Kazakh Humanitarian Law Innovative University, Semei, Kazakhstan International cooperation of the Republic of Kazakhstan
in countering the financing of terrorism
Abstract. The relevance of the scientific article is that in modern times, the problems of countering terrorism have acquired a special significance in the world society. Terrorist activity is recognized as one of the most dangerous, difficult to predict crimes of our time, which concern the interests of all circles of society, regardless of their social status and national identity. Terrorism is being transformed into an increasingly diverse form with an alarming spread throughout the world. Terrorist attacks cause global destruction and mass loss of life, create a hostile world situation between countries, provoke wars. Threats to commit them continuously keep society in suspense, and people in fear. The well-known events currently taking place in Syria and Iraq, related to the fight against the terrorist organization so-called «Islamic state», intensified terrorist acts in European countries, and around the world (the United States, Egypt, Indonesia, etc.), which requires urgent counteraction from the state, call for mobilization of all means to prevent terrorist acts.
The main purpose of the author of the article is to generalize the problem of modern international terrorism on a practical basis, its essential features, features of functioning with the involvement of specific examples of its manifestation, both in the world and in the Republic of Kazakhstan.
The methodological and theoretical basis was the General methods of research of social objects, namely structural and functional analysis, system approach, General scientific principles of analysis of social processes and phenomena.
Keywords: financing of terrorism, United Nations, security Council, foreign policy, counter- terrorism Committee, Interpol, counter-terrorism.
Referenses
1 Zalıhanov M., Losev K., Shelehov A. Sovremennyı terrorızm v svete ekologıcheskoı bezopasnostı [Modern terrorism in the light of environmental security], Bezopasnost Evrazıı [Security Of Eurasia] (4, 213-227, (2005).
2 Ustınov V.V. Mejdýnarodnyı opyt borby s terrorızmom: standarty ı praktıka [International experience in the fight against terrorism: standards and practices] (Iýrlıtınform, Moscow, 2002, 560 p.)
3 Postanovlenıe Pravıtelstva Respýblıkı Kazahstan №1644 ot 15 dekabrıa 2001 goda «O merah po vypolnenııý rezolıýtsıı Soveta Bezopasnostı OON №1373 ot 28 sentıabrıa 2001 goda».
[ Resolution of the Government of the Republic of Kazakhstan No. 1644 of 15 December 2001
«On measures to implement UN Security Council resolution No. 1373 of 28 September 2001»].
[Electron.resource]. Available at: http://www. government.kz (accessed: 21.12.2019).
4 Ashımbaev M.S. Polıtıcheskıı tranzıt: ot globalnogo k natsıonalnomý ızmerenııý. [Political transit: from the global to the national dimension] (El orda, Astana, 2002, 304 p.).
5 Makýljan M. Natsıonalnoe tsentralnoe bıýro Interpola – dostatochno ýnıkalnoe podrazdelenıe. [The national Central Bureau of Interpol is a rather unique division]. [Electron.
resource]. Available at: http://www. interfax.kz (accessed: 24.12.2019).
6 Prıkaz MVD RK № 477 ot 29 ııýlıa 2014 g. «Ob ýtverjdenıı Polojenııa o Natsıonalnom Tsentralnom bıýro Interpola v Respýblıke Kazahstan». [Order of the Ministry of internal Affairs of the Republic of Kazakhstan No. 477 dated July 29, 2014 «On approval of the Regulations on the national Central Bureau of Interpol in the Republic of Kazakhstan»]. [Electron.resource].
Available at: http://www. online.zakon.kz (accessed: 26.12.2019).
Сведения об авторах:
Майканов А.С. - PhD докторант Казахского гуманитарного-юридического инноваци- онного университета, Семей, Казахстан.
Maikanov A.S. - PhD student at Kazakh Humanitarian Law Innovative University, Semei, Kazakhstan.
IRSTI 10.15.91
Enkhtsetseg Sukhbaatar
National Legal Institute of Mongolia, Ulaanbaatar, Mongolia
The constitutional review in the worldwide countries, issues of development and improvement
Abstract: In this article, the first formation of constitutional jurisdiction in the world is closely connected with the history of constitutional control in Europe. One of the sources of the constitution is the desire of monarchs to limit their absolute powers, and the basis of any political system should be the recognition of fundamental human rights, as well as the right to freedom and property. This indicates that these rights can be properly implemented if they are guaranteed and protected by a clear and written constitution. These rights must also be protected by the state itself.
In a modern state governed by the rule of law, the first remedies are judicial and constitutional justice. A constitutional review was made with the introduction of written constitutions, and it was clear that the highest form of legal protection of the constitution could also violate the constitution through government regulations.
Key words: formation of constitutional competence, judicial justice, world constitution.
DOI: https://doi.org/10.32523/2616-6844-2019-129-4-51-57 The first formation of the constitutional jurisdiction in the world is inseparable with the history of Constitutional review in the European countries. One source of constitutionality is the tendency to limit the absolute powers of monarchs. The basis for any political system must be the recognition of basic human rights, and personal freedom and private property. These rights are possible to be implemented appropriately when the rights are guaranteed and protected by the material and written constitutionality. Above rights have to be protected even against the State itself. In a contemporary State governed by the rule of law, the first legal remedies are the judiciary and constitutional justice. The constitutional review was established with the introduction of written constitutions, and is the highest form of the legal protection of constitutionality was introduced the realization that regulations of State bodies can also violate the constitution.
Historical steps in the development of systems of constitutional review: 1. Up to the World war I 2. The development between the two wars /Austrian era/ 3. The development after World war II 4. A new period of development in the 70’s 5. The development in the New Democracy countries 1. The development up to World War I Certain elements of constitutional review go back as far as the year 1180, i.e. to the old German Reich. At first the corresponding judicial bodies dealt primarily with jurisdictional disputes between individual rulers and partly even with infringements of rights. Certain elements of constitutional review kept emerging under different forms throughout German legal history, until it was introduced in the present sense of the word with the Weimar Constitution. Some initial elements of constitutional review can be seen already in the Federal Constitution of Switzerland of 1848, Norway dating from 1890. Romania introduced constitutional review before World War I following the American model. While the modern English legal system knows no constitutional review. English legal history does include some of its elements, i.e. the principle of the supremacy of the Constitution dates back to 1610 and is of essential significance for the development of constitutional review in England. Another example of an English contribution to this development is the impeachment originating in the late Middle Ages. Ideas about the supremacy of the Constitution and the right to judicial review spread from England over to the United States. The decisive impact on the development of constitutional review was exerted by the famous Marbury v. Madison Case1803. The Supreme Court arrogated the power of judicial
review concerned with the conformity of statutes with the Constitution. This gave a basis for the enforcement of the power of the American Supreme Court to carry out the judicial review of statutes. 2. The development between the 2 wars /»the Austrian period»/ The Constitution of 1920 marks the foundation of the Austrian Constitutional Court with the exclusive power to review the constitutionality of statutes (at first, however, only of a preventive nature), following the work of the Austrian legal theorists Adolf Merkl and Hans Kelsen. The Austrian model, before World War II constitutional review was introduced in the following countries: Czechoslovakia(1920), Liechtenstein (1925), Greece (1927), Egypt (1941), Spain (1931) and Ireland (1937). 3. The development after World WarII From the theoretical point of view, the constitutional review was able to develop only when instead of the principle of the sovereignty of the Parliament there prevailed the idea of the supremacy of the Constitution and where constitutional review is performed by a special body, independent of the legislative and executive power. On the other hand, constitutional review also involves the principle of 58 the vertical separation of powers.
Therefore, most countries introduced constitutional review directly after World War II (previously this had been a specialty of American law), including Brazil (again in 1946), Japan (1947), Burma/
Myanmar (1947). Italy (1948), Thailand (1949), Germany (1949), India (1949), France ( 1958), Luxembourg, Syria (1950) and Uruguay (I952). In addition, constitutional review spread with different practical efficiency in Asia, Central and South America and Africa. 4. A new period of Development in the 70’s This period was marked with political changes in certain South European countries which introduced constitutional review upon the abolition of dictatorships: Greece (1968), Spain (1978), and Portugal (1976). In this period constitutional review was also introduced in the following countries: Cyprus (i960), Turkey • 1961). Algeria (1965), former Yugoslavia (1965), as well as in Slovenia and other federal units of the former Yugoslavia (1963). 5. The development in the New Democracy countries Subsequent development involves the introduction of constitutional review in the central and Eastern European countries and the Commonwealth of Independent States. The introduction of constitutional review entails the dissolution of the former principle of the unity of powers, in view of which the then socialist systems as a rule did not have any constitutional review. From the institutional point of view, it is possible to distinguish different MODELS of constitutional/judicial review, as follows: 1/ The «American» - judicial Review Model (based on the Marbury Case (1803), dealt with by the Supreme Court of the United States, and on John Marshall’s doctrine), where under constitutional matters are dealt with by all ordinary courts (a decentralized or diffuse or dispersed review) under ordinary court proceedings. It is a specific and a posteriori review, whereby the Supreme (high) Court in the system provides for the uniformity of jurisdiction. This system was adopted by the following countries: In Europe:
Denmark, Estonia, Ireland, Norway, Sweden; In Africa: Botswana, Gambia, Ghana, Guinea.
Kenya, Malawi, Namibia, Nigeria, the Seychelles, Sierra Leone, Swaziland, Tanzania; In the Middle East: Iran, Israel; In Asia: Bangladesh, Fiji, Hong Kong ‘(until I July 1997), India, Japan, Kiribati, Malaysia, the Federal States of Micronesia, Nauru, Nepal, New Zealand, Palau, Papua New Guinea, Singapore, Tibet, Tonga, Tuvalu, Vanuatu, Western Samoa; In North America; In Central and South America: Argentina, Bahamas, Barbados, Belize. Bolivia, Dominica, the Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Mexico, St. Christopher/Nevis, Trinidad and Tobago. 2/ The New (British) Commonwealth Model Mauritius-This model cannot be classified either under the American or the European model. It is characterized by a concentrated constitutional review under the jurisdiction of the Supreme Court consisting of ordinary judges without political nomination; as a rule, it involves preventive (a priori) review and the consulting function of the Supreme Court, although a posteriori review is also possible; decisions take an erga omnes effect. 3/ The «Austrian» (Continental) - Constitutional Review Model (based on Kelsen’s Model of 1920, involving the interconnection of the principle of the supremacy of the Constitution and the principle of the supremacy of the Parliament), where under constitutional
matters are dealt with by specialized Constitutional Courts with specially qualified judges or by ordinary Supreme Courts or high courts or their special chambers (concentrated constitutional review) in special proceedings. In addition to the a posteriori review, a priori review is also foreseen. The decisions have an erga omnes effect with reference to the absolute authority of the institution by which they are taken. The bodies exercising constitutional review may be: a/
Constitutional Courts: IN EUROPE: Albania, Andorra, Austria, Belarus, the Federation of Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, the FRY (with the Constitutional Courts of constituent 46 Mavcic Arne. (2009) The Constitutional Review. 59 republics Serbia and Montenegro), Germany Hungary, Italy, Latvia, Lithuania, Luxembourg, Macedonia, Malta, Moldavia. Poland, Romania, the Russian Federation, Slovakia, Slovenia, Spain, Turkey, Ukraine;
IN AFRICA: Angola, Benin, Burundi, the Central African Republic, Egypt, Equatorial Guinea, Gabon, Madagascar, Mali, Rwanda, South Africa. Togo; IN THE MIDDLE EAST: Cyprus, former Iraq. Palestine, Syria; IN ASIA: Armenia, Azerbaijan, Georgia, Kyrgyzstan, Mongolia, South Korea, Sri Lanka, Tajikistan, Thailand, Uzbekistan; IN CENTRAL AND SOUTH AMERICA:
Chile, Surinam, Tucuman Province (Argentina). b/ High Courts or their special chambers: IN EUROPE: Belgium (the Arbitration Court), Iceland, Liechtenstein, Monaco, Kosovo; IN THE MIDDLE EAST: Yemen; IN AFRICA: Burkina Faso, Cameroon, Chad, Eritrea, Niger, Sudan, Uganda (1995), Zaire, Zambia; IN ASIA: the Philippines; IN CENTRAL AND SOUTH AMERICA: Costa Rica, Nicaragua, Panama, Paraguay, Uruguay c/ The Constitutional Council:
IN THE MIDDLE EAST: Lebanon; IN AFRICA: Mauritania, Senegal; IN ASIA: Cambodia, Kazakhstan. 4/ The Mixed (American Continental) Model with the elements of both a diffuse / courts/ and concentrated /a special body/ system, all ordinary courts are entitled to not apply laws deemed as not in conformity with the Constitution: a) Constitutional Courts: IN EUROPE:
Portugal; IN CENTRAL AND SOUTH AMERICA: Colombia, Ecuador, Guatemala, Peru. b) High Courts or their special departments: IN EUROPE: Greece, Switzerland; IN ASIA: Indonesia, Taiwan; IN AFRICA: Cape Verde; IN CENTRAL AND South AMERICA: Brazil, El Salvador, Honduras, and Venezuela. 5/ The «French» (Continental) Model (based on the model of the French Constitutional Council - Conseil Constitutionnel of 1958), where constitutional matters are subject to review by special bodies of constitutional review (most often the Constitutional Council) or by special chambers of ordinary Supreme Courts (concentrated constitutional review) in special proceedings, provided that constitutional review is mainly of a preventive (consultative) character (although these systems also have a repressive form of constitutional review, in particular with reference to electoral matters’) IN EUROPE: France; IN AFRICA: Algeria, Comoros, Djibouti, Ivory Coast, Morocco, and Mozambique. 6/ Other- Other Bodies with the Power of Constitutional/
Judicial Review (the National Council, Parliament or specialized parliamentary bodies, etc.): IN EUROPE: Finland; IN THE MIDDLE EAST: Bahrain, Kuwait, and Oman; IN AFRICA: Congo, Ethiopia, Guinea-Bissau, Sao Tome and Principe, Tunisia, Zimbabwe; IN ASIA: Afghanistan, Brunei, Burma/Myanmar, China, Hong Kong, Laos, North Korea, Pakistan, Turkmenistan, Vietnam; IN Central America: Cuba. 7/ Systems without Constitutional/Judicial Review: IN EUROPE: Great Britain /although the powers of the House of Lords include some elements of the preventive constitutional review/, the Netherlands /There are a few exceptions concerning the powers of the Supreme Court to decide cases connected to European Communities institutions /;
60 IN AFRICA: Lesotho, Liberia, and Libya /However certain functions of constitutional review may be exercised in Libya by the Supreme Court of Libya which is also a member of the Arab Group of the Constitutional Courts and Constitutional Councils./ 8/ International judicial institutions with certain functions of Constitutional review: - the European Court of Human Rights in Strasbourg (for the European complaint); - the Court of Justice of the European Community in Luxembourg; - the court of EFTA Geneva (for the settlement of disputes between EFTA member states); - and the African Court of Human Rights etc. According to statistical data there are 215
different current systems of constitutional and judicial review around the world. Among them there are 115 of a European character, 52 of an American character, 14 of a mixed character, 7 of a French character, 1 of New Commonwealth character, 21 of other forms of Constitutional/
judicial review and 5 constitutional systems without constitutional/ judicial review. [ 48] The following features of the Constitutional Court functions listed: I. PREVENTIVE /A PRIOR/
REVIEW:
• Constitutional provisions;
• International agreements;
• Statutes /National laws and legal acts/;
• National regulations;
• Acts of the head of the State;
• Acts of territorial units;
• Other regulations (Budget acts, Parliamentary internal regulations etc.).
II. REPRESSIVE /A POSTERIORI/ REVIEW: 1/ Abstract review:
• Concerning the Constitution, constitutional amendments, or basic constitutional provisions;
• International agreements (including agreements between the Federal State and federal entities);
• Statutes /National laws and legal acts/;
• Resolutions of the Parliament;
• Regulations of Government;
• Acts of the Head of State;\
• Rules and other acts of national administrative units;
• The conformity of national legal norms with international agreements;
• Regional agreements;
• Other rules. 2/ Concrete review functions- specialized constitutional /judicial review bodies requested by ordinary courts:
• the interpretation of rules (as an interpretative function);
• the implementation of rules - deciding on matters relating to the conformity of a rule’s implementation with the constitution;
• the omission of (statutory) regulations;
• Legislative initiatives;
• political parties - decisions related to matters of unconstitutional acts and activities;
• Jurisdictional disputes;
• referendums-decisions regarding a referendum’s conformity with the constitution;
• elections - decisions regarding the conformity of election proceedings with the constitution and statute;
• the confirmation of the election of representatives; 47 Ibid. p. 25-29 48 Ibid. p. 64 61
• the protection of human rights (constitutional complaints and similar constitutional remedies);
• capacity to hold the office;
• impeachment(concerning the head of state or other state representatives);
• special powers (violations of international law, decisions relating to the appointment of constitutional court judges and their immunity, opinions relating to the declaration of martial law, the implementation of decisions issued by international courts, proposals for the amendment of the Constitution, consultative functions, etc.);
• other tasks which the court is charged with by the constitutions or statute In many countries of the world (national) constitutionality has been protected by many different constitutional reviewing methods to establish important guarantee for a stable social and political system preambles in the constitution. The difference between ordinary legal methods and constitutional
review lies that latter protects and ensures implementation of the supreme political and legislative document which is the constitution itself. In this sense the constitutional courts should not belong into the ordinary judiciary system. This special institution performs independently from ordinary judiciary, legislative and other legal institutions, to implement its rights and the guarantee is provided to it. The classic function entrusted to The Constitutional court system (European model of constitutional review) is to protect social political structure defined in the constitution and makes it a part political institutions therefore The Constitutional court system carries special functionality within political and legal characterization. As the part of the political institutions, The Constitutional court legally supports basic social and political relations.
1. The fundamental Human Rights issue is a base of the social relations. In this sense, the CHAPTER TWO Human Rights and Freedom is an important part of the Constitution. Although all Mongolian citizens have constitutional rights to initiate constitutional disputes on its own through the basis of petitions to the constitutional court whether laws, decrees and other decisions of state bodies, and activities of all other officials are in conformity with the Constitution ( according to the Article 66-1 of the constitution); if citizen basic rights and freedom proven to have been violated by it, the whole possible restoration process has not been recognized constitutionally. Therefore, some scholars note that implementation of the ―CHAPTER TWO Human Rights and Freedoms for citizen to secure the legal protection of their rights has been left out in a real protection. [2]
Mongolian Constitutional Court (Undsen Huuliin Tsets) needs to have a full constitutional review control over the Constitution, it still needed to be considered to improve the legal regulation in order to provide the citizen with condition for protecting its basic rights and freedom fully.
2. Fundamentally constitutional review has a repressive /a posterior/ nature sometimes it could be useful for its preventive /a prior/characteristic in order to achieve a political structural stability. [ 1] It takes much interests of many countries /within all types and organizations of the constitutional guardians/ that international agreements such as treaties are more becoming focal points of the constitutional review objective for its preventive characteristic. In the comparison between the domestic law and the international agreements such as treaties it become an important and significant matter for countries to ratify or to make an accession to the international agreements or treaties because of that particular country’s international prestige, foreign policy and strategy depend on it. Therefore the scholars and researchers need to develop further studies for preliminary constitutional review possibility, whether that particular international agreements such as treaties in conformity with its national constitution. 49 Ibid. p. 60 50 Ts. Sarantuya Comparative law of Mongolian Constitutional court and its feature, Undsen Huulin Tsets /review, presentation compilation/, UB 2007, p.233 51 Mavcic Arne. (2009) The Constitutional Review. P172 62
3. The constitutional review implementation mechanism for constitutional basic provisions and the constitutional amendments has not been fully established in our country. Primarily it is lawful that the Parliament who represent all people of Mongolia, solely to uphold a right to enact any amendments to the constitution, when legislature has improperly exercises these exclusive rights by introducing any amendments which approved to be illegal or could suppress value and fundamental principles of the constitutionality then currently in our country the constitutional adjudication mechanism has not been established to correct such unconstitutional amendments within constitutional review. It has been noted that not having the constitutional adjudication (procedure) in amendments to the constitution could lead to potential increase in risks to the constitutionally guaranteed will of the people of the Mongolia and misconduct for the state system and its main activities. [1] Furthermore, if the latest modifications (amendments) made by the parliament proven to be unconstitutional then the issue whether the Constitutional court should take full review over its constitution cannot be left out of considerations and research also would be essential to the improvements of the constitutional itself.
4. The constitutional review main function is to determine whether law, legal or legislative