The OSCE recommendations not implemented by Turkmenistan

Several months ago Turkmenistan adopted a revised Constitution. How justified was the adoption of the revised Constitution? Can it be stated that it complies with the requirements of international standards and ensures rule of law? Chronicles of Turkmenistan suggest examining the Constitution as reviewed by experts of the OSCE Office for Democratic Institutions and Human Rights who conducted a legal analysis of the text of the revised Constitution and pointed out its main flaws and contradictions. As has been previously reported, the OSCE experts provided their comments when the draft Constitution was submitted for review. Below is a brief commentary of some of the key comments and recommendations by the OSCE/ODIHR.

The Commissioner for Human Rights of Turkmenistan. How independent is this body?

In January 2017 the law On Ombudsperson came into effect in Turkmenistan. By adopting this law the authorities implemented one of the clauses of the Human rights plan adopted in 2016 (part 2, clause 16).

Despite the fact that the Institute of Ombudsperson is part of the state apparatus, its independence from the executive, legislative and judicial branches ensures that they are able to fulfill their mandate to protect individuals from human rights violations, particularly when such violations are committed by public authorities or bodies. Yet, does this situation exist in Turkmenistan where almost all government bodies are subject to the will of one person only: the President? Or will introducing the position of the Commissioner for Human Rights become another decoration in the window dressing exercise carried out by Turkmenistan's leadership for the international community?

Undoubtedly, independence of the Commissioner for Human Rights depends on to what extent it is guaranteed by law. For this reason the OSCE/ODIHR experts proposed in their comments to set forth the sphere of competence of the Institute of Ombudsperson. Thus, a proposal was made to include a special chapter in Section 111 (state government bodies of Turkmenistan, which comprises chapters on the President, Mejlis, Cabinet of Ministers, judicial branches etc.) devoted to the Institute of Ombudsperson specifying the institution's role, functions, powers, funding and lines of accountability, as well as the appointment mechanism for, and terms of office of the Commissioner for Human Rights. The proposed chapter envisaged a clear, transparent and participatory selection and appointment process of the Commissioner and other senior leadership that promotes merit-based selection and ensures pluralism (through staff that are representative of the diverse segments of society).

The revised Constitution was adopted without taking into consideration the aforementioned recommendation.

Whose orders are of more importance? Establishing a more precise Hierarchy of Norms

THE OSCE/ODIHR experts were concerned that the Constitution provides for the right to issue laws and legal acts (decrees, regulations and orders) binding for both the President of Turkmenistan and the Cabinet of Ministers. In the meantime the Constitution does not establish a clear hierarchical relationship between these legal norms. Speaking in everyday language � whose regulations are more important � those issued by the President, the Cabinet of Ministers or the Mejlis? Additionally, the Constitution does not stipulate a mechanism and ways of solving potential conflicts (contradictions) between such norms. It was recommended by the OSCE/ODIHR experts that the hierarchical relationship of legal norms between the aforementioned agencies be explicitly prescribed.

In view of the established practice of arbitrary actions undertaken by the local authorities, the OSCE/ODIHR recommendations on articles of the revised Constitution pertaining to legal acts issued by local government (Halk Maslahatys and khyakims) and local self-government bodies (Gengeshi) are of primary importance. The OSCE experts highlighted that the Constitution should specify the hierarchical relationship between legal norms issued by local state and central government.

The revised Constitution was adopted without taking into consideration the aforementioned recommendation.

How to appeal an unlawful decree? The Constitutional Court.

According to the OSCE/ODIHR experts, the revised Constitution does not set out a mechanism whereby laws and acts that contradict the Constitution will be declared null and void. The revised Constitution also does not specify which organ should be responsible for reviewing and deciding on such cases. Meanwhile this is perceived as a burning issue for present-day Turkmenistan.

It is common knowledge that arbitrary decrees and orders issued by officials prevail in the legal framework of the country as, for instance, the notorious regulation ?14606 by President Berdymukhammedov of 13 February 2016, pursuant to which only those individuals who hold residence registration in Ashgabat are entitled to be employed.

Who can contest this decree? The Constitution runs that the Mejlis shall determine conformity to or divergence from the Constitution and the normative legal acts by the state authorities and administration (article 81, para 10). According to the OSCE experts, it is not clear whether this also involves the decrees, regulations and orders issued by the President or those approved by the Cabinet of Ministers.

As viewed by the international experts, such review should take place outside the legislative and executive branches of power, in other words by a Constitutional court; the establishment of such an organ as a separate institution is generally recommended and has often proved to be a driving force in implementing the rule of law in a given country. In this connection the OSCE's opinion is therefore to consider establishing a separate constitutional review body that would be independent from the executive and legislative branches.

The revised Constitution was adopted without taking into consideration the aforementioned recommendation.

Balance of powers. Extended powers of the President.

The Constitution should not only guarantee safeguards from abuse of power but the possibility for efficient functioning of government bodies for the benefit of society and individuals. This is possible not only due to a separation of powers but also due to a balance of powers.

The international experts highlight that despite the fact that the revised Constitution states that state power is divided between the legislative, executive and judicial branches, the president is granted quite extensive powers. In this connection it is recommended not to extend the presidential term of office to seven years and to consider introducing precise limitations to re-election. These concerns are raised by the fact that a longer term of office could have a potential impact on the overall balance of power and contribute to the risk of potential long-term monopoly of state power in the hands of the head of state.

The OSCE experts pay increased attention to article 71 of the revised Constitution listing the roles and responsibilities of the President which, even if Turkmenistan is a presidential Republic, tend to be somewhat overly extensive. Thus, pursuant to this article, the President is responsible for the nomination to certain public bodies which should in principle be independent, such as the Central Election Commission or the first-ever Commissioner for Human Rights of Turkmenistan. The experts recommend that modalities for appointment and nomination to such bodies would be better ensured in a more open and transparent manner.

The revised Constitution was adopted without taking into consideration the aforementioned recommendation.

The Parliament. Who has the last say when approving the country's budget?

When closely reviewing the revised Constitution one might get the impression that select articles are intentionally written unclearly in order to provide extended powers to the President. Thus, the Constitution runs that the Parliament shall examine the issues related to approval of the state budget of Turkmenistan and report on its implementation (article 81, para 3) without explicitly indicating that the Mejlis approves the budget. At the same time, article 81 para 9 provides that the President submits for consideration and approval of the Mejlis of Turkmenistan the state budget of Turkmenistan and report on performance of the budget. The experts suggest that, with a view to rectifying inconsistencies, it is recommended to state that the Mejlis shall not only examine budget issues but also approve the budget.

The revised Constitution was adopted without taking into consideration the aforementioned recommendation.

The judiciary. Who appoints judges? Establishment of an independent judicial council

Pursuant to the revised Constitution judges shall be appointed and dismissed by the President of Turkmenistan (article 100), which, as viewed by the international experts, does not guarantee independence of the judiciary. The OSCE/ODIHR recommends that principles regulating the procedure for the appointment of judges should be specified in the Constitution. According to the OSCE/ODIHR comments, the establishment of an independent judicial council or similar body is generally considered to be an appropriate method to guarantee judicial independence and exercise decisive influence over judicial appointments. Pursuant to the OSCE recommendations, powers and independency of the judicial council should be introduced in a constitution.

The revised Constitution was adopted without taking into consideration the aforementioned recommendation.

Source: Chronicles of Turkmenistan