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Information regarding the regulatory resolution of the Constitutional Court
(№ 8 of 8 April 2023)
The Constitutional Court has considered the appeal of the President on the verification of the conformity to the Constitution of the Social Code (hereinafter - the Code), the Constitutional Law of the Republic of Kazakhstan ‘On Amendments to Certain Constitutional Laws of the Republic of Kazakhstan’, laws of the Republic of Kazakhstan ‘On introducing amendments and additions to the Code of the Republic of Kazakhstan on Administrative Offences’ and ‘On introducing amendments and additions to some legislative acts of the Republic of Kazakhstan on social security issues’, adopted by the Parliament and submitted for signature to the Head of State.
The Constitutional Court considers that the initiation of the Code is conditioned by the introduction of a new model of state social policy, aimed at further improving the well-being of citizens and ensuring social justice as the main priority of the state. Through its adoption, it ensures a higher level, integrity and systematic legal regulation on the basis of codification of existing legislation in this area, introduction of additional guarantees for the realisation of socio-economic rights, strengthening of state support measures, with the expansion of digital tools in the provision of relevant public services and a shift from a declarative to an identifiable and proactive format for their provision. All these novelties are aimed at modernising the system of social protection of the population within the framework of the reforms being carried out in the country. Codification of disparate legislation in the social sphere is an important step in the development of its legal regulation.
Constitutional Law ‘On Amending Certain Constitutional Laws of the Republic of Kazakhstan’ and Laws of the Republic of Kazakhstan ‘On Amending the Code of Administrative Offences of the Republic of Kazakhstan’ and ‘On introducing amendments and additions to certain legislative acts of the Republic of Kazakhstan on social security issues’ are interrelated with the Code and introduce amendments to laws derived from it or substantively related to it.
In recognising the constitutionality of the Code, the Constitutional Court considers it necessary to draw attention to some of its shortcomings, which may lead to an ambiguous understanding of legal norms and, as a consequence, to their improper application after their enactment.
Thus, the Code defines the competence of the Government, and its powers are exhaustive, which does not follow from subparagraph 10) of Article 66 of the Constitution, according to which the Government performs other functions assigned to it by the Constitution, laws and acts of the President.
It follows from the Code that any restriction on social rights constitutes discrimination, although the Constitution does not exclude the imposition by law of restrictions in accordance with Article 39 in order to protect the constitutional order, public order, human rights and freedoms, public health and morals.
Additionally, many provisions of legislative acts, which are to be invalidated in connection with its adoption, have been transferred to the Code. At the same time, they were not subjected to a comprehensive analysis of their constitutional and legal validity.
The Constitutional Court recognised the Code and the legal acts interrelated with the Code as being in compliance with the Constitution and recommended that the Government, prior to the enactment of the Code, initiate the submission to the Mazhilis of Parliament of a draft law providing for amendments to the Code and other laws.