The death of Uzbekistan's president Islam Karimov has left a power vacuum in the country's elite. (c) Umida Akhmedova / AP / Press Association Images. All rights reserved.
This article originally appeared in Fergana News. We are grateful for permission to translate and repost it here.
Under Article 96 of Uzbekistan’s constitution, if the president dies or is unable to carry out his duties, the chair of the senate, the upper house of the country’s parliament, should become interim president until a new election is held. But Nigmatulla Yuldashev, Uzbekistan’s current senate chair, is a rather obscure politician who, pleading lack of governmental experience, has refused to accept his nomination. This didn’t bother Uzbekistan’s parliamentarians in the least — they immediately cracked the problem of legitimising the PM as interim president.
A joint session of the two houses on 8 September was devoted entirely to creating a “legal legislative framework” for handing prime minister Mirziyoyev the reins of power. After Yuldashev formally refused the job, everyone — the speaker of the lower house, Yuldashev himself as chair of the senate, the leaders of all the parliamentary parties, all the regional governors and rank-and-file deputies and senators — lined up to make lengthy speeches.
Each of them, after bemoaning the “great loss” of president Karimov, made identical pronouncements about the momentousness of the decision before them, extolling the virtues of Shavkat Mirziyoyev, the only man who could possibly save his country in this fateful hour.
“Get the man, and the rest will follow”
A key contributor to this parliamentary “debate” was Akmal Saidov, the director of Uzbekistan’s National Human Rights Centre and chair of the parliamentary committee for democratic Institutions, non-governmental organisations and local government bodies.
Indeed, Saidov is well known in international circles as the official who regularly reports to UN committees on human rights and the use of torture in Uzbekistan. He is Uzbekistan’s “Teflon man” (criticism just doesn’t stick), and just the person you need to get the government out of a tricky situation.
3 September, 2016: Uzbek men gather to pay their last respects during the funeral of President Islam Karimov in Samarkand. (c) AP / Press Association Images. All rights reserved.In his speech, Saidov produced sufficient, in his opinion, grounds for appointing Mirziyoyev as interim president, beginning with the legal and constitutional aspects of the issue. “The obvious question here is whether there are legal, constitutional grounds for this decision. As a lawyer myself, I believe that there are. In the first place, articles 81 and 11 state that the question of the appointment of an interim president may be discussed at a joint meeting of the two houses of parliament.
“In the second place, the first part of Article 82 allows parliament to take a decision on this matter. And this decision has the status of a law. So our decision is equivalent to a law.
“And in the third place, there is no constitutional prohibition or restriction forbidding the head of the Senate to refuse to undertake any presidential functions. He or she is free to decline.”
According to Saidov, these are already sufficient legal grounds for appointing Mirziyoyev. He added, however, that “at the present time there are also important political, moral and spiritual grounds” for the decision, citing Mirziyoyev’s legislative, state-building and, of course, spiritual credentials.
“Shavkat Mirziyoyev, our leader recommended you as prime minister from this platform four times, supporting your candidature in 2003, 2005, 2010 and 2015, as did our parliamentarians as well. Our Yurtbashi [term of respect] is unfortunately no longer with us, but both the deputies and senators request you take on the role of interim president, knowing you will continue his programme of reform. I believe that if you accept these duties, you will please the Yurtbashi’s spirit. He would say, ‘My work is in safe hands’. May Allah himself and the Saints support you in this responsible task.”
Commentaries on the appointment of prime minister Shavkat Mirziyoyev as interim president
Many observers regarded Akmal Saidov’s arguments as highly dubious. Below are the verdicts of some independent specialists, including lawyers from the Tashabbus organisation, on the legality of the unconstitutional handover of power in Uzbekistan and the validity of Akmal Saidov’s arguments justifying it.
1) Akmal Saidov’s first argument: the lower and upper houses of parliament can hold a joint session to debate any important matter affecting the country’s socio-economic life.
This interpretation of Article 81 of Uzbekistan’s constitution seriously distorts the article’s meaning. The ninth paragraph of this article reads as follows: “Joint sessions of the lower and upper Houses of parliament take place for the following reasons: the inauguration of the president of the Republic of Uzbekistan; statements by the president of the Republic of Uzbekistan on important matters of socio-political life, the internal and external politics of the country, and addresses from other heads of state. The lower and upper houses may also agree to hold joint sessions on other matters”.
Article 81 does not envisage discussion of “any” important matter; it simply talks about “other matters”. In legal terms, there is a big difference between the formulations “any important matter” and “other matters”, and the principle of the division of government powers gives no one body the right to debate “any important matter” (see below for further clarification).
1 September: Uzbek girls stand next to a banner showing Islam Karimov and Nursultan Nazarbayev, president of Kazakhstan, in Tashkent. (c) Umida Akhmedova / AP / Press Association Images. All rights reserved.In other words, joint sessions may debate not any important matter affecting the country’s socio-economic life, but only those that fall within their general powers.
2) Akmal Saidov’s second argument: the decision–making powers of the two houses of parliament are enshrined in current legislation. At a joint session of parliament the two chambers take joint decisions on the matters debated.
It’s not easy to fathom what Saidov meant by this point. The two chambers’ power to take decisions or the legality of those decisions is not in question. The public has no argument with these decision-taking powers. Public criticism is aimed at the content and meaning of the decision that has been taken, and this point of Saidov’s throws no further light on this issue.
3) Akmal Saidov’s third argument: in difficult situations where the head of the senate refuses to take on any powers or responsibilities, parliament has no right to force him or her to do so. These actions by parliament contradict the rights of individuals to freely express their will and choose their own employment as they see fit.
Here Akmal Saidov puts forward two points, which we shall consider separately.
When you undertake a legal analysis, it is not a good idea to rely on vague terms, such as “difficult situations”, that carry no legal weight. There is no clear answer to the question of which situations may be defined as “difficult” and which normal or just slightly out of the ordinary. When an issue is based on such vague concepts, it creates fertile ground for the law to be inadequately observed or completely ignored. Decisions to limit the observance of the constitution or the law of the land may only be taken if a state of martial law is declared — in a situation, for example, of armed skirmishes, a danger of aggression, civil war, armed demonstrations or natural disasters. None of these have been observed in Uzbekistan.
Akmal Saidov is right to declare that no one can be forced to do something against their will. So, just as no one can be forced to weed the cotton fields or pick cotton, the head of the senate cannot be forced to become interim president.
29 August: Municipal workers clean Tashkent's Independence Square ahead of Independence Day in Uzbekistan. (c) AP / Press Association Images. All rights reserved.The question is not, however, about forcing Nigmatulla Yuldashev to perform his duties. When someone is appointed to a government post, it is on the understanding that he or she is capable of carrying out the responsibilities of the job, no matter how difficult the situation.
On that question, the constitution is quite clear and requires no further legal explanation. According to Article 96, if the president is incapable of performing his duties, his powers and responsibilities are temporarily transferred to the head of the senate. This is the law and must be followed.
So if Yuldashev does not feel up to the responsibilities outlined in article 96, he should voluntarily resign his post or be dismissed from it, and someone else should be appointed to head the senate. The postholder is not at liberty to accept some responsibilities and hand the rest over to someone else.
4) Akmal Saidov’s fourth argument: neither the constitution nor the law of the land stipulate who should be appointed interim president if the head of the Senate refuses the appointment.
There is in fact no legal concept of “refusal to accept powers”. As was noted above, an official has to carry out his or her responsibilities either in full, or not at all.
The law is clear on this point. Nigmatulla Yuldashev said that he couldn’t perform the duties of a president, but didn’t resign from his post. In this case, the Senate should have dismissed him, as incapable of carrying out his official duties, and the duties of heading the senate should have been handed over to one of his deputies.
Constitutionally, the governmental system has three branches: legislative, executive and judicial. And the performance of tasks outside their individual competence is forbidden.
So, for example, only the legislative assembly and the president may speak for the people of Uzbekistan (article 10). The cabinet of ministers is accountable to the legislative assembly and the president (article 98). If we look at the question from this angle, we can throw light on the real meaning of article 96-1: when the president, who acts on behalf of the public, can’t perform his duties and powers, then his functions have to be transferred to a second organ, the one elected by the public, who delegate their powers to it – the legislative assembly.
5. Akmal Saidov’s fifth argument: each deputy or senator has the right to speak and express their views on any given question during sittings of the legislative assembly or senate
This is irrelevant, because the public is under no doubt about the rights of parliamentarians and is only interested in whether the decision of the head of the senate to hand over his powers to the prime minister is constitutional.
It is clear from this legal analysis that the decision was in fact a serious breach of the constitution and constitutional legislation.
So who then should take the final decision? The law says that situations of this kind, where there is a dispute between the executive and legislative powers, should be resolved by a third, independent branch of government, the Constitutional Court.
Uzbekistan’s Constitutional Court has however so far remained silent on the issue. Founded 20 years ago, it has taken only 32 decisions in that time — an average of one and a half decisions a year. And this despite the fact that there are hundreds of legislative measures and legal and political processes requiring its conclusions or commentaries in Uzbekistan.
We must hope that the Constitutional Court will decide to give its attention to the issues laid out in this article, and our analysis of them.”
The Constitutional Court is as silent as the grave. Its website was last updated on 16 June this year. It is clear that it will not make a sound about the constitutional breach carried out by Shavkat Mirziyoyev and his associates. In Uzbekistan, it is not customary to cast doubt on the actions of the head of state. And Mirziyoyev’s confirmation as president is already a fait accompli.
Thus, we can expect a show presidential election will take place according to an already well established script in which all the characters — voters, candidates, the central electoral committee, the media — will politely play their well rehearsed, but meaningless roles. As usual.
The Yurtbashi’s spirit will be pleased.
Translated by Liz Barnes.
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