Asiaterra.info: Will Shavkat Mirziyoyev’s third presidential term be legitimate?

Translated from: Президент ненастоящий, или о легитимности третьего срока Мирзиёева (asiaterra.info)

MIRZIYOYEV IS GOING TO HIS THIRD PRESIDENTIAL ELECTION – IN DEFIANCE OF THE CONSTITUTION

In the course of the election campaign that is coming to an end in Uzbekistan, there is almost no concealment that the extraordinary presidential elections are designed only to “zero out” the two presidential terms of Shavkat Mirziyoyev and allow him to be elected again, now twice in seven years, given that the duration of the head of state’s stay in power is increasing by two years. (Мирзиёев собрался на свои третьи президентские выборы – вопреки Конституции (asiaterra.info)).

The government-controlled media have been saying for months that the recent amendments to the Basic Law somehow “abolish” his previous terms. However, they fail to justify this from the legal, the only legal point of view: the Constitution of Uzbekistan directly indicates that Mirziyoyev’s participation in the elections is illegal. And therefore, this is an open crime – a conspiracy against the people of Uzbekistan to seize power (Article 159 of the Uzbek Criminal Code).

EDITING THE CONSTITUTION

From the very beginning of his second and, according to the legislation, his last term, Mirziyoyev began to throw a fishing rod that it is necessary to change the Basic Law – it is, they say, such a necessity. He made this proposal as early as November 6, 2021 (Шавкат Мирзиёев заявил о необходимости конституционных реформ – Новости Узбекистана – Газета.uz (gazeta.uz)), during his inauguration speech for his second term, citing the wishes of “the electorate. A month later, in a speech on the occasion of the 29th anniversary of the Constitution, he returned to the subject and advocated the adoption of amendments by the 30th anniversary of the Constitution, that is, by December 8, 2022 (Конституцию планируется обновить в 2022 году – Новости Узбекистана – Газета.uz (gazeta.uz)). It is clear that Mirziyoyev cannot simply hand over power to the next president: he will immediately find himself in prison for embezzlement, corruption and other crimes («Общество не готово», или почему узбекистанцы не могут избирать глав администраций (asiaterra.info)), so it was necessary to begin preparations for an indefinite extension of his rule in advance.

After this there was a lull for a while, and in the spring of the next year, 2022, the people in power started talking about the urgent need to “update the Constitution. Finally, with a corresponding proposal, on 16 May 2022, at a meeting of the Legislative Chamber of Oliy Majlis (the lower house of parliament – ed.) the deputies of the Liberal Democratic Party (UzLiDeP) came out (Состоялось заседание фракции УзЛиДеП, посвященное важному вопросу | УзЛиДеП (uzlidep.uz)). The report describes it as follows: “the members of the faction …. voiced their position on bringing it in line with today’s realities, creating a more modern legal basis for the development strategy of New Uzbekistan”. (Of course, no one doubts that they were “asked” to do this; representatives of this very party twice nominated Islam Karimov as a candidate, in 2007 and 2015, when by law he could no longer run.)

Four days later, on May 20, at a joint session of the lower and upper chambers of Uzbekistan’s parliament, a constitutional commission was formed to draft amendments to the Constitution, which had not even been invented at the time (Комиссию по реформе конституции возглавил Акмаль Саидов – Новости Узбекистана – Газета.uz (gazeta.uz)). It was headed by Akmal Saidov, first vice-speaker of the Legislative Chamber and director of the National Center for Human Rights, who had participated in the drafting of the 1992 Constitution, which concentrated all the levers of power in the hands of the head of state.

A month later, on June 20, Mirziyoyev proposed adopting the amendments by popular vote. “If we carry out constitutional reform through a referendum, based on the opinion and support of our citizens, it will be the will of our people,” he said. (Президент предложил принять поправки в Конституцию через референдум – Новости Узбекистана – Газета.uz (gazeta.uz))

The next day, the draft amendments were submitted to the Legislative Chamber, which approved the first reading on June 24, and the draft was published in print on June 25.

It soon became clear that the amendments were intended to strip Karakalpakstan of its status as a sovereign republic within Uzbekistan, with the right to secede from it through a referendum, and mass protests erupted in the region on 1-2 July, which the Uzbek security forces managed to suppress, killing about 50 people. (В Нукусе вспыхнули протесты против «антикаракалпакских» поправок в Конституцию Узбекистана (asiaterra.info), В Нукусе вспыхнули протесты против «антикаракалпакских» поправок в Конституцию Узбекистана (asiaterra.info))

President Mirziyoyev promptly withdrew amendments concerning Karakalpakstan and its status. “Upstairs came to the conclusion that there was no need to hurry with “reforming” the Constitution and postponed the adoption of the amendments until next year.

This process continued only in 2023. On March 9, the Legislative Chamber of the Oliy Majlis considered a draft resolution on holding a referendum on adopting a new version of the Constitution of Uzbekistan. The amendments themselves were put together in the form of a draft constitutional law, which was to be adopted and amended to the Constitution as a result of the plebiscite (Законопроект.pdf (kun.uz)). It was stated that the number of articles contained increases from 128 to 155, and the provisions from 275 to 434. The analysis of these changes is a separate topic, so it should only be noted that all of them are not important, but cosmetic, and do not redistribute power from the dictatorial powers of one person in favor of parliament and independent institutions, such as the judiciary. On March 10, the Senate passed a resolution to hold a referendum on a new version of the Constitution Act. О проведении референдума Республики Узбекистан по проекту Конституционного закона Республики Узбекистан «О Конституции Республики Узбекистан» (senat.uz)

As for the referendum on the adoption of amendments, it was obviously unnecessary: the Constitution could be updated simply by means of parliament. According to the law, amendments to the Constitution are introduced by a law adopted either by at least two-thirds of the total number of deputies of both houses of the Oliy Majlis, or as a result of a referendum (Article 127). So, the latter was chosen only to give more political weight to this action, taking into account that, according to the law “On Referendum in the Republic of Uzbekistan”, its decisions have the supreme legal force and “can only be cancelled or changed by means of a referendum (…)”. Although the very phrase “Mirziyoyev proposed amendments through a referendum” suggests that they could have been introduced in another way. The fact that this “reform” is completely false and that in reality the authorities are not interested in the opinion of the people on the proposed amendments is evidenced by the fact that the citizens were offered to approve or reject all the questions as a whole, without finding out what they think about each amendment separately. In general, the referendum was needed only in order to be able to refer to it later.

It is interesting that since 1992 the Constitution of Uzbekistan has been updated many times. In December 2022, Mirziyoyev said that it had been amended seven times during the years of independence. In fact, more than twice as often – 15 times (Как менялась Конституция Узбекистана за последние 29 лет (kun.uz)). That is, the process of amending the Constitution is quite routine; and legally, there is no difference between making one or two amendments to the Constitution or many at once.

Incidentally, it is worth remembering that the provision on the supreme legal force of decisions made by plebiscite did not prevent Islam Karimov in 2011 from reducing the presidential term contrary to the results of the 2002 referendum (at that time two questions were put to vote: on the transformation of the parliament from unicameral to bicameral and on extending the presidential term from 5 to 7 years). This cancellation directly contradicted the Law on Referendum of the Republic of Uzbekistan, but did not cause any protests. It turns out that if you do not like the law adopted as a result of the referendum, then you can forget about the legislative procedure for its cancellation.

JUSTIFICATION FOR “ZEROING OUT”

As you see, the violation of the principle of the Constitution, enshrined in Article 90 and stating that “one and the same person cannot be the President of the Republic of Uzbekistan for more than two consecutive terms” has not yet been mentioned. To introduce some amendments to the Constitution is one thing, and to prove from the legislative point of view, why the change of some its articles and addition of new ones must lead to non-compliance with article 90 (in updated edition of the Main law it became 106), which limits presidency to two terms, though the content of this article itself remained unchanged, is absolutely different.

In June 2022, for the first time ever, Sadik Safayev, loyal member of the Karimov-Mirziyoyev team (under Karimov he was twice Minister of Foreign Affairs, served as Ambassador to the United States and FRG, and before that, in Soviet times, he worked for several years as Head of the Central Committee of the Communist Party of the Uzbek SSR) came out with a semblance of such justification

In an interview with Kun.uz under the pretentious headline “Shavkat Mirziyoyev is not the kind of politician who clings to power,” Safayev stated that “if the new Constitution is adopted, President Shavkat Mirziyoyev, like everyone else, will be able to participate in [presidential] elections” because “the new Constitution and the new legal space has been created and updated. .. «Шавкат Мирзиёев — не из тех политиков, которые цепляются за власть» — Садык Сафаев касательно обнуления президентского срока (kun.uz)

“Whether our president will use this opportunity and right, first of all, depends on him, as well as on the political party that represents him. But this right belongs to the man himself”, Safaev proclaimed. And developing his “message,” he added that “we still need to continue the reforms. I am convinced that the person who started these reforms should have a chance to bring them to an end.

The next justification due to the Nukus events followed only ten months later.  On March 13, 2023, the Constitutional Court of Uzbekistan, headed by Mirzo-Ulugbek Abdusalomov, released its Decree (КСҚ-4-сон 13.03.2023. Ўзбекистон Республикаси Олий Мажлиси Қонунчилик палатасининг «Ўзбекистон Республикаси Конституцияси тўғрисида»ги Ўзбекистон Республикаси Конституциявий Қонуни лойиҳаси бўйича Ўзбекистон Республикаси референдумини ўтказиш ҳақида»ги қарорининг (иловаси билан) Ўзбекистон Республикасининг Конституциясига мувофиқлигини аниқлаш тўғрисидаги иш юзасидан (lex.uz)). It is worth mentioning that Mirzo-Ulugbek Abdusalomov was the Chairman of the Central Election Commission for 16 years, and in 2021 he was appointed to the position of the Chairman of the Constitutional Court

This document stated how the new version of the Constitution would be applied to certain officials. The following were listed: Speaker of the Legislative Chamber; Chairman of the Senate; President of Uzbekistan (in accordance with the current Constitution); Chairman of the Regional/District/City People’s Deputies Council; Khokim; Chairman and Deputy Chairman of the Supreme Court; Chairman and Deputy Chairman of the Supreme Council of Judges; Chairman of the Central Election Commission; and Prosecutor General.

“It is determined that regardless of the number of temporary terms of occupancy and/or tenure of said offices at the time of their enactment, they [the above-listed officials] have the right to be elected/ appointed to those offices on an equal basis with other citizens as required by the Constitution, including the Constitution as revised by this Constitutional Law,” reads the Decree.

In other words, the Constitutional Court stated that these persons are vested with the right to be elected/appointed to these positions regardless of the number of continuous terms in office, which these persons have held or still hold at the time of the entry into force of the new version of the Constitution. The number of terms the incumbent President has held so far should not be taken into account.

Perhaps it is not a bad thing that the tenure of the above persons in this or that position will be limited to two terms, except that adding the position of president to this list is completely unnecessary – it is already limited to two terms. And not just by anyone, but by the Constitution. It can be seen that the relevant paragraph of the CC’s decision actually prescribes to consider Article 90 of the Constitution as invalid, which clearly falls under the 159th article of the Criminal Code of the Republic of Uzbekistan.

The decree hypocritically stipulates that these changes and additions will acquire constitutional and legal significance only if they are submitted to popular discussion and supported by the people in a referendum. However, independent observers are not allowed to count the votes in Uzbekistan, and no one prevents them from declaring that 100 percent of citizens voted “pro ».

CLUMSY WORK

Other rulers of post-Soviet states, such as Vladimir Putin, Nursultan Nazarbayev, Emomali Rakhmon, Saparmurat Niyazov and his successor Gurbanguly Berdimuhamedov, Ilham Aliyev, Alexander Lukashenko, as well as the heads of a number of African countries – Guinea, Burundi, Chad, Sudan, Gabon, Congo, Niger, Uganda and others – practiced similar methods to prolong their stay in power. But let’s not divert our attention to the tricks resorted to in other countries, but let’s see how what is happening fits in with the Uzbek legislation.

The highest law of Uzbekistan is the Constitution. “Article 16 of the Constitution states: “No law or other normative legal act may contradict the norms and principles of the Constitution. This is also stated in the Law on Normative and Legal Acts: “The Constitution of the Republic of Uzbekistan is the supreme law of the Republic of Uzbekistan.  The Constitution of the Republic of Uzbekistan has supreme legal force and is applied throughout the territory of the Republic of Uzbekistan. Laws of the Republic of Uzbekistan and other regulatory legal acts shall be adopted on the basis of and in pursuance of the Constitution and shall not contradict its norms and principles” (Article 8) (ЗРУ-682-сон 20.04.2021. О нормативно-правовых актах (lex.uz)). This means that no explanation of officials or judges can be considered legitimate if it contradicts the Constitution.

Well, the Constitution does not allow for any double interpretation: “One and the same person may not be President of the Republic of Uzbekistan for more than two terms in a row” states Article 90 of the old version of the Constitution (08.12.1992. Конституция Республики Узбекистан (lex.uz) ) and Article 106 of its new version (30.04.2023. Конституция Республики Узбекистан (lex.uz))

Neither the Constitution itself nor any legislative act of Uzbekistan links the number of permitted presidential terms with the introduction of any amendments to the Basic Law (which, let me remind you, is already in its 16th year).

Even if someone really wants to be president indefinitely, such claims should be justified, referring to relevant norms and provisions of existing legislation. And there have been only two attempts to justify the violation of the constitutional prohibition, as mentioned above.

According to Safaev, this is a “new legal space.

Only in this “new legal space” there is still an article of the Constitution, which states that one and the same person cannot be president for two consecutive terms. So, Mirziyoyev cannot legally exercise the “right” mentioned by Safa, because he has already exercised it twice; he no longer has the right to exercise it a third time.

The main justification is the above paragraph from the ruling of the Constitutional Court, headed by presidential appointee (through the formal procedure of election as senators) Mirzo-Ulugbek Abdusalomov.

But can representatives of the Constitutional Court, or any other body, claim that Article 90 (or 106) of the Basic Law need not be observed?

Of course, Mirziyoyev’s appointees can assert anything they want, or rather, what their master tells them to. But the mere words of some official (even if they are the head of the Constitutional Court) cannot be more important than the Constitution. It is not enough to say that the current president can be elected for a third and fourth term, it is necessary to justify this with references to the laws on what basis, how it is combined with the constitutional ban. But there is no intelligible justification, nor can there be, because the updated Constitution leaves this provision unchanged – and it still applies to the incumbent president. The basic law can be updated 99 percent of the time, but if the article with the above-mentioned constitutional prohibition remains in it, it will mean exactly what it says.

It is noteworthy that the list of officials in the Constitutional Court decision contains curious clauses – “the President of Uzbekistan (in accordance with the current Constitution)”; “[the above-listed officials] have the right to be elected (…) in accordance with the requirements of the Constitution. But we know what the last one says on this subject. Then what does this phrase mean, and how does it correlate with the permission of the same Constitutional Court for Mirziyoyev’s participation in the new elections? It’s simple: the members of the court got cold feet – what if in the future they are taken by the gills and charged with the article “encroachment on the constitutional order,” so they insured themselves by inserting these phrases. They say, yes, of course the President is allowed too, but in accordance with the Constitution. The result was nonsense: the president, along with other officials, has the right to be nominated again – but only in accordance with what the Constitution says (which prohibits it).

Thus, the entire rationale is based on the fact that the judicial official appointed by Mirziyoyev opened his mouth and said that he could be elected indefinitely; however, he did not consider it necessary to back up his words with any references to the legislation. As we can see, the Constitutional Court “reasoning” is not only deliberately false, but also null and void in the legal sense. Why was it so poorly prepared? It is impossible to do otherwise, it does not work.

The fact of the referendum itself does not matter in the slightest, because it only referred to the approval of a number of articles to be introduced and changed, and the content of Article 90 was not touched. And the result of the vote – regardless of whether it was positive or negative – has nothing to do with this article, it is still there (only its serial number has changed). “Reform” must be continued by others.

As a result, all the enormous work on updating the Constitution, which should become the basis for “zeroing out” Mirziyoyev’s presidential terms, turned out to be meaningless, done in vain, because approximately the same “justification” could have been issued without all this. The “reform” of the Basic Law was left with only two functions: a reason for issuing the ruling of the Constitutional Court and a distracting smoke screen.

By the way, the citizens of Uzbekistan have not given a single justification for the need to increase the presidential term again. In the history of Uzbekistan, there has already been a precedent for changing presidential terms..

The presidential term was first changed from five years to seven, then from seven to five. In fact, Karimov served two eight-year terms (his first term was from January 4, 1992 to January 22, 2000; his second term was from January 22, 2000 to January 16, 2008). His third term was seven years and almost three months (from January 16, 2008 to April 10, 2015). In December 2011, the Uzbek parliament suddenly shortened the presidential term from 7 (8) years to 5 years at the initiative of Karimov himself. He did not live to the end of his fourth term (April 10, 2015 – end of August 2016).

HOW IT WAS DONE UNDER KARIMOV

Karimov managed to rule the country for 26 years, until his death. The presence of a “forbidding” article in the Constitution did not prevent Islam Abduganievich from taking the presidency for the third time in 2007, and for the fourth time in 2015. He did not explain on what grounds he was going to become president again.

In 2007, when the next “national elections” were to be held, the third one for Islam Karimov, his candidacy, despite the constitutional ban, was on the list of candidates for the highest state office. Since he had already served the two terms allowed by Article 90, he could no longer run for office. In order not to violate the law, he either had to leave, or come up with some kind of stratagem.

A variety of “experts” vied with one another to announce possible ways to circumvent the constitutional ban, from transferring most of the powers to the prime minister and then sitting in his chair, to abolishing term limits, which was easy enough to do: an obedient parliament would immediately vote “yes.

But they all underestimated the “guarantor of the Constitution. Islam Abduganievich got around the ban in the most uncomplicated way: by hushing up the existing legislation and intimidating those who dared to refer to it. Journalists and all others were unofficially forbidden to mention Article 90 of the Constitution and to use the phrase “third presidential term”. Karimov quite openly ignored the laws and “re-elected” for the third time, avoiding any public explanation.

Only for the OSCE delegation present in Uzbekistan an exception was made: the CEC representatives gave them some kind of verbal explanation: it turned out that this was Karimov’s second election, because after the adoption of the Constitution in 1992, he was elected only once, in 2000. (The question arises: who then was president from 1992 to 2000?)

In short, in 2007 Islam Karimov showed in the most demonstrative way how to bypass the constitutional ban, and in 2015 no one guessed how he would do it again. The Uzbek media, as if on cue, “forgot” about the existence of Article 90, and there was no discussion of how presidential terms should be counted. No explanations, even behind the scenes, were given to anyone. Karimov “re-elected” himself president for a fourth term, simply ignoring the Constitution (about that here, here).

Both times, in 2007 and 2015, taking the presidential credentials from Mirzo-Ulugbek Abdusalomov, the chairman of the Central Election Commission, Islam Karimov swore on the Koran and the Constitution, and swore “to faithfully serve the people of Uzbekistan and strictly follow the Constitution and laws of the republic.

Only for the OSCE delegation present in Uzbekistan an exception was made: the CEC representatives gave them some kind of verbal explanation: it turned out that this was Karimov’s second election, because after the adoption of the Constitution in 1992, he was elected only once, in 2000. (The question arises: who then was president from 1992 to 2000?)

In short, in 2007 Islam Karimov showed in the most demonstrative way how to bypass the constitutional ban, and in 2015 no one guessed how he would do it again. The Uzbek media, as if on cue, “forgot” about the existence of Article 90, and there was no discussion of how presidential terms should be counted. No explanations, even behind the scenes, were given to anyone. Karimov “re-elected” himself president for a fourth term, simply ignoring the Constitution.

Both times, in 2007 and 2015, taking the presidential credentials from Mirzo-Ulugbek Abdusalomov, the chairman of the Central Election Commission, Islam Karimov swore on the Koran and the Constitution, and swore “to faithfully serve the people of Uzbekistan and strictly follow the Constitution and laws of the republic.

BASICS OF GOVERNMENT

The result of the legal research is unambiguous: the trick with the deception in the form of a diversionary “reform” of the Basic Law has failed. The Constitution – the main and basic law of Uzbekistan directly and unambiguously forbids Mirziyoyev to hold the post of the President, regardless of the fabrications of all his protégés put together. Everyone can be convinced in this personally, having acquainted with above-mentioned Decree of CC, as well as with Article 106 of the Main Law.

The legal legitimacy of Shavkat Mirziyoyev after taking the presidential office for the third time is not even in question – it will be zero. He is not endowed with any right of “nullification”, contrary to what is written by the publications, which didn’t manage to understand the essence of the matter.

The main thing for him is to use the united chorus of courtiers and faithful media to convince the country that everything is fine, and that he can ignore individual voices of criticism. A quick shuffle into a chair for a third term would send the message that nothing can be changed. As a last resort, you can put someone in jail, use the security forces, the “unknowns” with bats, or at the very least, declare him insane, as happens from time to time. Of course, the laws can be ignored, but this means that the basis of Mirziyoyev’s rule now becomes only brute force, while he himself turns into the leader of a gang, seeking to keep power by any means.

By Alexey Volosevich