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ЮРИДИЧЕСКИЕ НАУКИ
PRACTICAL REALIZATION OF THE CLASSICAL PRINCIPLE OF THE SEPARATION OF POWERS: FOREIGN EXPERIENCE AND ACHIEVEMENTS OF UZBEKISTAN Khamdamova Sh.M. Email: [email protected]
Khamdamova Shirin Mirzayuldashevna — PhD Student, LEGAL BASES OF STATE STRUCTURE AND GOVERNANCE DEPARTMENT ACADEMY OF PUBLIC ADMINISTRATION UNDER THE PRESIDENT OF THE REPUBLIC OF UZBEKISTAN,
TASHKENT, REPUBLIC OF UZBEKISTAN
Abstract: nowadays, the study of the principle of separation of powers in conditions of democratization deserves special attention in the world of jurisprudence. The author reveals in the article the main positions of the political-legal theory of separation ofpowers by representatives of the foreign and domestic scientific community, as well as the practical implementation of the principle of separation of powers in the system of government bodies in the Republic of Uzbekistan, in particular at the local level. The advantages and disadvantages of the implementation of the principle of separation of powers in the USA, France and Germany are revealed. Taking into account the experience of these countries in the sphere of separation of powers, the author makes recommendations and suggestions for the further development of the principle of separation ofpowers in Uzbekistan, in particular at the local level.
Keywords: principle, population, state, implementation, separation of powers, branches of power, , legislation, veto, vote of no confidence.
ПРАКТИЧЕСКОЕ ПРИМЕНЕНИЕ КЛАССИЧЕСКОГО ПРИНЦИПА
РАЗДЕЛЕНИЯ ВЛАСТЕЙ: ЗАРУБЕЖНЫЙ ОПЫТ И ДОСТИЖЕНИЯ УЗБЕКИСТАНА Хамдамова Ш.М. Email: @scientifictext.ru
Хамдамова Ширин Мирзаюлдашевна — докторант, кафедра правовых основ государственного устройства и управления, Академия государственного управления при Президенте Республики Узбекистан, г. Ташкент, Республика Узбекистан
Аннотация: на сегодняшний день исследование принципа разделения властей в условиях демократизации заслуживает особого внимания в мировой юридической науке. Автор раскрывает в статье основные позиции политико-правовой теории разделения властей представителями зарубежного и отечественного научного сообщества, а также практическую реализацию принципа разделения властей в системе органов государственной власти в Республике Узбекистан, в частности и на местном уровне. Выявляются преимущества и недостатки реализации принципа разделения властей в США, Франции и Германии. Учитывая опыт этих стран в сфере разделения властей, автор даёт рекомендации и предложения для дальнейшего развития принципа разделения властей в Узбекистане, в частности на местном уровне.
Ключевые слова: принцип, население, государство, внедрение, разделение властей, право, вето, вотум недоверия.
УДК 342.25
Principle of separation of powers to date is realized in most states of the modern world. This principle allows providing the rational functioning of state power. Also, by embodiment of principle of powers' division, provided rights and freedoms of citizens that will be realized in socio-economic and political life of society. Plenary powers and functions of three branches of power determine their mutual relations inter se and role of each of them in the political system of state power. In opinion of french scientist М. Duverje: "Any constitution draws not one, but many schemes of government, the construction of which depends on the distribution of forces between the branches of government "[1, p. 10]. Principle of separation of powers must answer the necessities of society and take into account the sociocultural and economic aspects of population. Globalization and transformation of democratic
values on a higher level affront to revise principle of separation of powers to not only the developing countries but also countries that are the founders of modern democratic society, such as the USA, Germany, France, Great Britain etc. The mechanisms of realization of principle of division of authorities that depend mainly on the form of rule are created in modern democratic countries. In our view, it would be expedient to consider modern world progress of principle of division of authorities trends in presidential, semi presidential and parliamentary countries individually.
In presidential countries a head of the state simultaneously is the head of government, parliament is formed directly from the side of population by means of elections (or indirect in case of the USA) by direct vote, and a department judicial is formed on the consent of two branches of power, id est president and parliament. In the USA President presents executive power individually, in turn unaccountable to Congress and bears the responsibility only before people. Mutual relations between President and Congress in the USA have the special character. Vice- President, being the deputy of head of the state, simultaneously is the chairman of Senate, that gives to President an "invisible" instrument in having influence on Congress. The president of the USA has a row of plenary powers, in accordance with that the head of the state on the consent of Congress appoints the leaders of federal executive branches (ministers), has a right to apply a veto or partial veto (on the separate norms of law) on the laws accepted by Congress. Further President is not right to dismiss Congress, but the last can dismiss the head of the state by impeachment. Impeachment is also used Congress in relation to the public servants of federal level and judges, where a lower chamber (House of representatives) pulls out prosecutions, and Senate gets a right to judge and award judgement. Further President is not right to dismiss Congress, but the last can dismiss the head of the state by impeachment. Impeachment is also used Congress in relation to the public servants of federal level and judges, where a lower chamber (House of representatives) pulls out prosecutions, and Senate gets a right to judge and award judgement. A president, annually coming forward on the incorporated meeting of two chambers, directs in Congress a message that along with informing the members of parliament about internal and external position, plugs in itself recommendations for the acceptance of certain laws (it can be named original legislative initiative of President).
Congress of the USA consists of Senate and House of representatives that is provided with wide latitudes in the field of legislation and realization of control above activity of federal executive branches of power. The committees of Congress closely co-operate with federal ministries, carrying out a permanent supervision after their activity and directing her. In addition, parliament of the USA often passes to President legislative plenary powers. It is important to note that in every federal ministry and department of the USA there is a department for relations with Congress, which closely cooperates with legislators and maintains liaison with the relevant committees of parliament.
In the article of research Professor of Law at Northwestern University School of Law Steven G. Kalabresi "The rise and fall of the principle of separation of powers" argues that the principle of separation of powers in the United States has transformed [2, p.528]. In his opinion, the legislative power transferred its powers to the President, and mainly deals with the supervision and execution of regulatory acts through parliamentary committees, while the President deals with the activities of the legislative power, adopting acts equivalent to laws. At the same time, the judiciary, continuously interpreting the laws, is involved in the activities of the executive branch. The author proposes to rotate members of Congress committees, since congressmen and senators in most cases serve continuously in one committee (the average stay of members of congress is 20-25 years, and sometimes reaches up to 41 years, which consequently leads to abuse of power by members of parliament.
There is a special character of the principle of separation of powers in semi-presidential countries. France is a prime example of this system. The authority of the people's elected president is shared with the head of government In France, who in turn is appointed by the president. Considering that the government bears responsibility only for the National Assembly, it forces the head of state to appoint only the government that relies on the support of the parliamentary majority. All members of the government are appointed by the President upon the proposal of the Prime Minister. According to the regulated norms of the Constitution of the French Republic, the Government is collectively responsible to the National Assembly. Ministers in France bear civil, criminal and political responsibility. The ministers are responsible for civil liability to individuals and the state. Due to the wide powers of ministers in the financial field and the very important consequences that their mistakes, negligence or negligence may cause, a number of laws have precisely defined the personal responsibility of ministers to the state.
According to the Article 68 of the Constitution of the French Republic, members of the government bear the criminal responsibility for the actions they committed in the performance of their
duties if at the time they were committed they were qualified as of crime [3]. They can be charged only by both chambers that have adopted an identical decision by open voting by an absolute majority of their members. The Parliament of France, being the highest representative institution, consists of two chambers: the National Assembly and the Senate. The National Assembly consists of deputies elected by universal and direct suffrage. The Senate is formed by indirect elections, by electoral colleges, in which representatives of municipal councils predominate. The term of office of members of the Senate is 6 years and a third of the membership is renewed every three years. Party factions are formed in each chamber. One tenth of the deputies of the National Assembly may initiate the resignation of the Government, where the vote on this issue should be 48 hours after the draft resolution is submitted to the bureau of the National Assembly. This enables the Government to conduct backstage negotiations with members of the lower house. A resignation resolution is considered adopted if an absolute majority of deputies vote for it. If the resignation resolution is rejected, the deputies who signed it lose the opportunity to introduce a new censure resolution during the same parliamentary session (vote of no confidence in the government). The President has the right to dissolve Parliament.
Critics of this model claim that the French system of separation of powers is vulnerable, in view of the fact that the President must share power with the Prime Minister, in which the latter must have majority support in the National Assembly. But, in the case when the President and the Prime Ministers are representatives of competing parties, the possibility of a vacuum of power in the state is great [4, p. 633].
Adherents of the parliamentary form of government argue that this form is a more developed form of implementing the principle of separation of powers. The essence of their argument is that parliament delegates specific rights to the Cabinet of Ministers, which means that the government has very limited powers in interpretation or lawmaking, rather than the US President.
According to many scholars, the model parliamentary republic today is the Federal Republic of Germany. The German parliament consists of two chambers: the Bundestag - the lower house and the Bundesrat - the upper house. The Bundestag consists of deputies elected by a mixed electoral system on the basis of universal and direct voting for a period of 4 years. The government of Germany is formed from the ratios of the political forces of the Bundestag, where the President represents to the position of Federal Chancellor a representative (mostly leader) of a party or coalition that has occupied most of the seats in the lower house of parliament. The composition of the government is formed by the Federal President on the proposal of the Chancellor. Weekly, on Thursdays, in the Bundestag "government hours" are held, in which deputies have the right to ask the Chancellor and the ministers questions for three hours. In addition, the "Current Hours" are held in the Bundestag, where this tool is primarily used by opposition factions in order to use the possibility of a critical approach to the consideration of government policy. They are held at the request of any faction, or at least 5 percent of deputies, or by agreement in the Soviet of Elders. The procedure of dissolution of parliament has a special character in the state system of Germany. The dissolution of parliament requires permission from the Bundestag, that is, the President makes decisions on the dissolution of parliament only if the Bundestag passes a vote of no confidence in the Government. The judicial power of the Federal Republic of Germany consists of a constitutional court and the supreme judges of special jurisdictions. Members of the constitutional court are elected in equal numbers by both houses of parliament. Members of the Supreme Judges are appointed by the respective ministers jointly with the committee on the election of judges. Members of judges may be removed, transferred to another position only by decision of other members of judges. It is important to note that in each ministry there are two posts of "deputy minister for parliament affairs", which provide communication with the chambers of parliament. The judicial system of Germany is the object of criticism from many researchers. One of them is David P. Currie, who is in his article "The Separation of Authorities in the Federal Republic of Germany" [5, pp. 201-260] argues that the basic law of Germany does not sufficiently ensure the independence of the judiciary to the proper extent due to the fact that the appointment is made by members of the government. Within the framework of the development of the concept of separation of powers, today more and more popularity is gaining views on the separation of powers at the local level.
This phenomenon began in the 1970's in the activities of US municipalities, and it was during this period that most states adopted the Law on the Optional Form of Municipal Government [6, p. 33]. This act gave the municipal authorities the right to determine the form of government themselves, and the norms of this act, respectively, made it possible to regulate the principle of separation of powers at the municipal level. Today, the majority of US municipalities operate according to this principle.
The analysis reveals a clear picture of the fact that each form of government has its advantages and disadvantages in the implementation of the principle of separation of powers. It should also be noted
that modem world trends in the development of the theory of the principle of separation of powers, without departing from its original ideas, continue to adapt to today's conditions. This gives researchers in this field an additional impetus to the further search for optimal options for the question of the effective implementation of the principle of separation of powers.
Uzbekistan is a republic with a presidential form of government. With gaining its independence, fundamental changes were carried out in the social, economic and legal sphere of public life. That is, as we see, the concept of separation of powers is being implemented in stages in a peculiar way of developing parliamentarism, ensuring independence and enhancing the powers of the judiciary.
The development of the principle of separation of powers in Uzbekistan can be divided into the following stages:
- first stage (1991-2000 yy.). During this period was created the legal basis for the activities of the three branches of government and the Constitution of the Republic of Uzbekistan was adopted [7], the national parliament of Oliy Majlis was created and the Constitutional Court of the Republic of Uzbekistan was established for the first time;
- second stage (2000-2010 yy.). At this stage, attention was paid to the development of the principle of separation of powers and the Law of the Republic of Uzbekistan "On Courts" [8] was adopted, the highest qualification commission for the selection and recommendation for judgeships under the President of the Republic of Uzbekistan, introduced the Institute "Habeas Corpus", liberalized the judicial and legal system, created a bicameral parliamentary system, transferred part of the powers of the President to the Cabinet of Ministers and the Senate of the Oliy Majlis (Upper chamber of Parliament), the Constitutional Law "On Strengthening the Role of Political Parties in Updating and Further Democratization of State Administration and Modernization of the Country" was adopted, which gave impetus to the revitalization of political parties. One of the key moments of this period was the exclusion from the Constitution of the Republic of Uzbekistan of the norms establishing that the President of the country is also the head of the executive power;
- third stage (2010-2016 yy.). This stage is characterized by the improvement of the implementation of the principle of separation of powers in Uzbekistan. An important event at this stage was the proclamation of the "The Concept of further deepening the democratic reforms and establishing the civil society in the country" (November 12, 2010 y.) by the first President of the Republic of Uzbekistan Islam Karimov. Within the framework of this Concept, amendments were made to the Constitution of the Republic of Uzbekistan, where the candidature of the Prime Minister of the Republic of Uzbekistan is proposed by a political party that has won the largest number of deputy yea votes in the elections to the Legislative Chamber of the Oliy Majlis of the Republic of Uzbekistan (lower chamber of Parliament) parties that received an equal number of votes. Then the institute of a vote of no confidence in the Prime Minister was introduced by the Legislative Chamber of Oliy Majlis on a proposal officially submitted to the President of the Republic of Uzbekistan by members of the Legislative Chamber in the amount of at least one third of their total number. The financial situation of judges was also improved;
- fourth stage (2017 y.- present). 2017 is noted by the implementation of significant reforms in the system of state and public construction in the Republic of Uzbekistan. In particular, based on the provisions of the Action Strategy for the five priority areas of development of the Republic of Uzbekistan in 2017-2021[9], approved by the President of the Republic of Uzbekistan Sh.M. Mirziyoyev the role of the Oliy Majlis of the Republic of Uzbekistan, political parties in the deepening of democratic reforms and modernization of the country, more precisely, the establishment of a new post by the Decree of the President of the Republic of Uzbekistan in the Parliament of the Republic -Plenipotentiary Representative of the Cabinet of Ministers of the Republic of Uzbekistan in the Oliy Majlis of the Republic of Uzbekistan, one of the key tasks of which is to ensure close interaction of the structural units of the Executive Office of the Cabinet of Ministers, state and economic management bodies, local executive authorities on drafting laws, documents considered in the chambers of the Oliy Majlis, participation in the process of their consideration, coordination and report to the Executive Committee of Cabinet of Ministers [10].
The powers of the khokims (mayors) as leaders of the executive and representative authorities are divided; the role of the Kengashes (Soviets) of people's deputies, the powers of the people's representatives were strengthened; The powers of political parties in the formation of local authorities have been gradually expanded; parliamentary control over the executive authorities was strengthened. The Supreme Court of the Republic of Uzbekistan (the Supreme Court of the Republic of Uzbekistan united with the Supreme Economic Court of the Republic of Uzbekistan) [11].The procedure for selecting candidates and appointing judges to the posts has been fundamentally improved: in order to increase the accountability of judges to the people, the candidates for newly appointed judges are
discussed among the public and community activists (citizens' self-governing bodies) of the relevant territory. A new body of the judicial community was formed - the Supreme Judicial Council.
Also, on September 8, 2017, was adopted the Decree of the President of the Republic of Uzbekistan "On Approval of the Concept of Administrative Reform in the Republic of Uzbekistan" [12], which became a logical step to further improve the performance of the executive power system and create the appropriate institutional framework, introduce new principles of government activity on places that meet modern realities.
In conclusion, we would like to note that it is the consistency and phased reforms in the effective implementation of the principle of separation of powers create prerequisites for qualitative changes in ensuring a more balanced distribution of powers between the three branches of government, which necessitates the improvement of the following issues:
- first, along with the strengthening of a "vote of no confidence" in the Constitution of the government, it would be advisable constitutionally to define a clear mechanism for the parliament to initiate a vote of no confidence. In particular, it could be fixed in the Law "On Regulations" that the deputy who took part in initiating a vote of no confidence, had the right to re-participate in the nomination of a vote after six months, give the Prime Minister 48 hours to consult with the President and members of leading political parties in Parliament on this issue. These norms will serve to prevent possible sharp conflicts between the two branches of government (the possibility of frequent change of government, indiscriminate initiation of a vote by the parliament).
- second, the country's legislation does not have a reporting procedure for the Prime Minister in the Oliy Majlis of the Republic of Uzbekistan. For the effective implementation of this procedure, it is proposed to introduce in the regulations of both chambers of the Oliy Majlis the rules governing the procedure and time for questions and answers. This norm would contribute to the effective implementation of the Prime Minister's reporting in the Oliy Majlis of the Republic of Uzbekistan;
- third, the expansion of the powers of the Parliament requires the improvement of the legal and organizational foundations of the mechanism of relations between the Oliy Majlis and the executive authorities. Considering the above, it is proposed to create in all ministries and departments a special service at the level of deputy ministers, which would ensure communication with the chambers of the Oliy Majlis of the Republic of Uzbekistan. This would give an additional impetus to the implementation of effective parliamentary control and would have an impact on the quality of the adopted legislative acts of the parliament.
References / Список литературы
1. DuvergerM. Echec au roi. P. Michel // Paris, 1978. P. 10.
2. Kalabresi Steven G. The rise and fall of the principle of separation of powers // USA-Northwestern University School of Law,2012. Vol. 106. № 2. P. 528.
3. Конституция Французской Республики 1958 года с изменениями, внесенными 23 июля 2008 г., сс. 20-23.
4. Ackerman Bruce. The New Separation of Powers//113 HARV. L. REV. 2000, P. 633.
5. The American Journal of Comparative Law//Spring, 1993.Vol. 41. № 2. Pp. 201-260.
6. Utah Laws 106 (current version at Utah Code Ann. §§ 10-3-1201 to 1228 (Supp. 1977)), 1975. Ch. 33.
7. Конституция Республики Узбекистан. Т.: ИПТД «Узбекистан», 2017. C. 6.
8. Закон Республики Узбекистан от 02.09.1993. № 924-XII «О Судах».
9. Указ Президента Республики Узбекистан от 07.02.2017 № УП-4947 «О Стратегии действий по дальнейшему развитию Республики Узбекистан».
10. Постановление Президента Республики Узбекистан от 28.09.2017 № ПП-3294 «О введении должности Полномочного представителя Кабинета Министров Республики Узбекистан в Олий Мажлисе Республики Узбекистан».
11. Закон Республики Узбекистан от 12.04.2017 №ЗРУ-428 «О внесении изменений и дополнений в Закон Республики Узбекистан «О судах», Гражданский процессуальный и Хозяйственный процессуальный кодексы Республики Узбекистан.
12. Указ Президента Республики Узбекистан от 08.09.2017 № УП-5185 «Об утверждении Концепции административной реформы в Республике Узбекистан».
