Law/ 8. Constitutional law
M. Tuganbayeva, Ph. D. student
Eurasian National University named after L.N.
Gumilyov, Kazakhstan
Concerning issue on the Kazakhstan Constitution legal protection
Nowadays an activity of special authority of constitutional control is
under revision of legal science. New theories that have been recently developed
look from the another angle at the issue of the subjects of constitutional
justice (individual or collective) that are responsible to protect the
Constitution.
Legal protection of the Constitution is determined as the guarantee system
that allows to implement constitutional norms and keep within the
constitutional law. Even so, it is meant that the Constitution reality needs in
the whole system of social, economic, ideological, organizational and legal
guarantees [1,
p. 176-185].
Though regular
guarantees are not enough to prevent and stop the violation of constitutional
law. The specific of the constitutional provisions, especially, the highest
legal force and direct effect of the Constitution mean using of specific legal
guarantees aimed to support the Republic of Kazakhstan Constitution reality. These guarantees
imply not just to heighten the authority and stability of the RK Constitution
norms. The activity of the subjects aimed to prevent and stop any kind of the
Constitution violation is of great importance as the Constitution jointly with
the regular guarantees found the basis for successful implementation of the
Constitution.
Meanwhile, in my opinion the point of view on legal protection as the guarantee
system has an important disadvantage caused by the neglect of relationship
between legal instruments aimed to observe the constitutional law.
Thus, the priority goals and problem of the RK Constitutional Council as
a specialized authority of the constitutional control are the ensuring of the
constitutional legality within the state.
In
the wide sense this control presents as the activity aimed to examine, reveal,
establish, assess and eliminate the norms, activity and process that are contradict to the RK Constitution.
The main point of the control at subject level is a specialized state activity
in the form of constitutional process aimed to keep laws and normative acts,
activity of the state bodies officials in conformity with the Constitution.
Theoretical
basis of the goals of constitutional control is an important issue for
legislator and law enforcement practice, as the goal correctly established (and
legitimated) is one of the components of the effective control.
Some
words on the form of action [2,44-47] of the specialized authority responsible
for legal protection of the RK constitutional norms, that is a necessary
condition for the ensuring strongly regulated process to adjudicate legal cases in
compliance with the constitutional law [3] and the regulations [4].
At
this stage of the state development the further process improvement of the
control activity is required, in particular passing more detailed regulations regarding the RK
Constitutional Counsel activity.
Specialized
authority of constitutional control is not the only subject who is responsible
for legal protection of the constitutional provisions. That is why there is the
requirement to establish the new rules and regulations regarding the activity
of the other responsible authorities.
In
some countries, for example, in Germany the constitutional procedural law is a
separate sub-branch of law (“podotrasl”) that includes legal norms which regulate the
process of the constitutional adjudication. Obviously, this specialized subject (constitutional court) which
is responsible for legal protection of the Constitution is the reason why the
legislator has to regulate every detail of the constitutional control process. At the same time, the
constitutional procedure is determined as governed by special procedural law
the set of proceedings and legal relationship between the Constitutional Court
and the other subjects that are responsible to adjudicate cases caused to
protect the Constitution [5,147].
The norms of the
RK procedural constitutional law are contained in the RK Law On Constitutional
Counsel and
the RK Constitutional Counsel` s Regulations.
In the meantime,
the constitutional law as the process sometimes is considered as included norms
of parliamentary procedure. In this case it becomes clear why the norms
of the constitutional procedural law need to be systematized to bring them in a
harmonious system with the purpose to regulate more effectively.
It should be mentioned that the control and supervision functions of legal
activity within the lawful policy mechanism of the present-day states are
the effective tools to achieve the policy of law; it`s implementation mostly
depends on the effectiveness of the control and supervision.
The main point and content of the constitutional control, especially, the
protection of the constitutional acts as a separate kind of legal activity is revealed
as result of an analysis of its goals, functions and principles.
Thus, the constitutional control, particularly, the activity of specialized
subjects in protection of the constitutional acts (Constitution) should be identified
as the form of legal activity of the authority (judicial/ non-judicial authority)
empowered to check in the considered fields an information regarding the
implementation of constitutional norms, observance of the constitutional
requirements and take actions to prevent and to stop any violation aimed to
protect the constitutional provisions concerning public and state interests,
human rights and with a view to get the significant legal results.
Sources:
1.
M. Shaphir Legal protection of the Constitution // Theoretical foundations
of the Soviet Constitution/ B. Thopornin, editor-in-chief.– Ì.: «Nauka», 1981. p. 323.
2.
S. Utkin The constitutional process, the procedural constitutional form and procedural
constitutional law // Issues of law. The International Legal Journal . - 2006.- ¹ 1.- p. 44-47
3. The RK Law On
Constitutional Counsel # 2737 dated December 29, 2005 // http://www.pavlodar.com/zakon/?dok=00128&all=all
4.
The RK Constitutional Counsel Regulations// http://www.constcouncil.kz/rus/norpb/regcs/
5.
V. Kryazhkov, L. Lazarev The Constitutional justice in the Russian
Federation. Ì., 1998. p. 462.