Analysis of the Draft Constitutional Law “On the Constitution of the Republic of Uzbekistan” 2023

PUBLISHED BY: Free­dom for Euras­ia, April 2023

On March 10, 2023, the Legis­lat­ive Cham­ber, the lower house of the Oliy Mazh­lis, the Par­lia­ment of Uzbek­istan adop­ted Res­ol­u­tion No 3017-IV “On hold­ing a ref­er­en­dum of the Repub­lic of Uzbek­istan on the draft Con­sti­tu­tion­al Law of the Repub­lic of Uzbek­istan «On the Con­sti­tu­tion of the Repub­lic of Uzbek­istan»”. At the same meet­ing, the depu­ties of the Oliy Mazh­lis approved the decision to hold a con­sti­tu­tion­al ref­er­en­dum on April 30, 2023.

On March 13, 2023, the Con­sti­tu­tion­al Court of Uzbek­istan adop­ted a res­ol­u­tion on recog­niz­ing the decision of the Legis­lat­ive Cham­ber of the Oliy Mazh­lis dated March 10, 2023 to hold a con­sti­tu­tion­al ref­er­en­dum on April 30, 2023 as con­sist­ent with the Con­sti­tu­tion of Uzbekistan.

Since, accord­ing to Art. 78 of the cur­rent Con­sti­tu­tion of Uzbek­istan in 1992, the decision to hold a nation­al ref­er­en­dum in Uzbek­istan and the appoint­ment of a date for its hold­ing are under the joint jur­is­dic­tion of the Legis­lat­ive Cham­ber and the Sen­ate, the lower and upper houses of the Oliy Mazh­lis, the issue of hold­ing a con­sti­tu­tion­al ref­er­en­dum on the draft Con­sti­tu­tion­al Law “On the Con­sti­tu­tion of the Repub­lic Uzbek­istan” was also con­sidered in the Sen­ate of the Oliy Mazh­lis. On March 14, 2023, the Sen­ate at its plen­ary ses­sion approved the draft Con­sti­tu­tion­al Law and decided to hold a ref­er­en­dum on April 30, 2023.

Although, accord­ing to Part 2 of Art. 78 of the Con­sti­tu­tion of Uzbek­istan, the adop­tion of con­sti­tu­tion­al laws belongs to the joint jur­is­dic­tion of the Legis­lat­ive Cham­ber and the Sen­ate, there is also an altern­at­ive pro­ced­ure for amend­ing the Con­sti­tu­tion, provided for in Art. 127 of the Con­sti­tu­tion. This pro­ced­ure involves the adop­tion of con­sti­tu­tion­al changes in a ref­er­en­dum. It was this meth­od, at the sug­ges­tion of the Pres­id­ent of Uzbek­istan Shavkat Mirz­iyoyev, the ini­ti­at­or of the con­sti­tu­tion­al reform, that was chosen to adopt the draft Con­sti­tu­tion­al Law “On the Con­sti­tu­tion of the Repub­lic of Uzbek­istan” in order to give it great­er legit­im­acy. This meth­od of adopt­ing the Con­sti­tu­tion­al Law, delib­er­ately pro­posed by the Pres­id­ent of Uzbek­istan, cor­res­ponds to the defin­i­tion of the con­sti­tu­tion as an act of the con­stitu­ent power of the people.

The draft con­sti­tu­tion­al law con­tains a new ver­sion of the Con­sti­tu­tion of Uzbek­istan and provides for amend­ments to most of the pro­vi­sions of the cur­rent Con­sti­tu­tion of Uzbek­istan. The con­sti­tu­tion­al law increases the num­ber of art­icles in the Con­sti­tu­tion of Uzbek­istan from 128 to 155. In gen­er­al, 65 % of the con­sti­tu­tion­al text has under­gone changes.

In the pro­cess of devel­op­ing and adopt­ing the draft Con­sti­tu­tion­al Law, the rul­ing sub­jects, explain­ing the motives for their actions, declared the need to adapt the Con­sti­tu­tion to the require­ments of the “New Uzbek­istan” and strengthen the pro­tec­tion of human rights. They argued that the new ver­sion of the Con­sti­tu­tion lays the found­a­tions of social, demo­crat­ic, leg­al and truly people’s state­hood, and it will become an import­ant factor in improv­ing the wel­fare of the pop­u­la­tion, fur­ther increas­ing the level of pro­tec­tion of rights and interests, human dig­nity and lib­er­al­iz­a­tion of all spheres of life, and also marks a new peri­od in the devel­op­ment of the country.

To what extent does the doc­u­ment sub­mit­ted to the ref­er­en­dum cor­res­pond to the offi­cially declared goals of the con­sti­tu­tion­al reform?

Although the draft Con­sti­tu­tion­al Law con­tains a num­ber of pro­gress­ive pro­vi­sions related to the improve­ment of the leg­al status of the indi­vidu­al, in par­tic­u­lar, the expan­sion of the con­sti­tu­tion­al cata­log of rights and the con­sol­id­a­tion of their leg­al guar­an­tees, it also con­tains prob­lem­at­ic pro­vi­sions that con­tra­dict the prin­ciples of “clas­sic­al” con­sti­tu­tion­al­ism. These pro­vi­sions basic­ally reg­u­late the organ­iz­a­tion of state power.

Art. 11 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan reads: “The sys­tem of state power of the Repub­lic of Uzbek­istan is based on the prin­ciple of sep­ar­a­tion of powers into legis­lat­ive, exec­ut­ive and judi­cial”. In Clause 6 of Art. 93 of the Con­sti­tu­tion such a joint author­ity of the Legis­lat­ive Cham­ber and the Sen­ate of the Oliy Mazh­lis as “defin­ing the sys­tem and powers of the legis­lat­ive, exec­ut­ive and judi­cial author­it­ies of the Repub­lic of Uzbek­istan” is men­tioned. Declar­ing the divi­sion of state power into legis­lat­ive, exec­ut­ive and judi­cial branches is obvi­ously incor­rect. It is advis­able to con­sol­id­ate the very prin­ciple of sep­ar­a­tion of state power, how­ever, indi­vidu­al bod­ies of state power, such as the Pres­id­ent of Uzbek­istan or the Con­sti­tu­tion­al Court of Uzbek­istan, can­not be iden­ti­fied with any of those lis­ted in Art. 11 branches of gov­ern­ment. Lit­er­al under­stand­ing of Clause 6 of Art. 93 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan provides that the legis­lat­ive com­pet­ence of the Oliy Mazh­lis does not extend to determ­in­ing the con­sti­tu­tion­al and leg­al status of pub­lic author­it­ies that do not belong to the men­tioned tri­ad of authorities.

The prob­lem is Art. 85 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, Part 1 of which reads: “The Sov­er­eign Repub­lic of Karakalpak­stan is part of the Repub­lic of Uzbek­istan”. This con­sti­tu­tion­al pro­vi­sion is noth­ing more than a leg­al fic­tion. Only genu­ine states have sov­er­eignty, and not autonom­ous polit­ic­al entit­ies with­in a unit­ary state. Sov­er­eignty, hav­ing an indi­vis­ible char­ac­ter, belongs only to the Uzbek state as a whole, and not to Karakalpak­stan as its admin­is­trat­ive-ter­rit­ori­al unit. Art. 83 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan dir­ectly states that “The Repub­lic of Uzbek­istan con­sists of regions, dis­tricts, cit­ies, towns, vil­lages, auls, as well as the Repub­lic of Karakalpakstan”.

The very essence of state sov­er­eignty as a prop­erty (attrib­ute) of state power lies in its suprem­acy in rela­tion to any oth­er power with­in the coun­try and its inde­pend­ence from any oth­er power out­side it. There­fore, the sov­er­eignty of Uzbek­istan excludes the sov­er­eignty of Karakalpak­stan and vice versa. State sov­er­eignty test­i­fies to the sov­er­eignty of the state with­in its ter­rit­ory. If the state of Uzbek­istan owns sov­er­eignty, no oth­er sub­ject can own sov­er­eignty with­in its ter­rit­ory. The men­tion in the con­sti­tu­tion­al text of the sov­er­eignty of the Repub­lic of Karakalpak­stan indic­ates the alleged par­al­lel exist­ence of the sov­er­eignty of the Uzbek state as a whole and the sov­er­eignty of its admin­is­trat­ive ter­rit­ori­al com­pon­ent Karakalpak­stan. The illus­ory nature of the sov­er­eignty of Karakalpak­stan is indic­ated by Part 2 of Art. 85 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan: “The sov­er­eignty of the Repub­lic of Karakalpak­stan is pro­tec­ted by the Repub­lic of Uzbek­istan”. Karakalpak­stan’s lack of means to ensure its own sov­er­eignty indic­ates that it can­not be con­sidered a sov­er­eign state.

The absence of its own sov­er­eignty in Karakalpak­stan is evid­enced by the pro­vi­sions of Part 1 of Art. 22 of the new ver­sion of the Con­sti­tu­tion of Uzbek­istan say­ing that “the Repub­lic of Uzbek­istan estab­lishes a single cit­izen­ship for the entire ter­rit­ory of the repub­lic”, as well as Art. 87 that “The laws of the Repub­lic of Uzbek­istan are oblig­at­ory on the ter­rit­ory of the Repub­lic of Karakalpakstan”.

Karakalpak­stan’s lack of real sov­er­eignty is dis­cord­ant with Karakalpak­stan’s own Con­sti­tu­tion (Art. 85 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan). The Con­sti­tu­tion is an act of the con­stitu­ent power of the people, which, accord­ing to Part 1 of Art. 7 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, is the only source of state power. Con­sequently, only the people of Uzbek­istan as the col­lect­ive sov­er­eign and the sub­ject of con­stitu­ent power have the right to adopt a con­sti­tu­tion. This exclus­ive right of the people of Uzbek­istan is men­tioned in the final pro­vi­sion of the Pre­amble to the Con­sti­tu­tion of Uzbekistan.

The issue of the sov­er­eignty of Karakalpak­stan is con­nec­ted with the pro­vi­sion of Art. 89 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan that “The Repub­lic of Karakalpak­stan has the right to secede from the Repub­lic of Uzbek­istan on the basis of a gen­er­al ref­er­en­dum of the people of Karakalpak­stan”. The cited con­sti­tu­tion­al pro­vi­sion obvi­ously con­tra­dicts the pro­vi­sion of Art. 1 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan on the sov­er­eign nature of the Uzbek state and Part 2 of Art. 3 of the Con­sti­tu­tion that “the state bor­der and ter­rit­ory of Uzbek­istan are invi­ol­able and indi­vis­ible”. An imman­ent com­pon­ent of the cat­egory of state sov­er­eignty is the prin­ciple of the ter­rit­ori­al integ­rity of the state. The sov­er­eignty of Uzbek­istan extends to its entire ter­rit­ory and no part of this ter­rit­ory can pro­claim itself inde­pend­ent of the sov­er­eign power of the Uzbek state. It seems at least strange that the pop­u­la­tion of Karakalpak­stan as an admin­is­trat­ive ter­rit­ori­al unit can divide the ter­rit­ory of Uzbek­istan. Even the sub­jects of the fed­er­a­tion as quasi-state form­a­tions do not have sov­er­eignty and, as a res­ult, are deprived of the right of seces­sion, i.e. the right to secede from the fed­er­al state. Such a right would be con­trary to the prin­ciple of pop­u­lar sov­er­eignty and the prin­ciple of state sov­er­eignty. In the con­di­tions of the real sov­er­eignty of the Uzbek state, only the people of Uzbek­istan, who, accord­ing to Part 1 of Art. 7 of the Con­sti­tu­tion of Uzbek­istan, “is the only source of state power”, can decide on the issue of ter­rit­ori­al changes in Uzbek­istan through its dir­ect expres­sion of will at a nation­al referendum

Accord­ing to Clause 7 of Art. 93 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, the joint jur­is­dic­tion of the Legis­lat­ive Cham­ber and the Sen­ate of the Oliy Mazh­lis includes “adop­tion of new state entit­ies into the Repub­lic of Uzbek­istan and approv­al of decisions on their seces­sion from the Repub­lic of Uzbek­istan”. It is not clear how this con­sti­tu­tion­al pro­vi­sion relates to the pro­vi­sion of Art. 89 on the right of Karakalpak­stan to secede from Uzbek­istan on the basis of a “gen­er­al ref­er­en­dum of the people of Karakalpakstan”.

In Clause 1 of Art. 93 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, it is determ­ined that “the joint jur­is­dic­tion of the Legis­lat­ive Cham­ber and the Sen­ate of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan includes … the adop­tion of the Con­sti­tu­tion of the Repub­lic of Uzbekistan…”.

Giv­ing par­lia­ment the right to adopt a new con­sti­tu­tion is unac­cept­able from the point of view of the the­ory of pop­u­lar sov­er­eignty. Accord­ing to this the­ory, the con­sti­tu­tion should be adop­ted by the people as the sub­ject of con­stitu­ent power. The primary con­stitu­ent power of the people, embod­ied in acts of con­sti­tu­tion­al sig­ni­fic­ance, determ­ines the prin­ciples of organ­iz­a­tion and func­tion­ing of the author­it­ies estab­lished by it. From this point of view, the con­stitu­ent power is a dir­ect expres­sion of the people’s will, while the activ­it­ies of the rel­ev­ant state bod­ies can be con­sidered an indir­ect form of real­iz­a­tion of the con­stitu­ent power of the people. This explains, in par­tic­u­lar, why acts that are the res­ult of the rule-mak­ing activ­ity of “estab­lished” author­it­ies have less leg­al force than acts of the con­stitu­ent power of the people.

The well-estab­lished under­stand­ing of the phe­nomen­on of the con­stitu­ent power of the people recog­nizes only the pos­sib­il­ity for the par­lia­ment to make changes and amend­ments to the con­sti­tu­tion (adop­tion of its new edi­tion). The men­tioned right is exer­cised by the par­lia­ment with strict observ­ance of the pro­ced­ure provided for by the con­sti­tu­tion (the con­sti­tu­tion­al pro­ced­ure for intro­du­cing amend­ments and addi­tions to the basic law). Hence the con­cepts of primary con­stitu­ent power and insti­tu­tion­al (del­eg­ated) con­stitu­ent power. The insti­tu­tion­al con­stitu­ent power is derived from the primary con­stitu­ent power: if the res­ult of the exer­cise of the primary con­stitu­ent power in the form of a dir­ect expres­sion of the will of the people in a ref­er­en­dum or the activ­ity of a con­stitu­ent is usu­ally the devel­op­ment and adop­tion of a con­sti­tu­tion, then the insti­tu­tion­al (del­eg­ated) con­stitu­ent power is used for sub­sequent par­tial changes to the con­sti­tu­tion by an author­ized sub­ject, i.e. par­lia­ment. By adopt­ing con­sti­tu­tion­al laws on amend­ments to the con­sti­tu­tion the par­lia­ment, in the cases and in the man­ner pre­scribed by the con­sti­tu­tion, acts as an organ of con­stitu­ent power. The adop­tion of con­sti­tu­tion­al laws by par­lia­ment is the only form known to demo­crat­ic states of exer­cising the insti­tu­tion­al (del­eg­ated) con­stitu­ent power of the people.

From the point of view of the concept of the con­stitu­ent power of the people, the entry into force of the con­sti­tu­tion as a res­ult of its adop­tion by par­lia­ment as one of the “estab­lished” author­it­ies should be seen as an attempt to remove the people from the pos­sib­il­ity of exer­cising their primary con­stitu­ent power. The primary con­stitu­ent power, the res­ult of which is pre­cisely the adop­tion of a new con­sti­tu­tion, is inali­en­able from its source that is the people. Only the people as the sub­ject of the primary and supreme in nature of the con­stitu­ent power, can exer­cise it through the con­stitu­ents i.e. col­legi­al bod­ies spe­cially cre­ated for the devel­op­ment and adop­tion of the con­sti­tu­tion, or by its dir­ect expres­sion of will in a ref­er­en­dum. On the con­trary, the acquis­i­tion of leg­al force by the con­sti­tu­tion as a res­ult of its adop­tion by the par­lia­ment, whose powers are derived from the con­stitu­ent will of the people, is unac­cept­able from the point of view of view of the idea of the con­stitu­ent power of the people.

The pro­vi­sion of Clause 1 of Art. 93 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan on the right of the cham­bers of the Oliy Mazh­lis to adopt a new Con­sti­tu­tion of Uzbek­istan is, in fact, a mater­i­al­ized norm­at­ive rem­nant of the Soviet concept of the suprem­acy of the Sovi­ets. The men­tioned concept sub­stan­ti­ated the idea of the sov­er­eignty of the coun­cils and, in par­tic­u­lar, the right of the highest author­ity in the sys­tem of rep­res­ent­at­ive bod­ies ‒ the coun­cils, to adopt a con­sti­tu­tion. With this approach, how­ever, the con­sti­tu­tion was per­ceived not as an act of the con­stitu­ent power of the people, but as a “basic law”, i.e. an act of supreme leg­al force adop­ted by the supreme body of state power. This under­stand­ing of the con­sti­tu­tion was an altern­at­ive to what fol­lows from the the­ory of “clas­sic­al” constitutionalism.

Accord­ing to Clause 1 of Art. 93 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, the joint com­pet­ence of the cham­bers of the Oliy Mazh­lis cov­ers not only the adop­tion of the new Con­sti­tu­tion of Uzbek­istan, but also “the intro­duc­tion of amend­ments and addi­tions to it”. At the same time, accord­ing to Clause 2 of Art. 93 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, the joint jur­is­dic­tion of the Legis­lat­ive Cham­ber and the Sen­ate of the Oliy Mazh­lis is “the adop­tion of con­sti­tu­tion­al laws, laws of the Repub­lic of Uzbek­istan, the intro­duc­tion of amend­ments and addi­tions to them”.

Firstly, it is not clear where the developers of the new ver­sion of the Con­sti­tu­tion of Uzbek­istan see the dif­fer­ence between such powers of the Oliy Mazh­lis as “intro­du­cing amend­ments and addi­tions” to the Con­sti­tu­tion of Uzbek­istan and “adopt­ing con­sti­tu­tion­al laws”. From the point of view of the concept of the con­stitu­ent power of the people, any amend­ments and addi­tions to the con­sti­tu­tion can be made by the par­lia­ment only through the adop­tion of con­sti­tu­tion­al laws. In fact, the adop­tion of con­sti­tu­tion­al laws is the only pos­sible form of revi­sion of the con­sti­tu­tion­al text by par­lia­ment. There­fore, in Clause 1 and Clause 2 of Art. 93 of the draft Con­sti­tu­tion­al Law actu­ally refers to the same powers of the Oliy Mazh­lis. Secondly, the pecu­li­ar­ity of the leg­al nature of con­sti­tu­tion­al laws as acts of the con­stitu­ent power of the people is that, after their adop­tion and entry into force, they are integ­rated into the con­sti­tu­tion­al text and form a single whole with the con­sti­tu­tion. The entry into force of a con­sti­tu­tion­al law entails changes in the con­sti­tu­tion­al text, that is, the appear­ance of a new ver­sion of the con­sti­tu­tion. It is impossible to make changes and addi­tions to the cur­rent con­sti­tu­tion­al laws, because the cur­rent con­sti­tu­tion­al laws cease to exist as a norm­at­ive act struc­tur­ally sep­ar­ated from the con­sti­tu­tion. The above under­stand­ing of the leg­al nature of con­sti­tu­tion­al laws is con­sist­ent with the pro­vi­sions of Art. 154 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, which reads: “Changes and addi­tions to the Con­sti­tu­tion of the Repub­lic of Uzbek­istan are made by a con­sti­tu­tion­al law adop­ted by a major­ity of at least two-thirds of the total num­ber of depu­ties of the Legis­lat­ive Cham­ber and mem­bers of the Sen­ate of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan, respect­ively, or by a ref­er­en­dum of the Repub­lic of Uzbek­istan”. Also, in the Chapter sixth of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan “The pro­ced­ure for amend­ing the Con­sti­tu­tion”, it is repeatedly referred to the Con­sti­tu­tion of the Repub­lic of Uzbek­istan “as amended by this Con­sti­tu­tion­al Law”.

The con­sti­tu­tion­al law “On the Con­sti­tu­tion of the Repub­lic of Uzbek­istan” estab­lishes an eclect­ic form of gov­ern­ment that com­bines the fea­tures of a pres­id­en­tial and a mixed repub­lic. The right of the Legis­lat­ive Cham­ber of the Oliy Mazh­lis to con­sider and approve, on the pro­pos­al of the Pres­id­ent, the can­did­a­cies of the Prime Min­is­ter and oth­er mem­bers of the Cab­in­et of Min­is­ters (Gov­ern­ment of Uzbek­istan) (Clauses 3 and 5 of Art. 94 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan); the con­sti­tu­tion­al pro­vi­sion that the Pres­id­ent of Uzbek­istan “ensures the coordin­ated func­tion­ing and inter­ac­tion of pub­lic author­it­ies” (Art. 105 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan); par­lia­ment­ary respons­ib­il­ity of the Cab­in­et of Min­is­ters of Uzbek­istan (Art. 119 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan) should be con­sidered as the fea­tures of a mixed republic.

How­ever, the form of gov­ern­ment estab­lished by the Con­sti­tu­tion­al Law “On the Con­sti­tu­tion of the Repub­lic of Uzbek­istan” can­not be defined as a mixed repub­lic­an one. Such essen­tial insti­tu­tions of a mixed repub­lic as par­lia­ment­ary invest­it­ure of the gov­ern­ment, par­lia­ment­ary respons­ib­il­ity of the gov­ern­ment, coun­ter­sign­ing of pres­id­en­tial acts by mem­bers of the gov­ern­ment, dual­ism of exec­ut­ive power in the new ver­sion of the Con­sti­tu­tion of Uzbek­istan are sig­ni­fic­antly dis­tor­ted or not provided for at all. The new ver­sion of the Con­sti­tu­tion of Uzbek­istan exag­ger­ates the con­sti­tu­tion­al status of the Pres­id­ent of Uzbek­istan and cam­ou­flages the fact of his trans­form­a­tion from the head of state to the head of exec­ut­ive power.

The new ver­sion of the Con­sti­tu­tion of Uzbek­istan does not estab­lish the clas­sic­al form of par­lia­ment­ary invest­it­ure of the gov­ern­ment. The par­lia­ment­ary invest­it­ure of the gov­ern­ment provides for the approv­al by the par­lia­ment of the pro­gram of activ­it­ies of the supreme body of exec­ut­ive power as a con­di­tion for its author­ity. The pos­it­ive res­ult of vot­ing in the par­lia­ment on the pro­gram of the gov­ern­ment’s activ­it­ies is in fact the approv­al of the com­pos­i­tion of the gov­ern­ment. The pas­sage of the par­lia­ment­ary invest­it­ure by the newly formed gov­ern­ment indic­ates that it has received con­fid­ence from the legis­lature, gained legit­im­acy and can begin to imple­ment its pro­gram of activ­it­ies. The par­lia­ment­ary invest­it­ure of the gov­ern­ment also provides that the basis of the pro­gram of its activ­it­ies are the pro­vi­sions of the coali­tion agree­ment on the form­a­tion of the par­lia­ment­ary major­ity. In the future, the inef­fi­ciency or incon­sist­ency of the gov­ern­ment’s policy with the pro­gram of its activ­it­ies give grounds for bring­ing it to par­lia­ment­ary respons­ib­il­ity. Con­sequently, the par­lia­ment­ary invest­it­ure of the gov­ern­ment guar­an­tees the fun­da­ment­al par­ti­cip­a­tion of the par­lia­ment in the pro­cess of form­ing the gov­ern­ment and is an import­ant tool for the influ­ence of the par­lia­ment on the exec­ut­ive branch.

Under the con­di­tion of par­lia­ment­ary invest­it­ure of the gov­ern­ment, the pres­id­ent is forced to take into account the align­ment of polit­ic­al forces in par­lia­ment and appoint to the post of prime min­is­ter a per­son who enjoys the sup­port of a par­lia­ment­ary major­ity and is able to form a gov­ern­ment whose pro­gram and com­pos­i­tion will be approved by par­lia­ment. The pres­id­ent can­not appoint as prime min­is­ter a per­son who has a low chance of get­ting an invest­it­ure in par­lia­ment, as this will pro­voke a polit­ic­al crisis. The new ver­sion of the Con­sti­tu­tion of Uzbek­istan does not provide for such a mech­an­ism. In gen­er­al, the Con­sti­tu­tion­al Law “On the Con­sti­tu­tion of the Repub­lic of Uzbek­istan” imit­ates rather than guar­an­tees the par­lia­ment­ary way of form­ing the gov­ern­ment. The pro­ced­ure for the form­a­tion of the Cab­in­et of Min­is­ters of Uzbek­istan is reg­u­lated by Art. 118 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan. Accord­ing to Part 6 of this art­icle, “mem­bers of the Cab­in­et of Min­is­ters of the Repub­lic of Uzbek­istan are appoin­ted to the pos­i­tion by the Pres­id­ent of the Repub­lic of Uzbek­istan after the approv­al of their can­did­a­cies by the Legis­lat­ive Cham­ber of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan”. Accord­ing to Part 1 of Art. 118 of the Con­sti­tu­tion, the Pres­id­ent sub­mits the can­did­acy of the Prime Min­is­ter for con­sid­er­a­tion and approv­al by the Legis­lat­ive Cham­ber “after con­sulta­tions with all fac­tions of polit­ic­al parties with­in a month after the elec­tion of offi­cials and the form­a­tion of bod­ies of the cham­bers of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan or with­in a month after the dis­missal or resig­na­tion of the Prime Min­is­ter, or the resig­na­tion of cur­rent com­pos­i­tion of the Cab­in­et of Min­is­ters”. In Part 3 of Art. 118 of the Con­sti­tu­tion it is indic­ated that “a can­did­ate for the post of Prime Min­is­ter dur­ing the con­sid­er­a­tion of his can­did­acy in the Legis­lat­ive Cham­ber of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan rep­res­ents the action pro­gram of the Cab­in­et of Min­is­ters for the near and long term”. At the same time, the Con­sti­tu­tion does not dir­ectly estab­lish the require­ment for the Legis­lat­ive Cham­ber of the Oliy Mazh­lis to approve the pro­gram of activ­it­ies of the Cab­in­et of Min­is­ters as a con­di­tion for its author­ity. The pro­vi­sion of Part 5 of Art. 118 says: “In the event of a three-time rejec­tion of the sub­mit­ted can­did­ates for the pos­i­tion of Prime Min­is­ter, the Pres­id­ent of the Repub­lic of Uzbek­istan appoints the Prime Min­is­ter and has the right to dis­solve the Legis­lat­ive Cham­ber of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan”. The cited pro­vi­sion indic­ates that the last word in the pro­ced­ure for the form­a­tion of the Cab­in­et of Min­is­ters belongs to the Pres­id­ent. The dis­agree­ment of the Legis­lat­ive Cham­ber with the pos­i­tion of the Pres­id­ent on the can­did­acy for the post of Prime Min­is­ter and the com­pos­i­tion of the Cab­in­et of Min­is­ters gen­er­ally means that the Pres­id­ent receives a leg­al basis to form the Cab­in­et of Min­is­ters inde­pend­ently and ter­min­ate the powers of the Legis­lat­ive Cham­ber. Since the refus­al of the Legis­lat­ive Cham­ber three times to approve the can­did­acy pro­posed by the Pres­id­ent for the post of Prime Min­is­ter may entail the ter­min­a­tion of the powers of the low­est cham­ber, it is nat­ur­al that it will not pro­voke such a development.

The absence of a full-fledged par­lia­ment­ary invest­ment in the Cab­in­et of Min­is­ters gives reas­on to believe that the Pres­id­ent of Uzbek­istan, rely­ing on the sup­port of the pro-pres­id­en­tial major­ity of the Legis­lat­ive Cham­ber or without such sup­port, will form the com­pos­i­tion of the gov­ern­ment at his own discretion.

Accord­ing to Part 7 of Art. 118 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, “The Pres­id­ent of the Repub­lic of Uzbek­istan has the right to dis­miss the Prime Min­is­ter, the cur­rent com­pos­i­tion or a mem­ber of the Cab­in­et of Min­is­ters of the Repub­lic of Uzbek­istan”, and accord­ing to Clause 16 of Art. 109 of the Con­sti­tu­tion, the Pres­id­ent of Uzbek­istan “sus­pends, can­cels acts of the repub­lic­an exec­ut­ive author­it­ies and khokims; has the right to chair meet­ings of the Cab­in­et of Min­is­ters of the Repub­lic of Uzbek­istan”. It is obvi­ous that the respons­ib­il­ity of mem­bers of the Cab­in­et of Min­is­ters to the Pres­id­ent of Uzbek­istan, the uncon­di­tion­al right of the Pres­id­ent to can­cel gov­ern­ment acts and his right to chair meet­ings of the Cab­in­et of Min­is­ters determ­ine the admin­is­trat­ive depend­ence of the mem­bers of the gov­ern­ment on the head of state, hence the trans­form­a­tion of the lat­ter into the actu­al head of exec­ut­ive power.

The admin­is­trat­ive sub­or­din­a­tion of the Cab­in­et of Min­is­ters of Uzbek­istan to the Pres­id­ent of Uzbek­istan elim­in­ates such a fun­da­ment­al dis­tin­guish­ing fea­ture of a mixed repub­lic as the dual­ism of exec­ut­ive power. The absence of a con­sti­tu­tion­ally estab­lished dual­ism of exec­ut­ive power does not allow clas­si­fy­ing the form of gov­ern­ment as a mixed repub­lic­an one. In the stud­ied form of gov­ern­ment, the dual­ism of exec­ut­ive power is com­pletely over­come in favor of the President.

On March 9, 2023, at a reg­u­lar meet­ing of the Legis­lat­ive Cham­ber of the Oliy Mazh­lis, dur­ing the con­sid­er­a­tion of the issue of hold­ing a ref­er­en­dum on the draft Con­sti­tu­tion­al Law “On the Con­sti­tu­tion of the Repub­lic of Uzbek­istan”, it was offi­cially pro­claimed that “the updated Con­sti­tu­tion is aimed at cre­at­ing a strong par­lia­ment, a com­pact and respons­ible gov­ern­ment, as well as an inde­pend­ent and fair judi­ciary to build a state that serves the people”. It is obvi­ous that the cited declar­a­tion of intent of the developers of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan is ground­less. Form­ally, accord­ing to Art. 105 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, the Pres­id­ent is only the head of state and does not head the gov­ern­ment, but in accord­ance with Part 1 of Art. 114 of the Con­sti­tu­tion, “exec­ut­ive power is exer­cised by the Cab­in­et of Min­is­ters of the Repub­lic of Uzbek­istan”. How­ever, the com­pletely weakened insti­tu­tion­al ties between the Oliy Mazh­lis and the Cab­in­et of Min­is­ters and the admin­is­trat­ive sub­or­din­a­tion of the gov­ern­ment to the Pres­id­ent will give rise to the irre­spons­ib­il­ity of the author­it­ies as a whole, since they will allow the Pres­id­ent to strengthen his own legit­im­acy through the suc­cess of gov­ern­ment policy and at the same time, in case of fail­ure of his own polit­ic­al course, to shift polit­ic­al respons­ib­il­ity to the Cab­in­et of Min­is­ters. The imit­a­tion of the par­lia­ment­ary way of form­ing the gov­ern­ment and the polit­ic­al respons­ib­il­ity of the Cab­in­et of Min­is­ters of Uzbek­istan for the res­ults of the imple­ment­a­tion of the polit­ic­al course of not the par­lia­ment­ary major­ity, but the Pres­id­ent of Uzbek­istan, con­tra­dict the logic of the organ­iz­a­tion of state power in a mixed republic.

A mixed repub­lic acquires legit­im­acy due to the con­form­ity of the essence and res­ults of gov­ern­ment policy with the pro­gram­mat­ic prin­ciples of the bloc of parties that form the major­ity in par­lia­ment. In a sim­pli­fied way, this legit­im­a­tion scheme can be depic­ted as fol­lows: voters cast their votes for polit­ic­al forces, which, hav­ing received the major­ity of man­dates in par­lia­ment as a res­ult of the elec­tions, form the gov­ern­ment. The com­pos­i­tion and pro­gram of activ­it­ies of the gov­ern­ment reflect, respect­ively, the com­pos­i­tion and polit­ic­al plat­form of the par­lia­ment­ary major­ity. The gov­ern­ment is actu­ally imple­ment­ing a course that is not only approved by the par­lia­ment­ary major­ity, but also one that is a means of imple­ment­ing in state policy the pro­gram­mat­ic found­a­tions of the parties that won the elec­tions. Since the pro­gram­mat­ic basis of these polit­ic­al parties, embod­ied in gov­ern­ment policy, expresses the interests of a large part of soci­ety, the cor­res­pond­ence of the res­ults of gov­ern­ment policy to the expect­a­tions of voters ensures the legit­im­acy of a mixed repub­lic. Elec­tions here are the most import­ant instru­ment of party respons­ib­il­ity for the res­ults of gov­ern­ment policy: voters reward the suc­cess­ful policy of the rul­ing parties by again sup­port­ing them dur­ing the vot­ing, or, con­versely, refuse to sup­port them if their policy is unsuc­cess­ful. The new edi­tion of the Con­sti­tu­tion of Uzbek­istan does not provide for any­thing sim­il­ar to the described mech­an­ism of legit­im­a­tion of the form of government.

Accord­ing to Part 3 of Art. 116 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, “the cur­rent Cab­in­et of Min­is­ters resigns its powers before the newly elec­ted Oliy Mazh­lis of the Repub­lic of Uzbek­istan”. Taken sep­ar­ately, not in con­nec­tion with oth­er con­sti­tu­tion­al norms, this con­sti­tu­tion­al pro­vi­sion can be con­sidered evid­ence of the exist­ence of a gov­ern­ment struc­ture derived from the com­pos­i­tion of the par­lia­ment­ary major­ity and the com­pli­ance of the gov­ern­ment’s pro­gram of activ­it­ies with the pro­gram prin­ciples of the par­lia­ment­ary major­ity fac­tions. How­ever, the con­sti­tu­tion­al pro­vi­sion on the resig­na­tion by the Cab­in­et of Min­is­ters of powers before the newly elec­ted Oliy Mazh­lis, in addi­tion to oth­er con­sti­tu­tion­al norms estab­lish­ing the admin­is­trat­ive depend­ence of the gov­ern­ment on the Pres­id­ent, elim­in­ates the pro­vi­sion of Art. 114 that “The Cab­in­et of Min­is­ters car­ries out its activ­it­ies with­in the frame­work of the main activ­it­ies of the exec­ut­ive branch, determ­ined by the Pres­id­ent of the Repub­lic of Uzbek­istan”. The role of the Pres­id­ent as the real head of the exec­ut­ive power is also reflec­ted in the pro­vi­sions of Clause 7 of Art. 109 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan that the Pres­id­ent “forms and abol­ishes min­is­tries and oth­er repub­lic­an exec­ut­ive bod­ies with sub­sequent sub­mis­sion of decrees on these issues for approv­al by the Sen­ate of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan”; Clause 15 of Art. 109 on the right of the Pres­id­ent to appoint and dis­miss chair­men (khokims) of region­al state admin­is­tra­tions and the city of Tashkent; Clause 16 of Art. 109 on the right of the Pres­id­ent to chair meet­ings of the Cab­in­et of Min­is­ters. Con­sequently, accord­ing to the new ver­sion of the Con­sti­tu­tion of Uzbek­istan, neither the com­pos­i­tion of the Cab­in­et of Min­is­ters, nor the pro­gram of its activ­it­ies are really con­nec­ted with the res­ults of the par­lia­ment­ary elec­tions. The Cab­in­et of Min­is­ters of Uzbek­istan is the “team of the pres­id­ent” and through the sys­tem of exec­ut­ive bod­ies sub­or­din­ated to it ensures the imple­ment­a­tion of the elec­tion pro­gram of the Pres­id­ent of Uzbekistan.

A sys­tem­at­ic ana­lys­is of the norms of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan on the organ­iz­a­tion of state power gives grounds to con­clude that the form of gov­ern­ment provided for by the con­sti­tu­tion does not cre­ate fun­da­ment­ally import­ant insti­tu­tion­al ties between the Oliy Mazh­lis and the Cab­in­et of Min­is­ters, and there­fore does not provide polit­ic­al parties with real effect­ive influ­ence on the exec­ut­ive branch. Accord­ing to the new ver­sion of the Con­sti­tu­tion of Uzbek­istan, polit­ic­al parties that have won elec­tions and formed a par­lia­ment­ary major­ity are deprived of the oppor­tun­ity to determ­ine the com­pos­i­tion of the Cab­in­et of Min­is­ters and the con­tent of its pro­gram of activ­it­ies, and there­fore can­not trans­late their pre-elec­tion com­mit­ments into gov­ern­ment policy and thus receive cred­it of trust from voters in the next par­lia­ment­ary elections.

The new ver­sion of the Con­sti­tu­tion of Uzbek­istan sig­ni­fic­antly com­plic­ates the pro­ced­ure for the par­lia­ment­ary respons­ib­il­ity of the gov­ern­ment, requir­ing a decision on the resig­na­tion of the Cab­in­et of Min­is­ters of Uzbek­istan not by a simple, but by a qual­i­fied two-thirds major­ity of the con­sti­tu­tion­al com­pos­i­tion of the Legis­lat­ive Cham­ber of the Oliy Mazh­lis. In addi­tion, even if a decision is made to dis­miss the Cab­in­et of Min­is­ters by a two-thirds major­ity of the con­sti­tu­tion­al com­pos­i­tion of the Legis­lat­ive Cham­ber of the Oliy Mazh­lis, the powers of the gov­ern­ment are ter­min­ated by the decision of the Pres­id­ent of Uzbek­istan. Art. 119 estab­lishes: “A vote of no con­fid­ence in the Prime Min­is­ter is con­sidered adop­ted if at least two thirds of the total num­ber of depu­ties of the Legis­lat­ive Cham­ber of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan vote for him. In this case, the Pres­id­ent of the Repub­lic of Uzbek­istan decides to dis­miss the Prime Min­is­ter from office. At the same time, the entire com­pos­i­tion of the Cab­in­et of Min­is­ters of the Repub­lic of Uzbek­istan resigns togeth­er with the Prime Min­is­ter”. There­fore, Art. 119 does not answer the ques­tion of what will be the con­sequences of the Legis­lat­ive Cham­ber of the Oliy Mazh­lis express­ing a vote of no con­fid­ence in the Prime Min­is­ter if the Pres­id­ent of Uzbek­istan does not decide to dis­miss the Prime Min­is­ter from office.

The new ver­sion of the Con­sti­tu­tion of Uzbek­istan estab­lishes a kind of sub­sti­tute for the indi­vidu­al par­lia­ment­ary respons­ib­il­ity of gov­ern­ment min­is­ters. Part 8 of Art. 118 reads: “The Legis­lat­ive Cham­ber of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan has the right to hear a report from a mem­ber of the Cab­in­et of Min­is­ters of the Repub­lic of Uzbek­istan on issues of his activ­it­ies. Based on the res­ults of hear­ing the report of a mem­ber of the Cab­in­et of Min­is­ters, the Legis­lat­ive Cham­ber has the right to sub­mit a pro­pos­al for his resig­na­tion to the Pres­id­ent of the Repub­lic of Uzbek­istan for con­sid­er­a­tion”. Con­sequently, the Legis­lat­ive Cham­ber is deprived of the oppor­tun­ity to inde­pend­ently ter­min­ate the powers of min­is­ters of the Cab­in­et of Ministers.

In the form of gov­ern­ment envis­aged by the new ver­sion of the Con­sti­tu­tion of Uzbek­istan, the absence of a par­lia­ment­ary invest­it­ure of the gov­ern­ment com­ple­ments the rejec­tion of the insti­tu­tion of coun­ter­sig­na­ture, i.e. the require­ment that rel­ev­ant acts of the pres­id­ent must be signed by mem­bers of the government.

The coun­ter­sign­ing of pres­id­en­tial acts by mem­bers of the gov­ern­ment is a fun­da­ment­al fea­ture of par­lia­ment­ary and mixed repub­lics. In these forms of gov­ern­ment, the coun­ter­sign­ing of acts of the pres­id­ent by mem­bers of the gov­ern­ment indic­ates the recog­ni­tion by the gov­ern­ment of the con­sti­tu­tion­al­ity and expedi­ency of issu­ing a cer­tain act of the pres­id­ent, its com­pli­ance with the polit­ic­al course of the gov­ern­ment. In addi­tion, coun­ter­sig­na­ture ensures com­pli­ance with the act by both entit­ies par­ti­cip­at­ing in it ‒ the pres­id­ent and the prime min­is­ter. At the same time, the coun­ter­sign­ing of pres­id­en­tial acts by mem­bers of the gov­ern­ment is a form of a kind of mutu­al con­trol between the pres­id­ent and the gov­ern­ment, car­ried out in the pro­cess of appro­pri­ate rule-making.

Con­sequently, in par­lia­ment­ary and mixed repub­lics, coun­ter­sign­ing of pres­id­en­tial acts by mem­bers of the gov­ern­ment is an ele­ment of the sys­tem of checks and bal­ances, through which the prime min­is­ter and (or) the rel­ev­ant min­is­ter restricts the pres­id­ent’s rule-mak­ing, thereby pre­vent­ing him from pos­sible abuses in the exec­ut­ive sphere. Unlike the par­lia­ment­ary form of gov­ern­ment, in which all, with some excep­tions, acts of the head of state need coun­ter­sign­ing, in a mixed repub­lic, the coun­ter­sign­ing of acts of the pres­id­ent by mem­bers of the gov­ern­ment is designed to ensure coordin­ated inter­ac­tion between the head of state and the gov­ern­ment in the areas of joint com­pet­ence of these sub­jects. There­fore, here the object of coun­ter­sig­na­ture is only those acts of the Pres­id­ent, the imple­ment­a­tion of which is ensured by the gov­ern­ment. How­ever, the new ver­sion of the Con­sti­tu­tion of Uzbek­istan does not give mem­bers of the Cab­in­et of Min­is­ters the right to coun­ter­sign acts of the Pres­id­ent, which fully cor­res­ponds to their admin­is­trat­ive sub­or­din­a­tion to the head of state.

Accord­ing to offi­cial state­ments, the new ver­sion of the Con­sti­tu­tion of Uzbek­istan is designed, among oth­er things, to achieve “the effect­ive func­tion­ing of the sys­tem of checks and bal­ances”. The sys­tem of checks and bal­ances is doomed to inef­fi­ciency, and some of its ele­ments acquire the char­ac­ter of a leg­al fic­tion if it is not bal­anced. The asym­metry of the sys­tem of checks and bal­ances leads to pres­sure from a stronger author­ity on a weak­er one. Bal­an­cing the pos­sib­il­it­ies of mutu­al influ­ence of the highest bod­ies of the state is a fun­da­ment­al con­di­tion for organ­iz­ing a sys­tem of checks and bal­ances. Ignor­ing this con­di­tion des­troys the sys­tem of checks and bal­ances, entails the danger of degrad­a­tion of state­hood to the state of polit­ic­al mono­centrism. It is impossible to talk about the sym­metry of the sys­tem of checks and bal­ances estab­lished by the new ver­sion of the Con­sti­tu­tion of Uzbek­istan. The express­ive fea­tures of this sys­tem are the com­pletely frag­ment­ary means of influ­ence of the Oliy Mazh­lis on the Pres­id­ent of Uzbek­istan and the com­plete absence of means of influ­ence on the Pres­id­ent from the Cab­in­et of Ministers.

The new ver­sion of the Con­sti­tu­tion of Uzbek­istan enshrines the right of the Pres­id­ent to pre­ma­turely ter­min­ate the powers of the Oliy Mazh­lis. The dis­cre­tion­ary right of the pres­id­ent to pre­ma­turely ter­min­ate the powers of par­lia­ment (its lower house) is one of the hall­marks of a mixed repub­lic. In a mixed repub­lic, the list of grounds for the pres­id­ent to exer­cise the right to pre­ma­turely ter­min­ate the powers of par­lia­ment (its lower house) should be unlim­ited, since the main pur­pose of this right is to serve as a means of resolv­ing the polit­ic­al crisis asso­ci­ated with oppos­i­tion to the pres­id­ent of the par­lia­ment­ary-gov­ern­ment bloc. The new ver­sion of the Con­sti­tu­tion of Uzbek­istan provides for the pos­sib­il­ity of early dis­sol­u­tion by the Pres­id­ent of the Legis­lat­ive Cham­ber and the Sen­ate of the Oliy Mazh­lis “in the event of insur­mount­able dif­fer­ences arising in the Legis­lat­ive Cham­ber or the Sen­ate that jeop­ard­ize their nor­mal func­tion­ing, or if they repeatedly take decisions that con­tra­dict the Con­sti­tu­tion of the Repub­lic of Uzbek­istan, as well as insur­mount­able dif­fer­ences between the Legis­lat­ive Cham­ber and the Sen­ate, jeop­ard­iz­ing the nor­mal func­tion­ing of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan” (Art. 111). Also Part 5 of Art. 118 of the Con­sti­tu­tion provides for the pos­sib­il­ity of early ter­min­a­tion of the powers of the Legis­lat­ive Cham­ber in the event of a three-fold rejec­tion of the can­did­ates sub­mit­ted by the Pres­id­ent for the pos­i­tion of Prime Min­is­ter. Obvi­ously, the early ter­min­a­tion of the powers of the Legis­lat­ive Cham­ber due to its unwill­ing­ness to approve the can­did­ates pro­posed by the Pres­id­ent for the post of Prime Min­is­ter does not cor­res­pond to the logic of the organ­iz­a­tion of state power in a mixed repub­lic. At the same time, the dis­cre­tion­ary right of the pres­id­ent, char­ac­ter­ist­ic of a mixed repub­lic, to ter­min­ate the powers of the par­lia­ment (its lower house) becomes redund­ant in the con­di­tions of the decis­ive influ­ence of the head of state on the selec­tion of the com­pos­i­tion of the gov­ern­ment and determ­in­ing its polit­ic­al course. Obvi­ously, the con­sti­tu­tion­al grounds on which the Pres­id­ent of Uzbek­istan ter­min­ates the powers of the cham­bers of the Oliy Mazh­lis do not con­cern the res­ol­u­tion of the con­flict between him and the par­lia­ment­ary-gov­ern­ment bloc. Such a block does not exist in the form of gov­ern­ment estab­lished by the new ver­sion of the Con­sti­tu­tion of Uzbekistan.

The form of gov­ern­ment provided for by the Con­sti­tu­tion­al Law “On the Con­sti­tu­tion of the Repub­lic of Uzbek­istan”, des­pite its obvi­ous sim­il­ar­ity with the pres­id­en­tial repub­lic, is not identic­al to it either. It does not have a “rigid” sep­ar­a­tion of powers and fea­tures that are atyp­ic­al for a pres­id­en­tial repub­lic, primar­ily such powers of the Pres­id­ent of Uzbek­istan as the right to ini­ti­ate legis­la­tion and the right to pre­ma­turely ter­min­ate the powers of the cham­bers of the Oliy Mazh­lis. The “rigid­ity” of the sep­ar­a­tion of powers, which is a fun­da­ment­al con­di­tion for clas­si­fy­ing the form of gov­ern­ment as a pres­id­en­tial repub­lic, does not provide for the vest­ing of the pres­id­ent with the above-men­tioned powers.

Art. 99 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, which reg­u­lates the legis­lat­ive pro­cess in the Oliy Mazh­lis, estab­lishes, in par­tic­u­lar, the pro­ced­ure for over­com­ing the veto of the Pres­id­ent by the cham­bers of the Oliy Mazh­lis and the oblig­a­tion of the Pres­id­ent to pro­mul­gate the law in case the cham­bers over­come the pres­id­en­tial veto. In Parts 9 and 10 of Art. 99 it is fixed that “The Pres­id­ent of the Repub­lic of Uzbek­istan has the right to return the law with his objec­tions to the Oliy Mazh­lis of the Repub­lic of Uzbek­istan. If the law in the pre­vi­ously adop­ted ver­sion is approved by a major­ity of at least two-thirds of the total num­ber of depu­ties of the Legis­lat­ive Cham­ber and mem­bers of the Sen­ate of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan, respect­ively, the law must be signed by the Pres­id­ent of the Repub­lic of Uzbek­istan with­in four­teen days and pro­mul­gated. The pro­ced­ure for over­com­ing the veto of the head of state and the entry into force of the law, determ­ined by the new ver­sion of the Con­sti­tu­tion of Uzbek­istan, cre­ates an oppor­tun­ity for the Pres­id­ent of Uzbek­istan, ignor­ing the fact of over­com­ing his veto, to stop the legis­lat­ive pro­cess at the stage of pro­mul­ga­tion of the law. After the Legis­lat­ive Cham­ber and the Sen­ate of the Oliy Mazh­lis over­ride the Pres­id­ent’s veto, the head of state may refuse to sign and pro­mul­gate the law. In this case, since accord­ing to Part 11 of Art. 99, “the pub­lic­a­tion of laws and oth­er reg­u­la­tions is a pre­requis­ite for their applic­a­tion”, the legis­lat­ive pro­cess will be ter­min­ated. Ter­min­a­tion by the Pres­id­ent of Uzbek­istan of the legis­lat­ive pro­cess at the stage of pro­mul­ga­tion of the law is pos­sible, since the new ver­sion of the Con­sti­tu­tion of Uzbek­istan does not provide for any form of con­sti­tu­tion­al and leg­al respons­ib­il­ity of the head of state.

Art. 113 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan estab­lishes: “The Pres­id­ent of the Repub­lic of Uzbek­istan, who resigned upon the expir­a­tion of his powers, holds the pos­i­tion of a mem­ber of the Sen­ate of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan for life”. Accord­ing to Part 3 of Art. 104 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, bring­ing a sen­at­or to crim­in­al liab­il­ity, deten­tion, arrest or applic­a­tion of meas­ures of admin­is­trat­ive respons­ib­il­ity to him is pos­sible only with the con­sent of the Sen­ate. There­fore, the cited con­sti­tu­tion­al pro­vi­sion should be con­sidered a norm­at­ive guar­an­tee of the immunity of the ex-pres­id­ents of Uzbekistan.

Art. 106 of the Con­sti­tu­tion­al Law “On the Con­sti­tu­tion of the Repub­lic of Uzbek­istan” states: “A cit­izen of the Repub­lic of Uzbek­istan not young­er than thirty-five years old, flu­ent in the state lan­guage, per­man­ently resid­ing in the ter­rit­ory of Uzbek­istan for at least 10 years imme­di­ately before the elec­tions can be elec­ted Pres­id­ent of the Repub­lic of Uzbek­istan. The same per­son can­not be the Pres­id­ent of the Repub­lic of Uzbek­istan for more than two con­sec­ut­ive terms. The Pres­id­ent of the Repub­lic of Uzbek­istan is elec­ted by the cit­izens of the Repub­lic of Uzbek­istan on the basis of uni­ver­sal, equal and dir­ect suf­frage by secret bal­lot for a peri­od of sev­en years. The pro­ced­ure for elect­ing the Pres­id­ent of the Repub­lic of Uzbek­istan is determ­ined by law”. This art­icle repro­duces ver­batim Art. 90 of the cur­rent ver­sion of the Con­sti­tu­tion of Uzbek­istan, with the excep­tion of the pro­vi­sion on the term of office of the Pres­id­ent of Uzbek­istan. The cur­rent ver­sion of the Con­sti­tu­tion of Uzbek­istan estab­lishes a five-year term of office for the President.

The increase in the term of office of the Pres­id­ent of Uzbek­istan from five to sev­en years is a com­pletely regress­ive amend­ment. The sev­en-year term of office of the pres­id­ent does not agree well with the idea of his respons­ib­il­ity to the people, reflec­ted in Art. 2 of the new ver­sion of the Con­sti­tu­tion of Uzbek­istan. The fail­ure of the pres­id­ent’s policy, which can­not be grounds for impeach­ment, is too high a price for a long term of office. At the same time, the obvi­ous suc­cess of the pres­id­ent’s policy is a pre­requis­ite for his re-elec­tion for a new term. The optim­al term for a pres­id­ent to serve is four to five years. Such a term of office, as well as the con­sti­tu­tion­al ban on one per­son hold­ing the pres­id­ency for more than two con­sec­ut­ive terms, pre­vent the trans­form­a­tion of his power into a long-term one-man dic­tat­or­ship. The men­tioned restric­tions are cer­tainly bet­ter than a ban on re-elec­tion or the pos­sib­il­ity of unlim­ited re-elec­tion of the president.

A four-five-year pres­id­en­tial term is a well-estab­lished mod­ern norm for developed repub­lics. Here it is worth men­tion­ing the latest French exper­i­ence. Until 2000, the term of office of the Pres­id­ent of France was 7 years. In Septem­ber 2000, by ref­er­en­dum, his term of office was lim­ited to 5 years.

The main effect of chan­ging the con­sti­tu­tion­al pro­vi­sions on the term of office of the Pres­id­ent of Uzbek­istan is not in increas­ing the dur­a­tion of the President’s term, but in the fact that chan­ging these pro­vi­sions has become a tech­nic­al and leg­al means of “zero­ing out” the entire ten­ure of the Pres­id­ent of Uzbek­istan Shavkat Mirz­iyoyev. After the entry into force of con­sti­tu­tion­al changes, the term of office of the Pres­id­ent of Uzbek­istan Shavkat Mirz­iyoyev is increased to sev­en years and the cal­cu­la­tion of this peri­od begins from the moment the pos­it­ive res­ult of the ref­er­en­dum is offi­cially announced.

Sep­ar­ate atten­tion deserves such a fea­ture of the form of gov­ern­ment estab­lished by the new ver­sion of the Con­sti­tu­tion of Uzbek­istan, as the absence of the insti­tu­tion of impeach­ment. In mod­ern repub­lics, impeach­ment is the only form of con­sti­tu­tion­al and leg­al respons­ib­il­ity of the pres­id­ent, with rare excep­tions. There­fore, giv­en the absence of the insti­tu­tion of impeach­ment in the form of gov­ern­ment under study, it is cor­rect to assert that the Pres­id­ent of Uzbek­istan is an offi­cial who is not sub­ject to con­sti­tu­tion­al and leg­al respons­ib­il­ity. The strong power of the pres­id­ent should provide for his pro­por­tion­al con­sti­tu­tion­al and leg­al respons­ib­il­ity. How­ever, the new ver­sion of the Con­sti­tu­tion of Uzbek­istan com­bines a huge amount of powers of the Pres­id­ent of Uzbek­istan with his com­plete polit­ic­al and leg­al irre­spons­ib­il­ity. This fact is com­pletely dis­son­ant with the offi­cially declared inten­tion to “strengthen … the mech­an­isms of checks and bal­ances in the branches of power”.

Accord­ing to Clause 11 of Art. 109 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, the Pres­id­ent “appoints, with the approv­al of the Sen­ate of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan, the Pro­sec­utor Gen­er­al of the Repub­lic of Uzbek­istan, the chair­man of the Accounts Cham­ber of the Repub­lic of Uzbek­istan and dis­misses them”, and accord­ing to Clause 12 of Art. 109 the Pres­id­ent “appoints, after con­sulta­tions with the Sen­ate of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan, the chair­man of the State Secur­ity Ser­vice of the Repub­lic of Uzbek­istan and dis­misses him from office”. The Pres­id­ent also appoints and dis­misses, on the pro­pos­al of the Supreme Judi­cial Coun­cil, the chair­men and deputy chair­men of the courts of the regions and the city of Tashkent, the chair­man of the Mil­it­ary Court (Clause 14 of the Art. 109 of the new edi­tion of the Con­sti­tu­tion of Uzbekistan).

The decis­ive role is played by the Pres­id­ent in the pro­cess of form­ing the com­pos­i­tion of the Con­sti­tu­tion­al Court, the Supreme Court, the Supreme Judi­cial Coun­cil, as well as in appoint­ing the Chair­man of the Board of the Cent­ral Bank, the head of the repub­lic­an anti-cor­rup­tion body and the head of the repub­lic­an anti­mono­poly body, since the Sen­ate of the Oliy Mazh­lis makes the rel­ev­ant appoint­ments on the pro­pos­al of the head of state (Clause 13 Art. 109 of the new edi­tion of the Con­sti­tu­tion of Uzbekistan).

One of the destruct­ive fea­tures of the pres­id­en­tial­ized form of gov­ern­ment adop­ted in the post-Soviet space is the empower­ment of cer­tain state author­it­ies with func­tions and powers that are not char­ac­ter­ist­ic of them. In par­tic­u­lar, accord­ing to Clause 8 of Art. 109 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, the Pres­id­ent of Uzbek­istan “rep­res­ents a can­did­ate to the Sen­ate of the Oliy Mazh­lis of the Repub­lic of Uzbek­istan for elec­tion to the post of Chair­man of the Senate”.

Art. 10 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan states that “On behalf of the people of Uzbek­istan, only the Oliy Mazh­lis elec­ted by them and the Pres­id­ent of the Repub­lic of Uzbek­istan can speak”. Accord­ing to the ideas estab­lished in the the­ory of con­sti­tu­tion­al law, only the par­lia­ment, elec­ted by the entire elect­or­al corps, rep­res­ents all the cit­izens of the state, but the par­lia­ment can­not rep­res­ent the state and per­son­i­fies only the legis­lat­ive branch of power. At the same time, the pres­id­ent, as the head of state, exer­cises the supreme rep­res­ent­a­tion of the state as a whole, and not of a sep­ar­ate branch of power. The pres­id­ent as the head of state, how­ever, can­not rep­res­ent the whole people, since he is elec­ted only by a part of it. If the res­ult of vot­ing in pres­id­en­tial elec­tions is determ­ined by the major­ity sys­tem of rel­at­ive major­ity, then the said part may also con­sti­tute an abso­lute minor­ity of the num­ber of vot­ing participants.

Accord­ing to Clause 2 of Art. 133 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan, the Pres­id­ent of Uzbek­istan signs con­sti­tu­tion­al laws. The fun­da­ment­al dif­fer­ence between con­sti­tu­tion­al laws and ordin­ary laws is that the adop­tion of the lat­ter by the par­lia­ment is a form of rule-mak­ing activ­ity of the state. Hence the sim­pli­fied pro­ced­ure for adopt­ing ordin­ary laws and the fac­ultat­ive nature of the con­sti­tu­tion­al con­trol exer­cised over them. Amend­ing the con­sti­tu­tion or adopt­ing con­sti­tu­tion­al laws is a form of exer­cise of the con­stitu­ent power of the people. Accord­ing to their leg­al char­ac­ter­ist­ics (leg­al nature and leg­al force), con­sti­tu­tion­al laws are no dif­fer­ent from the con­sti­tu­tion. There­fore, the head of state can­not apply the right of veto or the right of pro­mul­ga­tion to con­sti­tu­tion­al laws. Giv­ing the pres­id­ent the right to pro­mul­gate con­sti­tu­tion­al laws means that the pos­sib­il­ity of exer­cising the con­stitu­ent power of the people is depend­ent on the will of one of the “estab­lished” author­it­ies, whose powers are derived from the supreme con­stitu­ent power of the people.

Art. 98 of the new edi­tion of the Con­sti­tu­tion of Uzbek­istan gives the right of legis­lat­ive ini­ti­at­ive to the Con­sti­tu­tion­al Court of Uzbek­istan and the Supreme Court of Uzbek­istan. As a gen­er­al rule, the con­sti­tu­tions of developed coun­tries do not give the right of legis­lat­ive ini­ti­at­ive to the courts and bod­ies of con­sti­tu­tion­al jur­is­dic­tion. It is believed that empower­ing these sub­jects with the right of legis­lat­ive ini­ti­at­ive pro­vokes their trans­form­a­tion into act­ive par­ti­cipants in the polit­ic­al pro­cess. It is also obvi­ous that the imple­ment­a­tion of the right of legis­lat­ive ini­ti­at­ive by the Con­sti­tu­tion­al Court of Uzbek­istan will inev­it­ably entail a situ­ation where the body of con­sti­tu­tion­al jur­is­dic­tion will be forced to veri­fy the con­sti­tu­tion­al­ity of the law, the developer of which he him­self was. In such a situ­ation, the prob­lem of “judging in one’s own case” will arise and it will be impossible to guar­an­tee the impar­ti­al­ity of the Con­sti­tu­tion­al Court.

Con­clu­sions

So, the new edi­tion of the Con­sti­tu­tion of Uzbek­istan estab­lishes an eclect­ic pres­id­en­tial­ized form of gov­ern­ment, which can­not be clas­si­fied either as a mixed repub­lic­an or as a pres­id­en­tial one. The atyp­ic­al­ity of this form of gov­ern­ment also lies in the fact that it does not provide for any form of con­sti­tu­tion­al and leg­al respons­ib­il­ity of the Pres­id­ent of Uzbek­istan, the coun­ter­sign­ing of his acts by mem­bers of the Cab­in­et of Min­is­ters, sig­ni­fic­antly dis­torts the par­lia­ment­ary invest­it­ure of the Cab­in­et of Min­is­ters of Uzbek­istan and fun­da­ment­ally com­plic­ates his par­lia­ment­ary respons­ib­il­ity. Assum­ing the ter­min­a­tion of the powers of the Cab­in­et of Min­is­ters before the newly elec­ted Oliy Mazh­lis and secur­ing the right of the Par­lia­ment to approve the can­did­acy of the Prime Min­is­ter, the new ver­sion of the Con­sti­tu­tion of Uzbek­istan at the same time links the con­tent of the pro­gram of the Cab­in­et of Min­is­ters not with the pro­gram prin­ciples of the fac­tions of the par­lia­ment­ary major­ity, but with the polit­ic­al course of the Pres­id­ent. The absence of a full-fledged par­lia­ment­ary invest­ment of the Cab­in­et of Min­is­ters of Uzbek­istan and the nul­li­fic­a­tion of the pos­sib­il­ity of its real par­lia­ment­ary respons­ib­il­ity indic­ate that the Oliy Mazh­lis of Uzbek­istan is deprived of tools for dir­ect influ­ence on the polit­ic­al course of the Cab­in­et of Min­is­ters of Uzbek­istan. In this state of affairs, par­lia­ment­ary elec­tions, which res­ult in the emer­gence of a new align­ment of polit­ic­al forces in the legis­lature, do not entail changes in gov­ern­ment policy. The policy of the Cab­in­et of Min­is­ters of Uzbek­istan will remain unchanged as long as the polit­ic­al course of the Pres­id­ent remains unchanged.

Giv­en the right of the Pres­id­ent of Uzbek­istan to ter­min­ate the powers of any mem­ber of the Cab­in­et of Min­is­ters of Uzbek­istan and the gov­ern­ment as a whole, the right to can­cel acts of the Cab­in­et of Min­is­ters, the right to chair meet­ings of the Cab­in­et of Min­is­ters, it should be con­sidered that the ele­ments of par­lia­ment­ar­ism in the form of gov­ern­ment under study do not elim­in­ate the admin­is­trat­ive depend­ence of the Cab­in­et of Min­is­ters of Uzbek­istan from the Pres­id­ent of Uzbek­istan. In fact, the ter­min­a­tion of the powers of the Cab­in­et of Min­is­ters of Uzbek­istan before the newly elec­ted Oliy Mazh­lis and the approv­al of the can­did­a­cies of mem­bers of the gov­ern­ment by the Legis­lat­ive Cham­ber of the Oliy Mazh­lis for their appoint­ment by the Pres­id­ent only cam­ou­flage the fact that the Pres­id­ent of Uzbek­istan com­bines the func­tions of head of state and head of exec­ut­ive power.

Obvi­ously, the form of gov­ern­ment provided for by the Con­sti­tu­tion­al Law “On the Con­sti­tu­tion of the Repub­lic of Uzbek­istan”, giv­en the level of its pres­id­en­tial­iz­a­tion, will inev­it­ably give rise to author­it­ari­an tend­en­cies in the func­tion­ing of the state mech­an­ism and hinder the devel­op­ment of civil soci­ety. The admin­is­trat­ive sub­or­din­a­tion of the Cab­in­et of Min­is­ters of Uzbek­istan to the Pres­id­ent of Uzbek­istan and the trans­form­a­tion of the lat­ter into a real head of exec­ut­ive power will entail the func­tion­al sub­sti­tu­tion of the highest col­legi­al body of exec­ut­ive power, the gov­ern­ment, with a sole body, i.e. the Pres­id­ent of Uzbek­istan. It is nat­ur­al that the Pres­id­ent of Uzbek­istan will also use oth­er polit­ic­al insti­tu­tions to ensure and strengthen his own legitimacy.

Leila Nazgul Seiit­bek, Head of the work­ing group, Law­yer, Chair­wo­man of the “Free­dom of Euras­ia” non­gov­ern­ment­al organization 

Mem­bers of the work­ing group

Martyni­uk Roman Stan­isla­vovych, Can­did­ate of Polit­ic­al Sci­ences, Asso­ci­ate Pro­fess­or, Y. Malyn­ovskyi Edu­ca­tion­al and Sci­entif­ic Insti­tute of Law of the Nation­al Uni­ver­sity “Ostroh Academy”, Ukraine, Ostroh, e‑mail: roman.s.martyniuk@ukr.net

ORCID:https://orcid.org/0000–0003-4469–7762

Dat­si­uk Oleksii Oleksiy­ovych, Can­did­ate of Philo­lo­gic­al Sci­ences, Asso­ci­ate Pro­fess­or, Y. Malyn­ovskyi Edu­ca­tion­al and Sci­entif­ic Insti­tute of Law of the Nation­al Uni­ver­sity “Ostroh Academy”, Ukraine, Ostroh, e‑mail: 909.stv@ukr.net

ORCID: https://orcid.org/0000–0003-2293–6371