The new law regulates issues relating to hierarchy, legal force, and interpretation of legislative acts.
On 19 April, a new law on legal acts took effect in Kazakhstan. The new law repealed the previous law on regulatory legal acts of 24 March 1998 (the old law). The new law’s main provisions are summarized below.
OFFICIAL CLARIFICATION OF PROVISIONS CONTAINED IN REGULATORY LEGAL ACTS
The new law uses the term “clarification” (разъяснение) instead of the term “interpretation” (толкование) of legal norms. In contrast with the old law, the new law sets clearer limitations of an official clarification:
- Acts that contain an official clarification of regulatory legal acts shall not create legal norms and shall not fill the gaps in the legislation
- An official clarification of a regulatory legal act is made solely to understand the content of the law but shall not change the meaning of the legal norms and shall not extend beyond the clarified provision
The old law defined “state bodies” as having the right to make an official interpretation of the Constitution and bylaws. No such state body was appointed for the official interpretation of legislative acts.
The new law provides the right to make official clarification of the legislative acts to the prosecutor office (except for resolutions of the Kazakhstan Parliament and its Chambers). Such clarification is considered an act of prosecutor supervision and is made in accordance with the Law on Prosecutor Office. This “clarification” authority has already been provided in the Law on Prosecutor Office and it was generally understood that such “clarification” is not equal to the official “interpretation” of the law.
Importantly, other state bodies may still make clarifications of regulatory legal acts (within their authority), including legislative acts, in relation to specific entities and circumstances. However, such clarifications do not have a legal force and are of a recommendation nature.
In general, the New Law seems to exclude the official “interpretation” from its coverage and only limit itself to the “clarification” of law. For example, the Constitutional Council still has a right to make official interpretation of the Constitution, and such interpretation (documented as a normative resolution of the Constitutional Council) is binding in Kazakhstan for all entities.
ANALOGY OF STATUTE AND ANALOGY OF LAW
The new law provides the possibility to use an analogy of statute (i.e., application of statutes that govern similar public relations toward nonregulated public relations) and an analogy of law (i.e., application of general principles of law and principles of specific branches of law toward nonregulated public relations).
An analogy of law only applies if an analogy of statute cannot apply. That being said, creating new obligations or restricting the rights of persons and legal entities is prohibited when applying an analogy of state or an analogy of law.
Applying an analogy of statute or an analogy of law in a particular branch of law is set out by that specific branch of law. For instance, the Criminal Code directly prohibits application of criminal law by analogy.
NORMATIVE AND NON-NORMATIVE LEGAL ACTS
The new law makes a clear distinction between normative and non-normative acts. The latter include acts of official clarification of regulatory legal acts, legal acts of an individual application, and legal acts in the area of the state planning system.
Codes regulate specific public relations only. The new law extends the applicability of codes to entrepreneurial relations (e.g., the recently adopted Entrepreneurial Code) and subsoil use relations (the respective code has not been adopted yet).
HIERARCHY OF REGULATORY LEGAL ACTS AND CONTRADICTIONS OF LEGAL NORMS
In general, provisions relating to the hierarchy of regulatory legal acts as well as the contradiction of legal norms in different regulatory legal acts remain the same.
The new law introduces new terms, such as “consolidated law” (this term’s definition is unclear because such consolidated law has the same legal force as a general law) and “draft law concept” (as a general rule, an authorized body shall develop a concept of the respective draft law prior to developing the actual draft law).