О местных представительных и исполнительных органах Республики Казахстан

                                INTRODUCTION 
 
Background study determined that in Kazakhstan the fundamentals and principles of local representative bodies in the theoretical and practical aspects, as one element of an overall system of power, began to develop only recently. However, during this period some practical experience in the formation and functioning of local representative government, created a framework framework and most importantly - in the public mind strengthened and is further developed the idea of ​​the impossibility of further civilized, democratic development of the country without a developed idea of ​​popular representation.

Since independence of the sovereign Kazakhstan became a difficult time for the country's radical transformation of society, the restructuring of economic and political systems and the revival of statehood.

Today, the country continues to develop in line with the long-term strategy "Kazakhstan-2030". Central to it is devoted to problems of creating an efficient, professional state in which there is a clear separation of powers between the central and local governments, as well as the principle of decentralization in administration, the center-region, between the state and private sector. Takes a series of measures to strengthen national security and political stability, further democratization of society and the development of regional cooperation. 
Steadily rising standard of living, to solve social problems. Kazakhs are interested to this ongoing process continued, and this requires, above all, political stability. Therefore, all the reforms, including governance related to the redistribution of power, must not infringe the existing system of checks and balances to keep the existing stability, promote the development of civil society. In the formation of the rule of law in Kazakhstan, a major component of this task is to increase the effectiveness of local representative bodies. 

The object of the course of the study. The object of the course is the study of social relations which are of a complex and multidimensional nature encountered in the legal regulation of the organization, operation and improvement of local representative bodies in the Republic of Kazakhstan. 
The subject of the course of the study. The subject of the study are contained in the Constitution of the Republic of Kazakhstan, national laws and other normative legal acts of the legal rules governing the organizational framework and the competence of local representative bodies, the constitutional and legal status of deputies maslikhat. 
The purpose and objectives of the study. The purpose of this paper is that would be based on the provisions of the general theoretical jurisprudence and analysis of existing practice ground the main provisions governing the functions and tasks of local representative bodies - maslikhats.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 1. NATURE AND ORGANIZATION OF LOCAL REPRESENTATIVE OF RK 

1.1. The nature and significance of local representative bodies of the Republic of Kazakhstan 
 
The competence of the public body in its essence is a legal remedy (shape) of the social division of labor to manage state and social affairs. Giving the competence of the State, with the political, economic and social conditions of society and the requirements of scientific management, is an important prerequisite for the efficient use of all the capabilities of the public in the management of economic and social processes. More correctly defines the competence of bodies, the unit works efficiently, effectively used the material and financial, legal, organizational and other resources to meet the challenges of state, economic and socio-cultural development. 
The conventional concept of competence of local representative bodies formed in the Soviet era. Most researchers have considered it as laid down by law and other regulations set of powers (rights and responsibilities of these agencies). Items of point to the areas of public life, in which, the local representative bodies. In other words, it is a legally enforceable terms of social relations in which these bodies are charged with the respective rights and obligations, including to make legal decisions.

Local representative bodies - are the rights and duties, which they grant to carry out their tasks and functions that are so inextricably linked that the majority is in the form of human-rights obligations. For example, the formation of maslikhat and election of its secretary is the right of the elected body, but at the same time it is his duty, as otherwise maslikhat can not work effectively. In addition, if the newly elected maslikhat determines a month its structure and has elected its organs, its powers may be terminated by the Senate of the Parliament. 
Consider that right maslikhat as the approval of the local budget and the report on its implementation. First of all, maslikhat must address these issues at the meeting. He may not approve the akimat budget and report on its performance, if it is not satisfied with any performance. The finalized draft budget will again be put to the session, and will be required to maslikhat review it. If consensus can not be found, the local representative body may be prematurely dissolved. At the same time, according to Vladimir Mamonov duties maslikhats may be wider than their rights, first, the performance of many duties assigned to them, do not require any of the powers and the resources committed mass organizational work, in Second, the higher authorities to maslikhats may be assigned additional duties that they perform within the already existing rights. 
It should be noted that the Constitution of the Republic of Kazakhstan (hereinafter - RK) of powers maslikhats stated in one article (paragraph 4 of Art. 86), for we are no items of maslikhat where he legally incompetent, that is not relevant authority.

Based on an analysis of competence maslikhat can establish that the objects of local representative bodies are the local budget, plans for economic and social development of the area, the complex and the programs on various aspects of economic and social development, the rule of law and the rights of citizens, organizational and personnel matters of local importance etc. And in most cases, they coincide with the objects of local authorities. Indeed, local budgets, plans, programs, area development, rule of law and the rights of citizens are also in the field of akimats. This is due to the fact that the local representative and executive bodies of the equally "responsible for the situation in the territory" (Article 85 of the Constitution of the Republic of Kazakhstan), but they have different powers. 
In legal literature emphasizes the special importance "exceptional powers" maslikhats that are legal guarantees of their activities as "working corporations." Noted that "through the legal confirmation of exclusive powers to regulate the work can maslikhat so that he put together as a collective body in their work and standard-setting, and a representative of the population, and issues of governance." On this basis it was concluded that the exclusive power to create some issues on the guarantee of the rule of maslikhat appropriate local executive authority. " 

In our opinion, the separation of powers maslikhats "exceptional", established by the Law of RK as of January 23, 2001 "On local government in the Republic of Kazakhstan", and the other, that is, fixed other legislation, is not correct. The term "exclusive authority" of local representative bodies used in the functioning of the Soviet system, where the latter includes its own parliamentary assembly and subordinate executive bodies. Settling the sole authority, the legislator stipulated the issues that were decided solely on the sessions. 
Under current law, all matters within the jurisdiction of maslikhat addressed in the sessions. In this sense, they are his "exceptional powers", regardless of whether they are provided by the Law of RK "On local government in the Republic of Kazakhstan" or other laws. 

In addition, it is not clear what is meant by activity maslikhats as "working corporations." The expression also was not appropriate, because associated with Lenin's idea of ​​the Soviets as "working Corporations", combines not only the functions of decision-making (legislative) and control, but also the functions of management. Now authorities and executive bodies are strictly separated, and they have no right to interfere in each other's jurisdiction. The classification of various issues of public administration to conduct maslikhats does not mean that they are of executive power. It is only on the rational division of labor between the local representative and executive bodies in accordance with their roles, social purpose and potential of the mechanism of the state.

1. Local representative bodies — maslikhats — shall express the will of the population of respective administrative-territorial units and with regard to the common public interests shall determine the measures needed for its realization, and control their implementation.

2. Maslikhats shall be elected by the population on the basis of universal, equal suffrage under secret ballot for a five-year term.

3. A deputy of a maslikhat may be a citizen of the Republic of Kazakhstan who has reached twenty years of age. A citizen of the Republic may be a deputy of only one maslikhat.

4. The jurisdiction of maslikhats shall include:

1) approval of plans, economic and social programs for development of the territory, local budget and reports of their performance;

2) decision of issues of local administrative-territorial organization in their jurisdiction;

3) consideration of reports by heads of local executive bodies on the issues delegated by law to the jurisdiction of a maslikhat;

4) formation of standing commissions and other working bodies of a maslikhat, nearing reports about their activity, decision of other issues connected with organization of the work of a maslikhat;

5) exercise other authorities for insuring of the rights and legitimate interests of citizens in accordance with the legislation of the Republic.

5. The powers of a maslikhat shall be prematurely terminated by the President of the Republic, and also in the case of adoption of a decision about self-dissolution.

6. The jurisdiction of maslikhats, procedure of their organization and activity, and legal status of their deputies shall be established by law.

1. Local executive bodies shall be a part of a unified system of the executive bodies of the Republic of Kazakhstan, and ensure conduct of the general state policy of the executive power in conjunction with the interests and development needs of the respective territory.

2. The jurisdiction of local executive bodies shall include:

1) development of drafts of plans, economic and social programs for development of the territory, local budget and provision of their realization;

2) management of public property;

3) appointment to and release from office the heads of local executive bodies, resolution of other issues connected with organization of the work of local executive bodies;

4) exercise other powers delegated to local executive bodies by the legislation of the Republic in the interests of local public administration.

3. A local executive body shall be headed by an akim of the respective administrative-territorial unit who is a representative of the President and the Government of the Republic.

4. Akims of the oblasts, major cities and the capital shall be appointed to office by the President of the Republic from the consent maslikhats accordingly oblasts, major cities and the capital. Akims of other administrative-territorial units shall be appointed or elected to office in the order, determined by the President of the Republic of Kazakhstan. The President of the Republic shall have the right to release akims from office at his own discretion.

5. At the initiative of not less than one-fifth from total number of deputies of maslikhat can be brought to the question on expression of a vote of no confidence in the akim. In this case maslikhat by a majority of votes from total number of its deputies have the right to express non-confidence in the akim and raise the issue of his release from office respectively before the President of the Republic or a senior akim. The powers of akims of the oblasts, the major cities and the capital shall terminate when a newly elected President assumes office.

6. The jurisdiction of local executive bodies, organization and procedure of their activity shall be established by law.

 

1.2. The organization of local representative bodies of the Republic of Kazakhstan 
 
Organizational authority maslikhats. Number of powers connected with the organization maslikhat own work, including permanent and audit committees and MPs. Maslikhat forms its subsidiary bodies shall elect the Secretary and the Chairman of the session, hear reports on their activities and consider requests for the deputies and make decisions on them, according to the structure, staffing and costs of the system, approve the rules, etc. 

The activity maslikhats based on a plan. Although among the powers of local representative bodies forth the law "On local government in the Republic of Kazakhstan", there are no approved management plans, their training is provided by the Law of RK as of 27 November 2000 "On administrative procedures." Clear and scientifically sound planning of their activities is essential for the performance of any public authority. The plan allows to identify the main areas of activity, the main measures for their implementation, the organizational forms of their implementation, to identify the timing of their implementation and supervisory. 

Another group of a local representative bodies of organizational concerns local authorities. In particular, the personal composition akimat agreed with the Governor of maslikhat. However, because the composition of akimat actually defined by the Act of January 23, 2001 and includes a deputy mayor, Mayor's Chief of Staff, the first heads of executive agencies financed from the local budget, this power Maslikhats can turn a mere formality, as the members themselves akimat appointed to their posts Mayors and dismissed by competition. It is also unclear whether all early leaders of local industry bodies included in akimat, if not all, by what criteria they selected? What would be the consequences if maslikhat not approve or that an official from the submission of composition? Does a mayor in this case, to propose a new candidate? 
Proposals for harmonization with maslikhats appointments service managers akimats akims and cities (regional value), as well as managers and budget organizations nominated from the floor. Here we have to distinguish between the positions of those they hold personally on the basis of competitive or political purposes, and their positions as members of akimats. Service managers akimats, Deputy Mayor appointed by governors of passing the competition - is the order of acquisition of administrative positions provided by the Law "On public service". Akims of the regional and city levels are political civil servants, and the order of their appointment or election is determined by the President of Kazakhstan, to date they are appointed by the governors of the parent, so the coordination of their use would be contrary to the maslikhats the Constitution and the law on public service. 

Another thing is their membership in the akimats - collective executive bodies entitled to a number of issues and replace amorphous Education (Board of the AQIM) provided by the same law. It is important to fundamentally solve the extent to which representative bodies affect their composition: they only give formal consent governors and claim submitted compositions produced after destination or decide together what officials include local collegiate executive body. 

Maslikhat on presentation Mayor approves the scheme of the administrative-territorial unit. 
The competence maslikhats assigned control over the execution of plans, economic and social development programs of the territories, and local budgets. It would be desirable to clearly define the powers to implement the control function (except for hearing the report of the audit, it may be, for example, the organization checks for their execution). 
However, the activities of local representative institutions is largely non-professional nature, they have no real leverage over the executive branch, and their existence is actually reduced to the design of solutions produced by local authorities. In this regard, over the past ten years continuously raised questions about the empowerment of local representative bodies, strengthening their influence on the solution of topical issues of territorial development. Some steps in this direction were made in the legislation.

1.3 Powers Maslikhat

Maslikhat carries out the powers at sessions, through the constant commissions and other bodies, the chairman of session Maslikhat, deputies and the secretary Maslikhat in an order established by the legislation of Republic Kazakhstan. 
The basic form of activity Maslikhat is session on which the questions carried to its conducting by laws are solved. 
Session of Maslikhat is competent, if at session is present not less than two thirds of total number of deputies Maslikhat

Maslikhat:

Selects and dismisses the chairman of session Maslikhat, the secretary Maslikhat and hears their reports. Forms the constant commissions and other bodies Maslikhat, selects and dismisses their chairmen, hears reports on their work. 
Defines expenses on activity maintenance Maslikhat, confirms revision committee certificates. Confirms device structure Maslikhat and defines expenses on its maintenance and material support within the limit of number established by the legislation and assignments. 
The limit of regular number of civil servants of the device Maslikhat is established, proceeding from number of deputies corresponding Maslikhat, in the ratio one worker to five deputies, but not less than five. Confirms regulations Maslikhat. Considers inquiries of deputies and makes on them of the decision. Makes other decisions on the organisation of its work.

 

Certificates Maslikhat

1.Certificates Maslikhat which it publishes concerning the competence, are decisions Maslikhat. 
2.Projects of decisions Maslikhat, providing reduction of local budgetary incomes or increase in local budgetary expenses, can be submitted for consideration only in the presence of the positive conclusion akim. 
3.Decisions Maslikhat, accepted within its competence and concerning the rights, freedom and duties of citizens, are subject to official publication in the order established by the legislation and are obligatory to execution in corresponding territory. 
4.Decisions Maslikhat, having obligatory value, interdepartmental character or concerning the rights, freedom and duties of citizens, are subject to the state registration by territorial bodies of the Ministry of Justice in the order established by the legislation. 
5Decisions Maslikhat, not corresponding Constitutions and to the Republic Kazakhstan legislation, can be cancelled Maslikhat or in a judicial order.

Regulations Maslikhat

Order of carrying out of sessions Maslikhat, sessions of its bodies, entering and consideration on them of questions, formations and elections of bodies Maslikhat,  consideration of inquiries of deputies, and also the voting procedure, the organisation of work of the device both other procedural and organizational questions are defined by regulations Maslikhat, confirmed on its session.

Sessions Maslikhat

1.Session Maslikhat is spent in the form of plenary sessions. 
2.The first session Maslikhat opens and before election of the chairman of session Maslikhat the chairman of corresponding election committee conducts. Further sessions Maslikhat are conducted by the chairman of session Maslikhat. 
3.Session Maslikhat is competent, if on it is present not less than two thirds of total number of deputies Maslikhat. Decisions are accepted by majority of votes from total number of deputies Maslikhat. 
4.In session work under the decision Maslikhat the break for the term established Maslikhat, not exceeding can be made fifteen calendar days. 
5.Duration of session is defined Maslikhat. 
6.Sessions Maslikhat have, as a rule, open character. Carrying out of the closed sessions is supposed under the decision Maslikhat, accepted under the offer of the chairman of session Maslikhat or one thirds of number of the deputies who are present at session Maslikhat if for it the majority from total number of present deputies has voted. 

7.Under the invitation of the chairman of session Maslikhat heads of local executive powers, heads and other officials of the organisations located in territory of the corresponding administrative and territorial unit, are obliged to be on session Maslikhat for information representation on the questions concerning conducting Maslikhat.  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter 2. The structure and functions of local representative bodies of the RK. 

2.1 The concept and function of local representative bodies. 
Obviously, there is no reason to talk about guarantees "rule" over maslikhats akimats. First, the validity of their regulatory and enabling legislation is the same, and secondly, these acts are accepted only within the limits of the competence of such bodies, and thirdly, they are provided with equal protection, and fourthly, maslikhats can not revoke or suspend the acts of local authorities. 
Powers maslikhat be classified for various reasons. For example, GS Sapargaliyev combines power maslikhats in two groups: (1) Review and approval of questions prepared by the executive authorities, and (2) exclusive (meaning belonging to them originally). But in this classification does not quite fit the powers that belong to the local representative and executive bodies and to share, for example, in the administrative and territorial division. Of course, this most of the proposals prepared by the executive body, but does not exclude them from the payment of MPs. 

On the ill highlight at this point the "exceptional" powers maslikhat discussed above, the distinction of "exceptional" powers not quite legally accurate. First, maslikhats are not bodies, "the representative system," because it does not exist. All representative bodies, including the Parliament, the independence and autonomy in their work, are not connected to power and domination. Apparently some scientists have in mind the powers associated with the formation and organization of internal activities maslikhat. Second, it is unclear what is meant by the functions maslikhat as "governmental body": if maslikhat regarded as an institution of the executive power, it is fundamentally wrong position. This raises the question, what is the criterion for this distinction? 

The classification of a local representative bodies can set different criteria, which will give a more diverse characteristics of their competence. 
By the nature of the activities (the subject of) the following groups of powers maslikhat: 
1) organizational and personnel powers: the election and dismissal of the Chairman's and Secretary maslikhat; hearing their reports, education and formation of the Audit, standing committees and other bodies maslikhat; election and dismissal of their chairs, hearing reports of their work, determination cost of maintenance of the maslikhat, approval of acts of the Audit Commission, approval of the device structure maslikhat, determine the cost of its maintenance and logistics within the statutory limit of the number and appropriations approval regulation maslikhat; consider requests for the deputies and action on, the early termination powers of the deputies of maslikhat in cases established by law approval, upon the Mayor control circuit administrative unit, harmonization decision session maslikhat personal composition of the akimat, approval, upon the Mayor of personal advisory bodies at Governor's office on interdepartmental, the decision referred to them management issues of local administrative-territorial delimitation and the local community; 
2) the power to address economic and social issues of territory: the approval of plans, economic and social development programs of the territory, approval of the local budget, including cost estimates for the maintenance of national importance in the city (the capital), town, village (village) aul (rural) district, approval of programs to protect the environment, as well as the resolution of other issues in accordance with the legislation in the field of environmental protection, the approval of programs to promote employment and poverty reduction, the implementation of the regulation of land relations in accordance with the laws of the Republic of Kazakhstan, etc. ; 
3) the authority to ensure the security, law enforcement and the protection of citizens' rights: in accordance with the Code of Administrative Offences of approved rules, violation of which administrative responsibility, to facilitate execution of individuals and organizations standards Constitution, laws, acts of the President and the Government of the RK , normative legal acts of central and local government bodies, the implementation in accordance with the laws of the Republic of Kazakhstan authorities to ensure the rights and interests of citizens, and others; 
4) control powers: control over the execution of plans, economic and social development programs of the respective administrative-territorial unit, the local budget, hearing reports of the local executive body for the implementation of plans of economic and social development programs of the territory, local budget, consideration of reports of heads of executive bodies and making representations to the relevant authorities to bring to justice officials of state bodies and organizations for non-conformity maslikhat; expression of distrust akim and the question of his removal from office before the President of the Republic of Kazakhstan or a senior akim.