—William Partlett, Melbourne Law School
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here. This blog post reflects on ongoing project Partlett is working on with Aziz Ismatov, Assistant Professor at Nagoya University’s Center for Asian Legal Exchange. The project explores the legacy of socialism in the development of constitutional review in the former Soviet republics.]
The socialist legacy is far more complex than generally acknowledged. Using Uzbekistan as a case study, I argue that the rediscovery of late Soviet debates about a socialist version of constitutional review offers the possibility of jump-starting constitutional review in post-Soviet states where it has remained largely unrealized.
Socialist constitutional review? Late socialist challenges to socialist centralism
Drawing on the Leninist concept of democratic centralism, classic socialist public law theory argues that all state power should be concentrated in a supreme people’s legislature (the vanguard Communist Party operated above this state system). This supreme legislature is the key transmission belt for Party policy; it also enacts and amends the state constitution and its statutes give concrete legal effect to constitutional provisions. For most of the socialist period, this constitutional arrangement left no room for constitutional review of legislation or executive acts.
In the 1980s in socialist Eastern Europe and the Soviet Union, a growing desire to build both “socialism with a human face” and a socialist rule of law state challenged these core principles. In particular, these debates included a robust discussion of the possibility of a “socialist” version of constitutional review. In the Soviet Union, constitutional review was described as a better way to realize the individual rights in the Soviet constitution as well as a method for invalidating the vast number of conflicting executive acts that violated or undermined Soviet statutes and the Soviet constitution.
In the end, after considering a number of different options, the Soviet legislature created the Committee of Constitutional Supervision (CCS) (Komitet konstitutsionnogo nadzora). This body was ultimately given the authority to invalidate Soviet-level laws and executive acts, advise on the drafting of new legislation, and adjudicate disputes between the Union center and the republics. Finally, and most controversially, it was also given the power to invalidate republic-level executive acts and laws if they violated international treaties. Over the course of the next 18 months before the collapse of the Soviet Union, the newly created Soviet-level review body was remarkably active, invalidating laws and executive acts at both the Union and republic level. These decisions suggested the beginnings of a move towards rights-based judicial checks on legislative and executive power.
Uzbek constitutional review
This late Soviet practice of constitutional review offers some lessons for contemporary Uzbekistan. Despite a long list of rights in its constitution and a separate constitutional court, Uzbek constitutional review has been largely non-existent. In fact, over almost 28 years since the collapse of the Soviet Union, the Uzbek Constitutional Court has issued fewer decisions than the Soviet CCS issued in 18 months.
The story of Uzbek constitutional review began in the late Soviet period. Delegates from the then-Soviet Republic of Uzbekistan participated in the Soviet-level discussions of a socialist version of constitutional law. Most notably, this included Agzam Khodzhaev who also served as a judge on the Soviet-level CCS. In 1990, the Uzbek Soviet Republic also adopted a CCS with powers that were largely identical to that of the Soviet-level CCS. Unlike the Soviet-level CCS, however, the Uzbek CCS did not issue any notable decisions; furthermore, very little is known about the Uzbek-level debates. In fact, it is likely that the Uzbek CCS was simply a top-down imitation of the Soviet model.
In 1992, Uzbekistan achieved independence and became the first post-Soviet republic to adopt a written constitution. This constitution included a long list of fundamental rights and a European-style, stand-alone constitutional court. The 1993 law implementing this new constitutional court afforded it significant power, including the power to strike down executive acts and formal laws based on the constitution. This power notably included the authority to invalidate acts based on constitutional invalidity. Formally, this appeared to be a step forward.
But this newly empowered court has not emerged as a powerful force for constitutional implementation. One key problem was of personnel: other than Khodhzaev (who died in 1994), the newly independent Uzbekistan had very few constitutional law experts. Moreover, another key problem was the return of unbridled centralism to the post-Soviet space. In 1995, amidst large-scale economic depression and political instability, presidents across the post-Soviet space argued that checks and balances on presidential power weakened their ability to respond to challenges. Uzbekistan’s then-president, Islam Karimov, was no exception. Although the Uzbek Constitutional Court had not yet exercised its power to strike down laws or executive acts, President Karimov pushed through amendments to the Law on the Constitutional Court that removed the Uzbek Constitutional Court’s power to invalidate laws and presidential acts. These amendments neutered Uzbek constitutional review before it even had a chance to begin.
Twenty-five years later, the Soviet-level debate and practice of constitutional supervision offers a possible source for beginning the largely unrealized project of Uzbek constitutional review. First, this debate is in Russian and is readily available to scholars and judges in the region. Second, this late Soviet-era debate and its institutional practice at the Soviet level offer a way of viewing constitutional review not as a western transplant with no relevance to Uzbek practicalities but instead as a practice that is in line with its needs and requirements. In particular, recovering this history can help reformers better understand how constitutional review was justified in a highly centralized regime. For instance, a key theme in the Soviet-level debates about the CCS was the importance of constitutional review in overcoming the vast number of contradictory executive decrees and pronouncements. The problem of conflicting executive pronouncements remains a significant issue in Uzbekistan today. This kind of justification can therefore emerge as the foundation for a more focused—and more persuasive—discussion of the necessity of constitutional review in the region.
Suggested citation: William Partlett, Late Soviet Constitutional Supervision: A Model for Central Asian Constitutional Review? Int’l J. Const. L. Blog, Oct. 2, 2019, at: http:/www.iconnectblog.com/2019/10/late-soviet-constitutional-supervision-a-model-for-central-asian-constitutional-review/