EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
PRELIMINARY COMMENTS
ON THREE DRAFTS
FOR A REVISED CONSTITUTION
OF THE KYRGYZ REPUBLIC
by
Ms A. NUSSBERGER (Substitute member,
Germany)
Mr A. FOGELKLOU (Expert, Sweden)
Introduction
These preliminary comments were prepared by Ms
Angelika Nussberger (Germany) and Mr Anders Fogelklou (Sweden) on behalf of the Venice Commission following a request for comments
from the Presidential Administration of the Kyrgyz Republic through the OSCE Centre Bishkek.
The comments were prepared under great time
pressure and have to be regarded as preliminary. A more thorough scientific
analysis of the texts would be desirable. However, these preliminary comments
should already be useful to the Kyrgyz authorities when deciding on the further
steps to be taken with respect to constitutional reform.
I)
Comments on common provisions in all three drafts
1) Human rights and freedoms
It is clearly set out that the death penalty is
abolished. That mirrors the European standard and is to be welcomed. It is a
clear step in the right direction compared to Art. 18 of the
present Constitution.
The sections of the draft constitution dealing
with human rights have not been thoroughly analysed. In general, all three
drafts are however a clear step forward with respect to the existing
Constitution. Still some provisions are worth commenting upon.
In the light of internationally accepted human
rights and freedoms the following provisions might cause problems:
Ø
General
prohibition of political parties on the basis of religion (Art. 8 No. 5)
Ø
General
prohibition of political aims of religious communities (Art. 8 No. 5)
Ø
Prohibition
of all activities of foreign political parties, civil and religious
organisations and their representatives and departments to pursue political
aims (Art. 8 No. 5)
The notion “political aims” (“političeskie
celi”) is very broad and can easily be misused. Under the European Convention
on Human Rights (Art 11) restrictions of the freedom of assembly and
association are only possible if they are “necessary in a democratic society in
the interests of national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals or for the protection
of the rights and freedoms of others.”
The provisions in the draft constitutions go much further. If
interpreted in a broad sense, they might render the work of foreign
non-governmental organisations in Kyrgyzstan impossible.
- Prohibition of any restriction of the freedom of expression and the
freedom of press (Art. 37 No. 5 Mixed Constitution, Art. 36 No. 5
Parliamentary Constitution)
The exclusion of any sort of restriction of the
freedom of expression and the freedom of press goes very far and is probably
not realistic as certain restrictions are necessary for the safeguard of
national security and for the protection of the rights and reputation of other
persons.
In the drafts of the new Constitution there is
a new section on an ombudsman for the control of the observance of human rights
and freedoms. This is a new institution in Kyrgyzstan that can play a positive role in society.
2) Judiciary system and prokuratura
The regulation on the prokuratura is new and
gives a constitutional basis to the “nadzor”-system. The detailed rules are
delegated to the legislator. The nadzor-system might endanger the independence
of the judiciary and the right to a fair trial (see the jurisprudence of the European Court on Human Rights). The regulation in the
Constitution is too vague to predict how the system will function. In the June
draft it was also vague, but still more concrete than now.
The independence of the judges is laid down in
all the new drafts of the Constitution (Art. 56 Mixed Constitution, Art. 56
Presidential Constitution, Art. 52 Parliamentary
Constitution). In general, all three drafts constitute clearly a step forward
with respect to the present Constitution. Nevertheless, having regard to the
details of the regulations, there remain some threats to the independence of
judges.
Ø
Thus
judges stay only in office “as long as their behaviour is irreproachable (“poka
ich povedenie budet bezuprečnym”). They can be dismissed before the end of
their term “only on grounds that are laid down in a constitutional law as well
as in the case of a violation of the ethical codex”.
Ø
That means
that the legislator is free to determine the reasons for dismissing a judge.
Contrary to the draft of June 2005 the reasons for dismissing a judge are not
defined in the Constitution. The notion “irreproachable” is very broad. It is
not clear what might be reproached to the judge and lead to the end of his or
her term. Although the procedure of dismissal is defined (High Court judges can
be dismissed before the end of their term only by a two-thirds majority vote of
the Parliament on the basis of a proposition of the National Council of the
Judiciary; lower court judges can be dismissed on the basis of such a
proposition by the President), the safeguards against dismissal are too weak to
guarantee the independence of the judiciary. Especially it might be very easy
to find a violation of the ethical code. Still, it is better than in the June
draft, where – according to the wording of the provision – a dismissal by the
President together with a two-thirds majority of the Parliament was possible
without giving any reason.
Ø
The right
to immunity is guaranteed only in a restricted form, i.e. only “in connection
with fulfilling the duties of a judge” (v svjazi s otpravleniem pravosudija).
There is no constitutional guarantee against other illegal encroachments upon
the freedom of a judge. In earlier drafts of the new Constitution the right to
immunity was broader.
Ø
The
Constitution previews a system of rotation of the judges that has to be fixed
by law (Art. 54 .5). It is not explained what is meant by that. Generally it
should be seen as a prerequisite for judicial independence to guarantee
personal stability to the judges.
The new regulations on the National Council of
the Judiciary are to be welcomed. The Council is composed of 16 people, 4
deputies of Parliament, 4 judges, 4 lawyers and law professors, the Minister of
Justice and 3 representatives of human rights organisations. This body makes
propositions for the nomination of judges. This system seems to be preferable
to the procedures laid down in the earlier drafts of the Constitution. – It may
be noted that the Constitution establishing a presidential system is not
unequivocal at that point as the right to make propositions is only mentioned
in the section on the judicial system (Art. 58), but not in the section on the powers
of the President (Art. 36).
The new regulations on the terms of the judges’
appointments are to be welcomed as well. Now the judges have to be nominated
first for a period of 3 years and then up to the age limit of 65 years. This
regulation is helpful for securing the independence of the judges.
It is deplorable that the Constitutional Court has been abolished in all the new drafts
despite repeated public statements in favour of maintaining this important
institution made inter alia by President Bakiev. There remains only a
constitutional chamber of the High Court with restricted competences. The
constitutional chamber cannot annul unconstitutional laws, but only “decide on
the question of their compatibility with the Constitution”. If a law is declared
to be unconstitutional the application is suspended (dejstvie …
priostanavlivaetsja) and the law is sent to Parliament. It is the Parliament’s
task to make the law compatible with the Constitution (privedenie v sootvetsvie
s Konstitutciej).
Compared to the Constitutional Court as it is established in the present
Constitution the Constitutional Chamber has lost the following competences:
Ø
Decision
of disputes concerning the effect, use and interpretation of the Constitution.
By contrast, the power of interpreting the Constitution is given, in accordance
with the Soviet tradition, to parliament. This is not in line with a modern
system of separation of powers.
Ø
Determination
of the validity of the elections
Ø
Ruling on
an impeachment against the President
Ø
Consent to
the criminal prosecution of local judges
Ø
Annulment
of unconstitutional decisions of the bodies of the local self-government
On the other side the Constitutional Chamber
also gets new competences:
Ø
Decision
on the question of the compatibility of not ratified international treaties and
new laws (before their enactment) with the Constitution
Ø
Decision
on constitutional complaints of the citizens
The last competence is different from what was
foreseen in the June draft. There the Constitutional Court was given the competence to rule on the
constitutionality of the law-enforcement practice that affects constitutional
rights of citizens. It was not clear if the citizens themselves could directly
go to the Constitutional Court. Now the citizens have been given this right.
But not the constitutionality of the application, but only the
constitutionality of the law itself is examined.
Despite the progress made in some points, the
abolishment of the Constitutional Court does not seem to be a step in the right
direction
II)
Comments on the draft of the Constitution establishing a presidential system
The power the President gets from the people is
almost unrestricted. The proclamation of the principle of the separation of
powers is not unequivocal. Although it is explicitly fixed in Article 3.1,
there are other provisions that suggest a concentration of State power in the
hands of the President. Thus the President is the “guarantor of the unity of
the people, of State power and of the inviolability of the Constitution”
(garant edinstva naroda i gosudarstvennoj vlasti, nerušimosti Konstitucii)
(Art. 33). Furthermore the President is called upon to “secure the unity and
continuity of State power” (obespečivaet edinstvo i preemstvennost’
gosudarstvennoj vlasti).
The President completely dominates the
executive:
- The President is elected directly by the people
- The President is the only central organ of executive power. There is
no Government (cf. Chapter 3 of the Constitution: Executive Power,
Sub-Chapter 1: President; there is not sub-chapter 2 on the Government,
instead there is only a vice-president and ministers directly reporting to
the President)
- The President defines the fundamental directions of external and
internal policy of the State (Art. 33)
- He alone – without any co-operation of other State bodies – appoints
and dismisses the vice-president, the ministers and all the other heads of
organs of the executive power. He can also define their competences;
everybody has to report to him. Furthermore he founds and dismisses State
organs, although this competence has to be executed “in compliance with
the law” (Art. 36).
- He has the power to make proposals for the election of the mayors and
can dismiss them with the consent of the Parliament (Art. 36)
- He can even determine the system of paying the civil servants (opredeljaet
edinuju sistemu oplaty truda gosudarstvennych služaščich) (Art. 36)
- With the consent of the Parliament he appoints and dismisses people to
all the other key positions in the State (Procurator general, Chairperson
of the National Bank, chairperson as well as half of the members of the
Central Election Commission, Chairperson of the Auditing Chamber,
ombudsman)
- He can determine the budget which has to be confirmed by the
Parliament. Laws on financial matters can be introduced into the
Parliament only with the consent of the President (Art. 52.3)
- He can suspend or change all decisions (“rešenija”) of the executive
State organs (Art. 36.5)
- He is commander of the Army
- His competences concerning the introduction of the state of emergency,
mobilization and the declaration of the state of war go very far, as the
Parliament is only involved subsequently. The President can act in urgent
cases, but has to inform
the Parliament without any delay (Art. 36.8), the
Parliament can confirm or modify the ukazy of the President (Art. 47.1).
Generally all measures for the protection of sovereignty and territorial
integrity fall into the competence of the President (Art. 33).
The President has a decisive influence on the
exercise of legislative power and can take over the functions of the
legislative power completely
- The President can fix the elections for Parliament and for the local
self-governement bodies (Art. 36.6)
- The President can initiate a referendum (Art. 36.6)
- He has a right to veto all parliamentary laws without giving any
reason. There is no possibility for the Parliament to overrule the veto
with a qualified majority (Art. 36.5); Parliament has to adopt a new law
based on the critical statements (vozraženija) of the President.
- He can introduce draft laws into Parliament (Art. 36.5). He can
determine that the priority treatment of draft laws in case of urgency.
- The right of the President to issue decrees and regulations (ukazy i
pasporjaženija) is unlimited as to the material scope of regulations. But
it is laid down that the acts of the President have to be in conformity
with the Constitution and the laws.
- In the case of self-dissolution of the Parliament the President takes
over all the competences with the exclusion of questions of personal
policy (“kadrovye voprosy”) (Art. 50.3); in this case the President’s
ukazy have the force of law.
The only provisions that might limit a misuse
of presidential power is the prohibition of re-election after two terms of five
years (Art. 34.2) and the regulation on removal from office in case of
corruption or commission of a grievous crime (introduction of the procedure by
absolute majority in Parliament on the basis of an expertise by a special
commission, dismissal of the President with a two-thirds vote) (Art. 41). The three months time limit provided for this
procedure seems excessively short.
Without
going into further details it is evident that there is practically no balance
of power between the three branches of power. There are not enough mechanisms
to prevent a misuse of presidential power. The impossibility for parliament to
override a presidential veto even with a qualified majority and the unlimited
scope of presidential decrees seems incompatible with the normal functioning of
a democratic presidential system. The adoption of this version of the
Constitution would constitute a step back from the ideal of a democratic order
in Kyrgyzstan.
III)
Comments on the draft of the Constitution establishing a mixed system
In the mixed system the position of the
President is weaker than in the draft of a presidential system, but still very
strong in comparison to other democratic systems in Europe.
The position of the President as head of the
executive power is only slightly modified in comparison to the presidential
system:
- The President is directly elected by the people
- The President does no longer guarantee the “unity of the State power”,
but is considered as a “symbol” (Art. 43) But the President is still
called upon to secure the “unity and continuity of State power”.
- The powers of the executive are divided
between the President and the Government (Chapter 4 of the Constitution
has two sections: one on the Government and one on the President). The
powers of the Government are quite restricted in comparison to those of
the President.
- The President doesn’t
have the right to dismiss Parliament.
- The structure of the Government is determined by the President, but
confirmed by the Parliament in form of a law. The Parliament also adopts a
constitutional law on the Government defining the activities, competences
and the composition.
- The Parliament is involved in forming the Government by giving its
subsequent consent. As the consequences of a denial of consent are not
regulated, it is not clear if this is an effective mechanism of balance of
power (Art. 40).
- The Parliament can pass a vote of no confidence against each member of
Government. The consequences are not regulated, though. The President is
not obliged to dismiss the member of Government concerned (Art. 34.7).
- The President still has the dominating position within the executive.
The following competences are worth mentioning
o He is the head of the Government (Art 39.3)
o He forms and governs the Security Council (Art.
46.5)
o He determines the foreign policy (Art. 46.3)
o He can suspend and modify normative legal acts
of the Government and other bodies of the executive (Art. 46.5)
o He has the same powers to determine a state of
emergency or a state of war as in the Constitution establishing a presidential
system. It is strange, though, that in this case it is not clearly regulated
that the Parliament can modify and confirm the relevant ukazy of the President
(Art. 34.1.20 and 34.1.21of the Mixed Draft in comparison to Art. 47 of the
Presidential Draft).
- The draft does not provide for the position of Prime Minister. Without
a Prime Minister the government will however not be able to have real
authority independently from the President. A Prime Minister is a
necessary feature of any mixed or semi-presidential system.
The influence of the President on the exercise
of legislative power is still very strong:
- The President has a right of vetoing laws without giving any reasons.
But the Parliament can overrule the veto with a 2/3 majority (Art. 38).
- Apart from that the regulation on the interaction between President
and Parliament is quite similar to the presidential version of the
Constitution (cf. right to initiate a referendum, fixation of elections,
right to issue decrees and regulations without limitations of the
substance matter). But in the case of a self-dissolution of the Parliament
the competences are not transferred to the President (cf. Art. 35.3 and
35.4 of the Mixed Draft vs. Art. 50 Presidential Draft).
There are only a few mechanisms of control and
limitation of the Presidential power:
- As in the presidential system the President cannot be elected for more
than two terms of five years
- The procedure of removal from office is regulated in a slightly
different way. The procedure can be started without reference to any
specific reasons. It is enough to formulate an “accusation” (obvinenie)
that has to be confirmed by a special Committee of the Parliament.
Contrary to the presidential system a dismissal has to be based on a
majority of votes of three-fourth of the members of Parliament.
In
principle, a mixed or semi-presidential system may be regarded as well suited
to the present stage of democratic development of the Kyrgyz Republic and this draft probably is the
best of the three alternative drafts. Nevertheless, having regard
in particular to the lack of the position of Prime Minister, the draft seems
more presidential than mixed and should be thoroughly reviewed in this and
other respects.
IV)
Comments on the draft of the Constitution establishing a parliamentary system
In this draft power is
concentrated with the Head of Government, whereas the competences of the
President elected by Parliament are generally restricted to the traditional
competences of a weak Head of State in a Parliamentary system. There are only
two important exceptions: The President – and not the Head of State – is given
the right to veto parliamentary laws. The veto can be overruled by a 2/3
majority, in the case of constitutional laws by a ¾ majority. Furthermore the
President can issue decrees and regulation without any limitation as to the
substance matter.
The Head of Government as well as
the members of Government are elected by Parliament. The Head of Government has
to be proposed by the strongest party (Art. 45.3). This is questionable since
the decisive point is not which party is strongest within parliament on its own
but which candidate is most likely to be able to build a coalition which
comprises the majority of seats within parliament. The other members of
Government are proposed by the Head of Government. If the Parliament does not
succeed in forming a Government within four weeks, the President has to
dissolve the Parliament (Art. 34.5). The Government is responsible in relation
to the Parliament. A vote of no confidence can be directed only towards the
Government and the Head of Government (Art. 33.1.8), seems to be possible only
after the report of activities of the Government and is successful on the basis
of a 2/3 majority (Art. 46.3).
It is highly questionable if this concept of a Parliamentary system
would work under the present conditions in Kyrgyzstan as there is no stable party system. It
might happen quite often that the four weeks period for forming a Government elapses
without the formation of a new Government and Parliament has to be dissolved.
That might lead to a very instable system.
V) Summary
It has to be welcomed that all three drafts contain important
improvements with respect to the protection of human rights and the
independence of the judiciary. Nevertheless some problems remain in these areas
and the abolition of the Constitutional Court constitutes a step backwards.
As regards the separation and balance of powers, none of the three
drafts seems satisfactory. The draft based on a presidential system provides
for practically unlimited power of the President and would be a step back with
respect to the democratic standards already achieved. The draft based on a
parliamentary system does not seem functional. In the absence of a Prime
Minister the draft establishing a mixed system seems more like a draft
establishing a presidential system which is more balanced than in the first
draft. The influence of the President on the legislative process also remains
too strong. This draft would also have to be reviewed.
None of the three drafts should therefore be adopted without major
amendments. In this respect it would be advisable to look again at the draft
Constitution prepared in June 2005 within the Constitutional Council, which
contained many positive elements, and the opinion of the Venice Commission on this text. By combining
the positive aspects of this draft with the positive aspects of the three
drafts examined here, it should be possible to arrive at a text which
substantially improves the constitutional situation in the Kyrgyz Republic.
