By Professor G. Malikova (Academy of the General Prosecutor’s Office)
The following article by Professor G. Malikova (Doctor of Legal Sciences) at the Academy of the General Prosecutor’s Office of the Republic of Uzbekistan was contributed by the Embassy of Uzbekistan in Seoul for publication by The Korea Post media, publisher of 3 English and 2 Korean-language news publications since 1985.—Ed.
The rule of law is ensured in a democratic society through a fair, impartial and effective administration of justice. This type of administration of justice requires independent and impartial judges and prosecutors who ensure the preservation of individual rights and freedoms as well as the maintenance of public order. Regardless of how different prosecutors’ systems are in different countries, they all have one element in common. Prosecutors must make decisions independently and carry out their responsibilities free of outside pressure or intervention, while adhering to the principles of separation of powers and accountability. As the President of the Republic of Uzbekistan Sh.M. Mirziyoyev rightly noted: “Our people can endure any difficulties, but they will not tolerate injustice”. In this regard, the essence of the mission for prosecutors is to ensure social justice and the rule of law.
In particular, the National Action Strategy on Five Priority Development Areas 2017-2021 was adopted (February 7, 2017) at the initiative of the President, which sets outlines the priority areas for ensuring the rule of law and further reforming the judicial and legal systems. The document entrusted the prosecution bodies with a tremendous deal of responsibility for ensuring that human and civil rights and freedoms be protected. Since this is the only way to combat such serious social threats as corruption, organized crime, terrorism, etc. Only in this way can prosecutors promote the independence of the entire justice system by prosecuting instances of undue interference with the independence of the judiciary. However, it is here where researchers dispute the status of the prosecutor’s office outside of the criminal justice system. After all, the defense of public interests and the rule of law are impossible to envision without the prosecution’s cooperation with other government agencies. As the nature cannot tolerate emptiness, interaction is an essential component of any physical process.
Extrapolating the preceding to the sphere of legal relations, it is reasonable in this context to address the question of interaction of the Prosecutor’s Office with the Oliy Majlis - the Parliament of the Republic of Uzbekistan. The Parliament’s mission is to resolve the society’s potential for conflict, to make decisions taking into account the diverse opinions of the political forces represented in parliament in order to find the solution that will satisfy every member of society. It’s cooperation with the Prosecutor’s Office has a positive impact on each Party, which leads to the ordering of links and unification in a given type of integrity to reach the intended result.
So, what are the current connections between these structures? Let’s take a closer look at them.
Pursuant to Article 81 of the Constitution of the Republic of Uzbekistan, the Prosecutor General has the right to attend sittings of the Legislative Chamber and the Senate of the Oliy Majlis, as well as at sittings of their bodies.
Why did the legislator establish this norm?
At the sittings of the Chambers of the Oliy Majlis, a variety of subjects are frequently discussed, all of which in one way or another is related to the activities of the prosecution bodies, the performance of the responsibilities allocated to it, and assuring compliance with specific laws and decrees. On the one hand, the review of the relevant legislative acts, bills (Fundamentals of Legislation, Codes, etc.), reports, co-reports and speeches contain the necessary analysis of certain aspects of the activities of the prosecution bodies, in addition to some criticisms and wishes expressed in their address. On the other hand, at these meetings, prosecutors - leaders deliver a speech, which is prepared by assessing the relevant acts taking into account the law enforcement practice and make proposals for improving the legislation. Simultaneously, prosecutors’ attendance at meetings aims to gain firsthand information on the procedure and course of evaluation of problems in the preparation of which the prosecution authorities were involved.
It should be noted that the activities of the prosecution bodies in one way or another come into contact with the committees and commissions of the Chambers of the Oliy Majlis. The Prosecutor’s Office generally interact with structures under the Legislative Chamber such as:
Committee on Judicial-Legal Issues and Anti-Corruption;
Committee on Democratic Institutions, NGOs and Civil
Defense and Security Committee.
With regard to the Senate of the Oliy Majlis, the Prosecutor’s Office commonly interacts with the Committee on Judicial-Legal Reforms and Combating Corruption.
The control and analytical activities of the Committees of the Chambers of Parliament tasked with examining the execution of a particular law, in most cases, assign specific responsibilities to the prosecutor’s office on matters of prosecutorial supervision identified in the process of studying the implementation.
In addition, according to Article 49 of the Regulation of the Legislative Chamber of the Oliy Majlis, “expert groups are formed under the committees to assist in the formulation and discussion of bills, preparation and implementation of control and analytical measures”. The identical rule can be found in Article 1987 of the Regulation of the Senate of the Oliy Majlis. Many qualified specialists of the prosecutor’s office serve as acting experts in the aforementioned committees, which are formed for the period of the activities of the chambers of parliament.
It should be noted that the prosecution bodies, due to the specifics of its state and legal status in the system of public authorities, oversees nearly all areas of relations in the course of ensuring conformity with national legislation. This is evidenced by the Presidential Decree “On strengthening the role of prosecutors in the implementation of socio-economic reforms and modernization of the country, ensuring reliable protection of human rights and freedoms”, which instructed the prosecution bodies with a mission to rigorously implement programs for the integrated socio-economic development of territories, identify and eliminate factors and systemic shortcomings that hinder the ongoing reforms. What was the point of it all? Perhaps the developers believed that state authorities and administration needed to work together on this. After all, the prosecution bodies are aware of not only the application of laws, but also the state of legal regulation, allowing it to identify specific concerns that require legislative regulation or legal acts that need to be amended. Thus, the Prosecutor’s Office submitted as part of its control and analytical efforts to the Oliy Majlis 17 reports for the period of 2020, and 25 reports for the six-month period of 2021.
Pursuant to Article 83 of the Constitution of the Republic of Uzbekistan, the Prosecutor General is vested the right to initiative legislation.
What is the goal pursued by this norm?
First, ensuring the unity of legal policy implemented by the Prosecutor General’s Office of the Republic of Uzbekistan;
second, participation in the formation of normative legal acts that provide a decent level of legal regulation of public relations;
third, reducing the influence of departmental interests that run counter to the needs of society and the state;
fourth, counteraction to the lobbying of the interests of structures associated with criminal circles by participants in law-making activities;
fifth, ensuring national security;
sixth, protection of human and civil rights and freedoms;
seventh, increasing the level of work on the systematization of legislation.
The truth is that the prosecutor’s office is now a full-fledged subject in the legislative process. So, for the period 2019-2021, using the right of legislative initiative, the Prosecutor General introduced 25 bills to the Legislative Chamber of the Oliy Majlis, which were adopted by the Legislative Chamber and transmitted to the Senate. During the time period under consideration, every one of the Prosecutor General’s legislation initiative were accepted. Here are a few illustrations.
1) The Law of the Republic of Uzbekistan “On amendments and additions to the Criminal Procedure Code of the Republic of Uzbekistan, aimed at strengthening the protection of the rights and freedoms of citizens participating in criminal proceedings”;
2) “On amendments and additions to the Criminal Code of the Republic of Uzbekistan regarding animal abuse”, etc.
The Prosecutor’s Office takes the 4th place in the list of bill nominations by subjects of legislative initiative for the period of 2019-2021:
The Presidential Resolution “On measures to further improve the system for the prevention of offenses and the fight against crime” was adopted, On March 14, 2017, according to which, a Department for the Analysis of Problems of Ensuring Legality and Law Enforcement was created in the structure of the Prosecutor General’s Office. Some of the functions of this Department include developing proposals to further improve legislation and law enforcement practice, preventing and eliminating violations of legislation, as well as the facts of arbitrary, subjective, selective interpretation of legal norms, improving the activities of state bodies and organizations.
Participation of the prosecutor’s office in lawmaking is also important for prevention, as it often aids in the elimination of potential legal infractions during the preparation and consideration of a regulatory legal act.
The Law of the Republic of Uzbekistan “On the procedure for preparing draft laws and their submission to the Legislative Chamber of the Oliy Majlis of the Republic of Uzbekistan” establishes certain requirements for bills (draft laws) such as taking into account the principles and norms of the Constitution and laws of the Republic of Uzbekistan, as well as international agreements of the state. When developing a legislative strategy, the legislator does not find it necessary to study the history and traditions regarding the subject of the bill; on the contrary, it gives great priority to studying the experience of foreign countries in this matter. The legislator fails to consider the differences in the organizational form and functions of the model of the prosecutor’s offices. As a result, authorities and deputies, as well as citizens, have a legal nihilism, and there are ongoing disagreements over the unwillingness to oversee the application of laws. One cannot make a law by plucking one element from one legal family and another from another and putting them together in a legislative strategy, without studying the history of the subject. The President of the Republic of Uzbekistan Sh.M. Mirziyoyev has emphasized the importance of learning from the history on numerous occasions. So, at a solemn ceremony commemorating Uzbekistan's 30th anniversary of independence, the president of our country stated, “Those who draw strength from their historical achievements and victories, as well as those who draw conclusions and learn from their mistakes and defeats, will be able to correctly determine their path and your future”. Recent changes in the legal system, such as initiatives to reinforce national statehood and the creation of a single legal space, show the soundness of these beliefs. At the same time, we must remember that the legal systems of European countries, as well as the rest of the globe, do not have a consistent status. And, without understanding the history of the prosecutor’s office, assertions regarding certain of its organizational standards are at the very least erroneous.
Existing international legal agreements, most notably the Convention for the Protection of Human Rights and Fundamental Freedoms, encourage each country (I emphasize, each country) to strive in its own way to achieve what can only be conditionally called a common European standard.
According to the British, democracy is first and foremost a procedure. In the interaction between the Parliament and the Prosecutor’s Office, national practice reveals a dynamic change in the value system in terms of parliamentary proceedings.
Modern studies reveal that there are no common standards for the establishment and operation of relations between the Parliament and the Prosecutor’s Office, as the functions of the prosecution bodies vary based on which legal family they belong to. However, the lawmaker should keep in mind that any attempts to construct a domestic Prosecutor’s Office exclusively on the basis of Western countries’ experience are bound to fail.