How Effective Is The Constitutional Court Of Uzbekistan In Checking The Government’s Treatment Of Muslims?

Introduction

The Republic of Uzbekistan has a rich history full of an eclectic mix of cultures from around the region, as well as the remnants of some of the oldest human civilizations in the world. It is safe to say that the nation is a fascinating one to which few Westerners have ventured, but the former Soviet Republic of Uzbekistan has had its share of skirmishes throughout history. After the fall of the Soviet Union in 1989, a constitution that guaranteed basic freedoms was adopted. The Constitutional Court serves to interpret the Constitution and determine the constitutionality of laws in Uzbekistan.1

As case law will demonstrate, the nation is infamous for having one of the worst human rights records in the world. The cases at hand will demonstrate why the Constitutional Court refuses to uphold the freedoms guaranteed by the Constitution. One case in particular involves the unconstitutional detainment of six men in 1999, and others provide examples of the government’s dismal treatment of Muslims. This paper will serve to argue that the Constitutional Court of the Republic of Uzbekistan has been ineffective in condemning the government’s dismal human rights violations due to various caveats in the Constitution and the judges’ fears of removal that prevent the court from protecting citizens’ rights. These ideas will be demonstrated in the article, The Rule of Law in Jeopardy in Uzbekistan, which contains multiple relevant cases. Section I of this paper will outline Uzbekistan’s history leading up to the creation of the Constitutional Court in 1992. It will then explain some of the structural features of the court, including the appointment and removal of judges, separation of powers, and finally its judicial review powers. Section II will examine the issue of the government’s violations of human rights and will use the case law to demonstrate why the Constitutional Court has been ineffective in condemning its actions.

Section I

Historical Context

Before we delve into an analysis of the structure of Uzbekistan’s Constitutional Court and the nation’s human rights violations, it is necessary to analyze the nation’s history leading up to the creation of the Constitutional Court. Uzbekistan is a center full of important historical events. From the dawn of human civilization down through the Soviet occupation, human history and culture are abundant in the region. In the sixth and seventh centuries, Arabs conquered Central Asia, giving it its Muslim culture. From the mid-nineteenth century on, Uzbekistan slowly became a colony of tsarist Russia. Russians installed their own villages, culture, and language among the Uzbeks. In 1916 Uzbek people set up a revolt to declare national independence from the Russians. It was at this time, in 1917, that the Bolsheviks declared Soviet rule on the region.2 Although Islam was by far the most dominant religion in Central Asia, the Soviets tried to restrict it, as religion was viewed as the “antithesis to Marxist-Leninist ideology.”3 Many mosques were shut down in the 1920s after the first Five-Year Plan was put into place in order to combat Islam.4 Despite the efforts to silence Islam, militant atheism proved to be somewhat ineffective, as its practice continued underground.5 Uzbeks perceived their devotion to Islam as the very last barrier to total integration into Soviet society. The fall of communism brought an increase in religious teachings and interest in Islam.6 After the fall of the Soviet Union in 1989, Islam Karimov was appointed the first president of Uzbekistan in 1990.7

Creation of the Constitutional Court

The Constitutional Court of Uzbekistan was created after the nation declared its independence. The court functions as a “body of judicial authority that hears the cases relating to the constitutionality of acts passed by the legislative and executive branches.”8 On August 31st, 1991 the Uzbek people realized their inalienable right to self-determination, and so Islam Karimov declared their independence. Statehood was gained peacefully,9 and the Constitution was adopted on December 8th, 1992. It created a separation of powers among a strong presidency, the oliy majlis (or parliament), and a judiciary.10

Structure and Autonomy of the Court

The Constitutional Court acts as the sole state body which administers justice,11 and hears cases to issue conclusions based exclusively on the constitution of Uzbekistan.12 The judicial system consists of the Constitutional Court, the Supreme Court, the Higher Economic Court, the Arbitration Court, and the Court of the Republic of Karakalpakstan (an autonomous region in Uzbekistan).13 The Constitutional Court must judge the constitutionality of the laws of Uzbekistan and other acts passed by the Oliy Majlis, the decrees issued by the president, enactments of the government, and the ordinances of local authorities, as well as obligations of Uzbekistan under the inter-state treaties of other documents.14

The Constitutional Court is elected out of political and legal scholars consisting of a chairman, vice-chairman, and judges, including a representative of the Republic of Karakalpakstan.15 Judges of the Constitutional Court are appointed for five-year terms by the president each, who then are presented to be elected by the Oliy Majlis. They are not permitted to belong to any political parties or movements, or hold any other paid posts.16 Trials in the court are generally completed by a panel of three judges.17 Regarding the topic of separation of powers, the Constitution specifies that judicial authority shall function independently from the legislative and executive branches.18

The judicial review powers of the Constitutional Court include reviewing laws, decrees, and judicial decisions to ensure their compliance with the Constitution.19 The Court identifies conformity of the laws of Uzbekistan and other acts passed by the Oliy Majlis, the decrees issued by the president, and the enactments of the government and local bodies of state authority.20 The Constitution and laws of Uzbekistan have absolute supremacy,21 and the judgments of the Constitutional Court are declared as final and shall not be subject to appeal.22

Section II

Political Issue

Now that we have examined the history leading up to the creation and the intricacies of the Uzbek Constitutional Court, let us begin to take a look at the political issue at hand: the government’s dismal violations of human rights, including the treatment of detainees and Muslims. Using case law examples in the article The Rule of Law in Jeopardy in Uzbekistan, the second half of this paper will function to evaluate the political impact of the Constitutional Court and demonstrate that said court is ineffective with regard to checking the constitutionality of the cases presented.

On February 16th, 1999 explosions occurred in the lobby of a government building, allegedly as an assassination attempt of President Karimov. Karimov was unharmed, but publicly blamed “extremist religious groups” for the attack.23 Events like this spread to the decision of the government to reach out to “good Muslims.” The desire by the government for state-sanctioned Islam lead to the creation of groups like the Islamic Administration Board of Uzbekistan. Created during Soviet rule, the IABU served as the religious headquarters of Central Asia in Tashkent, the capital of Uzbekistan. The Mufti, or senior religious leader for all of Central Asia, oversaw state-sanctioned Islam and managed mosques throughout Central Asia. The establishment of this institution was subject to attack by fundamentalists who rejected the religious leadership for lack of purity and deviation from the “true path” of Islam. These critics were called wahhabi, and are considered essential to the development of fundamentalist Islam in Central Asia.24

In 2001 human rights records remained very poor in Uzbekistan. The government continued to commit many abuses and did not allow any opposition parties. Security forces routinely detained people on false charges, including Muslims suspected of extremist sympathies. Infringements on peoples’ rights by police include wiretapping and illegal searches while the offenders are rarely punished. Freedom of speech and freedom of the press is still severely restricted.25 The Arab Spring in 2011 made the government even more paranoid, and over one-hundred people were arrested or convicted on charges related to religious extremism.26

Case Law

The case law in question, titled The Rule of Law in Jeopardy in Uzbekistan by Heather Fox, explains how the language of the Constitution includes many democratic features, but can be superseded by executive decrees of legislation. Often constitutional law is even simply ignored.27 One particular case talks about the six men in 1999 who were convicted of participating in a “criminal society,” using mass media to publicly insult President Karimov. These men were arrested, tortured using various methods, and convicted based on their ties to the banned political party, Erk. These six men were simply exercising their constitutionally-guaranteed right to freedom of expression under Article 29 of the Constitution. The reason authorities were able to detain them was that membership in Erk was considered a criminal activity. As confusing as this seems, because of the rights guaranteed in the text of the Constitution, President Karimov constitutionally had the power to unilaterally balance fundamental freedoms of the Uzbek people with his own concerns for national security. A 1999 report issued on arrests in Uzbekistan highlighted statements by President Karimov, saying that he advocated harsh measures for those “who are trying by any means to introduce political Islam, religious extremism and fanaticism.”28 Karimov was even quoted stating that “fundamentalists should be shot.”29 The article argued that the rule of law in Uzbekistan is collapsing, and because of this the Uzbek people have limited resources to redress their injuries. Authorities had never informed the defendants of the charged against them, and after the first day of the trial, the public was not permitted to observe the proceeding. Article 113 of the Constitution allows exceptions to public trials in special circumstances where secrecy is “deemed necessary,” so that the court can close the trial to the public without reasoning.30

One of a few other cases mentioned in The Rule of Law in Jeopardy in Uzbekistan deals with an operation of mass arrests in December 1997, in response to the murder of public officials. Authorities made close to 1,000 arrests within a few days of the murder, most of which were reportedly arbitrary. Many people in this case were arrested simply because they displayed signs of Islam, including the wearing of a full beard, which the Uzbek government considers to be a sign of extremism. For those who are detained, it is not uncommon to be held beyond the specified sentence terms. Among other examples, In May 1998, authorities arrested openly pious Muslims on falsified charges after police had planted evidence of narcotics in the defendants’ homes.31 The government has closed down independent mosques and privately-operated Islamic schools, or even expelled students for wearing veils or headscarves. When confronted about the vast number of human rights abuses in his country, President Karimov routinely either blatantly denies them, or states that the abuses are necessary.

After reading about the above cases and the basic terms of the Uzbek Constitution, one might be understandably confused as to how exactly the government can get away with such frequent and horrendous abuses of its people. It is here that we delve into the contradiction that is the Uzbek Constitution. The Constitution does in fact guarantee basic rights for Uzbek citizens, although it is extremely counter-intuitive to believe so after reading about the frequent abuses committed. One of the problems here is the general refusal of any political or legal entity to uphold any of the rights guaranteed in the Constitution; for example, the expulsion of students wearing religious symbols contradicts the right to freedom of religion that is guaranteed in Articles 31 and 61. Article 61 states that “religious organizations and associations are separate from the state and equal before the law” and that “the state does not interfere in the activities of religious association.”32 In this particular case, we see that while the Constitution specifically says that these actions are acceptable, both the executive and Constitutional Court refused to uphold the right. While one article guarantees a basic freedom, another will contradict it. Another loophole in the Constitution can be exemplified in this example: “Article 62 safeguards the right of free association by stating that the dissolution of this right can take place only on the basis of a decision of a court of law.”33 What this essentially means is that although there is an article that guarantees the right to free association, the court is the only authority to have the final say.

Caveats in the Constitution are what allow the government to infringe upon the rights of people. For example, Article 57 contradicts Articles 33 and 34 by placing restrictions on the right to freely associate in political organizations that “protest against the sovereignty, integrity, or security of the republic or the constitutional rights and freedoms of its citizens.”34 This clause effectively bans any opposition parties or religious groups that might appear as a threat to the security of the regime. Uzbek authorities are able to engage in mass arrests because the “Constitution criminalizes a broad and unspecified range of activity,”35 making it so that the guidelines for arresting someone are blurred. Pointing to Article 61 again, we see that only courts can restrict fundamental freedoms. Section 1 of Article 93 explains that the president “acts as a guarantor of compliance with the rights and freedoms of citizens, and with the Constitution and laws of the Republic of Uzbekistan,”36 while Section 2 of the same article allows the president to adopt “necessary measures to protect sovereignty, security, and territorial integrity.”37 This, again, means that the president can override anything in the Constitution that he feels may infringe upon the security of the state of Uzbekistan, or that may challenge his regime. Section 2 therefore allows President Karimov to unilaterally balance the fundamental freedoms of the Uzbek people with his own concerns for national security.

Next, one may inquire as to why the Uzbek Constitutional Court would go along with the government’s decisions to not uphold peoples’ constitutional rights. The Constitutional Court does not play a significant role in reforming or enforcing law because certain provisions of the Constitution prevent the court from protecting citizens’ rights, as has been made clear above. Judges are appointed to five-year terms, so they do not have the advantage of judicial independence. If the judges’ decisions are unpopular, they risk not getting re-appointed by the president for another five years. Article 93, Section 10 grants the president the duty to nominate potential members of the Constitutional Court to present to the Oliy Majlis for election. The president may also dismiss judges at his request. This means that judges essentially must make decisions that the president approves of, so that they have a better chance of being appointed and keeping their jobs as judges. As long as the president has this power of arbitrary dismissal, there is little hope that the court can improve protections of citizens’ rights.38

Conclusion

The article The Rule of Law in Jeopardy in Uzbekistan gives various examples of cases that demonstrate this paper’s argument: the Uzbek Constitutional Court’s refusal to uphold freedoms guaranteed by the Constitution is due to caveats in the Constitution that allow the executive to make arbitrary decisions not to uphold rights at any time that could supposedly act as a threat to the security of the nation, or oppose the regime. The president may also simply ignore anything in the Constitution that he wishes to ignore. The Constitutional Court has no choice but to go along with what the president decides in fear of its members not being re-appointed for another term. Through these case law studies on the matter, it is clear that the Constitution and Constitutional Court of Uzbekistan are nothing more than a set of empty promises to the Uzbek people. It is unfortunate that within a culture as vibrant and eclectic as in Uzbekistan, ordinary people must be constantly riddled by the fear of arbitrary detention for everyday activities such as the practice of the Muslim faith outside of state-sanctioned Islam.

References

The Constitutional Court (2013) “The Governmental Portal of the Republic of Uzbekistan” http://www.gov.uz/en/courts_and_prosecution/1295

Constitution of the Republic of Uzbekistan (1992), http://www.uta.edu/cpsees/UZBEKCON.htm

Embassy of Uzbekistan to the United States (2004), http://www.uzbekistan.org/

Fox, Heather (1999) “The Rule of Law in Jeopardy in Uzbekistan,” Human Rights Brief.

History of Uzbekistan “Embassy of the Republic of Uzbekistan in the Republic of Singapore” http://www.uzbekistan.org.sg/staticpage.php?sid=16

Human Rights Watch (2013) “World Report 2012: Uzbekistan”,

http://www.hrw.org/world-report-2012/world-report-2012-uzbekistan

Jurist: Legal Information (2003) “Constitution, Government & Legislation,” http://jurist.law.pitt.edu/world/Uzbekistan.htm

Karagiannis, Emmanuel (2006) “Political Islam in Uzbekistan: Hizb Ut-Tahrir Al-Islami,” Europe-Asia Studies

Law Library of Congress (2011) “A Country Study: Uzbekistan,” http://memory.loc.gov/frd/cs/uztoc.html

Olcott, Martha Brill, “The Roots of Radical Islam in Central Asia,” Carnegie Endowment for International Peace.

Sengupt, Anita (1999) “The Making of a Religious Identity,” Economic and Political Weekly.

1Uzbek Constitution, 1992: ch. 22.

2History of Uzbekistan.

3Karagiannis, 2006.

4Embassy of Uzbekistan to the United States, 2004.

5Karagiannis, 2006.

6Ibid: 263.

7Embassy of Uzbekistan to the United States, 2004.

8The Constitutional Court, 2013.

9History of Uzbekistan.

10Law Library of Congress, 2011.

11Embassy of Uzbekistan to the United States, 2004.

12The Constitutional Court, 2013.

13Uzbek Constitution, 1992: Art. 107, ch. 22.

14Ibid: Art. 109.

15Ibid.

16Uzbek Constitution, 1992.

17The Constitutional Court, 2013.

18Uzbek Constitution, 1992.

19Jurist: Legal Information, 2003.

20The Constitutional Court, 2013.

21Uzbek Constitution, 1992: Ch. 3.

22Ibid: Art. 109.

23Sengupt, 1999.

24Olcott.

25Jurist: Legal Information, 2003.

26Human Rights Watch, 2013.

27Law Library of Congress, 2011.

28Fox, 1999.

29Ibid.

30Ibid.

31Ibid.

32Fox, 1999.

33Ibid.

34Ibid.

35Fox, 1999.

36Ibid.

37Ibid.

38Ibid.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s