The Fundamental Law is the Basis of the Rule of Law

​The Constitution is the passport that defines the unique characteristics of any newly independent state on the world map. This year marks the 30th anniversary of the Constitution of the Republic of Kazakhstan. Adopted on August 30, 1995, through a nationwide referendum, this sacred law enshrines the state's sovereignty, identity, goals, human rights and duties, governance system, and other core values.
​In scholarly works, the Constitution is also referred to as the Fundamental Law, the Basic Law, or the Primary Law. This is because it serves as the foundation for all spheres of life and the core of the national legal system. The requirements of the Constitution are realized in laws and other normative legal acts, decisions of state bodies and officials, and the actions of citizens and organizations.
​Furthermore, experts argue that the Constitution is not merely a normative text or a simple law. It is a long-term programmatic document that codifies a system of historically formed principles and deeply rooted values, and outlines positions of an ideological nature. The provisions of the Fundamental Law combine both moral and legal requirements. Its norms establish an optimal balance of the common interests of various entities, reflecting social consensus and public opinion, essentially representing a social contract. Upholding this agreement is a guarantee of the stable and rapid development of society and the state.
​Over the past three decades, our country has adopted a completely new legislative framework and established its application practices. In this stable process, the Constitution's requirements serve as the main guiding light for the relevant entities. The concept of a "living constitution" is found in specialized literature, signifying that constitutional provisions should not remain on paper but be realized in daily life as much as possible. The terms "constitution in law" and "constitution in practice" were also coined to indicate the level of real constitutional life.
​Bringing the Constitution's requirements to life is a shared duty of state bodies, organizations, and citizens. The President of the Republic is the symbol and guarantor of the Constitution's inviolability, and of the rights and freedoms of individuals and citizens.
​The constitutionalization of all spheres of public and state life—that is, their development in accordance with the objectives outlined in the Fundamental Law—is being implemented in stages. To this end, documents of the state planning system and other programmatic acts have been approved. The President’s annual addresses, concepts, and national projects provide new impetus and accelerate the work in this direction.
​Considering internal and external demands and challenges, the constitutional matter itself has also been improved multiple times over the years. Our country has undergone four constitutional reforms. In 2022, a large-scale constitutional reform was carried out through a nationwide referendum at the initiative of President K.K. Tokayev. After consulting with representatives of civil society, and taking into account the thirty-year experience of our independent country and advanced international practices, amendments and additions were proposed and supported. These changes aimed to further modernize the presidential system of government, strengthen the role of Parliament and local representative bodies, enhance the competence and responsibility of the Government, and increase the effectiveness of the party, electoral, and law enforcement systems. Over the past three years, new legislation based on these constitutional amendments has been adopted and is beginning to take effect.
​Among the innovations, the re-establishment of the Constitutional Court is particularly noteworthy. Today, special bodies for constitutional control over the quality of applied law exist in the majority of countries around the world. Regardless of their name or model, their mission is shared: to ensure the supremacy of the Constitution. Their decisions are based on constitutional norms, clarifying their direct and implied meaning, developing them in line with the demands of the time, reconciling them, and bringing them to a harmonious interpretation. Constitutional provisions may appear in different facets and acquire new meanings over time.
​For example, due to the rapid development of information technologies in recent years, the term "digital" rights has emerged. In some countries, the right of people to access the Internet has been included in the constitution. In our country, some decisions of the Constitutional Court have provided answers to questions such as the impact of digital tools on human rights, the challenges arising from them, and the state's obligations. For instance, in its normative resolution No. 11 of April 21, 2023, the Court clarified that the constitutional right of every individual to inviolability of private life, personal and family secrets, and the protection of their honor and good name is safeguarded from the illegal dissemination of information on various sources, including those who use modern communication technologies (social networks, messengers, and other internet resources). In general, the legal positions stated in these resolutions can be considered an extension of the Constitution and possess the highest legal force.
​The creation of a Fair Kazakhstan requires laws and their application practices to be just. The main condition for ensuring such high quality is their compliance with constitutional requirements.
​The Constitutional Court checks the constitutionality of laws and other acts, i.e., their compliance with the Fundamental Law. In some cases, citizens ask, "What is constitutionality?" There are different opinions among experts on this issue. According to them, constitutionality is the main principle of a legal state; the compliance of normative legal and other legal acts with the Constitution; and a broad concept that includes the rule of law, the priority of human rights, the separation of powers, the people's rule, and other values.
​The Constitutional Law on the Constitutional Court of Kazakhstan outlines the following criteria for this body to check a legal act's compliance with the Constitution: the content of the norm, the form of the act, the procedure for its adoption, signing, publication, and entry into force, the separation of state power into individual branches, the delineation of competence between state bodies, the official interpretation of the act given by authorized bodies, as well as established legal practice. From the perspective of these criteria, conducting a constitutional review fully covers the formal and material aspects of the law under consideration.
​Among these criteria, checking the content of a disputed norm involves a comprehensive analysis, studying the legislator's purpose and intent at the time of its adoption, and giving a constitutional assessment to the legislative model that has been identified. This creative process can be conditionally divided into several stages.
​At the initial stage, the content of the legal norm that caused the problem is determined. When participating in certain public relations, the relevant subjects understand the meaning of the norm themselves and act within its framework. State bodies explain their positions to others and make decisions based on this understanding. In legal theory, this activity is called interpreting the law. Many methods of interpretation have been established in this area (literal interpretation, systematic interpretation with other norms, etc.). Lawyers often say, "two lawyers, three opinions." Of course, any lawyer—be they a judge, prosecutor, investigator, advocate, or scholar—interprets and applies a law in their own way, based on their knowledge and experience. Complaining to higher authorities and officials about adopted legal acts, and having a court act reviewed in several court instances, are aimed at achieving the correctness of the law and its interpretation.
​In many cases, citizens appeal to the Constitutional Court as a last resort, after using other legal remedies. The Constitutional Court, as mentioned above, takes into account the official interpretation given to the norm and the legal practice that has been established in the country when considering the application.
​For this purpose, the decisions of courts and other bodies on specific cases submitted as an attachment to the application, the normative resolutions of the Supreme Court on the relevant topics, and the conclusions of authorized bodies are valuable materials.
​There is a saying among experts that "the constitution lives in laws." Many of the Constitution's provisions are realized through laws that regulate the mechanisms of their implementation. In relation to ordinary laws, the Fundamental Law, as its name suggests, is the ancestor of laws, the law of laws, the beginning and the source of law. Therefore, at the second stage, the constitutional norm and its content that gave rise to the questionable legal norm are identified. The official interpretation of the provisions of the Fundamental Law is only within the competence of the Constitutional Court. Therefore, in cases where the interpretations given by other state bodies to the norms of the Constitution do not coincide with the opinion of the Constitutional Court, the latter is given priority. In its work, the Constitutional Court pays special attention to the principle that the most valuable asset of the state is a person and their life, rights, and freedoms. It always keeps in mind that many rights are inherent to everyone from birth, are absolute, and cannot be deprived by anyone. This position is clearly manifested when checking the constitutionality of laws that restrict human rights. When searching for an answer to the question of whether the restrictions imposed by the state to protect public order and other values are excessive, the purpose, role, benefits, and scope of these measures are deeply studied, as well as the level of a person's rights realization when they are applied, the harm they cause to a person, and the possibility of introducing other, less stringent restrictions.
​At the third stage, the content of the legal norm under review (possibly in several versions) is analyzed in comparison with the requirements of the higher constitutional provisions closely related to it, and a corresponding assessment is given. In this way, the Constitutional Court comprehensively and systematically studies the law in question and issues decisions that it is in compliance with, not in compliance with, or in compliance with the Constitution based on its own interpretation. In reaching a specific conclusion, the principles established in the practice of constitutional review are applied. These include, in simple terms, the consideration of equality, justice, universal human values, and the interests of the individual in the law; compliance with the Constitution's requirements regarding the restriction of human rights (expediency, necessity, proportionality); the existence of legal consistency that prevents different interpretations and applications; the creation of maximum conditions for the full realization of human rights, the harmony of human rights, and so on.
​Over the past two and a half years, the Constitutional Court has adopted eighteen normative resolutions declaring that the legal norm under review is not in compliance with the Constitution. The denial of long-term visits for those sentenced to life imprisonment for the first ten years was deemed excessive. It was determined that the provision of the Criminal Procedure Code that obliges the extension of a suspect's detention even after the term of the preventive measure has expired, instead of releasing them, violates everyone's right to personal freedom. Similar examples can be cited in relation to laws from various fields.
​I would like to draw special attention to the decisions of the Constitutional Court where it found the legal norm under review to be in compliance with the Constitution, based on its own interpretation. This type of normative resolution is an important innovation. In this way, the Constitutional Court was entrusted with the authority to give an official interpretation of existing laws in close connection with the norms of the Constitution. Legal experts have formed the concept of the "constitutional-legal content of laws." Its emergence is directly related to the activities of constitutional control bodies. In the 1950s, the Federal Constitutional Court of Germany noted that the presumption of a law's constitutionality requires the use of the method of giving it a constitutional interpretation.
​Accordingly, if several meanings of a law are identified through the use of interpretation methods, the version that is most in compliance with the constitution should be chosen. Therefore, by adopting such decisions, the Court was able to preserve the law without invalidating it and to direct the legal practice on the right path. Finding a law to be in conflict with constitutional requirements and invalidating it would lead to legal gaps and leave the relevant issues unregulated, i.e., it would create legal uncertainty. In such cases, giving a constitutional interpretation to the law is the most optimal solution. In terms of its legal consequences, it is equivalent to a decision that the norm is unconstitutional, meaning that in cases where the Constitutional Court's interpretation of the law is different from the interpretation of other state bodies reflected in legal acts concerning a citizen, such acts are subject to review in accordance with procedural legislation.
​Since its establishment, the Constitutional Court has adopted several such normative resolutions. For example, in its normative resolution No. 66-NQ of February 7 of this year, a constitutional interpretation was given to the provisions of the Social Code that regulate the procedure for calculating work experience for the purpose of assigning pension payments to citizens based on age. The Code states that only the time a non-working mother takes care of young children is included in the work experience (subparagraph 8 of paragraph 1 of Article 208). The Constitutional Court took a broad view of this issue and conducted a systematic analysis. According to its constitutional-legal interpretation, Article 27 of the Fundamental Law states that marriage and family, motherhood and fatherhood, and childhood are under the protection of the state. Family and marriage legislation establishes the principles of equality of rights of spouses in the family and the resolution of family issues by mutual agreement. Labor legislation provides for the employer's obligation to grant a leave of absence to the parent of their choice—the mother or the father—for the care of a child until the age of three. Therefore, the time a non-working parent (not only the mother, but also the father) directly cared for the child should be included in the work experience for the purpose of assigning pension payments. Currently, the legal practice regarding this category of parents has changed. The interpretation given arises from the principles of a social state and takes the interests of citizens into account as much as possible.
​In conclusion, the Constitution of the Republic of Kazakhstan has been the foundation for the stable and rapid development of society and the state over the past jubilee period. The constitutional reform carried out in our country in 2022 gave new impetus to this process and made it possible to undertake systematic measures aimed at modernizing all spheres of life. The creative potential of the Fundamental Law will continue to be the main guide for the benefit of the people and requires the continuation of comprehensive work.
​Bakyt Nurmukhanov,
Deputy Chairman of the Constitutional Court
of the Republic of Kazakhstan

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