Multitraditionalist Constitutional Identity in Uzbekistan and Its Impact on Core Constitutional Goals.

Ismatov Aziz

Nagoya University, Japan

Background

The current Constitution of Uzbekistan was enacted in 1992 after the demise of the USSR. Hence, it is often referred to as the ‘First Constitution’ or the ‘Karimov Constitution’ after the name of  the first President who held office from 1989 to 2016. Indeed, some domestic legal scholars who were members of the constitution draft commission asserted that Karimov was the ‘main author of the Constitution’. The term ‘first’ in the context of the 1992 Constitution does not always make sense because it ignores the role and essence of the previous three socialist constitutions. The principal difference between the 1992 Constitution and the previous constitutions is the fact that it was not directly and unconditionally imposed by the USSR, but developed and adopted by an independent, sovereign government. While acknowledging the primacy of international law, this constitution does not mention communist ideology, proletarian class dictatorship, democratic centralism, or single-party leadership. Simultaneously, this Constitution embraces various traditions which ultimately act against one another and do not appear to offer effective practical protection of rights that is the core constitutional purpose.

Shift away from the socialist constitutional material guarantees 

The first sentence in the Preamble indicates  that “the people of Uzbekistan solemnly declare their adherence to human rights and principles of state sovereignty”. By referring to human rights, the members of the draft commission presumably wanted to demonstrate a shift from socialist, traditional belief to a realisation that the constitution must recognize and protect rights not only for citizens but also for foreigners, refugees, and stateless people who live and work in Uzbekistan legally. This constitution also explicitly indicates a shift away from the ‘socialist-oriented’ economic, social, and cultural rights enshrined in the previous socialist constitutions. The draft negotiation process demonstrates that most of these rights would be difficult or nearly impossible to realize within the new socio-political realities of transition. During the draft and nation-wide discussion process, commission members received multiple suggestions and recommendations from private and public actors to amend the economic and social rights with their reference to the predecessor socialist constitutions. For example, numerous recommendations from private parties, suggested including into the 1992 Constitution provisions on free education at all levels and free healthcare as were enshrined in articles 40 and 47 of the 1978 Socialist Constitution. These suggestions did not find support with the commission. Article 41 of the 1992 Constitution now provides for the right to education, but only provides for free education at the primary level. Article 40 provides only for a right to qualified healthcare and contains no reference to free or exceptional cases of state-covered healthcare.

Similarly, the previous socialist constitution provided that citizens had the right to be employed and have state-provided housing. That made the state directly responsible for creating and managing jobs as well as for providing housing assistance. A group of activists demanded that the articles regulating employment and housing in the 1992 Constitution also contain similar wording. However, the 1992 Constitution merely provides that “everyone has the right to work ... and unemployment protection as prescribed by law”.  As for the right to housing, the 1992 Constitution does not include any explicit provision similar to that of the 1978 Constitution.

Advanced concepts in the 1992 Constitution and the reasons behind their adoption

Most notably, the 1992 Constitution includes and enhances several human rights, some of which were transplanted from the Universal Declaration of Human Rights. Although the practical implementation of these rights still raises many questions, they were considered crucial for the democratic and economic state-building of Uzbekistan in the post-1992 period. The aforementioned constitutional novelties came into existence because of several factors. First, the unexpected state sovereignty forced Uzbekistan – along with other former Soviet Republics – to deal with new challenges, including legal reforms, in a rapid manner. Such a situation necessitated the introduction of key principles of the market economy, such as respect for and protection of private property, free competition, and freedom of movement. As these ideas existed in successful market-economies elsewhere, they appeared crucial, to policymakers in Uzbekistan who unanimously decided to safeguard them. Therefore, the 1992 Constitution started recognizing de jure some of these principles. Subsequently, the reflection of many universal human rights, the creation of a standalone constitutional court, and the ratification of a range of international human rights treaties was considered as a step towards qualifying for membership of the so-called ‘international democracy club’. Finally, the 1992 Constitution sets up a mechanism of checks-and-balances between different branches of the government and refers to the ‘law-governed state’ (pravovoe gosudarstvo).

Rechtstaat, Etat de Droit, or Rule by the Law?

The term ‘law-governed state’ (pravovoe gosudarstvo) within the text of the 1992 Constitution appears once in the Preamble. The mere existence of this term with no definition creates a legal-terminological axiom as it may theoretically reflect several meanings. First, it is a Russian equivalent of the German term Rechtsstaat. The concept of Rechtstaat is more oriented towards the nature of the state and has its roots in the written constitution. Historically, a Rechtstaat was seen as a counterforce to absolutist state power in which the executive branch had unlimited authority. Hence it presupposed strong judicial and legislative branches as necessary conditions for well-balanced power. This term was imported from Germany to Russia in the late 19 century, and it was subsequently borrowed from Russia by some former Soviet republics, including Uzbekistan. Another possible meaning lies in the French originated concept of Etat de Droit, a positivist concept of the pravovoe gosudarstvo, which concentrates more on the state’s supervision of statutes. Furthermore, such a terminological axiom looks even more obscure because Article 15 of the 1992 Constitution contains a provision on the ‘verkhovenstvo konstitutsii i zakona’ which means ‘rule by the law’, not ‘rule of law’. Scholars renounce ambiguous legal terminological practices and focus on the ‘rule by the law’ phrasing, as it is a distinguishing characteristic of many new democracies that had experienced socialism, authoritarianism, or evolved within the conditions of socialist legality (a more detailed analysis is available in Chapter 11 of Martin Loughlin’s Foundations of Public Law)

Re-introduction of citizens’ rights or introduction of natural human rights?

The 1992 Constitution quite flawed, specifically when it comes to human rights. First, although the 1992 Constitution introduced  the term ‘human rights’, it does not provide a clear distinction between human rights and citizen rights; in fact, it conflates them. The 1992 Constitution dedicates its Part II to the Basic Human and Citizen Rights, Freedoms and Duties, and combines many universal human rights. By making provision both for equal rights and freedoms for citizens (Article 11) and for state guarantees for the rights and freedoms of citizens (Article 43), this Constitution signals that select provisions on human rights are only extended to citizens. The human righst provisions therefore seemingly to do not apply to foreigners, refugees and stateless persons who legally reside and work in Uzbekistan. Many progressive foreign constitutions do not draw such a distinction between citizens and non-citizens. Second, many rights in the 1992 Constitution make further references to the laws adopted by parliament and normative-legal acts (normativno-pravovye akty) adopted and promulgated by public agencies. This outsourcing paves the way for both, public agencies to promulgate normative-legal acts that may arbitrarily limit constitutional rights, and create obstacles to the exercise and protection of constitutional rights. Eventually, such constitutional multitraditionalism that embraces socialist and non-socialist approaches creates a conceptual conflict and affects constitutional protection of rights.

Ismatov Aziz is the Assistant Professor, Center for Asian Legal Exchange, Nagoya University.

Suggested Citation: Ismatov Aziz, ‘Multitraditionalist Constitutional Identity in Uzbekistan and Its Impact on Core Constitutional Goals.’ IACL-IADC Blog (31 March 2020) https://blog-iacl-aidc.org/2020-posts/2020/3/31/multitraditionalist-constitutional-identity-in-uzbekistan-and-its-impact-on-core-constitutional-goals