Higher doctorate
jurisprudence of the Republic of Kazakhstan E.V.Mitskaya
Some
aspects of improvement of legislation of the Republic of Kazakhstan
A man is the
highest value of a modern civilized society. This acknowledgment has passed a long way to world history of the struggle for human rights and freedoms. The Constitution of the Republic of Kazakhstan is also recognized a man as the highest value, his rights and freedoms. In order to ensure a decent standard of living for every citizen the development of the state aimed at the entry of the Republic of Kazakhstan in the 50 developed countries in
2020. A program of innovation
development was adopted.
The guidelines
and objectives will help to improve the quality indicators of development of the state and the overall quality of life of every citizen, which in turn allows to speak about finding ways to develop the state, methods and techniques of its perfection as the best model to which we should aspire to.
Although the idea of creating an ideal state and life within it, has been worried the minds of mankind from the earliest times. In the theory of the political and legal thought, a theory of the ideal state associated with Plato. Plato is one of the earliest Greek thinkers quite clearly expressed his thoughts about the ideal state. Plato did not see the possible class equality in the future perfect and fair state. An indispensable condition
for such a
state should
have been class
division. However,
lowering the class
division, the basis of Plato’s ideal state was supposed to be good, the basis of which in its turn must be justice. Plato believed, it is justice, unites all parts of the state into a harmonious whole.
In modern literature, understanding of ideal state in its
overall nature is not much different from the Platonic. Under ideal state can be understood as a state in which each member identifies
himself with
this state and have equal protection and the protection of their rights and freedoms,
along with other
people. Thus, N.S.Karanina,
analyzing the current research on the ideal state, distinguishes between several theories of the ideal state,
among which is the
theory of the
state of the
wisest, the
religious state, legal state, democratic state, social state [ 2 ].
The Republic of Kazakhstan in their conceptual model of state defined with the adoption of the current Constitution. Kazakh scientists M.S.Narikbaev and S.F.Udartseva
remarked: "The
Constitution in
many respects creates
the conditions for
the formation and
development of a
strong and effective democratic state, but the full realization of the constitutional norms requires consistent implementation of appropriate legal policy, the
strengthening of constitutional
legality, improvement of legislation
and legal practice, development of civil society, certain institutional changes,
as well as improvement
of legal
education and legal
culture of the
population»[ 3 ].
V.A. Zatonsky’s definition, «a strong state - solid, perfectly legally formalized,
sustainable, stable , and its arguments are strong, mechanism is effective, the
armed forces are
absolutely reliable,
the will
is firm and solid for justice. Its representatives (officials) - versed, talented,
strong in management»[
4 ].
Therefore, the special role in the strong state is given to officials, who carrying out state power and
among them, further special place is given to law enforcement officers.
Despite the fact, that
many problems of improving the legislation
are gradually solved, some problems in ensuring the implementation of the law of the state remain.
As fairly R. Podoprigora marks that so far, the provisions of the Code of Administrative Offences are in conflict with other acts of legislation. In addition with that, the drawbacks of the Code of Administrative Offences are: the lack of individualization of punishment; intervention in the sphere of private law relations, many unresolved procedural issues [ 5
].
Of course, «the development of supremacy of law in Kazakhstan requires overcoming in understanding administrative law, primarily as a punitive branch of law. Administrative law should serve in a ensuring human rights and organizing public administration (the executive power and local self-government)
in order to carry out this
mission»[ 6 ]. It is clear that the imperfection of legislation,
and not just administrative, complicates the human rights activities carried out by government bodies. According to M.Ashimbaev, «in politological environment has developed a dangerous misconception, that the government and society take two opposite poles. Democracy does not preclude a strong state. These events may be combined. Moreover, we must aim for it - the combination of strong state institutions with a democratic form of organization of political power in the country»[
7 ].
Indeed, it is impossible to oppose state power and society, as they are interrelated and interdependent. But in practice there is the
opposition between
government and society. Unfortunately, for today, there are not identified consequences of failure of terms of consideration appeals of citizen and elementary ignoring them. In this respect,
indeed necessary, to support the proposal to set in the Code of Administrative Offences norms on establishing the responsibility of officials for the illegal denial of admission or consideration appeals of citizens, the violation of terms of for processing applications and providing false information [8, p.23]. Though, the code of honor civil servants of the Republic of
Kazakhstan obliges government officials to prevent manifestations of bureaucracy and red tape when considering applications of citizens and legal entities. In this
context, an illustrative
example is the
Russian Federation. The President introduced to the State Duma the draft law "On Amendments to the Code of Administrative Offences
(CAO)," dedicated
to providing access
to the information on the activities of state bodies and local governments. The essence of innovation is to establish penalties for officials from 5 to 10 thousand rubles for violation of the order of consideration of citizens. The current Code of Administrative
Offences provides
for administrative liability only for violation of the provision of information on the activities of state bodies and local governments. Law of the Republic of Kazakhstan "On Mass Media" paragraph 2 Article 2 imposes a duty to ensure that every citizen has the opportunity to get acquainted with affecting his rights and interests of the documents, decisions and sources of information on state bodies, public associations, officials and media. K.K. Aitkhozhin considers it is necessary to adopt a special law "On freedom of information", which would have settled the issues of access for everyone in obtaining personal information, protect his rights and legitimate interests in the receiving and dissemination
of information
[9, p.36].
This opinion deserves attention. Although, if the guarantees for the right for information found full consolidation with the mechanism of its realization in the Law "On Mass Media" in the branch laws, the question of need to adopt a separate law "On freedom of
information" and "On Access to Information" would
not be raised. Thus, in legal literature focus is on feasibility of the current additions of the Law «On the order of consideration of citizens concepts
such as «letter», «collective
appeal», «appeal duplicate», «repeated appeal», «the petition». Since, in law only the concept of a repeated appeal is fixed. So we
would like to support these proposals,
because their implementation
will allow to
detail the methods and forms of protection of the rights of citizens.
We cannot agree with the N.I. Matuzova that «.... it is very important to clearly define and specify the responsibilities of exactly government and all its branches, agencies, officials, for a general (abstract) the constitutional
provision that "the recognition,
observance and protection of the rights and freedoms of man and citizen the state" - the duty of ... is
not enough . Excluding ... its responsibilities the state cannot build a proper and effective legal policy»[ 10 ].
Hence in perspective it makes sense to improve Kazakhstan's legislation in terms of enhancing personal responsibility of civil servants by introducing administrative responsibility for inaction, ignoring, for the wrongful denial of admission or consideration appeals of
citizens, the violation of deadlines for processing applications and providing
false information. Thus, the idea of
the ideal state will gradually find its expression in reality.
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