“Any attempt to extend the term of the incumbent president, zeroing it out or using various other “methods” would inevitably have a negative impact on the legitimacy of power,” political scientist Sanjar Saidov analyzes the benefits and implications of constitutional reform in Uzbekistan, specifically for CABAR.asia
Currently, the reality of the main political life of Uzbekistan is undoubtedly the issue of constitutional reforms, which were announced in the inaugural speech of President Shavkat Mirziyoyev after the elections on November 6, 2021.
Based on this, on May 20, 2022, the councils of the chambers of the Oliy Majlis (Parliament of Uzbekistan – author) created the Constitutional Commission in Uzbekistan. Its main tasks were to collect and analyze proposals from the general public to amend the Constitution, as well as to prepare a draft Constitutional Law “On Amendments and Additions to the Constitution of Uzbekistan”. Several systems were created for accepting proposals for constitutional amendments and additions (for example: the website Meningkonstitutsiyam.uz; @meningkonstitutsiyam_bot telegram bot; call center “1341”). According to official data, about 85,000 proposals have been made to the constitution, and various changes are planned to be made to about 60 articles of the constitution.
As it is known, even a partial change in the constitutional text can lead to a significant reorganization of constitutional and legal institutions, to a new model of the constitutional development of the country. A generalization of the modern experience of constitutional reforms carried out over the past twenty years makes it possible to identify a number of new problems that need to be addressed in constitutional law, including the need to consider international democratic legal norms.
Justifying Constitutional Reforms or the “Word Game Method”
The issue of amending the Constitution is very complex and is developed nationwide, thus, it is not always easy to justify its necessity. As the chairman of the constitutional commission, the first deputy speaker of the Legislative Chamber of the Oliy Majlis Akmal Saidov noted: “The constitution is not a dogma, it should be a program for action. It is not something frozen. Let’s take ourselves – a person is born, goes through development, and so on. Therefore, I think society is also developing. We need to introduce new rules that correspond to the new Uzbekistan and its development.”
Indeed, the constitution should not be a law based on dogmas, however, it cannot directly regulate social and legal actions. The constitution must acquire a conceptual character. The laws and regulations adopted on its basis represent a definite program of action and can regulate social and political life.
In addition, it should be noted that the term “New Uzbekistan” (or “third renaissance”, etc.) is a non-scientific category. The question arises: on what basis do we add the concept of “new” to the name of the country? Or does the state become “new” every time the government changes? Similar terms and additions were also widely used during the time of Islam Karimov. For example: in 1996 Leonid Levitin’s book “Islam Karimov – President of New Uzbekistan” was published; or in many books dedicated to I. Karimov, they talk about the “third renaissance”. It is known that each concept needs scientific substantiation and strengthening of its categorical apparatus, otherwise it will remain an empty populist word.
Another representative of the government, the first deputy chairman of the Senate of the Oliy Majlis, Sadyk Safoev, mentioned : “If a new Constitution is adopted, President Shavkat Mirziyoyev, like everyone else, will have the opportunity to participate in the elections. Whether he uses this right or not will depend on himself and his political party. This is an international experience, a new Constitution, a new legal space has been created and is being updated.
This is not about a new constitution, but about making changes and additions to the current constitution. The draft law submitted to the legislative chamber of the Oliy Majlis is also called the constitutional law “On Amendments and Additions to the Constitution of the Republic of Uzbekistan”. How appropriate, in this case, to talk about the “new constitution” and “new legal space”, which S. Safoev emphasized?
The Constitution is the founding document. It will lose its legal and political weight whenever it is changed in the course of the adoption of any state program (“Strategy of Action”, “Strategy of Development”, etc.). According to the concept of the rule of law, on the contrary, it is necessary to adopt and further implement normative legal acts based on the constitution and not contradicting it.
About amendments
Scheme 1. Sectoral analysis of proposals for amendments and additions to the Constitution[1]
A sectoral analysis of proposals for amendments and additions to the Constitution shows that almost a third of the proposals submitted to the Constitution are aimed at reforming the social sphere, which is due to the growing socio-economic problems in Uzbekistan.
As it can be seen, one of the main changes made to the constitution is the proclamation of Uzbekistan as a “social state” at the initiative of President Shavkat Mirziyoyev. The social state (welfare state) appears as a form of socio-economic organization of society, which includes such ideas as ensuring a decent life and social and legal protection of citizens. It notes a sharp increase in funds spent on social security of the population and the development of state social programs.
However, it is wrong to interpret the phenomenon of “social state” in relation only to the process of expanding social programs and increasing social spending. The social state means more than a set of social programs in specific historical circumstances. Any country has a social function, but any country that cares about its citizens can hardly be called social. In this case, the following question arises: to what extent does the current difficult socio-economic situation, unemployment and other factors make it possible to create a “welfare state” in Uzbekistan? It seems that the government of Uzbekistan still has a lot of work to do on this issue.
In our opinion, the most progressive articles included in the constitution include the following: Article 22 “The Republic of Uzbekistan shall guarantee legal defense and protection to all its citizens both on the territory of the Republic of Uzbekistan and abroad. A citizen of the Republic of Uzbekistan cannot be expelled from Uzbekistan or extradited to another state. The state takes care of maintaining and developing ties with citizens and compatriots living abroad.”
This constitutional norm guarantees the civil rights of millions of Uzbekistanis working abroad as labor migrants. It is also emphasized that the extradition of citizens of Uzbekistan to another country is not allowed.
Article 24 states that “the death penalty is prohibited in the Republic of Uzbekistan.” This indicates a positive trend in relation to human rights and freedoms, which will create a legal basis for the liberalization of criminal penalties in the future. In addition, it is proposed to reflect in the Constitution the “Miranda Rights” and the principles of “habeas corpus” (Article 26 1). It is noted that when detaining a person, their rights and the reason for detention should be explained in simple language.
However, in many of the proposed articles of the constitution, the principle of “redirecting” legal norms is found. For example, a certain right is guaranteed, and in the next part of the article it is written that “in some cases it may be limited by law” or “the procedure for implementation is determined by law.” This, in turn, has a negative impact on the process of direct implementation of constitutional articles.
It can be said that the events that took place in Karakalpakstan became the biggest black spot in the activities of the Constitutional Commission. Thoughtless actions, the lack of direct communication with the people and the public of Karakalpakstan have strengthened the separatist movements in this region of the country. Only prompt and confident actions of the state leadership at the last stage prevented a “social explosion” in society.
The issue of vertical and horizontal power
If we look at the managerial and administrative trend in Uzbekistan today, then the priority is to strengthen the vertical of power and the hierarchical system. In conditions of democracy and civil society, horizontalization of power relations is required.
According to the amendments to the constitution, it is noted that an important issue in reforming the system of state power and administration is the division of powers of khokims and local Kengashes. This is indeed the right approach. However, in the conditions of today’s Uzbekistan, all regions (districts and cities) are connected with the center by many “threads”, so administrative and managerial reforms and decentralization cannot be implemented with this change alone. In this regard, it is necessary to implement the long-emphasized principle of direct election of khokims (governors of regions, cities, and districts) by the people.
Although the updated draft constitution transferred some “minor” powers to the parliament, the super-presidency model is still retained in the public administration system. Most of the functions transferred to the parliament are entrusted to the upper house – the Senate. In fact, such powers should be granted to an elected body (chamber) – the Legislative Chamber. Because the Senate consists mainly of local khokims, and members appointed by the president. In this case, it does not have the opportunity to exercise an imperious system of checks and parliamentary control in the sphere of public administration. Moreover, any attempt to extend the term of the incumbent president, zeroing it out or using various other “methods” would inevitably have a negative impact on the legitimacy of power
Conclusion
Undoubtedly, constitutional reform is a qualitative change in constitutional and legal institutions and norms that differ from other changes in the legal text. The adoption of a constitutional or other law on constitutional reform is only a part of the process of reforming social and political relations. The reform law itself often contains a basic provision that affects one or another institution of the social (state) system, the foundations of the legal status of a person. It rarely happens that one rule formulated as a new principle is sufficient. Almost always, changing the constitution requires the adoption of new legal documents and / or revision of existing ones. This process requires a certain amount of time for the adoption of laws and the introduction of new legal institutions.
The constitutional changes that are on the agenda in Uzbekistan today will carry out a kind of transformation of the political and legal system. In this process, it is appropriate to pay special attention to the following points:
- The full political logic of changes and additions to the current constitution and the planned referendum should be explained and justified to the people openly, transparently, and systematically. It is necessary to avoid various public rhetoric and “propaganda” and justify it with clear scientific arguments.
For example, what new legal institutions will be formed if an updated constitution is adopted? In what direction will the trends in our social and political life change? How will the system of management and rotation of power be implemented? Questions similar to these need to be answered. After all, the constitution is a document based on specific legal norms that regulate the political and legal life of society and the state.
- In our opinion, an important change to be made to the constitution should primarily concern the political and administrative aspect. One of the priority issues is to provide a mechanism of checks and balances in the branches of government based on democratic values. It is very difficult to do this in the current conditions. To do this, it is necessary to activate the chain of civil society: independent political parties, active non-governmental organizations, open and transparent media, democratic opposition, and the creation of a justice system.
- The adoption of constitutional amendments is one side of the issue, and their actual execution, implementation is the second component. For many years, in the legal system of Uzbekistan, we have seen the adoption of some legal documents in a form that contradicts the articles of the constitution, and some constitutional norms do not work at all in our public life. At this stage, it is important to turn the updated constitution into a direct law with supreme legal force. At the same time, special attention should be paid to the fundamental reform of the activities of the Constitutional Court, the body responsible for this issue.
Figuratively speaking, the Constitutional Court has been a “sleeping organization” for many years. The body responsible for issuing a legal opinion on the constitutionality (or contradiction) of any enacted normative document remained silent even when laws were passed that violated many constitutional principles. For example, although Article 28 of the Constitution states: “A citizen of the Republic of Uzbekistan has the right to free movement within the territory of the Republic,” for many years the country had a strict residence registration system. Or Article 56 guarantees the right to create non-governmental public organizations, in practice this process is controlled by a special Regulation (based on strict control) of the Ministry of Justice.
Now the transformation of this body into a truly independent, open, and democratic organization that guarantees the constitutional rights and freedoms of a person is one of the strategic tasks of today.
- It is known that the events that took place in Karakalpakstan on July 1-2 this year had a significant impact on the process of constitutional reforms. The nationwide discussion of the draft constitution was once again extended until 1 August. Also on July 15, a commission was established to conduct an independent investigation into the events in Karakalpakstan.[2] In our opinion, in addition to state bodies, representatives of independent public and non-governmental organizations, the media and international human rights organizations should be involved in this commission.
Most importantly, these developments should not be allowed to have a negative impact on the positive image of Uzbekistan in relation to human rights, which has seen an improvement in recent years.
[1] This table is based on a comparative analysis of proposals and additions to the Constitution. Source: Constitutional Commission
[2] It should be noted that the US State Department, the UN, and the European Union called on the government of Uzbekistan to protect and respect fundamental rights, including freedom of peaceful assembly and expression, and to conduct an independent and transparent investigation into the events in Karakalpakstan.