At the same time the regulatory bureaucratization is carried out, as a rule, under ostensibly good slogans “ensuring the unity of the judicial practice”, “struggle with judicial errors”, “increasing the competence of judges”, etc. the victim of which is the independence of judges. In practice, such slogans have nothing to do with the real improvement of judges. On the contrary, they lead to opposite results, since a judge confined within the bureaucracy does not become more competent - he or she simply cease to be a judge in the genuine sense of the word. Moreover, above, we dwelled on the theoretical approaches to the solution to the hypothetic dilemma “independence vs. control over the competence” and we will not go back to it again. One thing is clear: the judicial-legal system of Uzbekistan should, in prospect, completely refuse any instructions or regulatory directions from higher courts to inferior courts regardless of the form these directions assume and slogans they are covered. Control from higher courts over inferior courts can be only exercised in procedural forms - by considering complaints regarding specific cases and by taking appropriate judicial decisions. The prestige, say, of the Supreme Court of the RU should be determined not by its regulatory powers, but by the level of its decision it takes as the highest judicial body. It is quite another matter that this prestige is ensured also by a corresponding doctrinal work which is the one we will consider next. As for regulatory powers of courts, they can only be in the form of some “self-regulating” when one or other judicial instance adopts, if necessary, some open procedural rules at a general meeting of judges (regarding case assignment procedure, work of chancellery, judicial preparation of a case, etc.), but they should be adopted exclusively for itself and not for inferior courts. 3) The formation of a genuinely independent judiciary in the Republic of Uzbekistan is impossible without changing the focus of the development of the national university doctrine. It is not even that these are the Uzbek universities which have to form judicial manpower capable of overcoming at the mental level all indicated deformations, first of all complex deformations. As long as these deformations are present in the legal mentality of professors of law themselves, it is difficult to expect that this complicated problem will be solved. And, obviously, there is no need to comment on this problem. But the role of the university doctrine manifests itself not only in exclusively pedagogical functions (with all its colossal importance). Only and exclusively the university doctrine can exercise non-bureaucratic control over current judicial decisions, first of all over decisions of highest courts helping to overcome the painful legal centrism and re-establish the prestige of the judicial practice. Only it should carry out “monitoring” of judicial decisions making brilliant decisions the absolute authority equal, by its significant, to the authority of the law and subjecting bad decisions to a scientific and critical discredit, i.e. depriving them of any authority. To perform this mission, the scientific doctrine should depart from Soviet and post-Soviet methods when only a standard legal act has been in focus (famous ‘will of the legislator’) and the judicial practice only has the role of “sociological routine.” The interest of the doctrine should be switched to specific momentous judicial decisions which it should be able to comment on, identify the main point in them, explain their logic and meaning, etc. Judges should work not under the bureaucratic pressure but under the doctrinal pressure knowing that their decisions can become, in the scientific sense, both “classic” and the national “legal catastrophe”. In this situation, to successfully carry out the indicated task some kind of a “doctrinal revolution” is required, i.e. rethinking of the technique and methods of a doctrinal analysis of legal material aimed at understanding of not only standard legal acts, but specific judicial decisions. This is the kind of the revolution that took place, for example, in the second half of XIX century in the USA (the emergence of the casebooks technique) and in the beginning of ХХ century in France (crystallization of the note d’arrêt and afterwards the origin the tradition to publish corpuses Les grands arrêts...), which leaves no room a historical pessimism with its destructive references to the centuries-old traditions of the West and the absence of such traditions in the post-Soviet space. We will also stress that both the American and the French doctrinal revolutions were accompanied by an increase in the university prestige and optimization of the faculty, i.e. a deliberate creation of various incentives for universities to hire their most talented graduates. Unless the national university doctrine in the Republic of Uzbekistan, as well as the methods, techniques and quality of its work, are updated, including a full-fledged integration in the global legal intellectual environment, we should hardly expect that the “complex deformations” of the judicial system may be overcome, if at all.
Legal Policy Research Center August 2009
[2] We do not deem it necessary in this paper to discuss the classification of political regimes, dividing them into authoritarian, authoritarian and totalitarian, totalitarian, etc., trying to understand where the Republic of Uzbekistan belongs. No matter what the results of such an analysis might be, which in some other cases may be very important, they will not affect the meaning of the first point. Therefore, for the purposes of this paper, we will be using a generic notion referred to as “authoritarian political regime.” [3] We should bear in mind that in authoritarian countries, or at least in the former Soviet Union, profound economic interests may underlie political power, and therefore, if someone attempts to make an encroachment upon this power, including an independent judiciary, authoritarian rulers may view it as an attempt to encroach upon their property. [4] Independent judiciary is not an absolute category, but rather a dynamic one, and therefore, we can talk about the “level of independence,” “elements of independence,” “manifestation of independence,” etc. [5] It is not important in this case whether such reforms are initiated by authorities themselves (some representatives), i.e. from inside, or by opposition leaders, i.e. from outside. In other words, the term “political reform” is used in a very broad sense in this paper. [6] See the concerns raised by Human Rights Watch as of October 21, 2008, where the situation is dicussed from the viewpoint of a certain threat to an independent judiciary (http://www.hrw.org/ru/news/2008/10/28). [7] For instance, in France where administrative justice appeared as we know it today, the High Administrative Court (State Council) formulated, little by little and as a result of those problems it had to face many times, a theory of the so-called “political acts of government” (actes de gouvernement). Unlike other government’s actions and decisions (including election-related disputes), such acts are not subject to judicial appeal. Otherwise, given political pluralism comprising millions of opinions, the Head of State will never be able to appoint a Minister of Finances or a Minister of Defense. To learn more about the theory of “political acts of government” that exist, mutatis mutandis, in all countries with a highly developed administrative justice, see : K. Beshe-Golovko, Administrative Liability of State : Development Experience in French Law, in Comparative Constitutional Review, 2009, issue 1, pp. 73-74. [8] In a sense, complex deformations can be referred to as negative legal traditions. [9] This description has not been provided simply as a hyperbole. Presumably, it most perfectly reflects the spirit of the current judicial system in Uzbekistan. To illustrate this point, we can refer to a specific instruction contained in the Regulations on Courts and Justice Agencies Development (adopted by the Government of Uzbekistan as of March 18, 2003) which directly states that “judges and staff members of justice bodies should be provided with company uniforms.” [10] This does not mean, however, that chairmen of courts should be deprived of their right to approach the relevant qualification collegium and raise the issue of misconduct on the part of some particular judge. Their right, however, should be of general, rather than special or, even more so, exclusive nature, being no different from the same right belonging to any other judge, defense attorney, litigant, etc. In other words, a court chairman cannot enjoy some disciplinary power with regard to other judges. [11] Strictly speaking, in order to analyze external impacts and methods to overcome them more deeply and thoroughly, interdisciplinary research is required, i.e. the concerted efforts of lawyers, political scientists, economists, sociologists, etc. [12] Some of these complex deformations have been already studied regarding Kazakhstan’s legal system (See: Golovko L., Prospects of Reforming Security and Crime-Fighting Agencies in the Republic of Kazakhstan, Analytical paper, LPRC, Almaty, 2009). Fundamentally, they are also true if we talk about the legal system in Uzbekistan. [13] We believe that the model was selected appropriately. It is hard to imagine how much more difficult a situation would be in authoritarian post-Soviet countries with regard to virtual multi-party system and actual multi-party system if reformers had, at some point, tried to replicate, for instance, a system of electing judges by the public based on party lists which exists in some states in the US. It is clear that all judges in Uzbekistan would belong to one party, although on paper the mechanism of forming the judiciary would look quite democratic. [14] There is no doubt that this judicial deformation is inextricably intertwined with the fundamental deformation of the constitutional system, i.e. the existence of two parallel governments, the formal Cabinet Council and the actual President’s Administration. Strictly speaking, countries with a highly developed political and legal system have what is called a President’s Administration, which also acts as a government, and that is why they don’t have ministers and their Cabinet Council (USA). The opposite is also true: those countries that have a Cabinet Council don’t have any President’s Administration, and a small technical group ensuring the activities of a Cabinet Council is not the President’s Administration (France). In this situation, such an important fact that judges, for example, in France are appointed by the President, and not the Government, means that he doesn’t have any physical opportunity to control the individual composition of judge candidates. In other words, the appointment principle replicated from the West appears to have been put by post-Soviet countries in some distorted constitutional context, which predetermined the emergence of this complex deformation we are interested in.
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