INSTITUTE OF PRESIDENCY IN UZBEKISTAN: THE LEGAL NATURE AND THEORETICAL-LEGAL BASES

Mirakulov M.M.
Doctor of Law sciences, professor

INSTITUTE OF PRESIDENCY IN UZBEKISTAN: THE LEGAL NATURE AND THEORETICAL-LEGAL BASES

Abstract

The article discusses the content of normative model of law worker’s competency, displaying scientifically based composition of professional knowledge and skills and here we can
see pedagogical condition and developing level of professional competence of law workers.

Аннотация

В статье рассматривается содержание нормативной модели компетентности юристов, отображается научно-обоснованный состав профессиональных знаний и умений, где мы видим педагогическое состояние и уровень развития профессиональных компетенций юристов.

Ключевые слова: закон, инновация, интернет-ресурс, интеграция, компетенция, компетентность, профессиональная компетентность, коммуникация.
Keywords: law, innovation, integration, competence, professional competence, creativity, pragmatics sociolinguistics.

Now the complex of actions on creation of democratic society in the world, based on the rule of law for effective ensuring human rights is carried out that assumes (demands) restrictions of the government, definition of powers of public authorities by the law, ensuring their legal definiteness, the formulation of constitutional legal status of the president of the republic. It strictly observes the principle of division of the authorities and institutional balance, development of the system of controls and counterbalances between branches of the government, definition in the legislative way of mechanisms of implementation of powers of the head of state. If at the first stage of independence the active role of the state which demanded concentration of the main powers in hands of the state, and first of all executive power in the lead of the President of the republic was supposed, the following stages of democratic transformations required elaboration of long-term strategy of political development when the role of the government will radically change, in particular the role of the President of the republic proceeding from the ultimate goal of our democratic development – creation of the democratic constitutional state and civil society. For realization of the above-stated, amendments in constitutional legislations aimed on accurate definitions and restrictions with the legal framework of functions of the President of the country, ensuring more balanced distribution of powers between the three subjects of the state authoritythe president(the head of state),
legislative and executive powerwere made.

The exception in 2008 of the norm of article 89 of the Constitution of the Republic of Uzbekistan prescribing that the President is a chief executive, led to emergence in the science of constitutional law of the number of theoretical and legal problems, connected with determination of constitutional legal status of the President of the Republic of Uzbekistan in the system of division of powers, volume of powers of the head of state in new conditions, mechanisms of their implementation, questions of relationship of the President with the parliament, the government and judicial authorities. Actually, adjustment of the powers of the President determined by acts in the sphere of executive power in accordance with the new status of the head of state. It should be noted that the specified questions are actual in foreign scientific researches as well, thus it is possible to speak about the harmony with the world scientific tendencies.
The institute of presidency is the set of norms regulating the relations connected with establishment of the position of the President and presidential elections, taking office, functions and powers and guarantees of activity and responsibility. The institute of presidency, having a complicated structure, consists of the following 8 groups of the constitutional and legal norms regulating:

establishment of the position of the president;
presidential elections (in particular, legal status of future candidate for president; the candidate proposed by the supreme body of political party; the registered candidate; the elected but not come into office President);
order of inauguration;
functions and powers of president;
legal, organizational, material and social guarantees of president, including ex- president;
bases and order of the termination of powers of the president;
bases and order of temporary fulfillment of duties of the president;
bases of responsibility and order of its application.

According to the constitutional and legal theory, powers of the President of the republic directly elected by citizens and receiving the mandate directly from voters will be significantly wider than the powers of the head of state elected in the parliamentary way. Analyzing the development of constitutional-legal status of the President we can suggest to study the development of this institute, dividing it into three stages: the first stage connected with definition of the place and role in the system of state mechanism in general and spheres of the power, in particular, formation of legal bases of implementation of activity (from March 24 to November 1, 1990). At this stage, the legal status of the President of the republic by the legal nature was close to a parliamentary and presidential republic. Second stage (from November 1, 1990 to January 1, 2008) covers the period when the President was a chief executive, i.e. it is characterized by the beginning of transition to the presidential government. The third stage (2008 and the next years) is characterized by transition to the mixed form of government.
Based on theories of constitutional law and the Constitution of the Republic of Uzbekistan and acts, created practice, the main functions of the President that differs from functions of other government bodies include:

development of the main directions of domestic and foreign policy of the Republic of Uzbekistan;
ensuring the coordinated functioning and interaction of public authorities;
business management on behalf of the Republic of Uzbekistan within the country and in the international relations;
performance as the guarantor of observance of the rights and freedoms of citizens, Constitution and the laws of the Republic of Uzbekistan;
protection of sovereignty, safety and territorial integrity of the Republic of Uzbekistan;
management of foreign policy activity of the state.

The powers of the President of the Republic of Uzbekistan are established by the Constitution and legal rights and/or duties, necessary for performance of the tasks and functions vested in the head of state. At the same time powers do not always form the subjective right.

Analyzing views of a number of domestic and foreign authors about classification of powers of the President, classification of powers based on the above-stated main functions were proposed.
It is determined that President’s powers on actions carried out voluntarily; carried out on the basis of appeals of other government bodies and officials, citizens, connected with other government bodies and introduction of representation. The assessment of powers of the President (strong, weak) developed by the western scientists Armengeon and Karean shows that from 29 powers of the President of the Republic of Uzbekistan defined in acts, 22 or 75,8% are present at powers of the head of state. It means that in our country the President possesses strong powers of authority.
It is known that the necessity of definition in acts of the concept «Ex-president» (resignation in connection with the termination or the state of health during lifetime, etc.), concepts of «protection of state» and other aspects. Нaving studied opinions and views of domestic and foreign authors, as well as practice of foreign states, it is suggested to develop legal bases on the first President, on application of separate guarantees of activity of the serving president to the ex-president, the president who has not assumed office yet.

It considers that such functions as executive (law-enforcement) function(i.e. function of performance of the Constitution and laws), human rights (i.e. function of observance and protection of the rights and freedoms of the person and citizen), social and economic (i.e. creation of conditions for development of economic, social, cultural, administrative and political)management, law-enforcement and observance of the constitutional order in the country (in its framework the set of functions of public administration are carried out: management, control, coordination, planning, calculation, forecasting, etc.) rule-making, guarding (jurisdictional), described in juridical literature, are traced definite forms and in actions of President, and in contents of its decisions that come to the conclusion that the President of the Republic of Uzbekistan in the system of government treats the executive branch of the power. It is confirmed by the structure of the Constitution of the Republic of Uzbekistan and the legal status of government bodies as well, and the fact that the President of the Republic of Uzbekistan issues decrees, resolutions and orders only on the basis and in pursuance of the Constitution and laws. In view of powers of the President and, comparing them to other branches of the government, it is possible to draw the conclusion that at the institute of presidency there are elements relating to the institute of executive power, rather than to other institutes, i.e. the President does not adopt laws, does not execute judicial functions, etc.

In the system of government the institute of presidency takes the important place and plays the main role, that has a strategic importance in the activity of legislative and executive power, and the created practice of development by the Cabinet and Oliy Majlis of programs for performance of the tasks set in speeches, decrees, resolutions and orders of the President of the Republic of Uzbekistan, in turn, demonstrate that, the main strategically important directions of domestic and foreign policy are developed by the head of state. Having studied the relations of the head of state and parliament, proposals to include in the law «About Parliamentary Control» as forms of parliamentary control the approval of separate decrees of the President by parliament and election, appointment or the approval of officials on representation of the President.

It is claimed that executive power on the example of our country can be characterized as dicephalous (double-headed). Maintenance of the relations between the President of the Republic of Uzbekistan and the Cabinet is defined by Art. 98 of the Constitution of the Republic of Uzbekistan in which it is specified that the Cabinet in the activity is responsible before the President of the Republic of Uzbekistan, is the body providing performance of decrees, resolutions and orders of the President of the Republic of Uzbekistan, implementation of appointment and release of the Prime minister as the decision of the President, and introduction of drafts of resolutions and orders of the Cabinet for coordination in the office of the President.
Following mutual legal relations of the President of the Republic of Uzbekistan with judicial authorities were analyzed as:

Uzbekistan is not the member of the Council of Europe, but as the state applying in the legislation of his country standards of the developed democratic states shall consider recommendations of the Venetian commission where it is specified that in a part of the body selecting judges, not less than a half shall be judges themselves [1].
Proceeding from recommendations of the Venetian commission suggests to state accurately in Art. 63 of the law «About courts» the order of selection of judges, reflected in the section III of the Regulations on the Supreme qualification committee on selection and recommendation to the position of judges at the President of the Republic of Uzbekistan.
He agrees with the conclusion that the half of members of this commission shall work at the constant basis that the opinion of body of the Venetian commission on selection of judges was not dependent on employees of the secretariat which are public servants [2].

In the states with the parliamentary form of the government the status of the most of presidents has rather ceremonial value, carrying out the arbitration and integrative and coordinating functions. Analyzing signs of the parliamentary republic, their positive and negative sides, impossibility in this case of implementation by the President of the management of executive power, it is noted that for this reason, the president does not take the central place in the system of government bodies of the parliamentary republic. Existence in our country of the position of the Prime minister; power of parliament to define the main directions of domestic and foreign policy; abdication of the government before the elected parliament; determination of the status of the president as the head of state providing the coordinated functioning and interaction of public authorities; nomination of a candidate for the position of the Prime minister the party which won on elections; creation and liquidation of state bodies by the President on the representation of the Cabinet; transfer of the right of representation for appointment (approval) of candidates as members of the government, at the position of hokims of provinces and the city of Tashkent to the Prime minister; transfer of the right of announcement of amnesty from the President to the Senate, institute of the vote of no confidence – all these are signs of the parliamentary republic.

Analyzing the separation of the mixed forms of government on presidential- parliamentary and parliamentary-presidential we can come to the scientific conclusion that in the Republic of Uzbekistan the presidential and parliamentary type of the mixed form of government works.
The institute of presidency is the set of standards regulating the relations connected with the establishment of the Presidency and his elections, assumption of office, functions and authorities and guarantees of performance and responsibility.

Head of state is the highest official or body which taking the central place in the system of governmental agencies provides the coherent functioning and interaction of public authorities, stability and continuity of the public authorities, represents the state within the country and in the international relations is the symbol of unity of people and the state.
Constitutional-legal status of the president is the set of standards of the Constitution and the laws defining authorities, responsibility, guarantees of performance of the president of the republic.
Authorities of the President of the Republic of Uzbekistan are the rights and (or) duties enshrined in the Constitution and laws for the solution of the assigned tasks and performance of functions of the head of state.

References:

CDL-AD(2010)004, Report on independence of judicial system. Part –independence of judges (it is accepted by the Venetian Commission at the 82ndplenary session (Venice, on March 12-13, 2010), paragraph 32 // www.venice.coe.int
CDL-AD(2011)019 – С.10. п.54. // www.venice.coe.int