New frontiers in the separation of powers: analysis of legislation and practice

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The Constitution of the Republic of Uzbekistan fixed the basic arrangements in this area, defining the principle of separation of powers as the most important condition for the exercise of the power of the people. In accordance with the Constitution, the Oliy Majlis exercises legislative power, the Cabinet of Ministers exercises executive power and the Constitutional, Supreme and Supreme Economic Courts exercise judicial power.

The President of the Republic of Uzbekistan is the head of state and ensures the coordinated functioning and interaction of the organs of state power. Each branch of government is independent and acts solely within the limits of its constitutional authority, without interfering with the activities of the other. The system of checks and balances in the Constitution and laws of our country fully corresponds to the practice of developed democracies, the most modern democratic requirements defining the criteria of law-making, executive, judicial and legal activities. The mechanism of checks and balances is clearly visible in the process of law-making.

According to Article 84 of the Constitution, for example, a law only takes legal effect when it is passed by Parliament, signed and promulgated by the President. The President has the power of veto. He has the right to return a law with his objections to the Oliy Majlis. However, if the law is approved in a previously adopted version by a majority, that is to say at least two-thirds of the total number of parliamentarians, the law must be signed and promulgated by the President.

Legislation establishes the cases in which draft laws submitted to Parliament must be approved by the executive authorities. This formula ensures a high degree of democracy in the law-making process and determines the exclusive role of the legislature in shaping the legislative basis of public administration and the reforms undertaken in the country. It should be emphasized that the system of checks and balances has been developing and is developing in our country in a consistent, gradual manner, based on the principle of continuity, taking into account the level of development of socio-political and socio-economic relations and the maturity of state and political institutions.

The Action Strategy for the five priority development Areas of the Republic of Uzbekistan for 2017-2021, approved by Presidential Decree UP-4947 of
7 February 2017, provides for the following important areas of implementation of the principle of separation of powers:

- Strengthening the role of the Oliy Majlis in the system of State authority and exercising parliamentary control over the activities of the executive branch;

- Ensuring genuine independence of the judiciary, increasing the authority of the courts, democratizing and improving the judicial system (raising the status, material incentives and social security of judges and court officials, strengthening the material and technical basis of the courts, preventing undue influence on judges, ensuring the independence and impartiality of the courts and the adversarial and equal rights of litigants);

- Reform of the system of public administration and civil service through the decentralisation of public administration and an increase in the professional training, material Reform of the public administration system through a decentralization of public administration and an increase in the professional training and welfare of civil servants.

A great deal of work has been done in these areas of the country’s development. Global positive changes have been initiated and implemented in the national legislation, as a result of which a number of reforms have been successfully implemented.

As part of the implementation of the objectives of the Strategy for Action in the five priority areas of the Republic of Uzbekistan in 2017-2021, 32 amendments and additions were made to 21 articles of the Constitution seven times. These concerned, inter alia, the activities of the Parliament, the Government and the President, the strengthening of the independence and development of the judiciary, and the system of checks and balances between the branches of power.

The Supreme Council of the Judiciary, a body of the judiciary which ensures respect for the principle of independence of the judiciary, has been established. To that end it is responsible for establishing a corps of judges and deciding the issue of judges’ liability. Its legal status is regulated by the special Act on the “Supreme Council of the Judiciary”. It should also be noted that this Act establishes rules such as that the Council is subordinate only to the law and is independent of the State authorities and their officials. In addition, the members of the Council take decisions and express their views independently of political views and other extraneous influences.

This body has been entrusted with such important tasks as forming the judiciary, preventing breaches of judicial immunity, organising professional training and further training of judges, and assessing the effectiveness of their work. This has made it possible to ensure the effective implementation of the principle of independence of the judiciary.

Economic and administrative courts have been established, the economic and administrative courts have been established, and the Supreme Court and the Higher Economic Court have been merged into a single judicial body for civil, criminal, administrative and economic proceedings. The staffing of military courts was transferred from the Armed Forces to the Supreme Court, since the placement of military judges in the Ministry of Defence prevented the independence of the judiciary.

As part of the Strategy of Action, effective measures are being taken to develop the mechanism for the implementation of both representative and direct democracy and other forms of citizen participation in the administration of the State and society.

An important step in strengthening direct democracy in Uzbekistan has been the reform of the electoral system and the codification of electoral legislation through the adoption of a unified Electoral Code consistent with international norms and standards. As part of this reform, restrictions on the participation in elections of persons imprisoned for crimes that do not constitute a great public danger and less serious crimes were removed, the establishment of a maximum permissible deviation of 10 per cent of voters in electoral districts was established, a unified electronic voter register was created in Uzbekistan, and other innovations were introduced. These innovations have enabled universal and equal suffrage to be implemented to the fullest extent possible.

The Law of the Republic of Uzbekistan “On Public Control”, adopted on 12 April 2018, created a solid legal framework for citizen participation in the management of the affairs of the State and society. The Act defines such forms of civic participation as public hearings, discussion, monitoring, expertise and others. The Act fits harmoniously into the system of measures to implement the principle "From a strong State to a strong civil society" and has contributed to the development and strengthening of independent civic institutions, the establishment of close cooperation between State bodies and citizens, and the establishment of effective public oversight of the activities of State bodies.

In order to strengthen oversight by the executive authorities and establish an effective and efficient dialogue between the State and society, public councils have been set up under each State authority in accordance with Presidential Decision
PP-3837 of 4 July 2018. These councils serve to develop strong mechanisms for public scrutiny of the activities of State bodies, to ensure openness and transparency in their work and effective cooperation with civil society institutions.

Also new for Uzbekistan is the introduction of an electronic collective appeal to the chambers of the Oliy Majlis, provincial, district and city councils of people's deputies through a special web portal called “Mening fikrim”. This portal was developed in accordance with paragraph 34 of the State Programme, approved by Presidential Decree UP-5308 of 22 January 2018, in order to increase citizen participation in the management of the affairs of society and the State, ensure transparency in the activities of State bodies, and ensure the viability and effectiveness of the adopted laws.

The “Mening fikrim” portal, which receives suggestions and recommendations from a wide range of people, has helped to generate ideas, bring the public together for the common good and solve urgent problems.

Among the methods undertaken to involve the general public and ensure transparency in the implementation of affairs of national importance we should also mention the newly introduced system of taking into account public opinion on the draft regulations developed through the public portal regulation.gov.uz, which also improves the quality of developed regulations and helps to prevent the promotion of possible departmental interests. All these measures and new approaches in the organization of public life of the country will undoubtedly still give positive results, as a result, it will be reflected in the socio-economic well-being of the people.

Within the framework of strengthening Parliament in line with the principle of separation of powers, measures have been taken to improve representative forms of civic participation. Such measures include a step-by-step increase in the parliament's supervisory powers in the country's foreign and domestic policy within the framework of the Action Strategy. It should be emphasized that the system of checks and balances in Uzbekistan is being developed in a gradual, step-by-step manner, on the basis of the principle of continuity, taking into account the level of development of social and political, social and economic relations and the maturity of State and political institutions.

Special attention is being paid to the development of representative bodies. For example, an important step in enhancing the role of the Oliy Majlis was the granting of the Legislative Chamber the power to consider and approve, on the nomination of the Prime Minister, candidates for the Cabinet of Ministers for subsequent appointment by the President of Uzbekistan. When a candidate for the Cabinet is considered and approved by the Legislative Chamber, he or she submits a plan of action that sets out the legal, economic, social, organisational and technical measures that are interrelated with the Cabinet's programme of action to achieve the targets and goals for the future. If the Legislative Chamber rejects the Cabinet nominee, the Prime Minister submits a new nominee for consideration and approval. The introduction of the democratic procedure for forming the Government has effectively strengthened its accountability to Parliament.

Special attention should be paid to consistently strengthening the interaction between the legislative and executive powers. The Strategy of Action provides for strengthening the role of Parliament and political parties

In deepening democratic reforms and modernizing the country, and expanding Parliament's powers in addressing domestic and foreign policy issues,

Parliamentary oversight of the executive branch will also be strengthened. In particular, the practice of

- Examining the Cabinet of Ministers' report on the implementation of the State programme for the year in question

- Hearing of reports from khokims of regions, districts and cities on the development of the relevant territory at meetings of the Senate

- Hearing of information from members of the Government, heads of State agencies, and economic administrative bodies on issues related to their work

- Hearing at meetings of the Legislative Chamber the replies of members of the Government to questions put by deputies of the Legislative Chamber.

In order to strengthen the mechanisms of parliamentary control, 40 amendments to the "Parliamentary Control Act 2016, more than 40 amendments and additions have been made. For the first time in 2019, the main financial document for 2020 was adopted in the form of a law, a practice which is continuing. The activities of the plenipotentiary representative of the Cabinet of Ministers to the Oliy Majlis have been regulated.

The procedure for the approval of members of the Cabinet of Ministers by the lower chamber of Parliament has been established on the basis of the practice in democratic countries. The Legislative Chamber, on the proposal of the Prime Minister, considers and approves candidates for membership of the Cabinet of Ministers and then approves them in office by the President of Uzbekistan.

Candidates for the Cabinet of Ministers are considered a session of the Legislative Chamber following a preliminary consideration by the responsible committee, factions and deputy groups. The candidate submits a plan of action setting out the legal, economic, social, organizational and technical measures to achieve the targets and goals for the future.

The analysis of reforms in the area of strengthening the role of the Oliy Majlis in the system of state power allows us to conclude that the quality of lawmaking has improved. The mechanisms of parliamentary control have been strengthened, the accountability of the executive branch to parliamentarians has improved, and the degree of openness of parliament has increased.

Thus, the e-parliament has become more active, with new websites launched in test mode for a more intensive dialogue with voters and discussion of draft laws - oliymajlis.gov.uz, qonun.gov.uz, deputat.gov.uz. The practice of online broadcasting of Senate and Legislative Chamber meetings has been introduced.

The analysis of the interaction between the legislative and executive powers shows that today it is important to regulate in detail at the legislative level the mechanisms of interaction between the legislative and executive branches of power. Their interaction should be based mainly on the norms of the Constitution and other fundamental legislative acts.

An analysis of the provisions of the Constitution shows that the interaction between the executive and legislative branches in our country begins with the formation of the Government, or rather with parliament's approval of the Prime Minister, and continues until the Cabinet of Ministers resigns before a newly elected Oliy Majlis.

On this basis, it should be noted that the most important legal aspects of the interaction between the Cabinet of Ministers and the chambers of the Oliy Majlis These aspects of interaction between the two branches of government can be divided into two main areas:

The first is the interaction between the legislative and executive branches of government in addressing common tasks of state-building and governance. The following are the most significant points to be highlighted here:

- The government's power to legislate. The power of the government to adopt annual programmes of legislative work by the government and submit them to the Houses of Parliament;

- Submission by the Government of draft targeted Government programmes in the social and economic field for approval by Parliament. For example, job creation and employment programmes, etc.

The second is the interaction between the government and parliament in exercising parliamentary control over the executive. Here it should be noted that the most significant issues relate to parliamentary control:

- The obligation of the Cabinet of Ministers to submit reports on the implementation of the State Budget;

- The right of Parliament to hear the Prime Minister’s report on current issues of social and economic life;

- The right of committees of the chambers of Parliament to hear reports from the heads of State and administrative authorities on their implementation of domestic legislation, other legislative acts and committee decisions, and also from representatives of the subjects of legislative initiative on matters relating to a draft law which they have submitted.

In our view, it is also worth stipulating the right of the chambers of the Oliy Majlis to hear a member of the Cabinet of Ministers on issues relating to the activities of the state or economic administration body which he heads and, if necessary, to propose to the President of the Republic of Uzbekistan that he resign.

The relevant expert groups are now working on drafting legal acts to implement the constitutional amendments in the current legislation.

It is as a result of the constitutional amendments that, in our view, the legislative branch will be radically transformed, really strengthened and its importance in defining legal policy and its implementation strengthened.

The Strategy for Action identified as one of the priority areas for improving the system of State and social construction the further strengthening of the role of the Oliy Majlis and political parties in deepening democratic reforms and modernizing the country.

The following tasks have been set in this direction:

First, to further expand the powers of Parliament in resolving the most important tasks of domestic and foreign policy of the country, as well as in exercising parliamentary control over the activities of the executive branch;

Second, to radically improve the quality of lawmaking aimed at enhancing the influence of the adopted laws on the course of socio-political, socioeconomic, judicial and legal reforms

Third, strengthening the role of political parties in the life of the state and society, the formation of a healthy competitive environment among them.

In particular, results have been achieved in the following areas:

First. The quality of parliamentary law-making has improved.

Legislative activity encompasses a multi-stage process from determining the need to regulate the relevant public sphere at the level of a law to assessing the effectiveness of the adopted law. Since the quality of laws depends first and foremost on law-making, its elements have been fundamentally changed.

First, the Concept of Improvement of Rulemaking has been adopted.

In order to improve the legal support of the ongoing reforms, to systematise the legislative framework, to improve the quality of rule-making and to introduce modern digital technologies and elements of “smart regulation” into this process, the Concept of Improvement of Rule-Making Activities was adopted.

On the basis of the requirements of this Concept, both chambers of the Oliy Majlis are improving law-making and coordinating the systematization and codification of laws and regulations and revising framework legislation which is inactive and which has no effect on law enforcement.

Second, mechanisms for public and expert discussion of draft laws have been expanded.

Thirdly, the procedure for reviewing draft laws has been improved.

A flexible voting procedure has been established. At the discretion of the Legislative Chamber, a bill may be voted on chapter by chapter or section by section, or on several articles at the same time.

In addition, the factions’ rights in the consideration of draft legislation have been expanded. The factions organize the discussion and study of draft legislation on the ground with the participation of citizens and make proposals based on their programme goals and objectives.

Another achievement has been the intensification of parliamentary efforts to study the conformity of draft legislation with international treaties and the introduction of a new practice of studying the conformity of draft legislation with recommendations for improving Uzbekistan’s position in international rankings.

Second. Mechanisms of parliamentary control have been strengthened.

In order to strengthen the mechanisms of parliamentary control, the Law on Parliamentary Control, adopted in 2016, was amended and supplemented 10 times. In particular, the amendments were aimed at expanding the subjects, objects and forms of parliamentary control.

The following can be noted as new forms of parliamentary control:

- Parliamentary control over the adoption and execution of the State Budget has changed dramatically. For the first time in 2019, the State Budget of the Republic of Uzbekistan for 2020 was adopted in the form of a law;

- The practice of reviewing the report of the Cabinet of Ministers on the implementation of the State programme for the relevant year, stemming from the Presidential Address to the Oliy Majlis, was introduced

- In addition to hearing members of the Government at chamber meetings, the practice of hearing information from the heads of economic administrative bodies has also been introduced. At the same time, chambers' committees have the right to hear not only the reports of the heads of State bodies, but also those of economic administrative bodies.

- The practice of hearing regional, district and city khokims' reports on the development of the respective territory at Senate meetings was introduced;

- The rules governing parliamentary investigations have been made more specific.

In addition, in order to increase the accountability of the heads of ministries and departments, legislation has been enacted to ensure that replies to parliamentary enquiries are given in person by the official to whom the enquiry was addressed.

In return, the Senate has introduced the practice of publishing senatorial enquiries and responses to them on the website of the upper house of parliament. This innovation contributes above all to increasing the openness of the Senate and the accountability of the heads of State administration to it.

A parliamentary commission for monitoring the implementation of the National Sustainable Development Goals and targets for the period up to 2030 (Parliamentary Commission on the SDGs) and a parliamentary commission on compliance with Uzbekistan’s international human rights obligations have been established.

The Ombudsman Act was amended with a view to creating a national preventive mechanism for the protection of human rights. In addition, the post of Deputy Ombudsman – Commissioner for the Rights of the Child – was introduced.

Generally speaking, these institutional and legislative changes have contributed to a fundamental transformation of the role of the Oliy Majlis in the system of State authority and to greater responsibility and accountability of the executive branch vis-à-vis parliamentarians. This, in turn, has fostered constructive cooperation between parliament and the executive branch.

Throughout the period of independence, Uzbekistan’s State system has undergone significant changes and continues to evolve rapidly. Particularly notable changes have occurred with the adoption of the Strategy of Action in the Five Priority Areas for the Development of the Republic of Uzbekistan 2017-2021, which provides, inter alia, for strengthening the role of Parliament and political parties, reforming the State administration system, developing the organizational and legal framework for the civil service, and further reforming the judicial and legal system.

The consistent implementation of the Action Strategy in Uzbekistan has made it possible in recent years to carry out a radical modernization of the country’s power structures. A radical administrative reform has been carried out, and public and economic administration structures have been modernized and updated.

In the World Bank’s Governance Indicator, for example, Uzbekistan’s position improved in 2019 on five indicators. This was based on reforms implemented, an effective system of dialogue and examination of people’s problems has been established to help solve them, and important steps have been taken to ensure freedom of the press and accountability of public authorities to the people.

In September 2017, a presidential decree approved the Concept for Improving the Effectiveness of Local Public Administration and State Authorities. In November last year, a presidential decree established a national commission to coordinate
the development of the New Uzbekistan Administrative Reform Programme for 2022-2023 and working groups to develop proposals on defining the status, improving the structures and optimising the staffing of public administration bodies, openness and public-private partnerships in their activities, improving human resources capacity, preventing corruption, etc.

They are tasked with ensuring the coherent and effective functioning of the public administration; separating the functions of ministries, state committees, committees, agencies, inspectorates, centres and other bodies in the implementation of public policies, execution of control functions, provision of public services to natural and legal persons; introducing specific indicators and target systems; and ensuring the thorough development and introduction of legislation on the foundations of public administration.

The legislative basis for public procurement and the use of budgetary funds, loans from international organisations and foreign countries, and the sale of state assets is being improved (in particular, each state body has to publish information on the use of budgetary funds once a quarter). An Agency for Counteracting Corruption of the Republic of Uzbekistan has been established, and a number of others.

Presidential Decree UP-5185 of 8 September 2017 approved the Concept of Administrative Reform in the Republic of Uzbekistan.

The document includes the following areas:

- Improvement of the institutional and organisational-legal framework for the activities of the executive authorities.

- Specification of tasks (functions, powers), mechanisms of their implementation and areas of responsibility of the executive authorities, improvement of coordination and interaction processes.

- Further reduction of administrative influence on sectors of the economy and expansion of market based management mechanisms.

- Improvement of vertical governance mechanisms and interaction among executive authorities.

- Introduction of modern forms of strategic planning, innovative ideas, developments and technologies into the public administration system.

- Formation of an effective system of professional public service, introduction of effective mechanisms to combat corruption in the system of executive authorities.

A radical reduction in the inter-agency collegiate bodies (commissions, councils, working groups and others) with state power is envisaged, with their transfer to specific state bodies and their accountability for the results of decisions taken.

There are also plans to introduce a “smart regulation” model and a standardised methodology for analysing the regulatory impact of decisions, which will prevent the adoption of regulations without a proper assessment of their impact, and to phase out departmental regulations that lead to conflicting standards, dual interpretation, corruption and excessive government regulation.

There are also plans to introduce a “smart regulation” model and a standardised methodology for analysing the regulatory impact of decisions, which will prevent the adoption of regulations without a proper assessment of their impact, and to phase out departmental regulations that lead to conflicting standards, dual interpretation, corruption and excessive government regulation.

Provision is made for the transfer of certain public functions to the private sector, with the introduction of mechanisms of public control over the proper performance of the transferred functions through licensing, certification, accreditation and permitting procedures.

At the same time, one of the main issues of administrative reform – organisation of the Civil service in Uzbekistan remains one of the most pressing issues since independence. For a long time, the structure, positions and grades of civil servants remained blurred. This regulatory gap was partly compensated for by legal acts issued in the course of the development of the public administration system of the Republic.

The most significant steps towards civil service reform in Uzbekistan were taken following the adoption of the Five Actions Strategy and the Concept of Administrative Reform in the Republic of Uzbekistan on 7 February 2017.

Work continues to improve the civil service system. In 2019, the country's leadership took steps to improve personnel policy. On 3 October 2019, the Presidential Decree "On measures to radically improve personnel policy and the civil service system in the Republic of Uzbekistan" entered into force. The main result of this decree was the establishment of the Agency for the Development of Civil Service under the President of the Republic of Uzbekistan (ADCS), reporting directly to him.

The agency’s main tasks included:

This Decree also established that, as from 1 January 2021, recruitment for the civil service in State bodies and organizations shall be made on the basis of an open, independent competitive selection process; this procedure shall apply to all State bodies and organizations of the Republic of Uzbekistan in which civil service is provided for.

The Law “On Public Civil Service” was adopted on August 8, 2022, which defined the status, rights and obligations of civil servants, principles of employment, the main powers of state bodies in regulating public civil service, as well as mechanisms to prevent corruption and conflict of interests in this sphere.

The role of the ADCS as regulator in this will be very significant. According to the Decree, persons entering the civil service on the basis of an independent competitive selection process cannot be dismissed without the approval of ADCS and its affiliates. In addition, the ADCS will examine all normative legal acts on the regulation of the civil service, including those on salaries and material incentives. Heads of human resources departments of state organisations will be appointed and dismissed in coordination with ADCS and its branches.

A number of reforms have been implemented in Uzbekistan in recent years to improve the efficiency of public administration. As part of the implementation of the Concept of Administrative Reforms, 12 new State bodies have been created and the activities of 20 ministries and departments have been fundamentally transformed. Over the past three years, more than 30 concepts and strategies have been adopted to accelerate the development of medium- and long-term priorities in the social and economic sphere.

Important tasks have been set for the next five years to ensure high economic growth, develop industries and the social sphere, almost double the gross domestic product - from $58 billion to $100 billion - and raise the standard of living, which cannot be achieved without effective public administration, which is the aim of reforms in the executive branch.

On the basis of the above, we can conclude that the separation of powers is one of the basic principles of a democratic state, and its fundamental meaning lies in preventing or minimising the abuse of power (corruption risks) by concentrating it in a single state body.

The analysis of the legal foundations of the organisation of the state power system in Uzbekistan reflects the specifics of modern trends, in which the pervasive digital transformation contributes to the innovative development of society, prompting a reflection on new paradigms in the science of constitutional law, which in turn should become a starting point for further constitutional and legal research as a whole.

 

responsible employees of Research Institute of Legal Policy under the Ministry of Justice of the Republic of Uzbekistan
Eldar Shaydulin and Shakhsanem Salieva