The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries【Special Features: Multiple Aspects on Constitutionalism –Asian “Contexts” and its Logic】

The Introduction of Modern Constitutionalism in Central Asian Post-socialist
Context: The Case of Constitutional Debate and Development on Human Rights in
Uzbekistan in the Twentieth and Early Twenty-First Centuries
ISMATOV Aziz *Abstract
This research sheds light on a constitutional debate on and development of human rights
in Uzbekistan throughout four constitutions from 1927 to 1992, as well as prospects andchallenges in conceptualizing and promoting human rights during and after socialism. As adeparture point, this research investigates relevant human rights provisions in the 1927, 1937,
and 1978 constitutions, which functioned during the period when a socialist human rights
tradition was established and evolved in the then Uzbek Soviet Socialist Republic (Uzbek SSR).
It follows with the analysis of the debates on the new human rights and citizens’ rights
provisions in the 1992 Constitution adopted within the sophisticated transition process fromsocialism to market economy. This discussion touches upon the theoretical collision between
antagonistic theories of rights – the positivist theory originating from a socialist state on the
one hand, and the natural law inspired by international human rights law and foreign
constitutions. The author argues that the discourse of contemporary constitutional human rights
development in the Republic of Uzbekistan still bears evident traces of socialist and positivist
conceptions, notwithstanding the government’s tendency to distance from the socialist state
concept. Constitutional human rights also experience substantial practical challenges boundedby multiple factors, which additionally include provisional imperfection regarding the direct(immediate) implementation of rights and incompetent constitutional review system.

*

Assistant Professor, Center for Asian Legal Exchange, Nagoya University.

61

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

Contents
I.

Introduction

II.

The Evolution of the Socialist Human Rights Discourse in Uzbekistan from 1927 to 1992

III. Constitutional Rights in the 1992 Constitution: Introduction of Positive or Natural Human
Rights?
IV. Post-2016 Developments: Human Rights at the Crossroads?
V.

Conclusion

I.

Introduction
Fragmented deliberations touching upon human rights in Uzbekistan appeared in the earlytwentieth century. The 1927 Constitution of the Uzbek Soviet Socialist Republic (1927 Constitution)
contained the sporadic and limited provisions on rights afforded mainly to the proletarian class. 1 The
following 1937 Constitution of the Uzbek Soviet Socialist Republic (1937 Constitution) contained
comparatively more rights-related articles. 2 The 1978 Constitution of the Uzbek Soviet Socialist
Republic (1978 Constitution) had listed close to 40 of rights. 3 The formal discussion on human rights
in the USSR, especially its farmer union-republics of Central Asia, generally remained insignificant
or void.
The process of transition towards a market economy in Uzbekistan, which began in 1991,
necessitated the creation of an entirely new, non-socialist legal system that would promote market
economy, democracy and establish the Rechtsstaat. The first two decades of the transition emphasized
the human rights topic mainly from the critical perspective in the foreign media and human rights
forums, and to a lesser degree within domestic public institutions. As of 2021, the situation with a
discussion of human rights is relatively open as compared to, for example, as in 2015. However, there
is still an exceptional untouchable grey area that relates to ‘public interest.’
After the formal demise of socialism, one of the intense discussions on human rights took place
during the draft process of the 1992 Constitution of the Republic of Uzbekistan (1992 Constitution).
This process involved the previously unknown elements of the nation-wide constitution draft
discussion that continued from October to December 1992. The debate on the chapter on human and

1“1927 Constitution of the Uzbek Soviet Socialist Republic [1927 Constitution]” (1927).

2“1937 Constitution of the Uzbek Soviet Socialist Republic (1937 Constitution)” (1938).

3“1978 Constitution of the Uzbek Soviet Socialist Republic (1978 Constitution)” (1978).

62

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries

citizens’ rights attracted limited comments and recommendations from private and public actors, buteven this form of travaux preparatoires reveals tensions between natural rights and state-granted
rights theories. It also brings into attention a dissent between the universalism of international humanrights standards and cultural relativism. 4 The context of the debate on and the development ofconstitutional human rights, similarly to other new democracies, do not insert any adequate clarity
concerning Rechsstaat, the rule of law, and Etat de Droit.
Legal studies in the Central Asian region traditionally compose a poorly researched area in the
English-speaking academic world. Over the past couple of decades, the published contextualinternational research on Uzbekistan focuses mainly on practical human rights abuses by thegovernment without pausing on the aspects of the constitution-draft process and legal theoreticalvariations of rights in the present and predecessor constitutions. Also, there is a lack of adequate
attention and research to the theoretical constitutional settings by legal scholars in Uzbekistan, whetherin Uzbek or Russian languages. Therefore, multiple critical features related to the constitutionalism inCentral Asia have yet to be explored.
This research aims to help to correspond to this divergence and proceeds as follows: Part I
investigates the constitutional evolution of the socialist human rights structure in Uzbek SSR througha detailed inquiry into specific constitutional provisions from 1927 to 1992. Part II examines therelevant constitutional debates and political tendencies that led to the adoption of the constitutional
provisions on human rights in the 1992 Constitution. This part also examines and assesses theeffectiveness of the constitutional human rights provisions. Part III concludes with an evaluation of
the prospects and challenges of human rights and their protection in Uzbekistan.

II. The Evolution of the Socialist Human Rights Discourse in Uzbekistan from 1927 to 1992
Uzbekistan has promulgated four constitutions; three during the socialist era in 1927, 1937, and1978, and one since its independence from the Soviet Union in 1992 (see Table 1). Before socialism,
under the Russian tsarist administration, territories of present Uzbekistan experienced a dualist legal
nature, an extensive practice of Islamic law, and fragmented experience of a non-religious legal system
based on civil law tradition. 5 There was no formal, written constitution with any human rights

4

In Central Asia, policymakers also synonymously use the term Oriental values alongside with Asian values.

5

Aziz Ismatov and Sardor Alimdjanov, “Developmental Trajectory of Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law,”
Nagoya University Asian Law Bulletin Vol.4 (December 2018): 3.

63

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

provision during that period. As a point of departure, the table below provides a concise outline of theprovisions on human rights within the mentioned four constitutions.

Table 1. Constitutional Provisions on Human Rights in Uzbekistan (Both during the Socialist andpost-Socialist Periods)
Rights
1
2
3

4
5
6
7
8

9

10
11
12
13
14
15
16
17
18
19
20
21
22

1927
(Fragmented)

Right to life
Right to liberty and security ofthe person
Right to freedom of movement
and right to choose one’s
residence(including the right to travel
abroad)Freedom of expression
Freedom of association andpeaceful assembly
Freedom of belief and religion
Freedom of press
Right to be informed(Right to have accessinformation)
Right to (fair) trial

Constitutions
1937
1978
(Chapter X)(Chapter VI)

1992(Chapter V)

Article 126

Article 24
Article 25

Article 52

Article 7

Article 124

Article 48

Article 8,9Article124,125
Article 123
Article 124

Article 48,
49
Article 50
Article 48

Article 6
Article 7

toRight to defense (in criminal
proceedings)
Right to be compensated for
miscarriage of justice
Right to privacy (family, home,
telephone or correspondence)
Right to protect own dignity
Righttocomplaint,
denunciations,
Right to demonstrate
Right to use one own’s language
before the court
Right to take part in the conductof public affairs
Right to make proposals andcriticize public institutions
Right to referenda
Right to nationality (citizenship)
Right to legal protection
Right to election

Article 169

Article 28(only
movement
limitedbylaw)
Article 29(limited)
Article 34
Article 31
Article 29(limited)
Article 29
Article 30
Article 44(right to alawsuit)
Article26,
116

Article 56
Article 127

Article 17

Article 124
Article 109

Article53,54

48,

Article 55,
56
Article 48
Article 170
Article 47

Article 27
Article 27
Article 35
Article 33
Article 115
Article 32

Article 46

Article 92

64

Article 134

Article 46
Article 31
Article 31
Article 89

Article 32
Article 21
Article 22
Article 117

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries

23
24
25
26
27
28

29
30
31
32

33

34

Right to asylum
Right to property
Right to inherit property
Right to housing
Right to benefit from scientific,
literary or artistic production
Right to work

Right to social security
Right to leisure
Right to education
Right to health(since 1992 – qualified medical
service)Right to equality before the law(Onlyproletarianclass)
Article 15

Article 11(obligation)

Article 10

Article 128

Article 36

Article 10
Article 10

Article 13
Article 42
Article 44,
45
Article 38
Article 58(obligation)
Article 41
Article 39
Article 43
Article 40

Article 11(obligation);
Article 117
Article 119
Article 118
Article 120

Article 13(only Union
citizens)

36
37
38

Equal rights between men andwomen
Right to the maternity of female
workers
Rights of children
Rights of intellectuals
Rights of vulnerable groups

39

Equal rights among ethnic groups

Article 16

Article 12240

Equal rights for Union citizens(Since 1992 equal rights for
citizens)
Equal rights for foreigners(Since 1978 for foreign residents
for stateless persons)

Article 13

Article
122

35

41

42

Language rights for national
minorities

Article 121,
136
Article 121

Article 14(onlypolitical
rightsforproletarianclass)
Article 17

18,

Article 120

Article 36
Article 36
Article 42
Article 37

Article 39
Article 38
Article 41
Article 40

Article 167

Article 18(only citizens)

Article 33

Article 46

Article 33

Article 65

Article 51
Article 45
Article 41,
51
Article 32,
34
Article 31

Article 64, 65

Article 35(limited)

Article 23(limited
to
norms
of
internationallaw)

Article 43

Article 4

Article 45
Article 8
Article 21

The table above may initially draw to the following general considerations. First, apart from the1927 Constitution, which placed rights mainly within the general introductory provisions, thesubsequent three constitutions included provisions on human and citizens’ rights into individuallytitled chapters. Second, from the viewpoint of comparative importance and constitutional hierarchicalstructure, these chapters on human and citizens’ rights demonstrate a tendency of gravitating fromfinal towards earlier chapters of constitutions. For instance, in 1937 Constitution, known also as

65

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

Stalin’s constitution, the provisions on human and citizen’s rights were positioned only in Chapter X,
in 1978 Constitution in Chapter VI, whereas in 1992 Constitution these rights already moved to
Chapter V. Such progressive dynamism of gradually placing human and citizens’ rights provisions
into earlier chapters may demonstrate a comparative importance of human rights. Third, constitutional
evolution shows that human rights were mainly preserved, elaborated further, and increased. Althoughseveral human rights provisions that existed in predecessor constitutions were later removed, suchcases are rare. As an example, the 1927 Constitution’s Article 14, which extended equal political rights
to (proletarian) foreigners, was omitted in subsequent constitutions. 6 Similarly, the number of rights
which existed in socialist constitutions, such as; the right to be compensated for the miscarriage ofjustice, the rights to make proposals and criticize public institutions, the right to asylum, the right tohousing and others were neglected or omitted in the 1992 Constitution.
Simultaneously, modifications in all four constitutions indicate ideological transformations. Asa bright example, the absence of the right to private property, introduction, and expansion of theeconomic, social, and cultural rights in the 1927, 1937, and 1978 constitutions appear to reflect
expanding authorization of socialism. On the other hand, the 1992 Constitution revoked many of theseprovisions. Granting the constitutional right to private property became one of the central
modifications signaling about the switch towards a market economy. Moreover, the 1992 Constitution
drafters had to revise the significant economic, social, and cultural rights introduced in the 1978
Constitution. Notably, in the socialist period, the right to work was under the direct prerogative of thesocialist government, or in other words, it was the government’s obligation to secure adequate
employment for every citizen. 7 Similarly, the 1978 Constitution secured for everyone the right to freeeducation at all levels, the right to paid leisure, and the right to free medical service. 8 The 1992
Constitution drafters, out of their grave concerns that extending such ‘generous’ rights would beunrealistic within the realities of transition from socialism to a market economy, unanimously
neglected these provisions.
The evolution of human and citizen’s rights also suggests that there is a profound difference
between all four constitutions, which might owe considerably to the socio-political circumstances inwhich these constitutions were brought into existence. Indeed, each of the four constitutions appears

6

Article 14 of the 1927 Constitution of the Uzbek Soviet Socialist Republic [1927 Constitution].

7

Article 11 of the 1927 Constitution of the Uzbek Soviet Socialist Republic [1927 Constitution]; Article 11 of the 1937 Constitutionof the Uzbek Soviet Socialist Republic (1937 Constitution); Articles 38 and 58 of the 1978 Constitution of the Uzbek Soviet Socialist
Republic (1978 Constitution). Note that all three socialist constitutions classified work as an obligation.

8

Respectively articles 39, 41, and 43 of the 1978 Constitution of the Uzbek Soviet Socialist Republic (1978 Constitution).

66

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries

to be a product of its own epoch. While the 1927 Constitution was shaped by the initial slogans of thesocialist revolution and dictatorship of the proletariat, the Stalin’s 1937 Constitution stressed
additionally about “the achievement of socialism and the harmony of classes.” 9 Such approach,however, resulted in dissonance between the promises made in the 1937 Constitution and realities.
Further, the 1978 Constitution, known as Brezhnev’s Constitution apart from similarly determining
the ideas of people’s democracy, dictatorship of proletariat, and centrally planned economy, had also
consolidated and institutionalized citizen’s social and economic rights. This constitution, as a direct
copy of the 1977 USSR’s Constitution, appeared to reflect the general sense that the Soviet
government had reached the state of “developed socialism” (razvitoy sotsializm). 10 Eventually, the1992 Constitution was theoretically inspired mainly by the ideas of independence, sovereignty, andattempts to build an economy modeled on Western-type, establish democracy, and vibrant civil society.
All three, 1927, 1937, and 1978 constitutions left no space for pluralistic ideas but incorporated
solely the Marxist-Leninist concept in a pursue of socialism and socialist law. 11 The scholarship does
not offer a single definition of Soviet-type socialism. Neither do any of the former Soviet socialist
constitutions contain a separate explicit provision on it. Some scholars tend to interpret it by stressing
on the socialist, centrally administered or command economy with considerable public ownership. 12
While stressing about non-economic aspects of socialism, the vanguard role of the Soviet Communist
Party and democratic centralism appear as bright characteristics. 13 The fragmented constitutional
analysis allows interpreting socialism as a political ideology promoting state ownership of the meansof production within a state-command economy and under the unshared authority of the communist
party. 14 Such interpretation appears to have created a political environment in which natural rights
idea, as based on international human rights treaties, came to be replaced by the citizen’s rights idea
based on legal positivism. In other words, in socialist constitutions, rights, including human rights
were legal rights granted by the state. As a matter of fact, neither of the Uzbek socialist constitutions

9

Sarah Davies and Sarah Rosemary Davies, Popular Opinion in Stalin’s Russia: Terror, Propaganda and Dissent, 1934-1941(Cambridge University Press, 1997), 102.
10

Problems of Communism (Documentary Studies Section, International Information Administration, 1977), 4. Also, see the Preambleof the 1977 Constitution of the USSR, (1977), “A developed socialist society has been built in the USSR.
11

As an example refer to the article 6 of the 1978 Constitution of the Uzbek Soviet Socialist Republic (1978 Constitution).

12

P.J.D Wiles, The Political Economy of Communism. (Oxford: Basil Blackwell, 1962) As cited in; János Kornai, The Socialist
System: The Political Economy of Communism (Princeton University Press, 1992), 10.
13

William Partlett and Eric Ip, “Is Socialist Law Really Dead?,” New York University Journal of International Law & Politics. New
York University. International Law Society 48 (January 1, 2016): 470–71.
14

Article 6, 11, and 16 of the 1978 Constitution of the Uzbek Soviet Socialist Republic (1978 Constitution).

67

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

made a direct reference to the term human rights in any of its sections. Soviet ideologists
systematically titled their constitutional chapters regulating rights as ‘Citizen’s rights and obligations’,
not ‘Human rights’ as many foreign non-socialist constitutions did. It is worthwhile to mention thatthe drafters of the Soviet constitutions had elaborated a fundamental doctrine of socialist citizen’s
rights, which puts a strong emphasis on the group of social-economic rights and particularly theirmaterial guarantees. As an example, the right to housing in the 1977 Constitution secured a provision
on “fair distribution of living space under the public control.” 15 Other similar examples included
strong governmental guarantees of free education at all levels, paid leisure, free health care system,and employment guarantees. Simultaneously, certain vital human rights, such as the right to private
property, were omitted in the constitutions because of their apparent conflict with the core socialist
settings. Traditional personal freedoms were somewhat neglected. Simultaneous inseparable unity
between rights and obligations presupposed that the material guarantees of social, economic rights
could become possible upon the conditionality of every citizen’s thorough participation in socialism
building. 16 Such a general constitutional framework somewhat rejected the natural law doctrine aslong as the socialist concept of rights could only be derived from the sources of positive law whichwere created, granted, and protected by the state. 17
Foreign observers commented that such instrumentalist nature of Soviet constitutions revealed astrong need for legitimacy and therefore, inter alia, put a strong emphasis on rights and duties. 18
Inspired by the doctrine of socialist legality, such instrumentalist approach legitimized a patronalistic
idea that the Soviet Communist Party had exclusive competence to use law as a tool to implement its
policies, adopt, amend and, if necessary, abolish the constitution as long as Party’s highest authority
was represented by the will of the Soviet citizens. Such logic in all three Uzbek socialist constitutions
echoes Marxist-Leninist approaches towards the superiority of the state and its “democratic”
dictatorial structure. 19
Hence, by 1978, socialist constitutional evolution had resulted in the formal construction of thesocialist citizen’s rights theory. This theory had replaced a concept of human rights by citizen’s rights

15

Article 42 of the “1977 Constitution of the Union of the Soviet Socialist Republics” (1977).

16

Article 59 of the 1978 Constitution of the Uzbek Soviet Socialist Republic (1978 Constitution).

17

F. J. Ferdinand Joseph Maria Feldbrugge, Gerard Pieter Van den Berg, and William Bradford Simons, Encyclopedia of Soviet Law(BRILL, 1985), 124.

18

Gordon B. Smith, Peter B. Maggs, and George Ginsburgs, Soviet and East European Law and the Scientific-Technical Revolution(Pergamon Press, 1981), 121.
19

Refer further to; Joseph V. Femia, “Gramisci, the ‘Via Italiana’, and the Classical Marxist-Leninist Approach to Revolution,”
Government and Opposition 14, no. 1 (1979): 66–95.

68

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries

by enshrining rights and duties to citizens – individuals bound to state by the political and legal bond. 20
A closer look at those rights demonstrates a clear prioritization of social and economic rights overcivil and political rights and freedoms. Legal scholarship and general socialist constitutional discourse
simultaneously demonstrated a strong emphasis on collective or social interests in promoting rights
and duties of citizens vis-à-vis the state, rather than an individualistic emphasis on human rights as
usually is the case in the Western constitutions. In the context of socialist legality, human rights in the
Uzbek SSR emerged as positive citizen’s rights granted by the state. Opposed to the theory of naturalrights, the respect and realization of such citizen’s rights depended heavily on the state’s will.
In 1991, socialism officially ended amid the collapse of the USSR, which catapulted Uzbekistan,
as well as other former Soviet Central Asian republics towards independence and attempts to build an
economy modeled on the Western-type and entirely new legal system to promote a smooth transition.
In December 1992, Uzbekistan adopted a new constitution.

III. Constitutional Rights in the 1992 Constitution: Introduction of Positive or Natural
Human Rights?
The current Constitution of Uzbekistan was enacted in 1992 after the demise of the USSR and,hence, is often related to as the first constitution or even Karimov’s constitution. 21 Indeed, somedomestic legal scholars who were members of the constitution draft commission asserted that Karimov
was the “main author of the Constitution.” 22 The term ‘first’ in the context of the 1992 Constitution
does not always make a logical sense for some scholars because it ignores the role and essence of theprevious three constitutions. In this regard, a prominent domestic scholar asserts that the principal
difference of the 1992 Constitution from previous constitutions is the mere fact that it was not directly
and unconditionally imposed by the USSR, but elaborated and adopted by an independent, sovereign
government. 23 While acknowledging the primacy of international law, this constitution has no20

For a discussion on the difference between nationality and citizenship in the post-Soviet context, refer further to; Aziz Ismatov,“Citizenship Regulation in the Post-Soviet Space; an International Legal Study in Nationality and Statelessness” (Doctoral dissertation,
Nagoya University, 2014);
21

D Carlisle and Levitin, L, Islam Karimov: President of the New Uzbekistan (Vienna: Grotec, 1995); L Levitin, Islom Karimov:O’zbekiston Respublikasining Birinchi Prezidenti [Islom Karimov: The First President of the Republic of Uzbekistan] (Tashkent:
Uzbekistan, 1997), 239–40.

22

Saidov, Akmal and U Tadjihanov, Islom Karimov Konstitutsiya to’grisida: O’zbekiston Respublikasining Konstitutsiyasio’rganuvchilarga Yordam. (Tashkent: Akademiya, 2001), 156.

23

Saidov, Akmal, O’zbekiston Konstitutsiyasi Tarihi [History of Uzbekistan’s Constitution] (Tashkent: Tasvir, 2018), 340.

69

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

mentioning about the communist ideology, proletarian class dictatorship, democratic centralism, or asingle-party leadership.
Its preamble’s first sentence manifests that “the people of Uzbekistan solemnly declare theiradherence to human rights and principles of state sovereignty.” 24 By providing the term human rights,
Uzbekistan’s constitution draft commission members presumably demonstrate a shift from theirtraditional belief that the constitution must recognize and protect rights not only for citizens but also
for foreigners, refugees, and stateless people who live and work in Uzbekistan legally. This
constitution also explicitly indicates a shift away from the ‘socialist-oriented’ economic, social, andcultural rights enshrined in the previous socialist constitutions. The draft negotiation processdemonstrates that most of these rights would be difficult or nearly impossible to realize within the newsocio-political realities of transition. During the draft and nation-wide discussion process, thecommission members had received multiple suggestions and recommendations from private andpublic actors to amend the economic and social rights with their reference to the predecessor socialist
constitutions. For example, numerous recommendations from private parties, which suggested
including into the 1992 Constitutions the provisions on free education in all levels and free healthcare
as they existed in articles 40 and 47 of the 1978 Constitution, did not find support with thecommission. 25 Current article 41 of the 1992 Constitution provides for the right to education, but suchright is only free at the elementary level. Article 40 provides only for the right to qualified healthcare
and contains no wording on free or exceptional cases of state-covered healthcare.
Similarly, the previous socialist constitution provided that citizens had the right to be employed
and have state-provided housing. That made a state directly responsible for creating and managing
jobs as well as for providing housing assistance. 26 A group of activists also demanded the articles
regulating employment and housing in the 1992 Constitution contained similar wordings. 27 However,the 1992 Constitution merely provides that “everyone has the right to work ... and unemployment

24

Preamble, “The Constitution of the Republic of Uzbekistan” (1992).

25“O’zbekiston Respublikasining Markaziy Davlat Arhivi [Central State Archive of the Republic of Uzbekistan] XII Chaqiriq,
O’zbekiston Respublikasining Oliy Kengashining 1992 Yil 8 Dekabrda Bo’lib O’tgan XI Sesssiya Materiallari [11th Plenary Session
Materials]” (Fond-M-69, N 1, 154, 1992), 43, 99, 139, 150.

26

1978 Constitution of the Uzbek Soviet Socialist Republic (1978 Constitution), Articles 38 and 42.

27“O’zbekiston Respublikasining Markaziy Davlat Arhivi [Central State Archive of the Republic of Uzbekistan] XII Chaqiriq,
O’zbekiston Respublikasining Oliy Kengashining 1992 Yil 8 Dekabrda Bo’lib O’tgan XI Sesssiya Materiallari [11th Plenary Session
Materials],” 74–95.

70

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries

protection as prescribed by law”. 28 As for the right to housing, the 1992 Constitution does notdemonstrate any explicit provision that would be identical to that of the 1978 Constitution.
Most notably, the 1992 Constitution included and enhanced several human rights, some of whichwere transplanted from the Universal Declaration of Human Rights. Such rights include; the right tolife (Article 24) 29, equal citizenship (Article 21), the right to be informed and access to information(Articles 29, 30), the right to property (Article 36), the rights to maintain a secret of bank accounts
and legal guarantees on inherited properties (Article 36), the right for entrepreneurship (Article 53),
the right to lodge complaints and lawsuit (Article 44), the right to freedom of movement and right tochoose one’s residence (including right to travel abroad) (Article 28). Although the practicalimplementation of these rights still raises many questions, these new rights were considered crucial
for the democratic and economic state-building of Uzbekistan in the post-1992 period. 30
Mentioned novelties came into existence because of several factors. Firstly, it was the statesovereignty that came unexpectedly and made Uzbekistan, as well as many other former Soviet
republics to deal with appearing challenges, including legal reforms, in a very unprepared manner.
Such a situation necessitated introduction of the key principles of the market economy, such as respect
and protection of the private property, free competition, and freedom of movement. As these ideas
existed in successful market-economies where they appeared crucial, the policymakers in Uzbekistan
unanimously decided to safeguard them. Therefore, the 1992 Constitution started de jure recognizingthese ideas, for instance, the right to private property and freedom of movement. Subsequently, thereflection of many universal human rights and ratification of a range of international human rights
treaties was considered as a step towards qualifying for membership of the so-called “international
democracy club.” Eventually, the 1992 Constitution sets up a mechanism of check-and-balance
between different branches of the government and refers to the “law-governed state” (pravovoe
gosudarstvo). 31

28

Article 37 of The Constitution of the Republic of Uzbekistan.

29

Notwithstanding the provision of the right to life, the capital punishment was abolished in 2008. Refer further to; Aziz Ismatov andEliko Ciklauri-Lammich, “Abolishing Capital Punishment in Uzbekistan – Between External Pressure and Pragmatism,” Zeitschrift
Für Die Gesamte Strafrechtswissenschaft 130, no. 1 (2018): 279–302, https://doi.org/10.1515/zstw-2018-0010.
30

Saidov, Akmal, O’zbekiston Konstitutsiyasi Tarihi [History of Uzbekistan’s Constitution], 371.

31

Preamble and Article 11 of The Constitution of the Republic of Uzbekistan. The principle of separation of powers into the legislative,
executive and judicial shall underline the system of state authority of the Republic of Uzbekistan.

71

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

The term ‘law-governed state’ (pravovoe gosudarstvo) within the text of the 1992 Constitution
appears once in the Preamble. 32 The mere existence of this term in the text of the 1992 Constitution
with no definition as such creates a legal-terminological axiom as it may theoretically reflect several
meanings. First is a Russian equivalent of the German term Rechtsstaat. 33 The concept of Rechtstaat
is more oriented towards the nature of the state and has its roots in the written constitutions. 34
Historically, Rechtstaat was seen as a counterforce to the absolutist state power in which the executive
branch had unlimited authority. Hence it presupposed strong judicial and legislative branches asnecessary conditions for the well-balanced power. 35 This term was imported from Germany to Russia
in the late nineteenth century, and subsequently was borrowed by some former Soviet republics,
including Uzbekistan, from Russia. Another meaning may suggest a French originated Etat de Droit
as a positivist concept of the pravovoe gosudarstvo, which concentrates more on the state’s
supervision of the statutes. 36 Furthermore, such terminological axiom looks even more obscurebecause Article 15 of the 1992 Constitution contains a provision on the ‘verkhovenstvo konstitutsii izakona’ which means ‘rule by the law,’ not ‘rule of law.’ Scholars assert that ambiguous legal
terminological practices and focus on the ‘rule by the law’ is a distinguishing characteristic of many
new democracies that had experienced socialism and evolved within the conditions of socialist
legality. 37
The 1992 Constitution also demonstrates legal imperfection, specifically when it comes to humanrights. First, although the 1992 Constitution became a pioneer in terms of using the term human rights,
it does not provide a clear distinction between human rights and citizen rights, but simply conflates
them. The 1992 Constitution of Uzbekistan dedicates its Part II to the Basic Human and Citizen Rights,
Freedoms and Duties and, converges many universal human rights. Consequently, by additionallytaking into consideration provisions on “equal rights and freedoms for citizens” (Article 11) and “state32

Preamble, The Constitution of the Republic of Uzbekistan. “The people of Uzbekistan.... setting forth the task of creating a humaneand democratic law-governed state”

33

Hiroshi Oda, “The Emergence of Pravovoe Gosudarstvo (Rechtsstaat) in Russia,” Review of Central and East European Law 25,
no. 3 (1999): 373.

34

Eric Wennerstrom, The Rule of Law and the European Union (Uppsala: lustus Forlag, 2007), 73. This is opposed to the “Rule oflaw” which is believed to have appeared in non-written constitutions or in legal precedents. .

35“Doklad o Verkhovenstve Prava, CDL-AD (2011)003rev” (Venice, April 2011), 5.

36

Wennerstrom, The Rule of Law and the European Union, 73.

37

V.D. Zor’kin, “Verkhovenstvo Prava i Pravovoe Soznanie [The Rule of Law and Legal Consciousness],” in The Rule of Law:
Perspectives from Around the Globe, Francis Neate (IBA, 2009), 43–54; Sergey Holovaty, The Rule of Law (Kyiv: Phoenix Publishing
House, 2006), 1655–65; Tuori Kaarlo, “The ‘Rechtstaat’ in the Conceptual Field - Adversaries, Allies and Neutrals, Associations”
Vol 6, no. Number 2 (2002): 212.

72

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries

guarantees the rights and freedoms of citizens” (Article 43), this constitution suggests that provisions
on human rights are only extended to citizens and ignore foreigners, refugees and stateless who legallyreside and work in Uzbekistan. Many progressive foreign constitutions do not draw such a distinction
between citizens and non-citizens. 38 Second, many rights in the 1992 Constitution make further
references to the laws adopted by the parliament and normative-legal acts (normativno-pravovye akty)
adopted and promulgated by the public agencies. This outsourcing eventually paves the way for both,public agencies’ ability to promulgate normative-legal acts that may arbitrarily limit constitutionalrights, and obstacles to practice and protection means of constitutional rights when they are violated.
The pre-2016 international reports on human rights in Uzbekistan are traditionally limited andhighly critical. The existing small number of reports and publications mainly provide critical humanrights record with a focus on specific rights and their systematic violation by the government. 39 The
freedom of religion and freedom of expression are some of many examples. 40

Almost in all

publications, authors directly or indirectly argue that human rights, as provided in the 1992
Constitution, appear more as a favor that might be restricted or generously granted by the state. Thisapproach, coupled by the fact that the 1992 Constitution sporadically contains the phrases such as, “theState expresses...”, “the State builds...”, “the State guarantees...”, “the State ensures...”, “the State

38

Richard B. Lillich, The Human Rights of Aliens in Contemporary International Law (Manchester University Press, 1984); David
Cole, “Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens Symposium: Rounding Up Unusual Suspects:
Human Rights in the Wake of 9/11,” Thomas Jefferson Law Review 25, no. 2 (2002–2003): 372. International human rights law, withthe exception of voting rights and the right to take part in public affairs, extends rights to citizens and non-citizens alike. This isgetting outdated for Europe (especially EU and EEA) where residence becomes more and more important. This is true for many
political rights which within the EU and the EEA can be exercised by any EU or EEA citizen at the place of their residence. In theEU, e.g., any EU citizen is entitled to vote in local and European elections at the place of their residence (e.g. a German citizen residing
in Hungary), and some EU countries even opened their national elections to EU citizens residing in the country. The process of looking
at residence rather than at citizenship is even more pronounced in the collision of laws where the “personal status” is more and moredefined according to residence.

39

For ex., “Democratization and Human Rights in Uzbekistan (October 18, 1999) Document No. 7,” Series 3: Basket III Hearings
before the U.S. Commission on Security and Cooperation in Europe and Other Selected Congressional Hearings, Reports and Prints
34 (1999–2000): i–108; Abdullahi An-Na’im, “Human Rights and Islamic Identity in France and Uzbekistan: Mediation of the Local
and Global,” Human Rights Quarterly 22, no. 4 (2000): 906–41; Colin Harvey and Robert P. Barnidge, “Human Rights, Free
Movement, and the Right to Leave in International Law,” International Journal of Refugee Law 19, no. 1 (March 1, 2007): 1–21;
Oskar Lehner, “Respecting Human Rights in Central Asia: Will This Stabilize or Destabilize the Region,” Security and Human Rights
20, no. 1 (2009): 48–55; Scott Newton, The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis(Bloomsbury Publishing, 2017); Erika Dailey, “Uzbekistan: The Human Rights Implications of an Abuser Government’s Improving
Relations with the International Community,” Helsinki Monitor 7, no. 2 (1996): 40–51.

40John R. Pottenger, “Civil Society, Religious Freedom, and Islam Karimov: Uzbekistan’s Struggle for a Decent Society,” Central
Asian Survey 23, no. 1 (March 1, 2004): 55–77; Pottenger; Reuel R. Hanks, “Religion and Law in Uzbekistan,” in Regulating Religion:
Case Studies from Around the Globe, ed. James T. Richardson, Critical Issues in Social Justice (Boston, MA: Springer US, 2004),
319–30; Zhanna Kozhamberdiyeva, “Freedom of Expression on the Internet: A Case Study of Uzbekistan,” Review of Central andEast European Law 33, no. 1 (January 1, 2008): 95–134.

73

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

regulates” makes an impression that rights are indeed granted by the state, and not incorporated as
natural rights. For example, when the 1992 Constitution draft commission originally proposed to thepresident Karimov Article 19, it stated that;“…the citizens of the Republic of Uzbekistan are entitled to natural rights and freedoms.
Such rights are inalienable and no one is entitled to limit such natural rights and freedoms
except for when there is a valid court decision”.

The former member of this commission reported that after reading this draft article, Karimov
personally removed the term “natural rights” and largely redrafted the text in the following way;

“All citizens of the Republic of Uzbekistan shall have equal rights and freedoms, and shallbe equal before the law without discrimination by sex, race, nationality, language, religion,social origin, convictions, individual and social status.” 41

Here the question appears, why such conflict and flaw exist in the 1992 Constitution? One
hypothesis may suggest that the difference between the strong conceptualization of socialism-rooted
positivism of rights and universal human rights standards still composes a grey area within Central
Asian constitutionalism, of which Uzbekistan is one bright example. One fundamental problem was
the personnel: other than Urazaev, Agzamkhodjaev, Rakhmankulov, and Saidov, the newly
independent Uzbekistan had very few constitutional experts who could be involved in the work of thecommission. Out of 64 commission members who were predominantly Soviet bureaucrats, only four
mentioned individuals were experts in constitutionalism. 42

Nevertheless, even mentioned

constitutionalists belonged to the generation of traditional Soviet legal scholars who were educatedand formed as academics within a highly centralist state and law concepts. As long as the commission
members were influenced by the socialist law and ideology, they have sporadically applied a positivist
approach to many constitutional provisions. In other words, they took an approach that echoes theconcept of socialist rights according to which the unlimited will of the state is considered to be a sole

41

This provision still exists in the Article 18 of the 1992 Constitution. Saidov, Akmal, O’zbekiston Konstitutsiyasi Tarihi [History of
Uzbekistan’s Constitution], 207.
42

“Postanovlenie o Sozdanii Konstitutsionnoy Komissii [Decree on Establishment of the Constitutional Commission]” (Verkhovniy
Sovet UzSSR, XII Sozyv VS, 2-ya Sessiya, June 1990), F-2454, N6, 7091 62-67, Gosudarstvenniy Tsentral’niy Arkhiv. And also,“Materiali Pervogo Zasedaniya Konstitutsionnoy Komissii,” 1991, Gosudarstvenniy Tsentral’niy Arkhiv, 4. Notably, this commission
was first established in June 1990 and initially included 64 prominent persons. Later in July 1992 the number was raised to 71 persons.
The working group formed in April 1991 included 32 persons. Up until, December 1992 when the constitution was promulgated thecomposition of this commission was slightly changed several times.

74

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries

source of law. In other words, this approach presupposed that the state acts as a grantor of rights in theconstitution. Such an approach might additionally reflect the traditional opinion of Soviet jurists
according to which the state is responsible for managing, providing and supervising out of own interest
all living essentials that also include rights and obligations. 43 Another aspect that demonstrates a clear
trace of the socialist concept of rights in the 1992 Constitution is the conflict between human rights
and citizen’s rights, which might eventually question the absolute nature of rights per se. The universal
human rights norms are in general absolute norms and do not contain any dependency from the willof the state. They do not refer to the statutes and normative legal acts but instead set a model or moral
standard for implementation. 44 In contrast, the philosophy of addressing rights as granted by the state,
theoretically, and practically results in a deviation with the international human rights standards basedon absolute or natural rights theory. 45

IV. Post-2016 Developments: Human Rights at the Crossroads?
In 2016, Uzbekistan experienced a transition of political power. Perhaps the first positive signthat demonstrated the new leadership’s respectful approach towards human rights in Uzbekistan
became the United Nations High Commissioner’s for Human Rights visit to this country in May 2017.
Many human rights watchdogs evaluated such a high-level UN representative’s visit to Uzbekistan
over the decades as a crucial opportunity for initiating long overdue and badly-needed human rights
reforms for being viewed as a constructive international partner. 46
Under the new leadership, the state adopted the 2017-2021 Action Strategy, which targeted fivepriority development areas. 47 One of the priority areas directly touches upon the rule of law reforms,
including in judicial and legislative sectors. Objectively, the orientation of this strategy is mainly
progressive and matches the views expressed long by foreign and some local experts. As a part of thisstrategy, in 2017, the government initiated a series of constitutional amendments, which, among other43

V Petrov, V Semyonova, and K Shkenev, Osnovy Sotsial’nogo Gosudarstva [Fundamentals of Socialist State] (Nizhniy Novghorod:
NNGASU, 2016), 224.

44

Antonio Cassese, Five Masters of International Law: Conversations with R-J Dupuy, E Jiménez de Aréchaga, R Jennings, L Henkin
and O Schachter (Bloomsbury Publishing, 2011), 183.
45

Refer further to John Finnis, Natural Law and Natural Rights (OUP Oxford, 2011), 198–223.

46

International Partnership for Human Rights, “First-Ever Visit by UN High Commissioner for Human Rights to Uzbekistan,” May2017,
https://www.iphronline.org/firstever-visit-by-un-high-commissioner-for-human-rights-to-uzbekistan-20170510.html.
[Accessed on January 9, 2020]
47“Strategiya Deystviy Po Pyati Prioritetnym Napravleniyamhfpdbnbz Respubliki Uzbekistan v 2017-2021 Gogakh.,” Strategiya
Deystviy 2017-2021, http://strategy.gov.uz/ru. [Accessed on January 9, 2020]

75

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

things, resulted in a review of the judiciary’s role in protecting the citizens’ rights and freedoms. 48
Furthermore, within the framework of the strategy, Uzbekistan started developing an adequateawareness of its obligations concerning international treaties and commitment to protecting humanrights. The latter resulted in vibrant discussions among various segments of local society about
relatively large gap between the law and its implementation, especially for constitutional rights. In
particular, it has been a long and commonly agreed critics that while the 1992 Constitution enacted
progressive human rights provisions, some of the rights have not always been fully implemented,
including the freedom of movement and residence, freedom of press, freedom of thought, speech andopinion, right to file complaints and many other provisions.
In this regard, the Universal Periodic Review on Uzbekistan in May 2018, specifically thecompilation of UN and summary of stakeholders’ contents demonstrated the post-2016 Uzbekistan’svisible progress in strengthening human rights and freedoms. Whereas all previous evaluations werehighly critical 49, the UPR of 2018 had observed positive changes in multiple human rights areas
including, addressing such long-standing problems as child labor, political prisoners and freedom of
expression, harassment, civil society, women’s rights, and domestic violence, political and civic
participation. Together with that, many states, considering Uzbekistan mostly positive achievements,
strongly recommended to take further steps in preventing torture and ill-treatment, lifting restrictions
for civil society groups, journalists and human rights activists, decriminalize consensual sexual
activities between adult males, take further steps in enhancing religious freedom and rights of people
with disabilities. 50
Hence, the post-2016 period has so far demonstrated that Uzbekistan has gained a relatively better
understanding of human rights. Such commitments are also simultaneously signaled by establishing
the office of the Business Ombudsperson and taking steps for ratification a core United Nations
convention – Convention of the Rights of People with Disabilities. Uzbekistan additionally set up an
ambitious plan to develop and amend many codes and statutes regulating rights and freedoms. There48“Zakon Respubliki Uzbekistan O Vnesenii Izmeneniy v Nekotorie Statyi Konstitutsii Respubliki Uzbekistan, (V chastnosti, Statyi
80, 93, 108 i 109)” (2017). In particular, “The Central Electoral Commission, an independent, permanent and open State body thatorganizes elections for the President and for the Oliy Majlis (the national parliament) and referendums in Uzbekistan, has been given
the right to bring cases involving questions of constitutionality before the Constitutional Court upon the proposal of the Office of the
Human Rights Commissioner (Ombudsman)”.

49

For example, “UN Human Rights Committee, Concluding Observations, Uzbekistan. U.N. Doc. CCPR/CO/71/UZB (2001),”; “UN
Human Rights Committee, Concluding Observations, Uzbekistan. U.N. Doc. CCPR/CO/83/UZB (2005),”.
50“Compilation on Uzbekistan Report of the Office of the United Nations High Commissioner for Human Rights;
A/HRC/WG.6/30/UZB/2,” May 2018, Human Rights Council, “Report of the Working Group on the Universal Periodic Review(Uzbekistan), A/HRC/39/7,” July 2018.

76

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries

is also a positive picture of raising human rights awareness among public and non-public agencies andthe existence of human rights in legal curricula. On the other hand, international human rights
watchdogs warn that much of the practical work still has to be done to secure human rights.
Furthermore, the progress on human rights demonstrates simultaneously a hidden and continuous
debate between two opposing school of thoughts: the traditional school of socialist legality inheritedfrom the former Soviet Union and based on a positivist approach towards the state-granted rights andfreedoms from one hand, and a growing number of human rights activist advocating the primacy ofnatural rights both in law books and practice. Simultaneously, scholars may often detect in Uzbekistan
a common tendency of promoting or giving a higher degree of respect to communitarian rights overindividual rights and liberties. There might be two explanations for that.
Firstly, Uzbekistan is a newly independent and developing state which had inherited from its
socialist predecessor an influential communitarian culture as opposed to western individualism, which
was mainly associated with bourgeois rights and, therefore, actively criticized. 51 Such culture had been
extended to every aspect of social life, including rights, and always placed social or collective interests
above individual. This tendency had its own long-term impact on society as a whole, or in other words,
the socialist legacy contributed to the formation of the collectivist society in the former socialist world.
Thus, the fragmented appearance of the socialist approach towards human rights by focusing on stateand citizens and separately, citizens’ societal responsibilities, can be seen as one way towards
understanding the communitarian character of rights.
The second viewpoint has a direct relation to the theory of cultural relativism. This theory assertsthat “human rights cannot be universal, but should be understood as products of cultural, economic
and social conditions in a given society. Such conditions are determinants of human rights norms, andeach state varies in the form and substance of its human rights norms and extent of their protection”. 52
Many conservative policymakers in Asia, by justifying this theory, often refer to their “Asian values”
and say that the Asian concept of collectivist society centered around the family or having traditionallystrong family ties is fundamentally different from Western individualist societies. 53 Similar to many
authoritarian states in Asia, for example, Myanmar, Vietnam, or Singapore, such an approach to
traditional values also echoed in the numerous speeches and essays of Karimov.

51

This has later transformed into the criticism of Eurocentric approach which emphasized civil and political rights at the expense of
economic and social rights.
52

Tae-Ung Baik, Emerging Regional Human Rights Systems in Asia (Cambridge University Press, 2012), 55.

53

Michael D. Barr, Lee Kuan Yew: The Beliefs Behind the Man (Georgetown University Press, 2000), 220.

77

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

For example, Karimov regularly claimed that the civil society model in Uzbekistan would be
alien and unviable without such vital segments as a collective consciousness and recognition of theleading role of public authorities. In other words, civil society based on collective consciousness - acharacteristic which traditionally unified people in the region, in sharp contrast to the Western
individualism, was regarded as the most applicable model for achieving a common good. Regarding
building a democratic society, he claimed collectivity, order, and respect towards authority as a uniquetradition of the Asian society that pertained own customs and demonstrated consciousness concerning
the interests of the majority rather than that of the West, which is too cautious about pluralism of
opinions and individual freedoms. 54
Given such a dichotomy, a question appears whether the communitarian nature of the rights
enshrined in the constitution is more a specific (post-) socialist tendency or genuine Asiandevelopment rooted in Asian values? As such a situation exists in many (post-) socialist, (post-)
authoritarian states, it is not always easy to differentiate between two overarching theories. In thisregard, one hypothesis may suggest that given strong tendencies of cultural relativism in even nonsocialist Asian states which eventually reflects in communitarian rights, and widely individualist
orientation in some post-socialist states of Eastern Europe or even former Soviet Baltic republics, thecommunitarian rights phenomenon in Uzbekistan appears to be more of a product influenced by thecultural relativism. Perhaps, this is the reason for persisting and never-ending scholarly conflict
between the younger generation of universalists and conservative representatives of cultural relativism
in the region.
Simultaneously, there is a trend of promoting liberal and natural rights conception towards theinterpretation of human rights. Mainly young legal academics who advocate this trend attest thathuman rights, as long as they are natural and fundamental, do not and should not be subjected to thewill of the state. Constitution, therefore, must reflect purely universal standards, and must never be
dependent on the whims of the state.
The 1992 Constitution, even presently also suffers from a specific legal textual shortage. Part II
on the Basic Human and Citizen Rights, Freedoms, and Duties continue limiting specific provisions
that would typically be considered as human rights for citizens only. Such provisions include the rightto freedom of movement and the right to choose one’s residence (Article 28), the right to demonstrate

54

Sardor Alimdjanov, “A Political Study on the Nature of Mahalla Institution and Its Relationship with Local Government”, Doctoral
Dissertation (Nagoya University, Graduate School of Law), (2019), 30. See also Islam Karimov, Uzbekistan Na Poroge XXI
Veka:Ugrozy Bezopasnosti, Usloviya I Garantii Progressa [Uzbekistan on the Threshold of the XXI Century: Security Threats,
Conditions and Guarantees of Progress] (Tashkent: Uzbekistan, 1997), 177-180;

78

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries(Article 33), the right to access information (Article 30). Mentioned provisions demonstrate state’s
sensitivity towards civil and political rights and are in apparent conflict with universal standards. For
instance, Article 12 of the International Covenant on Civil and Political Rights, to which Uzbekistan
is a state party, asserts that freedom of movement and liberty to choose residency must be extended toeveryone lawfully within the territory of the state. Indeed, the 1992 Constitution had largely replaced
the previous socialist approaches towards rights as granted by the state, but a closer look shows thatsuch approach was not abandoned entirely. Also, the constitution does not clearly state the principleof immediate effect of the human rights that would have constitutionally guaranteed their adequate
protection. The absence of a relevant text raises serious concerns regarding the quality of theconstitutional provisions or rights and freedoms.
The 1992 Constitution also does not stipulate several essential rights and freedoms reflected in
the ICCPR and many other progressive constitutions. Such rights, inter alia, include the right to use
one’s mother tongue and select the language of communication, the right to marry and divorce, theright to live in a clean environment, the right not to be imprisoned on the grounds of inability to fulfill
contractual obligations and other. Therefore, scholars and practitioners have yet to think and discuss
the nature of the rights enshrined in the constitution and consider general human rights as a dynamic
concept.
Although the 1992 Constitution provides a long list of rights and a separate provision on thestand-alone constitutional court, 55 Uzbek constitutional review has been mostly non-existent. In fact,over almost 29 years since the collapse of the Soviet Union, the Uzbek Constitutional Court (CC) has
issued fewer decisions than the Soviet Committee for Constitutional Supervision (Komitet
Konstitutsionnogo Nadzora SSSR) issued in 18 months of its short but fascinating life. (see Table
2) Presently, there is no individual access to the CC. Analogically to the Kelsen’s original idea of
constitutional review, the framers of the CC of Uzbekistan rejected actio popularis. 56 Hence, citizens
do not have the right to make an application to the CC, which, in turn, would have been obliged toreview the constitutionality of a statute. It is one of the central critical issues about the constitutional
principle of protection of fundamental rights in the acts of legislative and executive branches of power.
As most violations of fundamental rights in Uzbekistan originate from executive acts and court
judgments, individuals have no right to file a complaint to the CC after exhausting all remedies at the55

Article 109 of the the Constitution of the Republic of Uzbekistan (1992); “Konstitutsionniy Zakon Respubliki Uzbekistan oKonstitutsionnom Sude Respubliki Uzbekistan, ZRU-431” (2017).

56

Hans Kelsen, Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution (Journal ofpolitics, 1942), 197.

79

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

ordinary courts. In other words, there is no possibility to initiate a constitutional review of theexecutive acts, which are believed to result in the violation of individuals’ rights, once ordinary courts
fail to quash them.

Table 2. Compilation of the Republic of Uzbekistan Constitutional Court’s cases as provided in thenational legal database.
Source: (https://www.lex.uz/ru/search/nat?body_id=806&fform_id=8837) [Accessed on January 10,
2020]

Year
CC Decree
2019
2018
2014
2009
2008
2004
2003
2002
2001
1998

Number of cases
CC DecisionСС Rulings

1
1
1
1
1
1
2
2
2

3

2
Total: 17 cases since 1998

V.

Conclusion
The current Constitution of Uzbekistan (enacted in 1992 and amended in 2017) dedicates its Part

II to the Basic Human and Citizen Rights, Freedoms and Duties. By taking a careful look at thecontents of this part, it is evident that human rights are sporadically embodied not as natural rights andfreedoms but as positivist rights. There is still a strong association within the government and societythat the state is the primary grantor of rights, and changing such logic is a time-consuming process in
Uzbekistan.
The word human rights, which had been rejected in the socialist constitutions, was provided forin the 1992 Constitution. The question, namely, why human rights were introduced and what were thereasons for Uzbekistan behind its adoption in the early 1990s, has not been explicitly clear yet. One
reason may include the intention of the policymakers to integrate sovereign Uzbekistan into the socalled ‘Western democratic club.’ Perhaps, the same reason resulted in the creation of the separate
Constitutional Court evaluated by mane as a façade institution. Another reason is the open rise ofanti-socialist reformists upon the collapse of the USSR, who promoted political pluralism and80

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries

advocated for the draft constitution unconditionally included provisions on human rights. Their radical
demands, however, could not find full support as in the draft 1992 Constitution negotiation process,conservatives widely opposed the inclusion of human rights as natural rights. Eventually, human rights
provisions were mainly integrated into the category of citizen’s rights. Notably, similar approach
exists not only in the constitutions of some former USSR states but also in the socialist or (post-)socialist states in Asia.
Contemporary human rights theory in Uzbekistan is mainly reflected in publications from thestate-supported National Human Rights Center, and can be basically explained in the following two
ways:a) a persisting argument that human rights fall entirely into the state’s internal matters;b) a strong association with the right to development (of the nation).
These notions typically represent a classic example regarding ‘Asian human rights’ and its close
theoretical ties to the third generation of human rights. It subsequently raises scholarly debates
between supporters of the complementarity theories and those who oppose the third generation ofhuman rights or cultural relativism. As the government often seeks to approach the human rights
concept by actively relying on Asian (Oriental) values and supreme national development interests, it
often utilizes an interpretation that in order to achieve developmental goals with particular national
characteristics, sacrificing individual freedoms or restricting particular human rights is unavoidable.
This claim for development influences the degree of democracy and the rule of law, which incontemporary Uzbekistan is mainly associated with the importance of strong rule by a dominant leader
aimed at achieving good results.
In general, drafting the 1992 Constitution and incorporation of many universal principles is apositive sign of human rights awareness on the part of the government. The 1992 Constitution respects
the many international treaties of which Uzbekistan is a signatory party. A set of other fundamental
rights, for example, freedom of thought, speech, and opinion have been guaranteed under theprovisions of the current constitution as well, however, under the strict control of media initiated by
the ex-President Karimov, the exercise of citizens’ rights, particularly regarding political freedoms,
had often been de facto restricted. International human rights watchdogs have also criticizedUzbekistan for the lack of direct effect of human rights provisions in the constitution and conservative
approaches taken in the statutes which, eventually limit constitutional rights to a great extent. Since
the transition of political power in 2016, the government has been so far signalling to international
human rights watchdogs about its awareness and intending commitments to address the country’s
human rights situation. Coupled with specific practical steps already taken in the domain of human81Nagoya University Asian Law Bulletin Vol.6 (March 2021)

rights, scholars and practitioners should address the remaining existing problems within theconstitutional text. This also needs to involve broader public participation and deliberations.
Eventually, for human rights’ symbolic existence not only in books but their effective protection inpractice, an adequate protection mechanism has yet to come to existence.

References

1927 Constitution of the Uzbek Soviet Socialist Republic [1927 Constitution] (1927).
1937 Constitution of the Uzbek Soviet Socialist Republic (1937 Constitution) (1938).
1977 Constitution of the Union of the Soviet Socialist Republics (1977).
1978 Constitution of the Uzbek Soviet Socialist Republic (1978 Constitution) (1978).
Alimdjanov, Sardor. “A Political Study on the Nature of Mahalla Institution and Its Relationshipwith Local Government.” Nagoya University, 2019.
An-Na’im, Abdullahi. “Human Rights and Islamic Identity in France and Uzbekistan: Mediation of
the Local and Global.” Human Rights Quarterly 22, no. 4 (2000): 906–41.
Baik, Tae-Ung. Emerging Regional Human Rights Systems in Asia. Cambridge University Press,
2012.
Barr, Michael D. Lee Kuan Yew: The Beliefs Behind the Man. Georgetown University Press, 2000.
Carlisle, D, and Levitin, L. Islam Karimov: President of the New Uzbekistan. Vienna: Grotec, 1995.
Cassese, Antonio. Five Masters of International Law: Conversations with R-J Dupuy, E Jiménez deAréchaga, R Jennings, L Henkin and O Schachter. Bloomsbury Publishing, 2011.
Cole, David. “Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens
Symposium: Rounding Up Unusual Suspects: Human Rights in the Wake of 9/11.” Thomas
Jefferson Law Review 25, no. 2 (2002–2003): 367–88.
“Compilation on Uzbekistan Report of the Office of the United Nations High Commissioner for
Human Rights; A/HRC/WG.6/30/UZB/2,” May 2018.
Dailey, Erika. “Uzbekistan: The Human Rights Implications of an Abuser Government’s Improving
Relations with the International Community.” Helsinki Monitor 7, no. 2 (1996): 40–51.
Davies, Sarah, and Sarah Rosemary Davies. Popular Opinion in Stalin’s Russia: Terror,
Propaganda and Dissent, 1934-1941. Cambridge University Press, 1997.
“Democratization and Human Rights in Uzbekistan (October 18, 1999) Document No. 7.” Series 3:
Basket III Hearings before the U.S. Commission on Security and Cooperation in Europe
and Other Selected Congressional Hearings, Reports and Prints 34 (1999–2000): i–108.

82

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries“Doklad o Verkhovenstve Prava, CDL-AD (2011)003rev.” Venice, April 2011.
Feldbrugge, F. J. Ferdinand Joseph Maria, Gerard Pieter Van den Berg, and William Bradford
Simons. Encyclopedia of Soviet Law. BRILL, 1985.
Femia, Joseph V. “Gramisci, the ‘Via Italiana’, and the Classical Marxist-Leninist Approach to
Revolution.” Government and Opposition 14, no. 1 (1979): 66–95.
Finnis, John. Natural Law and Natural Rights. OUP Oxford, 2011.
Hanks, Reuel R. “Religion and Law in Uzbekistan.” In Regulating Religion: Case Studies fromAround the Globe, edited by James T. Richardson, 319–30. Critical Issues in Social Justice.
Boston, MA: Springer US, 2004. https://doi.org/10.1007/978-1-4419-9094-5_22.
Harvey, Colin, and Robert P. Barnidge. “Human Rights, Free Movement, and the Right to Leave inInternational Law.” International Journal of Refugee Law 19, no. 1 (March 1, 2007): 1–21.
https://doi.org/10.1093/ijrl/eel025.
Holovaty, Sergey. The Rule of Law. Kyiv: Phoenix Publishing House, 2006.
Human Rights Council. “Report of the Working Group on the Universal Periodic Review(Uzbekistan), A/HRC/39/7,” July 2018.
International Partnership for Human Rights. “First-Ever Visit by UN High Commissioner for Human
Rights to Uzbekistan,” May 2017. https://www.iphronline.org/firstever-visit-by-un-highcommissioner-for-human-rights-to-uzbekistan-20170510.html.
Ismatov, Aziz. “Citizenship Regulation in the Post-Soviet Space; an International Legal Study in
Nationality and Statelessness.” Nagoya University, 2014. http://ir.nul.nagoyau.ac.jp/jspui/bitstream/2237/20640/4/ISMATOV%20Aziz_%E5%86%85%E5%AE%B9%E
8%A6%81%E7%B4%84.pdf.
Ismatov, Aziz, and Sardor Alimdjanov. “Developmental Trajectory of Mahalla Laws in Uzbekistan:
From Soft Law to Statutory Law.” Nagoya University Asian Law Bulletin Vol.4 (December2018).
Ismatov, Aziz, and Eliko Ciklauri-Lammich. “Abolishing Capital Punishment in Uzbekistan –Between External Pressure and Pragmatism.” Zeitschrift Für Die Gesamte
Strafrechtswissenschaft 130, no. 1 (2018): 279–302. https://doi.org/10.1515/zstw-20180010.
Kaarlo, Tuori. “The ‘Rechtstaat’ in the Conceptual Field - Adversaries, Allies and Neutrals,
Associations” Vol 6, no. Number 2 (2002): 201–14.
Kelsen, Hans. Judicial Review of Legislation: A Comparative Study of the Austrian and theAmerican Constitution. Journal of politics, 1942.

83

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

Kornai, János, and Professor of Economics Janos Kornai. The Socialist System: The Political
Economy of Communism. Princeton University Press, 1992.
Kozhamberdiyeva, Zhanna. “Freedom of Expression on the Internet: A Case Study of Uzbekistan.”
Review of Central and East European Law 33, no. 1 (January 1, 2008): 95–134.
https://doi.org/10.1163/092598808X262542.
Lehner, Oskar. “Respecting Human Rights in Central Asia: Will This Stabilize or Destabilize theRegion.” Security and Human Rights 20, no. 1 (2009): 48–55.
Levitin, L. Islom Karimov: O’zbekiston Respublikasining Birinchi Prezidenti [Islom Karimov: The
First President of the Republic of Uzbekistan]. Tashkent: Uzbekistan, 1997.
Lillich, Richard B. The Human Rights of Aliens in Contemporary International Law. Manchester
University Press, 1984.
“Materiali Pervogo Zasedaniya Konstitutsionnoy Komissii,” 1991. Gosudarstvenniy Tsentral’niy
Arkhiv.
Newton, Scott. The Constitutional Systems of the Independent Central Asian States: A Contextual
Analysis. Bloomsbury Publishing, 2017.
Oda, Hiroshi. “The Emergence of Pravovoe Gosudarstvo (Rechtsstaat) in Russia.” Review of Central
and East European Law 25, no. 3 (1999): 373–434.
“O’zbekiston Respublikasining Markaziy Davlat Arhivi [Central State Archive of the Republic of
Uzbekistan] XII Chaqiriq, O’zbekiston Respublikasining Oliy Kengashining 1992 Yil 8
Dekabrda Bo’lib O’tgan XI Sesssiya Materiallari [11th Plenary Session Materials].” FondM-69, N 1, 154, 1992.
Partlett, William, and Eric Ip. “Is Socialist Law Really Dead?” New York University Journal ofInternational Law & Politics. New York University. International Law Society 48 (January
1, 2016): 463.
Petrov, V, V Semyonova, and K Shkenev. Osnovy Sotsial’nogo Gosudarstva [Fundamentals ofSocialist State]. Nizhniy Novghorod: NNGASU, 2016.
“Postanovlenie o Sozdanii Konstitutsionnoy Komissii [Decree on Establishment of theConstitutional Commission].” Verkhovniy Sovet UzSSR, XII Sozyv VS, 2-ya Sessiya, June
1990. F-2454, N6, 7091 62-67. Gosudarstvenniy Tsentral’niy Arkhiv.
Pottenger, John R. “Civil Society, Religious Freedom, and Islam Karimov: Uzbekistan’s Struggle
for a Decent Society.” Central Asian Survey 23, no. 1 (March 1, 2004): 55–77.
https://doi.org/10.1080/02634930410001711189.

84

The Introduction of Modern Constitutionalism in Central Asian Post-socialist Context: The Case of Constitutional
Debate and Development on Human Rights in Uzbekistan in the Twentieth and Early Twenty-First Centuries

Problems of Communism. Documentary Studies Section, International Information Administration,
1977.
Saidov, Akmal. O’zbekiston Konstitutsiyasi Tarihi [History of Uzbekistan’s Constitution]. Tashkent:
Tasvir, 2018.
Saidov, Akmal, and U Tadjihanov. Islom Karimov Konstitutsiya to’grisida: O’zbekiston
Respublikasining Konstitutsiyasi o’rganuvchilarga Yordam. Tashkent: Akademiya, 2001.
Smith, Gordon B., Peter B. Maggs, and George Ginsburgs. Soviet and East European Law and theScientific-Technical Revolution. Pergamon Press, 1981.
“Strategiya Deystviy Po Pyati Prioritetnym Napravleniyamhfpdbnbz Respubliki Uzbekistan v 20172021 Gogakh.” Strategiya Deystviy 2017-2021 (blog), n.d. http://strategy.gov.uz/ru.
The Constitution of the Republic of Uzbekistan (1992).
Konstitutsionniy Zakon Respubliki Uzbekistan o Konstitutsionnom Sude Respubliki Uzbekistan,
ZRU-431 (2017).
“UN Human Rights Comittee, Concluding Observations, Uzbekistan. U.N. Doc. CCPR/CO/71/UZB(2001),” n.d.
“UN Human Rights Comittee, Concluding Observations, Uzbekistan. U.N. Doc. CCPR/CO/83/UZB(2005),” n.d.
Wennerstrom, Eric. The Rule of Law and the European Union. Uppsala: lustus Forlag, 2007.
Wiles, P.J.D. The Political Economy of Communism. Oxford: Basil Blackwell, 1962.
https://www.abebooks.com/first-edition/Political-Economy-Communism-P.J-DWiles/30282152421/bd.
Zakon Respubliki Uzbekistan O Vnesenii Izmeneniy v Nekotorie Statyi Konstitutsii Respubliki
Uzbekistan, (V chastnosti, Statyi 80, 93, 108 i 109) (2017).
Zor’kin, V.D. “Verkhovenstvo Prava i Pravovoe Soznanie [The Rule of Law and Legal
Consciousness].” In The Rule of Law: Perspectives from Around the Globe, Francis Neate.
IBA, 2009.

85

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

86