of May 27, 1997
On case "About determination of compliance of the Constitution of the Republic of Tajikistan of article 32 of the Constitutional Law of the Republic of Tajikistan "About the Constitutional court of the Republic of Tajikistan" about finality of solutions of the Constitutional court"
Constitutional court of the Republic of Tajikistan as a part of the Chairman of the Constitutional court of the Republic of Tajikistan Abdullaev F. A., secretary of the Constitutional court of the Republic of Tajikistan Nazarov M. N., judges of the Constitutional court of Abdullaev A. A., Safarova N. D., Emomov N. E.,
with participation of the court clerk of the Constitutional court Mirzoshoyeva S. H.,
parties: the plenipotentiary of Majlisi Oli of the Republic of Tajikistan - the adviser of Majlisi Oly Committee on the legislation and human rights Nabiyev A. H., the plenipotentiary of the President and the Government of the Republic of Tajikistan - the managing sector of work with law enforcement agencies of department of defense and law and order of Executive Office of the President of the Republic of Tajikistan Nabotov M. B.,
According to this offer the constitutional legal proceedings are initiated.
The representative of Majlisi Oli is Nabiyev A. H. on the matter submitted the opinion in writing and in judicial session supported him.
Proceeding from the above and explanation of the representative of Majlisi Oli leaves that in article 89 of the Constitution of the Republic of Tajikistan the word "final" belongs only to the resolution of the Constitutional court, and - to the conclusions and determinations does not treat other acts.
The plenipotentiary of the President and the Government of the Republic of Tajikistan Nabotov M. B., as in writing, and in the performance in judicial session, upholding the opinion, added that if the Constitutional court comes to conclusion that Article 32 aforesaid of the Constitutional Law does not correspond to the Constitution, then its correction would be better to be performed according to the procedure of the legislative initiative.
Discussion of question of compliance of article 32 of the constitutional Law of the Republic of Tajikistan "About the Constitutional court of the Republic of Tajikistan" Constitutions of the Republic of Tajikistan in judicial session showed that some provisions of the above-named Article which have important basic and legal value do not correspond to the Constitution of the Republic of Tajikistan.
Article 89 of the Constitution of the Republic of Tajikistan, determining powers of the Constitutional court, determines that solutions of the Constitutional court are final.
The chapter 8 of the Constitution of the Republic of Tajikistan is devoted to judicial authority, in Article 84 is stated: "The organization and procedure for activity of the courts are determined by the Constitutional law".
According to the above-named article of the Constitutional law the Constitutional court makes decisions in the form of resolutions, the conclusions and determinations which are final.
The constitutional court on the substance of the considered case issues the decree and the conclusion. In the cases provided by the Constitution of the Republic of Tajikistan and this constitutional Law the Constitutional court of the Republic of Tajikistan accepts the conclusions which are accepted and proclaimed according to the procedure, determined for adoption of resolutions of the Constitutional court. Proceeding from requirements of the law follows that though forms of solutions of the Constitutional court are different, but they, that is resolutions and the conclusions, have identical legal force, and they, according to the Constitution of the Republic of Tajikistan, are final. It follows from this that after introductions in legal force, they are not subject to appeal, and there is no other body which could pererassmotret them. Besides based on article 9 of the Constitution of the Republic of Tajikistan the government is based on the principle of its separation on legislative, executive and judicial, and each branch of the power is effective independently. Article 84-92 of the Constitution are devoted to judicial authority and provide her independence. The constitutional court of the Republic of Tajikistan in system of judicial bodies is in the first place. It means that decisions in this court are final and are not appealed, there is no other government or body which could consider its resolution or the conclusion again, or on them to give estimates, to consider them not valid or to change. Similar power has even no Constitutional court.
Recognizes sense of article 72 of the Constitution of the Republic of Tajikistan that when the President violates the oath or will commit crime, the question of release of the President from post is considered by Majlisi Oli of the Republic of Tajikistan taking into account the conclusion of the Constitutional court and the special Commission of Majlisi Oli. In too time the Constitutional court notes that finality of the solution of the Constitutional court does not mean its benefit before the conclusion of the special Commission of Majlisi Oli, taken out on the matter. Therefore in part two of article 32 of the constitutional Law of the Republic of Tajikistan "About the Constitutional court of the Republic of Tajikistan" the word "except the conclusion on the questions provided by part four of article 14 of this constitutional Law" does not correspond to article 89 of the Constitution of the Republic of Tajikistan.
The existing rule of part two of article 32 of the called Law concerning the conclusion of the Constitutional court which is one of forms of decisions of this body brings ambiguity and uncertainty in its finality and looks as if it will be possible to appeal the solution of the Constitutional court.
But neither and nor in other laws it is not provided in the Constitution. And therefore, for the purpose of elimination of such contradictions, the court considers necessary the text of this article of the Law to bring into accord with the Constitution. Part one of article 32 of this Constitutional law does not contradict the Constitution.
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