Farkhod Tolipov, director of the non-governmental scientific and educational institution “Bilim Carvoni” , writes about the complexities and contradictions of the constitutional reform, specifically for CABAR.asia
The summer of 2022 in Tashkent turned out to be hot not only in the climatic sense, but also in the political sense. The process of amending the Constitution of the Republic of Uzbekistan was officially announced. Moreover, a Constitutional Commission was created, which was tasked with collecting proposals to amend the articles of the Constitution. A website was also created through which citizens could submit their proposals. At the end of June, the amended draft constitution was published for public discussion. So, Uzbekistan was to receive the Basic Law with important amendments as another major symbol and confirmation of the large-scale reforms being carried out in the country. However, an analysis of this process reveals its complexity and inconsistency.
Subjects and objects
The justification for the need for constitutional reform began with political statements such as “The Constitution is not a dogma” and that it should be reformed. This was a somewhat clumsy statement, as it reflected a certain artificiality in the idea that the Basic Law of the country should be changed periodically. In fact, the Constitution should be in some (positive) sense a dogma, i.e., a stable document, little subject to various “innovations”. Moreover, the Constitution of the Republic of Uzbekistan, adopted in December 1992, in fact, the entire past period was relatively progressive and democratic.
The importance of this reform was, in many respects, not in the fact that the Constitution was outdated or ceased to meet modern requirements and democratic principles, but in the fact that many of its articles did not work exactly as the Basic Law of the country. It was a “closed document” in the figurative sense of the word: few people read it or opened it for the purpose of regularly reconciling life, social relations, and politics with its provisions. It remained a kind of unique decoration in the building of the state.
The main initiator of the Constitutional reform is the President himself. The Constitutional Commission was created as part of the deputies of the Oliy Majlis (parliament), i.е., from the very beginning, the process assumed, so to speak, an elitist character. Thus, an element of formality was initially introduced into the work of the commission.
The ideologization of this process inherent in the political process came into the picture. For example, the slogan “Personality-Society-State” was introduced into the discourse, which should replace another slogan “State-Society-Personality”. The change of order in this series, seem to have symbolized the priority of the rights and interests of the personality. However, this slogan does not really carry a real democratic meaning, since such a formulation of prioritization is very abstract and not even scientific. Personality, society, and the state are equivalent, but different-order (multi-level) subjects (as categories). The order in this series can be changed by rearranging the words – and the meaning of the series will not change. Therefore, too much ideological emphasis on the novelty of the slogan is an excess, which slightly obscures the real meaning and significance of the constitutional reform, which should include truly democratic and innovative elements.
On the one hand, it seems that citizens responded to the call to make proposals for reforming the Constitution and began to send their proposals. It has been reporter that thousands of proposals have been received. But the non-transparency of their selection and inclusion in the draft of the new text of the Constitution by the Commission, which consists mainly of members of parliament, does not yet allow us to confidently assert that the will and expectations of citizens, who turned out to be not so much as subjects of the process, as its objects are taken into account in a real and complete way.
Independent experts could only speak on some social networks and give a few interviews, but this, of course, is not enough for a wide discussion of such a fateful document. As a result, we have not only an imperfect product of the Commission’s work, but also dramatic events in Karakalpakstan, which have become a test for the people, the country, and the political system of the state.
What needed to be changed?
Article 44 reads: “Everyone is guaranteed judicial protection of their rights and freedoms, the right to appeal to the court against illegal actions of state bodies, officials, public associations.” Here a situation of conflict arises: what if even legal decisions are appealed? After all, we have recently witnessed many cases when the decisions of the authorities (especially at the local level), originally taken in accordance with the law, nevertheless turned out to be erroneously taken, without considering the interests and will of the population. In fact, the court determines the legality or illegality of the actions of state bodies, therefore, citizens can appeal against any decisions of state bodies. In such cases of contradictions, the problem should be resolved in favor of citizens, or the decision of the state body should be suspended until the circumstances are fully clarified.
We know that recently such environmental articles as: Article 50: “Citizens are obliged to take care of the natural environment” have been mercilessly violated.
Article 54: “The owner, at their own discretion, owns, uses, and disposes of his property. The use of property should not cause damage to the ecological environment, violate the rights and legally protected interests of citizens, legal entities, and the state”. As the experience of a number of democratic countries shows, if the interests of an entrepreneur come into conflict with the environmental conditions of living of citizens, then the problem should be resolved in favor of citizens. Tthis norm should also be included in the Constitution. Otherwise, the policy of the President “Green space” (“Yashil Makon”) will remain a mere slogan.
One of the most acute and urgent problems is the issue of (un)elected khokims, i.e., heads of local executive authorities. At the level of the highest authorities, there is (one might say, dominates) the belief that Uzbekistan is not yet ready to introduce election of khokims. However, this statement not only contradicts democratic principles, which is obvious, but also becomes dangerous for the further development of the country.
Article 99 reads: “Representative authorities in regions, districts, and cities (except for cities of district subordination) are the Kengashes of people’s deputies, headed by khokims, who, based on the interests of the state and citizens, resolve issues within their competence.”
Article 102: “The representative and executive power in the relevant territory is headed by the khokim of the region, district and city.”
Apparently, the authorities are not yet ready to radically change (see below) this anti-democratic situation. It is paradoxical: there are elected authorities on the ground – Kengashi, and we can elect members of the Kengash, which, by definition, is higher than the Hokimiyat, which is accountable to the Kengash, but we cannot choose the hokim. In other words, we take on a great responsibility to elect Kengash, but we cannot elect a khokim accountable to it!
Malversation by khokims have already become the talk of the town and the introduction of the electability of heads of local executive bodies will not worsen the situation, but will only become the most important, revolutionary achievement of both political reforms in general and constitutional reform in particular. The principle prohibiting khokims from being elected for more than two terms should also be enshrined in the Constitution. The Constitution is not often reformed, it must be a stable and comprehensive Basic Law, so right now it is necessary to introduce the rule of electing khokims and not wait for the mythical favorable moment for this to happen. Moreover, it is also necessary to fix the norm according to which khokims of any level should not be members of local councils up to the Oliy Majlis and the Senate.
Article 104 reads: “The Khokim, within the powers granted to them, makes decisions that are binding on all enterprises, institutions, organizations, associations, as well as officials and citizens in the relevant territory.” However, in this territory there are also self-government bodies of citizens – mahallas. The constitution does not clarify their relationship. This is an important problem, since even international organizations, not to mention the mahalla residents themselves, all the time point out that the mahalla is not free from the district authorities in making independent decisions.
Article 77 states that “The Legislative Chamber of the Oliy Majlis of the Republic of Uzbekistan consists of one hundred and fifty deputies elected in accordance with the law ” and does not clarify the fundamental question of the type of electoral system. In Uzbekistan, deputies are elected on party lists, and independent candidates cannot be elected to parliament and local councils. This article should have been changed, but it doesn’t seem to have been touched.
Article 88 is also significant in terms of reforms. It reads: “Deputies of the Legislative Chamber and members of the Senate, who work in the Senate on a permanent basis, for the period of their powers cannot engage in other types of paid activities, except for scientific and pedagogical.” Obviously, it is worth banning deputies from engaging in any activity (paid and unpaid), as well as occupying other leadership positions.
Moreover (based on the specifics of Uzbekistan), it is important to consolidate the rule according to which a state official working in state bodies who has committed abuse of official position must be immediately relieved of his position and deprived of the right to hold high positions in the hierarchy of state power structures (and not be transferred to another position in this hierarchy).
It is also worth limiting the upper age limit to 70 years for holding high government positions at all levels – from the President to the lower authorities.
It is extremely important to introduce into the Constitution a norm according to which citizens’ access to state bodies and state officials would be guaranteed. The existence of virtual receptions is not enough. Direct access of citizens up to the prime minister is needed. For this to happen, it is necessary to develop an appropriate mechanism for direct communication between high-ranking officials and ordinary citizens.
On the proposed changes to the Constitution
The Preamble of the new draft Constitutional Law refers to “more than three thousand years of experience in the development of Uzbek statehood.” This is a controversial statement and is saturated with ideologicalism, without mentioning which the Constitution will lose nothing.
The first article in the new edition already raises critical questions: “Uzbekistan is a sovereign republic, a law-governed, social, secular, democratic state.” In my opinion, a mine is laid here, because if the words “democratic” and “sovereign” are well-known and unambiguous terms that have their own definitions both in world science and in international practice, then the words “social”, “secular”, “law-governed” are completely ambiguous terms. These words are on a par with such terms as “fair”, “market”, “capitalist”, “humane”, “open”, “tolerant”, “self-sufficient”, etc. But they are not included in the first article, and rightly so. About social rights, for example, in article 39 it is enough said and there is no need to state about the social state in the first article.
Furthermore, Article 17 states that “Uzbekistan pursues a friendly and peaceful foreign policy with all states” (even with aggressors?). Then maybe it is worth proclaiming the principle of neutrality in foreign policy?
Article 44: “Everyone is guaranteed judicial protection of their rights and freedoms, the right to appeal to the court against illegal decisions, actions and inaction of state bodies and other organizations, their officials.” This is not quite the correct wording. First, the legality or illegality of decisions and actions is determined by the court; secondly, in recent times, many decisions that at first were quite legally adopted later turned out to be erroneous and were canceled at the request of citizens. Therefore, everyone should be guaranteed the right to appeal to the court any decisions, actions and inactions of state bodies and officials.
Article 56 contains an expression similar to “much of a muchness”: “Institutions of civil society, including mahallas, political parties, movements, media, trade unions, public funds and other public associations of individuals form the basis of civil society.” In other words, it sounds like this: the institutions of civil society … form the basis of civil society, so here we need an editorial.
Article 90 proposes a 7-year term for the election of the president. It’s not clear why? In Uzbekistan, they have already experimented with terms: they switched from five years to seven years, then returned the five years, and now they are again offering seven years? This is reminiscent of a “contractual” political game in favor of the incumbent president with the aim of either nullifying his current term or prolonging it. If the extension is so necessary, it would be more honest and democratic to hold a separate referendum on this issue.
Article 99, finally, seems to separate the positions of khokim and chairman of the kengash, but this is still a half-measure that will not eliminate the abuses of khokims appointed from above, and not elected. However, the introduced norm that the Kengash has the right to “cancel the decisions of the khokim and the subordinate Kengash of people’s deputies that do not comply with the legislation of the Republic of Uzbekistan”, although it is a step forward, still does not put an end to the democratic reform of the institution of local authorities.
Conclusion
Back in the 17th century, the English philosopher John Locke wrote that when creating a state, listening to the voice of reason, people strictly determined the measure of the power that they transferred to the state. In other words, they do not transfer to the state all power and their natural rights and freedoms.
And the French thinker Montesquieu wrote: “A thing cannot be just because it is a law. It must be the law because it is just. ” To put it simply, not all laws are just (fair).
Another French philosopher Jean-Jacques Rousseau, in his famous work “The Social Contract”, wrote: “Sovereignty cannot be representative for the reason that it cannot be alienated … Deputies of the people are not and should not be its representatives; they are simply its agents; And they can’t decide everything. Any law that the people cannot personally ratify is empty; it is not even a law at all.”
These classic ideas, which laid the foundation for democracy, must be reclaimed today. How much power to give to the state and its bodies, how to ensure the democratic development of a country where even previously adopted democratic norms were not respected, how to bridge the gap between de jure correct and beautiful documents and de facto widespread violations of these laws and decisions – all these questions remain open. Therefore, the elitist nature of the process of drafting amendments to the Constitution should be corrected by giving it a truly democratic character.
The prepared new draft of the Constitution turned out to be a crude and controversial document. In my opinion, it is necessary to dissolve the Constitutional Commission in its current composition and update it with the inclusion of civil society representatives, scientists, experts, highly qualified lawyers, and political scientists. It is necessary to develop a wide panorama of open public discussions, primarily on television, regarding the amendments being introduced. The date of the referendum to be set on December 8 – the Day of the adoption of the Constitution. But the question remains not entirely clear: in the referendum, will citizens vote solely for the entire text of the amendments to the Constitution, and not for each amendment separately? But what if a citizen does not agree with one amendment and agrees with another?