NLA or not NLA: the pressing issue in Kazakh jurisprudence
Therefore, this article aims to shed light on this important issue in current law of Kazakhstan. Firstly, it will familiarize with these two types of acts, then examine causes of confusion and flaws in current law, and finally propose one of the possible ways of improvement.
NLA is a written official form of document, adopted by referendum or by an authorized bodies or official of the state, establishing legal rules, modifying, terminating or suspending their action (subclause 11 of Article 1 of the Law «On normative legal acts»). Constitution, Constitutional Law (Constitutional Statute), Codex, Law (Statute) are the basic and most common NLAs. In contrast, resolutions of Parliament and its Chambers, resolutions of Government or legal orders of ministers are not always NLA. Confusion arises when authorized bodies or officials of the state issue legal acts in the same form of resolutions and orders during exercising their governmental functions and their official powers. Those acts of state bodies attribute to the acts of individual application, a written official document of an established form, which: 1) is a one-off or otherwise of limited use; or 2) applies to a particular person or group of persons under the law regulated situation; or 3) establishes, amends, terminates or suspends the rights and responsibilities of a particular person or those of a few. Legal acts of individual application are not included in the legislation of the Republic of Kazakhstan and do not belong to the NLAs . A simple example of LA is decision making by resolution of Government from 14 September 2010 (№ 939) «Some issues of state property». In practice, people use this particular LA as NLA. However, legally it should be qualified as LA for the following reasons: 1) The first paragraph of that resolution of Government appears «to agree with proposals of governors of regions to pass in accordance with the legislation pipelines of high, medium and low pressure and structures on them from communal property ownership in a republican property». This paragraph is for one time action. Mayors in the past wrote proposals to the Government. Once the Government agreed with that proposal, actions were completed. 2) The second paragraph of that resolution of Government appears like «after the completion of the activities indicated in paragraph 1 of this resolution, Committee of State property and privatization of the Ministry of Finance in accordance with the legislation shall transfer gas pipelines of high, medium and low pressure and structures on them as payment for shares of the JSC «National welfare fund «Samruk-Kazyna». This paragraph is also for a one-off use action. There is a direct order to the Committee of State property and privatization of the Ministry of Finance to execute the Government's decision. The legal meaning of this resolution is that there were some pipelines and some legal actions were made by the decision of the Government. As soon as the actions are completed, the resolution is considered executed and no longer in action. However, this is where misunderstanding, misinterpretation and possibility of corruption may arise. In practice, as some commoners and those applying the law are not professional lawyers they interpret it like NLA. So every time when new pipelines are built using the republican budget, they end up in the property of JSC «National welfare fund «Samruk-Kazyna» without proper decision by the government. Legal consequences and political side of this particular issue are not the foci of this article, therefore I continue with another type of resolution of Government. They are called the documents of State planning system. For instance, there are Target schemes for the spatial development of the country, the National security strategy, the sectoral programs, and so on. Additionally, problems occur with the realization of those documents. Some people qualify them as NLA, thus causing legal difficulties for others. One of the examples is «Affordable housing» program approved by the resolution of Government from 21 June 2012 (№ 821). The sectoral program, which is mentioned above, defines a set of interrelated measures aimed at solving the most important problems at the sectoral level. One example of the issues concerning the program is that there are some provisions that cover order of participation and the requirements. People perceive the provisions of the program as rules which in turnare NLAs that define the procedure for the organization of an activity. In fact, they are not NLAs. The sectoral programs are the policy documents which describe policy issue and their desired realization within the current legislation. In addition to the conceptual understanding of NLA or not NLA question, the issue gets worse when someone tries to refer to the State Register of NLA. State register of normative legal acts of the Republic of Kazakhstan (hereinafter - the State Register) is a unified system of state accounting of regulations of the Republic of Kazakhstan, containing details of regulations, and other information and reference of the nature of these acts. The problem with this State Register is that there is every act of an authorized body or official of the state in it, not only NLA as it should be. An example is the resolution of Government from 21 January 2012 (№ 17) concerning the appointment of the Chairman of Agency on sport affairs. The number in State register is 70841. Formally, given that it has a number in State register, it may be referred as NLA. However, resolutions on organizational or cadre matters are not NLA. They are acts of individual application. As I highlighted the problems of identifying the NLA, I found that there are vital issues in the formation of national legislation. Therefore, I propose adding a prefix «normative» to the resolutions of Government. This should solve the problem of conducting State register and identifying NLA. An enactor should then be able to tell whether it is NLA or not because of the authentic interpretation. This idea is not completely new as there are similar acts such as the normative resolutions of Constitutional Council, the normative resolutions of Supreme Court and the normative resolutions of Account Committee. However, this principle does not apply in practice to the resolutions of Government. On the basis of the above argument, I therefore believe that applying proposed legal technique would lead to transparency, legality and a more reliable legislation. By Saken Zhukenov, the Chief Expert of the Department of Subordinate Legislation of the Ministry of Justice of Kazakhstan
Spelling, capitalization and punctuation of the author have been preserved.
