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Strasbourg, 17 December 2007
Opinion no. 457/2007
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CDL-AD(2007)045
Or. Engl.
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EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE
COMMISSION)
OPINION
ON THE CONSTITUTIONAL SITUATION
IN THE KYRGYZ REPUBLIC
Adopted by the
Commission
at its 73rd plenary session
(Venice, 14-15
December 2007)
based on comments by
Ms A. NUSSBERGER (Substitute member, Germany)
Mr E. TANCHEV (Substitute member, Bulgaria)
Mr A. FOGELKLOU (Expert, Sweden)
TABLE OF CONTENTS
I. INTRODUCTION.. 3
II. BACKGROUND
OF THE REQUEST. 3
III. THE
DECISION OF THE CONSTITUTIONAL COURT. 4
IV. THE
NEW CONSTITUTION.. 4
V. THE
NEW ELECTORAL CODE.. 10
VI. CONCLUSIONS.. 10
1.
The
Speaker of the Parliament (Jogorku Kenesh) of the Kyrgyz Republic, Mr Marat
Sultanov, asked the Venice Commission in a letter dated 15 October 2007 to comment on
the recent constitutional developments that took place in the Kyrgyz Republic
and to provide an analysis of the decision of the Constitutional Court of 14
September 2007 as well as of the documents that were to be adopted by
referendum on 21 October 2007, i.e. the Law on the new redaction of the
Constitution and the new electoral code.
2.
Ms Nussberger (Germany), Mr Tanchev (Bulgaria) and Mr Fogelklou (Sweden)
were appointed as rapporteurs. The present Opinion is based on their comments
and was adopted by the Commission at its 73rd plenary session on
14-15 December 2007. The funding for this activity was provided by the European
Commission in the framework of the Joint Programme on constitutional assistance
for Kazakhstan and Kyrgyzstan.
3.
The
present Opinion focuses on the text of the new version of the Constitution. The
contents of the Electoral Code, which has not been
translated into an official language, is not analysed. In accordance with its
usual practice, the Commission also refrains from taking a position on the
decision of the Constitutional Court.
4. Following
the March 2005 tulip revolution and the overthrow of the authoritarian regime
of former President Akaev, the Kyrgyz Republic has undergone a period of
political and constitutional instability. One of the consequences of the
revolution was the wish to adopt a new, more democratic and liberal
Constitution replacing the Constitution originally adopted in 1993 which had
been amended several times during the Akaev years giving to it a more authoritarian
character. Since this Constitution was last amended in 2003 it is usually
referred to as the 2003 Constitution.
5. A
draft new Constitution was prepared by a broadly based constitutional council
with the participation of civil society. This draft was the object of a Venice Commission opinion (CDL(2005)022) and received a mainly favourable assessment, with the exception of the chapter on the judiciary which provided clearly
insufficient guarantees for judicial independence.
6.
Several
further drafts were prepared and Venice Commission experts provided
additional comments (CDL(2006)066). On 8 November 2006 the Jogorku Kenesh adopted a law amending its rules of procedure in respect to
constitutional amendments. The next day it adopted a new version of the Constitution
providing for a mainly parliamentary system of government. Only a few weeks
later, on 30 December 2006, this decision was to a certain extent reversed by
the adoption of a different version of the Constitution which, compared to the
9 November text, substantially strengthened presidential powers. Following its
promulgation by the President, this new version entered into force, or was
supposed to have entered into force, on 15 January 2007.
7. The
constitutionality of the procedure chosen for the adoption of both new versions
of the Constitution was contested by some members of parliament. On 14
September 2007 the Constitutional Court decided that the procedure for the
adoption of both new versions of the Constitution had been unconstitutional and
annulled both versions of the Constitution. This decision was contested by the
Jogorku Kenesh, which claimed that the Court had clearly exceeded its powers.
8. On
19 September 2007 President Bakiev issued a decree submitting a new version of
the Constitution as well as a draft Electoral Code for adoption by referendum.
The referendum took place on 21 October 2007. According to the Central Election
Commission, more than 50% of eligible voters took part in the referendum and
both the draft Constitution and the Electoral Code were approved. A Spot Report
of the OSCE (No. 11/07) noted that according to local observers there had been
cases of ballot stuffing and abuse of administrative resources.
9. It
cannot be the task of the Venice Commission to review decisions by national constitutional
courts which are the institutions with the authority to provide a final
interpretation of the Constitution. The Commission therefore refrains from
taking a position on the justification of this decision of the Court which was
strongly contested by the Jogorku Kenesh. Nevertheless, some clarifying remarks
seem appropriate.
10. It
is indeed highly unusual, if not unprecedented, that a Constitutional Court
declares the full text of an acting constitution to be unconstitutional. As a
general rule, constitutional courts have to take their decisions on the basis
of the Constitution valid at the moment of their decision. Former versions of
the Constitution are irrelevant. This means that the Court could take this
decision only if the text of the Constitution adopted on 30 December 2006, and
which was supposed to have entered into force on 15 January 2007, was invalid ab
initio. There might be doubts as to whether the 2003 Kyrgyz Constitution
envisaged such a possibility. Furthermore, it has to be stressed that such an
interpretation would have important consequences. All the actions based first
on the Constitution of 9 November 2006 and then on the Constitution of 15
January 2007 would be without a legal basis. That would also apply to any
election of constitutional judges taking part in the relevant decision.
11. In
this context it is interesting to note that the new Constitution adopted by
referendum on 21 October 2007 contains a provision on the abrogation of the
Constitution of 9 November 2006, of the Constitution of 15 January 2007 as well
as of the law of the Jogurku Kenesh of 8 November 2006 (Part II Paragraph 2 of
the Constitution of October 2007). Such a provision would not be necessary if
these legal acts had been abrogated by the decision of the Constitutional Court
retroactively or had never been valid.
1. General comments
12. The
main focus of the constitutional debate in Kyrgyzstan was on the distribution
of powers between president, parliament and government and the major
differences between the various texts concerned this issue. The subsequent
comments will therefore also focus on this question. Since the Constitution was
already adopted, the Commission has refrained from a detailed article by
article analysis and the present Opinion addresses only some major issues.
13. In
general, while there are some advances in the text as regards human rights and
the independence of the judiciary, the excessive concentration of powers in the
hands of the President and the lack of checks and balances give rise to serious
concerns.
2. Chapter I on
fundamental principles of the constitutional order
General Comments
14.
Generally
the provisions in this Chapter are welcome and in line with international
standards.
Article 1
15.
The constitutional
definition of the Kyrgyz state in Art. 1 is welcome since it contains all democratic
characteristics of a modern democratic unitary nation state – a state founded
on the rule of law (closer to the German concept of the Rechtsstaat than
to the Anglo-Saxon rule of law), a
democratic, secular and social state. Paragraph 3 as well as
the Preamble contain the classical statement that the
Kyrgyz people are the sole source of state power in Kyrgyzstan.
Article 2
16. The wording and the goal of Art. 2,
especially its first paragraph (“The state and its organs shall serve the whole
of society, and not one particular part of it.”) have to be welcomed since they
are a constitutional safeguard against totalitarianism, authoritarianism or one
man rule. This provision has been borrowed and transplanted from the 1789
Declaration of Rights of Man and Citizen which is still an acting part of the
of 1958 Constitution of the Fifth French Republic.
Article 4
17. It
is welcome that the new text, in particular Art. 4.3, provides stronger
protection for private property.
Article 5
18. Article
5 providing for the Kyrgyz language as the state language and the Russian
language as a further official language appears an appropriate solution
although the distinction will have to be clarified by legislation. It 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.
Article 7
19. Article
7 provides for the principles on which the state authority is based. Compared
to the 2005 draft the new wording of the first principle is a step back since
it is now (only) the President who represents the people and not the President
and the parliament. This special position of the President may pave the way for
one man rule and seems difficult to reconcile with the provisions of Article 2.
20. The
second state principle proclaims the principle of separation of powers but adds
that these have to be co-ordinated and be based on mutual interaction (vzyaimodeistvie).
The intention is to be supported but the concrete wording is not altogether
satisfactory. 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.
Article 8
21. Article
8.1 establishes a secular state and religious pluralism without a state or
otherwise privileged denomination.
22. The
subsequent paragraphs provide for political pluralism and a multi-party system.
In practice, special attention will have to be paid to full respect for these
principles when decisions are made on the registration and legality of
political parties.
23.
In
Article 8.5, the provision that political party organisations and political
activities within the state apparatus are prohibited is welcome,
including the phrase clarifying that officials may devote time for political
activities when these are conducted not in connection with their service to the
state. The provision reflects the intended growing importance of political
parties under the present Constitution.
24.
The
provision that parties may not be founded on religious grounds (8.5, fourth
paragraph) is more problematic since it constrains the possibility for
religious interests to be represented in legislative assemblies. The provision is
perhaps unavoidable in the present political situation but does not correspond
to standards in Europe.
Article 9
25. This
Article, reflecting the peaceful nature of the Kyrgyz state, could be an
example to other constitution makers.
Article 12
26. This
Article reflects fundamental principles of the rule of law and merits a
positive assessment. As regards international law, an additional clarification
as to the position of international treaties in the hierarchy of norms would be
desirable.
3. Chapter II on human and
civil rights and freedoms
General comments
27. With
the exception of the issue of the abolition of the death penalty, human rights
issues have not been in the focus of the recent constitutional debate. The
Commission therefore refrains from commenting this chapter in detail.
Nevertheless, it has to be underlined that on the whole it deserves a positive
assessment.
Article 13
28. The
first paragraph contains a sweeping statement that human rights are “absolute
and inalienable”. This reflects individualistic natural law thinking in a
society with a very different tradition. It remains to be seen what will be the
effects of such statements.
29.
The anti-discriminatory provisions in Article 13 are welcome. The last
formulation that “other circumstance of personal and social character” should
not be ground for discrimination is not clear since the law-giver sometimes
must differentiate, for example between children and adults. But it could have
as 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.
Article 14
30. Article
14.1 guarantees the right to life and states that no one may be deprived of
life. The Commission congratulates the Kyrgyz authorities for thus abolishing
the death penalty. An explicit statement on the abolition of this penalty would
have been welcome.
31. Otherwise
Article 14 contains a comprehensive catalogue of fundamental rights. From an
editorial point of view and in line with international documents, it would be
preferable to give to the various rights and freedoms each time a specific
article. The 9th sub-paragraph of Article 14.3, providing for the
right to get compensation from the state for any damage caused by illegal acts
of state or local authorities and officials deserves special praise.
Article 15
32. This
article reflects high standards in the sphere of the rule of law. It 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 clear progress with
respect to the 2003 Constitution. In particular, the provision that everybody
is guaranteed judicial defence of his/her rights is to be supported.
Article 18
33. The
provision on restrictions of human rights is fairly well drafted. In
particular, it provides that the essence of a right may not be infringed. The
Commission underlines that the words “on the basis of a law” (“zakonami”)
should be interpreted as excluding limitations based on ukazy of the President
or postanovlenija of the Government. It would have been desirable to reflect
the principle of proportionality.
Section II on rights of citizens
34.
The
rights of citizens are regulated in this section which comprises a broad
catalogue of social rights. Such guarantees could appear as purely programmatic
in a very poor country but it is to be noted that Article 21.5 guarantees judicial protection of all
rights and freedom for all citizens.
4. Chapter III – The
President of the Kyrgyz Republic
General comments
35. Formally
the Constitution establishes a semi-presidential system but in reality the
powers of the President are almost unrestricted and there are few checks and
balances. The powers given to the President are too wide, especially for a
country wishing to break with an authoritarian tradition. While the
principle of the separation of powers appears explicitly in Article 7, other
provisions suggest a concentration of State power in the hands of the
President. The President is both a main player and an arbiter between the other
state powers.
Article 42
36. The
first two paragraphs of this Article are fully in line with the usual
definition of the role of the President in presidential or semi-presidential
systems. By contrast, the third paragraph establishes a presidential supremacy
beyond reasonable limits. The President defines the main directions of internal
and foreign state policy, represents the Kyrgyz Republic inside the country and
in international relations, undertakes measures to protect the sovereignty and
territorial integrity of the Kyrgyz Republic, ensures the unity and continuity
of state authority, the concerted functioning and interaction of state bodies,
and their responsibility to the people.
Article 43
37. The
only effective check on presidential powers is Article 43.2 providing that the
President may be re-elected only once. Contrary to the draft Constitution
examined by the Commission in 2005, this paragraph no longer contains the
provision that amendments to the Constitution may not be the basis for
prolonging the President’s term of office.
Article 44
38. The
new Constitution contains far less detail on presidential elections than
earlier versions of the Constitution.
Article 46 and 47
39. The
list of powers of the President in these Articles and other Articles of the
Constitution seems inspired by the wish of the drafters of the Constitution to
provide the President with all powers which may be found in European, US, Latin
American or Russian constitutionalism.
40. The
President clearly dominates the executive. The President
- defines
the fundamental directions of external and internal policy of the State;
- appoints the Prime Minister on the basis of a proposal by
the strongest party in Parliament (detailed provisions in Article 46 para
1 in connection with 69 et seq.);
- can
dismiss the Prime Minister and the Government as well as the ministers
without any special reason ;
- On the
basis of a proposal of the Prime Minister, can appoint the heads of the
administrative organs and other organs of the executive branch and can
dismiss them on his or her own initiative;
- can
appoint and dismiss the heads of the local State administration;
- appoints
the State Secretary and defines his or her status and competences and
forms the Presidential Administration;
- builds
up and presides over the Security Council and the Secret Service;
- builds
up and structures all the State organs that are under his or her command
and appoints and dismisses the leaders;
- can
even determine the conditions of payments for the civil servants;
- with
the consent of the Parliament, appoints and dismisses persons to all the
other key positions in the State (Prosecutor General, Chairperson of the
National Bank, chairperson as well as half of the members of the Central
Election Commission, Chairperson of the Auditing Chamber);
- proposes
all the candidates for the Constitutional Court that are then elected by
Parliament;
- can
suspend all the normative acts of the Government and other organs of
executive power;
- can
call the Jogurku Kenesh before the set time and decide on the questions it
has to deal with;
- can
call a referendum on his own initiative and decide on a referendum
initiated by 300 000 voters or by the majority of the deputies;
- is
commander of the Army;
- can
call for the introduction of the state of emergency, mobilisation and the
declaration of the state of war, if necessary even without the consent of
the Parliament although the Parliament has to confirm the decision
41. The
President thus is in full control of the administration in general and the
power structures in particular, he or she dominates the executive and has
decisive influence on appointments to judicial and other independent positions.
If ever there is resistance against his or her wishes, the President can call a
referendum without the involvement of the other state organs.
42. In
addition, the President has a decisive influence on the exercise of legislative
power. The President
- has a right to veto all parliamentary laws without
giving any reason; the Parliament can overrule this veto only with a
two-thirds majority of its members.
- can
introduce draft laws into Parliament and determine the priority treatment
of draft laws in cases of urgency;
- has the right to issue decrees and regulations.
Though
the Constitution is silent in determining the nature of the Presidential decrees
and regulations, constitutional practice demonstrates that these might be
either individual acts concerning concrete addressees or normative acts
establishing rules and regulating the performance of institutions and
influencing human rights. Besides, the President is also vested with the power
to suspend the effect of normative acts of the Government or any other organ of
the executive branch (Art.46.5.4).
Article 51
43. An impeachment of the President is
difficult to achieve. The alleged crime must be treason or other “especially
severe crimes”. The allegation has to be supported by a conclusion from the
Prosecutor General and a report from the Constitutional Court on the regularity
of the procedure. 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 Parliament, the Parliament must with three fourths majority decide
to impeach the President. The timeframe for the procedure seems too short and it
is highly unlikely to lead to an impeachment.
5. Chapter IV – The
Legislative Branch of the Kyrgyz Republic
General comment
44. The
position of thhe Jogorku Kenesh is not strong enough for it to function as an
effective counterweight to the powers of the President.
Article 55
45. According
to the second paragraph of this Article, all members of the Jogorku Kenesh are
elected on the basis of party lists. The previous election was held on the
basis of a majoritarian system and the 2005 draft Constitution provided for a
mixed system. Since the party system is very weakly developed, there is a risk
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 may not be grounded in the
concrete political experience of the people. Moreover, there is no room for
independent candidates.
Article 58
46. The
power of the Jogorku Kenesh to officially interpret laws (Art. 58.1.3) is a
remnant of the Soviet system.
Article 66
47. As
set forth above, a presidential veto against draft laws can be overruled only
by a two-thirds majority. A presidential veto against constitutional amendments
can be overruled only by a majority of three fourths of the total number of
deputies. It is thus nearly impossible for the Jogorku Kenesh to adopt
constitutional amendments reducing the powers of the President.
6. Chapter V – Executive
authority in the Kyrgyz Republic
General comment
48. The
Government is more dependent on the President than on the Jogorku Kenesh.
Article 69 and 70
49. The
process of forming the government is similar to constitutional rules in
countries such as Bulgaria, Greece and Turkey. According to Article 69 the
deputies from the party with obtained more than 50% of the seats in the Jogorku
Kenesh propose to the President a candidate for the post of Prime
Minister. If this fails for any reason,
such as the absence of a party with more than 50% of the seats, the President
invites according to Article 70 deputies another party to present a candidate
who would lead a coalition government. If this attempt is again unsuccessful,
the President asks 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 the election still fails, the
President dissolves the Parliament, announces new elections and forms a
temporary government which is, however, not limited to caretaker functions.
Article 71
50. According
to the first paragraph the Government is responsible both to the President and
the Jogorku Kenesh but the President seems to have the upper hand. The
President can decide to disregard a vote of no confidence in the government,
unless this vote is repeated within three months. The President then remains
free to either dismiss the Government or to call early elections to the Jogorku
Kenesh. The President can also disregard a vote of no confidence in an
individual minister unless it is repeated within six
months.
7. Chapter
VI – Central bodies of state authority in the Kyrgyz Republic
Article 77
51. This article maintains the
Soviet prokuratura system.
8. Chapter VII – Judicial
authority of the Kyrgyz Republic
General comments
52. This
chapter of the Constitution contains some important improvements, in particular
judges will now be appointed after an initial period until retirement and a
Judicial Council is established. Judicial independence could, however, be
further strengthened.
Article 83
53. According
to this Article judges of the Supreme and Constitutional Court are elected by
the Jogorku Kenesh on the proposal of the President until they reach retirement
age. Judges of the local courts are appointed by the President on the proposal
of the Judicial Council, the first time for five years, thereafter until
retirement. If not fully satisfactory, these provisions are a significant
improvement with respect to the 2003 Constitution under which judges had only
limited terms of office. The role of the President nevertheless is problematic
since he or she is not a neutral head of state as in a parliamentary system but
holds most of the executive powers.
Article 84
54. It
is welcome that Article 84 provides an important role for a Judicial Council,
an institution not mentioned in the 2003 Constitution. Regrettably, there are
no detailed rules as to the composition and functioning of this important
institution. The grounds for the dismissal of judges should be spelt out in the
Constitution.
Article 85
55. This
article sets out the rules for the Constitutional Court. The article remains
fairly vague, in particular it does not regulate the
important issue of who may initiate proceedings. Constitutional complaints by individuals
are not mentioned in this article.
56. The
new Electoral Code is very comprehensive and cannot be evaluated in this
context. It should be stressed that it is problematic to adopt an electoral
code on the basis of a referendum. The citizens cannot be expected to study
such a detailed law, especially if they have no other option but to accept or
to reject it as a whole. Furthermore, it renders changes to the code
unnecessarily difficult.
57.
The
new Constitution was adopted by referendum in an extremely complex and unusual
legal situation. The timeframe of one month between the publication of the
draft Constitution and the date of the referendum was extremely short.
58.
The
new Constitution maintains some of the advances made in earlier texts and
drafts and reflects in this respect also earlier discussions between the Venice Commission and the Kyrgyz
authorities. This concerns in particular:
o
The
requirement that deprivation of liberty is authorised by a judge and not by a
prosecutor;
o
The
abolition of the death penalty;
o
The
fact that judges will in the future mainly have terms of office until
retirement;
o
The
setting up of the Judicial Council.
59. On
the whole, the negative elements of the text prevail. The main thrust of the
new version of the Constitution is to establish by all possible legal means the
indisputable supremacy of the President with respect to all other state powers.
This corresponds to an authoritarian tradition which Kyrgyzstan has tried to overcome.
While the Constitution proclaims the principle of the separation of powers, the
President clearly dominates and appears both as the main player and the arbiter
of the political system. Few obstacles exist for the President having his
tenure prolonged by changing the Constitution. Moreover, if there are no legal
constraints on the powers of the President and few opportunities for an
opposition to effectively make its views heard, the consequence might be that
changes of power in the country will also in the future be based on revolutions
and not on a peaceful and constitutional transfer of authority.
