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Strasbourg, 6 December 2007
Opinion no. 457/2007
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CDL(2007)126*
Engl. only
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EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
COMMENTS
ON
the constitutional situation
in
the kyrgyz republic
by
Mr A. FOGELKLOU (Expert, Sweden)
Background
The political and constitutional crisis in Kyrgyzstan which
became evident in March 2005 has so far not been solved. A fragile stability
was achieved in summer 2005 which rested on a mutual understanding between
leading political and constitutional actors.
The compromise was only temporary. Political and
constitutional conflicts continued through out 2006 and 2007. The President of
the Republic, Kumanbek Bakiev, has tried to create a new order by having a new
edition (redaktisia) or version of the 1993 Constitution adopted through
a referendum (in the following this edition of the 1993 Constitution will
sometimes simply be called the Constitution).
The new Presidential edition or version of the 1993
Constitution could be seen as response to the recent changes of the
Constitution in November 2006 and in December 2006 which had been declared
unconstitutional by the Constitutional Court on 14 September this year. The
situation was close to a constitutional and legislative chaos. On 19 September
2007 Bakiev ordered that a referendum on a draft Constitution should be
conducted on 21 October.
According to the Kyrgyz Central Electoral Commission the
referendum was valid with more than 50% who voted for the draft Constitution
and then draft Election Code. But observers have noted serious violations in
conduction the referendum according to OCSE Spot Report No. 11/07.
Introduction
In this conclusion the concrete content of the new version
will be analysed. A former opinion of the Venice commission on the 2005 reform will
form the background for the analysis whereas the 8 November and 30 December
versions will not be brought into the foreground.
The Venice Commission does not take stand whether a state
should be parliamentary, semi-presidential or presidential. It sees its task to
defend the principles of democracy, the separation of powers, fundamental
freedoms and liberties, and the rule of law. It does not necessarily say by
which governmental forms these goals are to be achieved.
A difficult problem is whether a Constitution should be seen
as a instrument of change or should it rather reflect
given social conditions and mentalities? It should obviously be both.
Given the authoritarian tradition of Kyrgyzstan and her
attempts to deepen democracy and the rule of law, the elements of change are
important.
If the text of the Constitution, however, too much deviates
from the actual mentalities in a country it could partly lose its normative
force. It could become a symbolic framework and not an operative document.
The present version maintains formally the semi-presidential
system but has centralised political power to the Presidency. One the same time
the position of political parties has been strengthened. This has the
disadvantage that possibilities for political participation by citizens will be
constrained since they cannot be elected to the parliament as independent
candidates.
The (new) Constitution contains a number of other provisions
aimed at reinforcing or maintaining the rule of law, and guarantees for human
rights and freedoms. Many of these provisions are positive and deserve support.
Also the judicial system has been strengthened.
Chapter 1 – The
Foundations of the Constitutional System (Stroi)
That the Constitution in some respects is a step back could
be seen in the amendment to Art. 7, dealing with fundamental
principles of the state. The first principle provides now that (only)
the President represents the people. His person embodies the Kyrgyz people.
This is in contrast to Article 4 which mentions the President and the
Parliament as elected representatives of the people. Also the November and
December versions give such designation to the President.
The second state principle proclaims the principle of
separation of powers but adds that they have to be co-ordinated and be based on
mutual interaction (vzyaimodeistvie). The intention is to be supported
but the concrete textual formulation is not altogether satisfying. Of course,
there must be interaction and co-ordination between executive and legislative
powers but given that the judicial decision-making process should be based on
the independence of the judges and of the courts, the provision should be
slightly reformulated.
There is a problem with the regulation of referendum. According to Art. 1.5 laws and other issues of supreme
nation-wide importance may be submitted to nation-wide referendum. This was a
change from before 2005 where Amendments and supplements to the Constitution
were mentioned in the same provision.. This more
restrictive approach was in line with the aims of the constitutional reform in
2005, since referendums may be more easily manipulated by those in possession
of “administrative resources”. Also, the present Constitution was taken by a
referendum in which it is not to be excluded that administrative resources were
used.
The provision that political parties and political
activities within the state apparatus should be prohibited is to be
appreciated. Also the exception that officials may devote time for political
activities when it is conducted not in connection with their service to the
state deserves support. It reflects the intended growing importance for
political parties in the present Constitution.
The provision that expropriation of private property should
be compensated in advance and in full deserves support (Art. 4.3). Worth
noticing is the differentiation between the state language and the official
language (Russian) (Art. 5). It is an appropriate solution which takes into
account both the interests of the Russian community and the interaction with
the external world while preserving and maintaining a Kyrgyz identity. It also
protects linguistic minorities.
A remnant from the Soviet legislative style is Article 4.5.
Is it necessary one could ask but such question ignores the fact that
constitutions should legitimise existing social conditions.
The provision that parties may not be founded on religious
grounds (8.5, fourth paragraph) could be seen as problematic since it
constrains the possibility for religious interests to be represented in
legislative assemblies but is perhaps unavoidable in the present political
situation. It does not correspond to European standards.
Although the
incorporation of international law into the Kyrgyz legal system is to be
appreciated, the provision (Art.12.3.) does not say which consequences this
incorporation may lead to in cases of conflict between international and domestic
law. Should international law prevail over internal legislation (with the
exception of the Constitution) or should the most recent norm (international or
domestic) take precedence? Or should even domestic legislation (formal
statutes) prevail over treaties. The last alternative is hardly probable?
In an
earlier version from 2005 there was a provision that the state budget should be
made public, in this version the formulation is weaker (Art. 14.3, seventh
paragraph).
Chapter 2 – Freedoms
and Rights of Men and Citizens
Part 1: Human freedom and rights.
This part deserves strong praise in several aspects but
gives also rise to some slight doubts. Some formulations are extremely
far-reaching: human rights are “absolute and non-alienable” (Art. 13.1). They
appear as declarations of individualist natural law thinking in a patriarchal
and collectivist political culture. Do such formulations have a impact on the actual functioning of the legal and
political system? Would they even function as ideals.
All provisions in this part should be appreciated. They
concern everybody and not only citizens. Only a few comments should be added.
The anti-discriminatory provision Article 13 should be
supported. The last formulation that “other circumstance of personal and social
character” should not be ground for discrimination is to me not clear since the
law-giver sometimes must differentiate, for example between children and
adults. But it could have its aim that, for example, a court should not for
reasons of friendship or family connections sentence a person more leniently
than it otherwise would have done.
Art. 14.1. provides that nobody
could be deprived of his life which I interpret that the death penalty is
prohibited, but that should perhaps be stated more precisely. Otherwise the
provision of course deserves support. Also to be noted is that the Constitution
gives everybody the right to get compensation from the state of damage caused
by illegal actions from the side of (state) officials Art. 14.3., 9th
paragraph. From an editorial point of view and in line with international
documents it would be an advantage that the various rights and freedoms could
each be given a specific article. Now, for example, the freedom of the
expression is regulated under point 6., Article 14.
It is to be noted that Constitution also keeps high European
standards in the sphere of the rule of law. Article 15 enumerates in detail
basic rule of law principles, for example, the principle that only the courts
and not the prosecutor should have the power to arrest individuals who are
suspected or accused of having committed crimes (Art. 15.1.) Article 15 with
all its detailed points and sub-points reflects a clear progression from
earlier situation. In particular, the provision that everybody is guaranteed
judicial defence of his/her rights is to be supported.
Also the limitations of human rights (Art. 18) are fairly
well expressed since it provides that the essence of a given right is not to be
infringed on.
The rights of citizens is regulated
in part 2 of Chapter 2. This part also comprises a catalogue of social rights
of which it could be said that these social guarantees in a very poor country
easily could be seen as decorative. It is to be noted that Article 21.5 guarantees
judicial protection of all rights and freedom for all citizens. Art 23.2. also recognises traditional communities.
Chapter 3 – The
President of Kyrgyz Republic
This Constitution is formally a semi-presidential
constitution but is in reality a presidential Constitution with few checks and
balances. This should give rise to concern from the side of the Venice
Commission. If one wants to break an authoritarian tradition it could be seen
that the powers given to the President are too wide. On the other hand, it
could be seen as a concession to a patriarchal political culture. From another
perspective it could possibly be seen as more effective in combating corruption
than say a parliamentary government but it is not certain that it will have
such an effect.
The
experiences from the region point to extended periods for the Presidency or the
abolishment of the prohibition of being re-elected more than once. It is a
clear advantage that such situation does not concern Kyrgyzstan. Given the
strong powers attached to the Presidential office in the present Constitution, it
is worth noticing that the tenure of five years could only be renewed once
(Art. 42). However, in the new version point 3 has been excluded in contrast to
the earlier which says that changes of the
Constitution may not concern a prolongation of the periods under which a
President may be elected or re-elected.
The
President’s power seems to be excessive leading to a situation in which the
principle of the separation of powers is weakly reflected in the Constitution Accordingly, Article 42. 2 provides
that the President should be “the symbol of the unity between the people and
state power” and be the “guarantor the Constitution” with its protection of
human rights. He should determine “the main direction of the internal and
external policy of the country” and co-ordinate all state organs (Art. 42.3.).
The President’s “honour” and “dignity” shall be protected by law (Art. 49). It
is important that such a law does not unnecessarily limits the freedom of
expression in relation to the President and his concrete policies.
The State Security Service and National Guard function under
his command (Art. 46.8).
He has a Presidential administration and chairs the Security
Council. He may also lead cabinet meetings.The
President has discretionary power to dismiss the Prime Minister and the
Government ( Art. 46.2)According to Article 46. 10,
the President has the prerogative to appoint the heads and lead the power
ministries (defense, security, internal affairs and foreign policy).
The
President could also at his discretion decide on organizing referenda. Since
referenda easily could be used to change the constitution on the condition that
50% of the members of the Parliament have given their consent to organize a
referendum, the present Constitution could then lead to a situation which is
similar before the reforms in 2005 (Given that 43.3. has been excluded).
An
impeachment of the President is difficult to achieve. The alleged crime must be
treason or other “especially severe crimes”. Within three months after an
accusation against the President has been made by two thirds of the Parliament
on the initiative of the absolute majority in the Parliament, the Parliament
must with three fourths majority decide to impeach the President (Art. 51). The
procedure seems to be too short and would not possibly lead to an impeachment.
Chapter 4 – Legislative
Power of the Kyrgyz Republic
All the members of the Parliament must be elected on
party lists. (Art. 54.2.)
The members of the Parliament must be controlled by their
parties according to the President. Since the party system is very weakly
developed, it would mean that the constitutional reform contributes to a rather
artificial system in which political parties are founded from above. They may
be controlled by business interests but also by the executive and are not
grounded in the concrete political experiences of the people.
Only parties with more than 5% if votes and with more than
0, 5 % in each district may be represented in the Parliament, according to the
Law on Elections. The danger is that independent political activities may be
stifled by these strict regulations.
President Bakiev has justified the exclusion of independent candidates
that the latter easily buy votes. But it is not clear that the prohibition of
independent candidates would lead to less corruption than a system with
exclusive party list candidates. The control by the parties on members of the
Parliament seems to be a stronger reason.
A remnant of the Soviet past is that the Parliament shall
interpret laws (Art. 58.3). Since this is also the function of the
Constitutional Court, such power of the Parliament should be abolished.
Only the Parliament may release deputies from parliamentary
immunity in relation to a criminal or administrative process but the immunity
does not concern “especially grave crimes” (Art.58.3) This exception to
parliamentary immunity causes surprise since it is in relation to allegations
of serious crimes that parliamentary immunity is important. This exclusion was
not found in earlier versions of the Constitution. Obviously, the
constitutional legislator does not believe that the Parliament may take
impartial or objective decisions in relation to members who may have committed
grave crimes.
Chapter 5 – Executive
Power
This chapter deals with governmental power and the formation
and dismissal of the Prime Minister and his Government.
The Government is responsible both to the President and the
Parliament but it seems to me that the President has the upper hand. He is the
leading figure in the nomination process and controls also the way the
Parliament may wants to express non-confidence to the Government.
An absolute majority of the parliament may vote for
non-confidence and the President may at his discretion agree or not with that
decision (Art. 71, 4,6.). If the Parliament within
three months takes a new decision to express non-confidence, the President may
dismiss the Government or dissolve the Parliament (Art. 71.7.).
The President also controls the nomination process.
According to Article 69 the deputies from the party with more the 50% of the
votes in the Parliament proposes to the President a candidacy for the post as
Prime Minister. If this alternative for various grounds, such as the absence of
a party with more than 50% of the votes in the Parliament does not take place,
the President gives according to Article 70 deputies of another party to
present a candidate leading a coalition government. If this does not take place
the President proposes deputies from still another party to present a candidate
for Prime Minister, forming a coalition government. The procedure could be
repeated for the third time with a third party. If this does not take place
then the President dissolves the Parliament, announces new elections and forms
a temporary government.
It is hard to judge whether this procedure is appropriate it
depends very much how the party system will develop in Kyrgyzstan.
Chapter 7 – Judicial
power
In several aspects the chapter on judicial power is
satisfying. The election of judges of the Constitutional Court and the Supreme
Court by a qualified majority in the Parliament on proposal from the President
corresponds to European standards. To withdraw the immunity of these judges is
only possible with the consent of the Parliament.
The nomination of district judges by the President based on
the proposal from the National Council of the Judiciary also deserves support.
Likewise only the President could take away their immunity. The composition of
National Council of Judges is only partly regulated in the Constitution but its
establishment should be seen as a step forward.
However, the way judges from the Constitutional and Supreme
Court are dismissed is not completely satisfying. The procedure that the
President with the consent of two thirds of the members of the Parliament
corresponds to the ideal of the rule of law but it would be desirable if the grounds
for dismissal would be mentioned in the Constitution which is not the case
(Art. 84). One possible ground would be that the judge’s behaviour is not
irreproachable (bezuprechnyi) which it should be according to Article
83.
Such strict condition is suitable for the nomination of a
high court judge but it is doubtful whether it is appropriate for such radical
measure as the dismissal a high court judge.
Chapter 9 – Order for
adopting a Constitution
The adoption of a (new) Constitution or
changes or amendments to the present Constitution are regulated in
Chapter 9, which according to Art. 98 provides that
the present version of the Constitution or a new Constitution may be taken by
referendum ordered by the President with the consent of more than 50% of the
members of the Parliament. The procedure for adopting the new version of the
1993 Constitution is also regulated by the same version
Changes of chapters 3- 8 of the present Constitution may be
taken by two thirds of the Parliament if the Constitutional Court has given a
conclusion on the constitutionality of the proposed changes. It is not clear
whether the Court’s conclusion is mandatory but I interpret the text that this
is the intention. The provision should be more clearly formulated.
It should be stated more clearly that the basis for the
control by the Court is, I suppose chapters 1 – 2 and
9. Otherwise the control by the Constitutional Court will appear as
undemocratic. The Court should not be legislator and prohibit changes without
clear constitutional support.
General conclusion
It is clear that this Constitution gives too much power to
the Presidency without having established clear checks and balances. The
Constitutional Court seems to have gained importance and could be seen as such
controlling institution but this is not sufficient. The space for democratic
development is constrained.
The protection of human rights and the rule of law is satisfactorily regulated.
