1.История
государства и права.
Terms and problems of formation of the rule of law and
civil society, the Republic of Kazakhstan
Kazakhstan
Today in Kazakhstan,
in my opinion, raises a pressing problem in what state we live in a legal or
not? So I decided to take the theme of "rule of law and civil
society." Legal state - a state in which exist independently of each other
three branches of government: executive, legislative and judicial. After
analyzing the history of our country we can say that at a constant change of
formal forms of power, the country's name, flag, constitution leadership still
carried by one person. That is the essence of the state is not changed. As a rule,
the authorities in Kazakhstan belonged to one person in Khan's power held in
his hands Khan, in the USSR - the secretary general, and in the current
Kazakhstan - President. Right in our country has forced one-sided force
directed toward the subjects to curb excessive claims of private interests. It
has yet to become two-way binding. Why has this situation? I get only one
answer, probably, our people can not live without "strong hand", or
did not understand what freedom, what civil society. Therefore seldom in
Kazakhstan in power could not resist authoritarian ruler, not a dictator, not a
tyrant. The very idea of the rule of law seemed distant and
unreal about it, for example, the saying goes: "A law that pole, which had
turned back and left." Now Kazakhstan - presidential republic, so the
question of civil society and rule of law gets more acute. Belongs there in our
state power to the people and whether the country's separation of powers? I
will try to answer this question in this paper through the analysis of the
concepts of the state, the rights that were given at different times by
different historians, philosophers and political scientists. I would also like
to express their opinion on the topic of what should be the rule of law and to
analyze the opinions of scholars on this topic. I want to start my analysis
with the work of thinkers on the subject. In the beginning it is necessary to
consider the thoughts of scientists of the ancient world that should consist of
a society and the state. Since the prevailing view among philosophers that a
person during his life has not changed in the spiritual and moral terms, it
would suggest that the ideas expressed by representatives of political science
an ancient science is not too different from the ideas that emerged in modern
times, or from those of our contemporaries. Thus, either I get a confirmation
of his thoughts, or refutation, and how these ideas are very different.
Representation of a state of law as a state based on the rule of law and
equality of rights, goes back to antiquity and the period of formation of Roman
law. The fundamental principles of the rule of law were formulated in the
XVII-XVIII centuries. in the works of theorists of liberalism John. Locke,
Montesquieu, Jefferson. The very same term "legal state" was first
established in the writings of German lawyers T.K.Velkera, R. von Mohl and
others. The theory of the rule of law is intended to protect citizens from
dictatorship and tyranny on the part of the authorities to ensure individual freedom,
fundamental rights of the individual , namely the right to life, security,
property. This is only possible in the first place, provided the separation of
state and society, and secondly, by limiting the scope of the state law and,
above all, the constitution, the Basic Law, which regulates the relationship
between the people and vlastyu.Takim, the state of law - a democratic state,
which gives priority to the rights, rule of law, which recognizes and
guarantees the rights and freedoms of man and citizen. Generally recognized
principles of the rule of law are: popular sovereignty, supremacy of the
Constitution, the equality of all before the law, equality of public and
private interests, the sanctity of the rights and freedoms of man and citizen.
Currently, the legal
state is the ideal slogan constitutional principle. Therefore we can not with
absolute certainty that in any State the rule of law were fully realized.
Formation of the rule of law should be seen as a process of realization of its
basic principles. The Constitution of the Republic of Kazakhstan reads:
"The Republic of Kazakhstan is a democratic, secular, legal and social
state whose highest 11 values are an individual, his life, rights
and freedom." With these words, the government is committed to the ideals
of the rule of law and a desire to carry out its basic principles. The
principle of popular sovereignty literally means rule of the people and the
government is reflected in the art. 3 of the Constitution of the Republic of
Kazakhstan, which found that "the only source of power is the people. The
people exercise power directly through national referendum and free elections
as well as delegate the execution of their power to state bodies ... the right
to speak on behalf of the people and the State belongs to the President and the
Parliament ... ". The principle of supremacy of the Constitution is fixed
in Art. 4, which states that "the existing rights of the Republic of
Kazakhstan are the norms of the Constitution, the laws corresponding to it ...
The Constitution has supreme legal force and direct effect on the entire
territory of the Republic." The principle of equality before the law is
fixed in Art. 14 of the Constitution of the Republic of Kazakhstan: "All
are equal before the law. No one shall be subjected to any discrimination on
grounds of origin, social, official or property status, sex, race, nationality,
language, religion, beliefs, place of residence or any other circumstances.
" The implementation of the principle of equality of public and private
interests is in the form of recognition of equality in the protection of public
and private property (Art. 6 of the Constitution of the Republic of
Kazakhstan): "In the Republic of Kazakhstan shall be recognized and
protected equally public and private property." The principle of the
inviolability of the rights and freedoms of man and citizen is reflected in the
art. 12: "In the Republic of Kazakhstan recognizes and guarantees human
rights and freedoms in accordance with the Constitution" and in art. 39 of
the Constitution of the Republic of Kazakhstan: "The rights and freedoms
of man and citizen may be limited only by laws and only to the extent that this
is necessary in order to protect the constitutional order, public order, human
rights and freedoms, health and morals." Thus, the Constitution of the
Republic of Kazakhstan, the main principles of law, demonstrating the
willingness of Kazakhstan to its actual construction. [1, p.10].
The Constitution of
the Republic of Kazakhstan adopted at the national referendum on 30 August
1995, is the main document defining the foundations of the state-tion. As the
chairman of the Constitutional Council Zion Rogov: "Basic Law, to
accumulate all the basic elements of sovereignty and independence, was adopted
at the republican referendum-Kan, giving it a high degree of legitimacy. It is
based, is on the interests of the general public, democratic principles of
organization of state power and administration, the rule of law, the
generally-knowledge of international standards of human rights "[2, p.10].
The concept of the
basic law (fundamental law) was formulated by Hobbes, who saw the difference in
nyatiyah "right" and "law", the first element he
associated with freedom, and the second with the duties. Doctor of Law of the
University of Madrid, D. Valadez, continuing the argument with respect to the
concept of incomplete basic law (constitution) Hobbes, came to the conclusion
that "it is a normative act underlying the right-vogo system, filled in accordance
with his logic rights and laws. If we wanted to use these elements to identify
what fits great-vovomu state, that could come to the conclusion that this is
the basic law and in understanding of law as the foundation of freedom that is
inherent in the idea of the
legal state-tion. "[3, p. 96].
According
to Doctor of Law Lukashev EA .: "Proclamation of the legal state of
liability does not have a constitutional statement has already been achieved
and completed the process, but the transition from one stage of its formation
to the other" [4, p.72].
Since
this opinion can not agree. Formation of legal state-tion process is long and
complex. Hoz basic principles on which the great-constitutional state, in their
totality give a general idea of what is lawful state, what its essence, content, the
main purpose of its creation and purpose.
To
date, essentially, a common understanding of the concept of the rule of law.
Various authors, arguing essentially in one direction, give time-Wish list the
rule of law state-udarstva, focus on particular aspects of the concept.
Professor Alekseev SS Vaeth reveal the essence of the rule of law, after
following way: "The rule of law is the basis for a radical strengthening
of the rule of law, such fortified-tion when it is in principle able to
eliminate the usurpation of power and misuse it-tion, effectively resist the
UD-red tape and formalism, reliable guaran -tirovat rights and freedoms of
citizens, as well as the exercise of their civil-of obligated "[5, p.100].
D.
Valadez said that: "The rule of law is based on the subordination of state
activity constitution and regulations that have been adopted in accordance with
the procedure established by the Constitution. Standards ensure responsible and
con-trolled functioning government; exercise of the powers In compliance with
known locations that do not have retroactive effect in the case of
deterioration of the situation, as well as respect for the personal, social,
cultural and political rights-cal "[2, p. 21].
Kazakh
scientists Aiupova ZK and Sabikenov SN believe that "democracy-cal legal
state is the state recognizes and provides for protection (guarantees) the
rights and freedoms of the individual citizen; The state does, based on the
principle of separation of powers, a democratically formed by operating in
strict mode and strict observance of the rule of law in a developed, coherent
legal si-tem and a high sense of justice of citizens, under the rule of the
Constitution and other laws, for "[6, p. 62].
In our
opinion vysheprive-in-degenerate definitions in general captured the very
essence of the rule of law. In order to construct a new model gosu-lic-legal
system of the Republic of Kazakhstan - the rule of law req-Dimo know what are
the ways, conditions and assump--Shortcuts its formation. In this regard,
schi-Tai appropriate lead opinion Akhmetova NS, which notes that: "By the
rule of law must go not from the law, and not even the right at all, although
the principle of law, Verhoeven is fundamental and it is impossible without a
constitutional state . By the rule of law, that is, to such a state where the
rule of law, it is necessary to go from civil society, the modern-ing
understanding that folds pas parallel improvement of representation-tion about
the state of law, on the Democratic-sky state of law "[7, p. 19].
Well-known
Russian lawyer Laza-roaring VV writes about the relationship of such
institutes-ing as a "state of law" and "citizens-mechanical
society" as follows: "Pra-constitutional state is possible only if
Nali Chii-developed civil society, and vice versa, civil society-Imma-component
inherent in legal form vlastvova- tion, based on the rule of law (Law took),
the separation of powers and the real-obespe chenii human rights and freedoms.
"[8, p. 388].
Institutions
of civil society as a system independent of the state of public education, the
task of which ryh is to ensure conditions for self-realization, as an
individual, and their associations, provide a balanced mutual control,
gosu-balances of-state and non-state bodies. There is a pattern than the
development of civil society, the more reason for the existence of a democratic
constitutional state. It is believed that one of the most important
exponents-lei effective development of the state, its political, economic,
cultural-term, social viability of a developed civil society.
On the
example of the Republic of Kazakhstan which has set itself the task of
for--legal state, you can pass-dit development of civil society, about the
20-year existence indepen-independent state. In the formation and time-ment of
civil society in Kazakhstan distinguish several stages. Development of
Ka-Kazakhstani legislation regulates present-activity of civil society
institutions is as follows:
• The
first stage - 1989-1994 years - the Law "On public associations-tions of
the Kazakh SSR."
• The
second stage - 1994-1997 years - the laws "On Public Ob-unity" and
"On political parties".
• The
third stage - 1997-2002 years - the laws "On social partner stve in the
Republic of Kazakhstan" and "On a certain-profit organizations."
• The
fourth stage - the years 2002-2005 - adopted a program to support the
wrong-governmental organizations for 2003-2005.
• The
fifth stage - 2006-2011 years - adopted and implemented the concept of civil
society.
Consider
the dynamics of non-governmental organizations within the specified
periodization.
The
first stage. By March 1, 1990 in Kazakhstan there were about 100 associations,
figure-of which was aimed at the solution-of problematic issues in the
following areas: environmental security, support for socially vulnerable
segments of the population, the legal development of citi-dan. In connection
with the adoption of the Law "On general-governmental associations of the
Kazakh SSR" dated June 27, 1991 was marked by continuous
growth-governmental organizations, whose number exceeded 400.
The
second stage. For this stage of ha acteristic further increase Audio Output
OPERATION AND most importantly quality wrong-governmental organizations. The
number of non-governmental organizations led away-creased fourfold. During this
period, sign-vym event was the creation of the anti-nuclear movement
"Nevada-Semipalatinsk". In con-communication with the creation in
1995 of the Assembly of People of Kazakhstan all national cul tural centers
united under his Egi-doy. It should be noted that the Assembly of People of
Kazakhstan is a unique and unparalleled in the world institute, Koto-rum has a
special role in the achievements-NII peace and harmony in Kazakhstan. In
re-result of the constitutional reform in 2007, the Assembly of People of
Kazakhstan became a constitutional body with the right-electe of Majilis. Ta
Thus, through this constitutional right of Zion implemented the principle of
baking been ensured political representation of different ethnic groups in the
structures of power and above all in the Parliament of the Republic of
Kazakhstan.
The
third stage. By the end of the peri-od was registered 7122 wrong-governmental
organizations. Significant co-existence: the opening of the 1999 "info
centers NGOs' activities were directed at improving the county-legal culture
re-regional non-governmental organizations; the creation in 2000 of the
Confederation of NGOs Kazakh-mill.
The
fourth stage. During this period, a number of policy documents, Koto-rye have
further devel-opment of civil society institutions in Kazakhstan. Significant
events: in 2003 I held the Civic Forum, which brings together government
bodies, continuous-governmental organizations and interna-tional organizations
and became a dialogue platform in the system of relations "state-tion -
civil society", which was subsequently acquired a systematic character and
began to be conducted through kazh Thaya-two years; in 2005 established
citi-Danish alliance of non-governmental organiza-tions, the aim of which was
consolida-tion of public associations and the Na-tional information resource
center, non-governmental organizations of the Republic of Kazakhstan.
The
fifth stage. During this period, knowledge-chimym event was the adoption and
ReA-lization Civil Society Development Concept of the Republic of Kazakhstan
for 2006-2011.
According
to Osipov states NIJ-December 2011 "in the country eV-cule more than
35,000 nonprofit organizations-ray, including 18,000 - non-governmental organizations.
Dey-productivity of the non-governmental organization-tions covers a fairly
wide range of areas. The percentage of the spheres of activity as follows: Molo
reliably - 43.9%, children - 24.5% medical-cal - 21.2%, environmental - 20.4%,
for Family and women - 20.4% for education - 20.4%, the problems of people with
disabilities - 16%, and others. "[9, p. 13].
A
major role in the resolution of conflicts arising in various spheres of life,
should play court. This is understandable: after all, the court bases its
activities in accordance with democratic principles such as independence,
collegiality, publicity, the presumption of innocence, competitiveness and
equality of the parties, the right to appeal decisions. Need to ensure that
judges, prosecutors, investigators were protected from any pressure or
interference in their activities. They must obey the law and only the law. It
is appropriate to use the conventional thesis on the rule of law over all and
sundry. However, it should warn against excessive exaggeration formal legal
approach to the rule of law.
Quality
criteria of legal statehood of Kazakhstan, the successful formation of which
depends on the respective economic and political conditions, overcoming legal
nihilism and legal idealism in the public sense of justice, by improving the
legal culture of the population and government officials, fine-tune the entire
legal system and the rise of justice, is to guarantee the rights and freedoms
human and civil rights to the highest international standards; supremacy of the
Constitution and the rule of law statement; establishment of economic freedom
and a clear definition of the boundaries of the economic activity of the state;
Republican political order and stability of an efficient form of government;
the unity of the state power and dividing them into branches in the presence of
a system of "checks and balances"; independence of the judiciary;
mutual responsibility of the state and the citizen. These features are
reflected in the provisions of the Constitution of 1995 and should be fully
implemented in Kazakhstan's reality [10, 1].
Thus,
the development of civil society and the development of democracy in the
country are closely related: the more the development of civil society, the
democratic state. Therefore, the development of Kazakhstan as a dynamic, modern
state with high standards of quality of life is possible only on the basis of
activation of human potential, entrepreneurial citizens and further the
development of civil society. To do this, in the country have developed the
necessary objective conditions, which are complemented by subjective factors
such as political will and leadership of the country, especially its President
NA Nazarbayev, to conduct further democratization and political modernization
kazahstanskogoobschestva.
From
the above it can be concluded that the rule of law and civil society - are
ideals to be pursued, but are difficult to reach. I believe that civil society
can not exist in a particular country, like communism, or it will be
everywhere, or nowhere. At the moment, such a state can not exist for a variety
of reasons: first, it must change the people (their mentality), and secondly,
there should be no negative externalities from other states (war, economic
blockade), also in Third, undesirable revolution, economic situation,
emergencies. Because in these cases confirmed the ineffectiveness of democracy,
the power in such situations should be in some strong hands. Consequently, we
can accurately say that no country in the world is not legal in full, the
country can only be compared with each other by the way some of them are more
legal in relation to another and nothing more.
References:
1. The
Constitution of the Republic of Kazakhstan. Almaty, 2007.
2.
I.Rogov independence based on the right-Vova concept. // Kazakhstanskaya Pravda
on November 26, 2011.
3.
Diego Valadez. Constitutional issues of law. Translated from Spanish IN Shumsky
- M .: Idea Press, 2009.
4. The
Constitution of the Republic of Kazakhstan adopted at the national referendum
on 30 August 1995 (as amended, is sennymi-Laws of the Republic of Kazakhstan №
284-I of 07.10.1998g., № 254-III of 21.05.2007., № 403-IV of 02.02.2011g.).
//http://www.minjust.kz.
5. The
general theory of human rights. Monograph. / Lead author of the
answer-governmental editor, Doctor of Laws Lukashev EA .. - M .: Norma, 1996.
6.
Alekseev SS Legal state: the fate of socialism. - M .: Legal Literature, 1988.
7.
Aiupova ZK, Sabikenov SN The concept of right-vovogo state. - Almaty: Jeti
zhargy, 1997.
8.
Theory and practice of formation of the rule of law in the Republic of
Kazakhstan: Collection of scientific works. - Karaganda: Publishing House of
the University, 1999.
9. The
general theory of state and law. Textbook. / Ed. VV Lazarev. - M.: Lawyer,
1996.
10.
"The conditions and problems of formation of the rule of law and civil
society of Kazakhstan."
http://stud24.ru/politology/usloviya-i-problemy-formirovaniya-pravovogo/505725-2043899-page8.html