and balances system stipulated by the Constitution of the Republic of Kazakhstan does not allow the President to be above all the power branches. The President has no right to control the activity of the Parliament and the judicial power. In his status the President is closer to the executive power. But the President is not at the head of the executive power as it was according to the Constitution of the Republic of Kazakhstan dated 1993. In accordance with the Constitution of the USA the President is the head of the state and the head of the government at the same time. Thus, the President of the USA is the official representative of the executive power.

In accordance with the Constitution of the Republic of Kazakhstan dated 1995 the Government carries out the executive power and is at the head of the system of executive organs [3]. At the same time the Government reports to the President.

The President of the Republic of Kazakhstan is the symbol and guarantor of the unity of the people and the state power, inviolability of the Constitution, rights and freedoms of an individual and a citizen. The President is the symbol of the unity of the people because the multiethnic people of the country elects him the Head of the state. The President of the Republic of Kazakhstan is elected by universal, equal and direct suffrage by the citizens of the republic in accordance with the Constitution (Article 41) the Constitutional law “About Elections in the Republic of Kazakhstan” [4].

According to the Constitution of the Republic of Kazakhstan the President is elected by universal, equal and direct suffrage under a secret ballot for a five-year term by the citizens of the republic who have come of age. One and the same candidate cannot be elected the President more than two times in a row, but taking into account the last amendments to the Constitution dated May 21, 2007 the given point does not apply to the first President of the Republic of Kazakhstan.

The Constitution defines main requirements to the President. Acting the head of the state and the higher official the candidate has to be of a mature age. It is stated that a citizen of the Republic shall be eligible for the office of the President of the Republic of Kazakhstan if he is by birth not younger than forty. The Constitution of the USA takes the view of the age qualification of thirty-five. In the countries with the minimum age qualification for the president’s taking office there is no maximum permissible age. As the world precedents show the given approach is very reasonable as a person with good health becomes wiser and acquires political experience, managerial abilities, etc. Hence, in October 1998 the point about the upper age-level (65 years) of the candidates was abolished from the Constitution.

The Constitution of the Republic of Kazakhstan states that the presidential candidate is to be the citizen of Kazakhstan by birth. The same is in the USA.

One of the requirements to a future President of the Republic of Kazakhstan is the following: he is to have lived in Kazakhstan for not less than fifteen years. The US legislature deals with the term of 14 years. The given requirement is rather reasonable as the presidential candidate must know the country, its people and history, its economy, and national peculiarities, etc.

According to the Constitution the President of the Republic of Kazakhstan must have a perfect command of the state (Kazakh) language. The requirement originates from the fact that Kazakhstan was formed on the primordial Kazakh land and one of the main conditions of preserving the Kazakh nation is the conservation of the language. The presidential candidate is to master the state (Kazakh) language perfectly. The Constitution of the Republic of Kazakhstan does not state national requirement to the candidate. A citizen of any nationality may be eligible for the office of the President of the Republic of Kazakhstan if he has a good command of the state language.

Free, direct, and alternative elections are the important landmark in the political life of Kazakhstan and in the development of the democratic principles of power formation. The Constitution of the USA also objectifies the democratic fundamentals of elections. For the period of more than two centuries the elections of the President of the USA have been conducted in an indirect way, i.e. with the assistance of electors. In Kazakhstan only the Parliament’s Senate Deputies are elected in an indirect way. The difference between the system of presidential elections in the USA and the Republic of Kazakhstan is caused by different administrative and territorial systems of two countries.

The Constitutional law “About Elections in the Republic of Kazakhstan” dated September 28, 1995 contains some additional requirements to the presidential candidates. The presidential candidate must not be a priest as the Republic of Kazakhstan is a secular state. The President, like any citizen, may practise or not any religion. But he cannot be a religious figure devoting to the service of any confession.

The presidential candidate must have an active electoral right and no criminal record (active by the time of registration). The candidate is not subject to the registration in the following cases: if within the period of one year before the registration he was made disciplinary answer for a corrupt perpetration; if within the period of one year before the registration he was imposed an administrative penalty for a deliberate wrongdoing.

The Constitution of the Republic of Kazakhstan determines legal fundamentals of presidential elections. The elections of the President are held on a regular basis. Regular elections of the President of the Republic are held on the first Sunday of December and do not coincide with the election of a new Parliament of the Republic. Off-year elections of the President of the republic are not held. The candidate who receives more than 50 percent of the votes of the constituents that took part in the election is deemed elected. If none of the candidates receives the above number of votes, a second round of elections is held between the two candidates who obtained the largest number of votes. The candidate who receives the larger number of votes of the constituents who take part in the second round of elections is deemed elected. The details of the elections order are regulated in the Constitutional law of the Republic of Kazakhstan “About Elections in the Republic of Kazakhstan”. The Constitution stipulates the procedure of taking office by the nationwide elected President. The President of the Republic of Kazakhstan takes office from the moment of swearing to the people the oath in a ceremonial atmosphere in the presence of the deputies of the Parliament, the members of the Constitutional Council, and the judges of the Supreme Court.

The President as a higher official does not always get the support and approval of all warring political parties. As a result there is an objective necessity of his all-round protection. The activity of the President may cause not only unfounded judgments but also statements discrediting his honor and dignity. The President and his status are to be protected from law-breaking statements. According to Article 46 of the Constitution of the Republic of Kazakhstan the President as the head of the state is inviolable. Attacks on the honor and dignity of the President of the Republic of Kazakhstan are prosecuted to the fullest extent of the law.

It also should be mentioned that one of the most important political institutes realizing the checks and balances system is the constitutional and legal responsibility of the President and the possibility of prematurely termination of his authorities. In accordance with the current legislation, particularly, with Paragraph 2 of Article 47 of the Constitution of the Republic of Kazakhstan, the President bears responsibility for the actions performed while exercising his duties and only in the case of high treason may be discharged from office by the Parliament. According to the Constitutional law “About the President of the Republic of Kazakhstan” dated December 26, 1995, high treason is defined as an intentional action committed with the purpose to undermine or weaken the foreign security and sovereignty of the Republic of Kazakhstan presented in the form of going across to enemy side during wartime or in the form of helping a foreign country to exercise hostile activity against the republic [5]. In the opinion of A.F. Suleymanov, some political scientists do not agree with the given point. In their opinion, the Constitution of the Republic of Kazakhstan should also include the responsibility of the President for felonies and intentional violation of the Constitution as it is stipulated by the constitutions of other civilized countries. The Constitution of the USA besides high treason includes the following reasons for the impeachment of the President: corruption and other serious crimes.

The Constitution of the Republic of Kazakhstan dated 1993 does not have the institute of the presidential release from office. It appeared in the Constitution of the Republic of Kazakhstan dated 1995. The given fact indicates the positive development of democracy in the republic. In the USA and in the Republic of Kazakhstan the procedure of the presidential release is rather complex. The President of the Republic of Kazakhstan may be prematurely released from office in the case of continued incapacity to perform his duties due to illness. In this case the Parliament forms a commission consisting of equal numbers of deputies from each Chamber and specialists of the respective areas of medicine. The decision of premature release based on the conclusion of the commission and that of the Constitutional Council confirming observance of the established constitutional procedures is adopted at a joint sitting of the Parliament's Chambers by the majority of no less than three-fourths from the total number of deputies of each Chamber. The release from office by other reasons has another procedure. As it is stated the President bears responsibility for the actions performed while exercising his duties and only in the case of high treason may be discharged from office by the Parliament.

According to Paragraph 2 of Article 47 of the Constitution, the decision to bring an accusation and conduct its investigation may be adopted by the majority of the deputies of the Majilis at the initiative of no less than one-third of the total number of its deputies. Investigation of the accusation shall be organized by the Senate and by the majority of votes of the total number of the deputies of the Senate its results are transferred for consideration at a joint session of the Parliament's Chambers. The final decision of this issue shall be adopted at a joint session of the Parliament's Chambers by the majority of no less than three-fourths of the total number of the deputies of each Chamber, provided the Supreme Court concludes the validity of the accusation and conclusion by the Constitutional Council that the established constitutional procedures were observed. The failure to arrive at a final decision within two months from the moment of the accusation shall result in the recognition that the accusation against the President of the Republic is rejected. Rejection of the accusation of the President of the Republic in perpetration of high treason at any stage shall result in premature termination of the powers of the deputies of the Majilis who initiated the consideration of this issue. The issue of discharge of the President of the Republic from office may not be initiated in the period when the President is considering premature termination of the powers of the Parliament of the Republic.

The Constitution of the Republic of Kazakhstan dated 1993 stipulated the position of the Vice-President. The Constitution of 1995 did not stipulate the given position as the precedents showed its inexpediency. Nowadays in the USA there is the Vice-President though the main law of the country does not authorize the position with particular powers while the acting President is alive.

According to the current constitutional legislation in case of premature release or discharge of the President of the Republic of Kazakhstan from office as well as in case of his death the powers of the President of the Republic shall be transmitted to the Chairperson of the Senate of the Parliament for the rest of the term; if the Chairperson of the Senate is unable to assume the powers of the President they shall be transmitted to the Chairperson of the Majilis of the Parliament; if the Chairperson of the Majilis is unable to assume the powers of the President they shall be transmitted to the Prime Minister of the Republic. A person who has taken the powers of the President of the Republic of Kazakhstan has no right to initiate amendments and additions to the Constitution of the Republic of Kazakhstan.

The Constitution sets the limitations to the performance of the duties of the President of the Republic of Kazakhstan. The President of the Republic of Kazakhstan shall not have the right to be a deputy of a representative body, hold other paid offices and engage in entrepreneurial activity. The President of the Republic shall suspend activity in any political party for the period he exercises his powers to exclude the possibility to put pressure on the legislature on the considered issues.

On July 20, 2000 a new Constitutional law “About the First President of the Republic of Kazakhstan” was adopted [6]. The given law determines the political and legal status of the first President of the Republic of Kazakhstan N. A. Nazarbayev as one of the founders of a new independent state – Kazakhstan, the leader of the people of Kazakhstan, and the guarantor of the Constitution. The law has the task to ensure the continuity of the main tendencies of the foreign and domestic policies of Kazakhstan and further social, economic, and democratic reforms on the country.

The Constitutional law “About the First President of the Republic of Kazakhstan” is an exclusive act adopted due to historic services of N. A. Nazarbayev to the country. The law gives the first President some rights for life. He can use them while exercising his duties and after the discharge. They are the following:

1. He has the right to address the people of Kazakhstan, state bodies and officials with the initiatives on the important issues of state construction, domestic and foreign policy and security which are to be obligatory considered by corresponding state bodies and officials.

2. After the discharge from office the he has the right to speak before the Parliament of the Republic of Kazakhstan and its Chambers, at the sessions of the Government discussing important issues, to head the Assembly of the Peoples of Kazakhstan, to be the member of the Constitutional Council and the Security Council of the Republic of Kazakhstan.

The use of the above rights is a legal activity; preventing it shall be considered the violation of law and the guilty party shall be made answerable for it. On the occasion of N. A. Nazarbayev’s services the decoration “Қазақстан Республика-сының Тұңғыш Президенті Нурсултан Назарбаев” (“The First President of the Republic of Kazakhstan Nursultan Nazarbayev”) and the annual State Prize for Peace and Progress of the First President of the Republic of Kazakhstan were established.

The law indicates the inviolability of the President. He is not responsible for the actions connected with the execution of his status except in case of high treason. The inviolability applies to his dwelling, office, personal and service vehicles, etc. The law stipulates the necessary measures of the presidential duties’ execution. The given measures provide for communication, security, dwelling, vehicle, health service, and pension. The financing is at the expense of the republic budget.

It also should be mentioned that the powers of the President of the Republic of Kazakhstan are predetermined by the content of the presidential system of government. The President has wide powers stipulated by the Constitution and the Constitutional law “About the President of the Republic of Kazakhstan” dated December 26, 1995. The given Constitutional law includes:

1) Presidential powers in relation to the Parliament. The President appoints regular and extraordinary elections to the Parliament of the Republic; appoints seven Senate deputies for the Parliament’s term of office; convenes the first session of the Parliament and accept the oath of its members to the people of Kazakhstan; proposes a candidate for the Chairperson of the Senate; opens the sessions of the Parliament; has the right to attend any joint and separate sessions of the Parliament’s Chambers and be listened to; considers the address of the Senate or Majilis of the Parliament on the discharge of the member of the government for his failure to execute laws; in case and order stipulated by the Constitution is able to dissolve the Parliament.

2) Presidential powers in relation to the Government. The President appoints a Prime Minister of the Republic with the Parliament's consent; releases him from office; appoints to and releases from office its members, as well as forms, abolishes and reorganizes central executive bodies of the Republic which are not included into the Government; accepts the oath of the members of the Government; regularly hears the report of the Prime Minister on the main tendencies of his activity; presides at the meetings of the Government on especially important issues; charges the Government and its members; has the right to entrust the Government with the execution of the functions not stipulated by the Constitution and laws.

3) Presidential powers in relation to the Constitutional Council. The President appoints the Chairperson and two members of the Constitutional Council; releases them from office in accordance with the Constitutional law; applies to the Constitutional Council on the issue of the right elections of the President, the Parliament’s deputies, and the Republican Referendum; on the issue of the conformity of laws, international treaties with the Constitution; on the issue of the official interpretation of the Constitutional norms; on the issue of release from office.

4) Presidential powers in relation to courts and judges. The President upon the recommendation of the Higher Judicial Council appoints to and releases from office the Chairperson of the Supreme Court, chairmen of collegiums and judges of the Supreme Court; appoints the chairmen of oblast and equivalent courts, chairmen of collegiums and judges of oblast and equivalent courts.

5) Presidential powers in relation to public prosecution bodies. The President appoints the Procurator General of the Republic with the consent of the Senate; releases him from office; upon the recommendation of the Procurator General appoints to his Deputies and releases them from office; hears the report of the Procurator General on the state of law in the country.

6) Presidential powers in relation to the akims. The President upon the recommendation of the Prime Minister appoints the akims of the oblasts, major cities and the capital; within his competence assigns missions to the akims and hears their reports on the execution; releases them from office.

7) Presidential powers in relation to the all-nation referendum. The President adopts a resolution on conducting the all-nation referendum: 1) on his own initiative; 2) on the initiative of the Parliament; 3) on the initiative of the Government; 4) on the initiative of no less than two thousand citizens having electoral rights equally presenting all oblasts, the capital and major cities. On the initiative of the given subjects the President adopts a resolution 1) on conducting the all-nation referendum; 2) on the necessity to initiate amendments and additions to the Constitution, the Constitutional law, a law or a resolution on the issue without conducting the all-nation referendum; 3) on rejection of conducting the all-nation referendum.

8) Presidential powers in relation to the state defense and security. The President acts as the Commander-in-Chief of the Armed Forces of the Republic. He appoints and replaces the highest command of the Armed Forces. In the event of a serious and immediate threat to the democratic institutions of the Republic, its independence and territorial integrity, political stability of the Republic, security of its citizens and the disruption of normal functioning of the Constitutional bodies of the state, the President shall have official consultation with Prime Minister and Chairpersons of the Parliamentary Chambers of the Republic and take measures, caused by a state of emergency on the entire territory or in particular areas of Kazakhstan, and immediately inform the Parliament of the use of the Armed Forces of the Republic; in the case of aggression against the Republic or immediate external threat to its security, the President shall impose martial law on the entire territory of the Republic or in particular areas, declare a partial or total mobilization and immediately inform the Parliament of the Republic to the effect.

9) Presidential powers in relation to the foreign policy. The President conducts negotiations and sign international treaties of the Republic; introduces international treaties to ratification to the Parliament; signs ratification instruments; introduces to the Parliament the issue on the denunciation of international treaties of the Republic. The President also carries out some other actions.

10) Ideological and scientific activity. The Constitution and laws give the President the right to adopt ideological and scientific documents. But this does not mean the President has to be the follower of any ideology. Ideological and scientific attitudes of the President are regulated by the Constitution. It determines the essence and the nature of the state, the principles of its activity. The President assigns the main directions of the domestic and foreign policy of the state in accordance with the Constitution of the Republic of Kazakhstan. Therefore, the Constitution and the laws give him the right to adopt the documents determining the ideological and scientific fundamentals of the state. In accordance with the Constitution the President annually addresses the people of Kazakhstan with a message on the state of the country and main directions of the domestic and foreign policy of the Republic of Kazakhstan.

Thereby, at the modern stage of the constitutional development the place of the President in the system of state bodies is not assigned in any power branches. In Kazakhstan unlike the USA the President as the Head of the state stands above power branches. This fact allows him to effectively perform his duties and control all state bodies. In comparison with the constitutional and legal status of the President of the USA it should be mentioned that the attitude of the President of the USA to the executive power does not adversely affect the development of the country. Moreover, the grounds of the American democracy did not know another way of the President’s performance of his duties and now have positive tendencies. The Presidential powers in the Republic of Kazakhstan have been forming for a long period of time and now they are wide enough for efficient implementation of the state policy.

BIBLIOGRAPHY

1. Сапаргалиев Г.С. Конституционное право Республики Казахстан. – Алматы: Жеті жарғы, 2005. – 528 с.

2. Конституция Республики Казахстан 1993 г. // Информационная система «Параграф».

3. Конституция Республики Казахстан от 30 августа 1995 года // Информационная система «Параграф».

4. Конституционный закон Республики Казахстан от 28 сентября 1995г. «О выборах в Республике Казахстан» // Информационная система «Параграф».

5. Конституционный закон Республики Казахстан от 26 декабря 1995 года "О Президенте Республики Казахстан" // Информационная система «Параграф».

6. Конституционный закон Республики Казахстан от 20 июля 2000г. «О первом Президенте Республики Казахстан» // Информационная система «Параграф».



Table of contents: The Kazakh-American Free University Academic Journal №2 - 2011

  
Main
About journal
About KAFU
News
FAQ

   © 2017 - KAFU Academic Journal