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CDL-AD(2009)041
Or. Engl.
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH
LAW
(VENICE COMMISSION)
JOINT Opinion
On the
Draft Law on Political Parties
Of the Kyrgyz Republic
by the Venice Commission
and the OSCE/ODIHR
Adopted by the Venice Commission
at its 80th Plenary
Session (Venice, 9-10 October 2009)
on the basis of comments by
Mr Evgueni TANCHEV (Member, Venice Commission, Bulgaria)
Mr Daniel Smilov
(Expert,
OSCE ODIHR)
Mr Jessie Pilgrim (Expert, OSCE ODIHR)
I. INTRODUCTION
1. By letter dated, 7
May, 2009 addressed to the Deputy Head of the OSCE Centre in Bishkek the Deputy
Chairperson of the Committee on Ethics and Regulations of the Jogorku Kenesh of
the Kyrgyz Republic, requested the review of the Draft Law on Political Parties
of the Kyrgyz Republic (hereinafter referred to as “the Draft Law”CDL(2009)099), by both the OSCE/ODIHR and the Venice Commission for Democracy Through
Law of the Council of Europe (hereinafter, “Venice Commission”).
2. This Opinion has been
drafted as a response to the abovementioned request. This Opinion is based on an
unofficial translation of the Draft Law into the English language, provided by
the OSCE Centre in Bishkek. It should be noted that inconsistencies may
transpire as a result of the translation.
3. The Opinion was
prepared by Messrs Daniel Smilov and Jessie Pilgrim (OSCE ODIHR Experts) and
Mr. Evgeni Tanchev, Member (Venice Commission).
4. The present opinion was
adopted by the Venice Commission during its 80th Plenary Session in October
2009.
II. SCOPE OF
REVIEW
5. The scope of the
Opinion includes the Draft Law and reviews it largely in isolation from the
rest of the Kyrgyz legislation on issues such as taxes, elections, NGOs, and
accounting standards.
6. Further to the above,
although the present Opinion has attempted to take into account the
Constitution of Kyrgyzstan and the legislation regulating the registration of
public associations, a comprehensive review of other legislation would enhance
understanding the overall impact of the proposed Draft Law on the legal
framework for political parties.
7. This Opinion on the Draft
Law on political parties in Kyrgyzstan aims to analyse the provisions of the
proposed piece of legislation in view of their potential impact, possibilities
for misinterpretation or misapplication, and consistency with OSCE commitments
and international principles ensuring freedom of association. This analysis
also considers the model suggested by the Draft Law with the practices of party
regulation in established democracies.
8. This Opinion is
without prejudice to any recommendations that the OSCE/ ODIHR and the Venice
Commission may wish to make on the Draft Law in the future.
III. EXECUTIVE SUMMARY
9. The Draft Law
generally follows democratic standards and accepted practices as outlined in a
number of international documents. Nevertheless, the ultimate test of
the compliance of this law with the relevant international standards will be its
practical implementation In particular, the draft should be strengthened in
some areas to fully respect the right of association as some of the text
unreasonably limits this right. Reformulation of some of the provisions would
also be beneficial in order to provide clarification, fine-tuning, and
streamlining, especially of the enforcement procedures. There are some
political choices suggested by the Draft Law, which might prove questionable
and are thus worth re-considering. Further, some of the ambiguities and
indeterminacies contained in the Draft Law may need to be addressed in other
areas and not only in political party regulation. Therefore, some
recommendations for the improvement of the Draft Law might be formulated as
follows:
A.
The definition of
political parties in the Draft Law may be supplemented to stress the specific
role of political parties when compared with other associations.
B.
The prohibition of
“establishment of political parties along the features of... national, ethnic
belonging of citizens” and “religion” should be clarified in order to avoid
over-restrictive interpretations and to respect freedom of association. It is
commendable that the normative framework and the practices of interpretation of
such restrictive provisions in Kyrgyzstan take into account the case-law of the
European Court of Human Rights on this topic, which provides generally a fair
balance between legitimate security concerns of the state and the right to
freedom of association. It is particularly important for the Draft Law not to be
read as to prohibiting parties whose members, sympathisers or leaders happen to
be from a particular ethnic groups or religious denomination, or which simply
include the name of a specific religion in their official name, or which aim at
achieving social and constitutional changes, which are democratic in character
and are pursued by legal and democratic means.
C.
The prohibition of
political parties based on professional affiliation might be
reconsidered as highly unusual in contemporary democracies and as raising an
issue of compatibility with freedom of association. Article 6 of the Draft Law
also appears to be too restrictive by introducing formal requirements not only
for joining but also leaving a political party.
D.
Similarly to the
above, the ban of political parties “based on religion” may lend itself to
misinterpretation and is recommended to be reconsidered to ensure that it does
not prohibit all parties whose members, sympathisers or leaders happen to be
from a particular religious denomination.
E.
The provision on the
ban of activity of international political parties and their representative
offices, although legitimate, should not exclude the possibility of
co-operation of domestic political parties with foreign parties which could be
beneficial to the development of the political party system in Kyrgyzstan.
F.
There should be
clearer requirements for establishment of political parties based on democratic
principles. A separate provision of the Draft Law is recommended to be
elaborated, bearing in mind however that the Draft Law should not seek to
overly intervene in the internal organisation of the party.
G.
A clarification of the
requirement of “fixed membership” is recommended.
H.
The provision of the
Draft Law which concerns the charter of the party and political parties’
programmes should be of a formal nature only and not entail a substantive
assessment of party ideology. The only requirement imposed on a party programme
and charter should be that it meets legal and constitutional requirements.
I.
The Draft Law should
establish a positive obligation for the Ministry of Justice to process the
application for registration of a party within a reasonable time. The Draft Law
should clearly provide that in case of a failure to process the application by
the Ministry of Justice, redress may be sought by the party in a court of law.
J.
The provision that
“the Ministry of Justice is entitled to require explanations from the political
parties’ leading bodies on the issues, connected to violation of political
party charter and legislation” should be narrowed down, in order to exclude
possibilities for excessive interference of the Ministry with the affairs of
political parties. The concept of re-registration first
mentioned by Article 11, might also be problematic in light of international
standards.
K.
For the purposes of
the strengthening of the party system, the Draft Law could grant some specific
privileges to political parties compared to other public associations: for
example, state aid for the carrying out of their essential activities (either
in-kind or financial). The option is especially recommendable as it supports
the development of a stable political party system.
L.
The power of the
Ministry to issue warnings “in case a political party undertakes actions, extending
beyond the limits of the goals and tasks determined in the charter, or not
complying with the acting legislation” should be narrowed in order to prevent
the Ministry from assessing too intrusively the substance of the goals and
tasks of the political party.
M.
The Draft
Law should make it clear that suspension of a political party may not be
initiated and imposed for relatively minor violations of legislation. The
provision that grants special protection from suspension to parliamentary
parties is contrary to principles that require non-discrimination and equal
treatment before the law. This provision is recommended to be reformulated to
respect these principles. The provision in the Draft Law that provides for
suspension of a political party for failure to participate in two elections
should be reformulated to recognize that a political party can play a role not
only in elections but also in the formation of public policy and conduct of
public affairs. This provision should be
improved to state that a political party may legitimately exist even if it does
not present candidates in elections.
N.
The
provision in the Draft Law which states “stopping activity of political party
stops activities of its deputy fraction” should be reformulated to ensure that
retention of the elected deputy’s mandate is not conditioned upon the
continuation of the political party.
O.
The Draft Law should
offer a much more elaborate mechanism of enforcement, including fines for
relatively minor violations, and warnings, suspension and dissolution only for
very serious violations. Suspension and dissolution is therefore recommended to
be limited only to instances of serious violations (mentioned in Article 3) and
the procedural requirements of Article 5 of the Draft Law.
P.
The Kyrgyz legislator
may also consider introducing provisions on special grounds and procedures for
declaring a party unconstitutional and refer this to the jurisdiction of the Constitutional Court.
Q.
Generally,
it is not advisable for political parties to own firms and companies, since
this leads to patronage and (possibly) corruption. Such ownership should be
limited to publishing houses and other business activity essential to their
activities.
R.
The Draft
Law should provide for the publication of the annual party financial reports in
the State Gazette or on the website of the Ministry of Justice.
S.
In the
financial reports, on the expenditure side, it would be useful if the Draft Law
required the parties to disclose separately their expenses on public relations
and media advertising. On the income side, it will be useful for the Draft Law
to distinguish between financial and in-kind donations.
IV. ANALYSIS AND
RECOMMENDATIONS
10. One of the purposes
of legislation on political parties is to stress their central importance for
the functioning of democracy. Therefore, it is common for a political party law
to underline the special role of political parties in the “formation of the
will of the people”. In contrast, the Draft Law does not
appear to facilitate this special role of political parties when compared to
other associations. It may be considered to include in the Draft Law; the
definition proposed by the Code of Good Practices in the field of Political
Parties of the Venice Commission.
11. Further, the
definition of a political party in the Draft Law specifies that it is supposed
to “carry out the political will of a specific part of the society”. This is a
plausible (pluralist) vision of party competition, but the Draft Law does not
need to restrict itself to this limited view. It is possible that there could
be political parties, which claim to represent the interests of society as a
whole in and not just one limited view. Indeed, in many contemporary
democracies this has become the dominant form of party representation.
12. Some parts of Article 3 are ambiguous and
problematic. Firstly, the ban of “establishment of political parties along the
features of professional, racial, national, ethnic belonging of citizens” is
overbroad and problematic. It is worth noting that this legal provision goes
beyond the restrictive provisions on the formation of political parties
embedded in the Constitution of Kyrgyzstan (Article 8). Such a provision should
be coupled with with other criteria such as the discriminatory or closed
character of membership, or formations which are para-military or those that
resort to force in carrying forward its policies.
13. Further elaboration
is needed on the proposed ban. Firstly, the prohibition of political parties
based on professional affiliation is unusual and inconsistent with
democratic pluralism. This prohibition is also inconsistent with freedom of
association, which may be restricted only in very limited circumstances where
the restriction is necessary in a democratic society. On its face, this article
appears to prohibit workers parties, business parties, and any other
party formed around a common goal that derives from one’s chosen profession or
means of livelihood. Such a ban is contrary to the principles of freedom of
association and equal treatment before the law. This provision should be
reconsidered. Secondly, the ban on political parties based on national and
ethnic grounds is also potentially overbroad and inconsistent with freedom
of association. In order for such a provision to be accepted as a reasonable
restriction on freedom of association, which is strictly necessary in a democratic
society, it should be established that the activities or aims of the political
party constitute a real threat to the state and its institutions. It is
difficult to accept that all political parties based on nationality or
ethnicity should, as a matter of pure legal text without regard to any existing
facts, be considered as a threat to the state. Although it may be acceptable,
as expressed by the European Court of Human Rights, to ban a political party
that has “an attitude which fails to respect” the state constitutional order,
evidence of this attitude should be based on facts and not a blanket
presumption applicable to all nationalities and ethnicities. For such
prohibitions to be acceptable, they must be interpreted and applied very
narrowly by judges and officials. In contrast, if the provisions are read
broadly – for example, as a ban of parties, whose membership or leadership is
predominantly from a certain ethnic (minority) group – the bans may be
construed as undemocratic. The opportunity for various interpretations, which
the formulation of the provision allows, creates possibilities for abuse. The
possibility of developing of constitutionally sound practices is not excluded,
but it is not guaranteed either. Therefore, it is advisable that this provision
is reconsidered and clarified in order to avoid the creation of pockets of
administrative and judicial discretion, and possibilities for abuse.
14. Further, the ban of
political parties “based on religion”, although constitutionally required in Kyrgyzstan (Article 8), creates the same possibilities for misinterpretation as the
provisions discussed above. In all circumstances, this ban should be read again
very narrowly, to prohibit the formation of political parties whose militant
religious character poses a serious and immediate danger to the constitutional
order. It is commendable that the normative framework and the practices of
interpretation of such restrictive (“militant democracy”) provisions in Kyrgyzstan take into account the case-law of the European Court of Human Rights on this
topic, which provides generally a fair balance between legitimate security
concerns of the state and the right to freedom of association. It is
particularly important that this provision of the Draft Law is not read as to
prohibit all parties whose members, sympathisers or leaders happen to be from a
particular religious denomination, or which simply include the name of a
specific religion in its official name, or which aim to achieve social and
constitutional changes, which are democratic in character and are pursued by
legal and democratic means. As the provision stands at the moment, it does not
guarantee that such dangerous and excessively restrictive interpretations will
be avoided in the future.
15. Finally, the last
paragraph of Article 3 – the ban on activity of international political parties
and their representative offices – is of course a legitimate sovereign choice
of every country. Nevertheless, it appears to be over-inclusive and might rule
out certain forms of international cooperation, which could be beneficial for
the development of the political party system in Kyrgyzstan. First, if the ban
targets foreign political parties trying to compete in elections in Kyrgyzstan or in public debates, this is a legitimate aim. If, however, it bans cooperation
between domestic political parties and foreign political parties for the
purposes of training of activists, elaboration of programmes and platforms,
seminars, conferences, and participation in regional programmes, the provision
may be considered as too restrictive.
16. It is commendable
that Article 4 of the Draft Law includes the principle of equal opportunities regarding
the members of political parties. In general, the provision includes the most
important principles, which parties should observe. The Council of Europe’s European Commission for Democracy
Through Law (Venice Commission) has offered a more parsimonious and structured
description of these principles as being:
“a.
Rule of law
17. Political
parties must comply with the values expressed by international rules on the
exercise of civil and political rights (UN Covenant and the ECHR). Parties must
respect the Constitution and the law. However, nothing can prevent them from
seeking to change both the Constitution and the legislation through lawful
means.
b.
Democracy
18. Parties
are an integral part of a democracy, and their activities should ensure its
good functioning. Hence, a commitment to internal democratic functioning
reinforces this general function. Although few European states regulate this
requirement in detail, several countries require the party’s internal structure and
operation to be democratic.http://www.venice.coe.int/docs/2009/CDL-AD(2009)002-e.asp
- _ftn5 This positive experience could be shared between different
Council of Europe Member States.
c.
Non-discrimination
19. Political
parties should not act against the values of the ECHR and the principle of
equality. Parties must not discriminate against individuals on the basis of any
ground prohibited by the ECHR.
d.
Transparency and openness
20. The parties should offer
access to their programmatic and ideological documents and discussions, to
decision-making procedures and to party accounts in order to enhance
transparency and to be consistent with sound principles of good governance.”
21. The Draft Law goes
beyond these requirements and includes additional principles such as
“collegiality” and “humanism”, which are understood as elements of internal
democracy enshrined in the Constitution. If considered in the context of the
values mentioned above, these two definitions should not present a problem.
22. The term “Glasnost”,
should be interpreted as a full equivalent of transparency, in line with the European
Constitutional heritage. Especially in recent years, the principle of
transparency is intimately related to anticorruption activities. Since party
financing is an important area of potential corrupt activities, it is important
to stress transparency in particular.
23. The procedure of
establishing of political parties laid down in Article 5 of the Draft Law
follows the main principles of contemporary democracy and is not unduly
restrictive except for limitations related to geography and the number of
members required for a political party. Concerning the number of members
required, it should be noted that since the Draft Law grants no significant
“special privileges” to political parties, there appears to be no justification
for the number of required members. Further, as the trend is for “local
control” and decentralization of government services (consider the European
Charter on Local Self-Government), it does not seem absolutely necessary for
the law to require such a rigid, hierarchical structure in order to form a
political party. Another potentially burdensome requirement is the requirement
for regional branches and offices. Generally, it is better if the
requirements focus on membership and the register of members, rather than on
offices and party infrastructure, which could be expensive and serve as an
impediment to party formation.
24. The requirement for
“fixed membership” is unclear. Is this a requirement for registering of members
and keeping registers? If so, the provision could be superfluous. Alternatively,
does this provision require that the membership of a political party cannot be
less that 1,800 at any point in time? The Draft Law would benefit from clarification
on this point.
25. The second clause of
Article 7 suggests that the internal affairs of political parties should be
organised in a democratic way. This would be better placed in a separate
provision of the Draft Law. Also, the Draft Law should provide guidance by
elaborating precisely the minimum democratic conditions that a party needs to
follow. For example, should every member have the same voice in the election of
the leadership (one person one vote)? How often should the elections for
leadership be held and what is the maximum length between elections? Which
positions must be elected? The best place for such clarifications is in Article
8, which regulates the charter (relating to the political parties’ programme) of
the political party.
26. It is important that
the requirements of Article 9 of the Draft Law are not turned into demanding
substantive standards for the assessment of the coherence and political quality
of the programmes of political parties. These should be rather formal
requirements, which do not bind the political party to a specific substantive
ideology, sets of principles, or required party activities. It would be
extremely problematic if an administrative or judicial body examined the
rationality and coherence of the political programme, goals and principles of
the party, and passed judgements on whether the party has fulfilled them. Such
evaluations should be left to the public and voters.
27. Further to the above,
if the programme is militantly antidemocratic, the authorities will be
authorised to take certain actions. However, it should be clear from the
language of the Draft Law that, as long as the party programme is in conformity
to constitutional and legal standards, it could have any content, no matter how
superficial, incoherent or otherwise problematic it is or appears to be to
magistrates and administrative officials.
28. Article 11 is of key
importance for the Draft Law. It provides for a procedure of registration of a
party by the Kyrgyz Ministry of Justice. Generally, there are two main models
of party registration: registration by a court, or registration by an
administrative body. Both of these have advantages and disadvantages. In both
cases judicial control and the right to appeal decisions are necessary. The
Kyrgyz Draft Law overall meets the basic requirements of party registration. A
potential ambiguity is presented by the two month period within which the
Ministry needs to register the party or issue a reasoned refusal. The Draft Law
should establish a positive obligation for the Ministry of Justice to process
the application for registration of a party within a reasonable time. The Draft
Law should clearly provide that in case of a failure to process the application
by the Ministry of the Justice, redress may be sought by the party in a court
of law Furthermore, the Draft Law should specifically state the Court
responsible for appeals of the refusal of the Ministry of Justice and provide
for reasonable time for the court decision to be handed down and foresee
whether there is a possibility of further appeal
29. Further, the party
is obligated to report to the Ministry (within one month) concerning various
events, including the decline of membership below the minimal required number.
There is certain vagueness in this provision, which might lead to potential
abuses. At what specific time does the obligation to report arise? Is there any
grace period during which the party can supplement its membership with new
members before being required to report the decline in membership?
30. Furthermore, the
concept of re-registration, first mentioned in Article 11 of the Draft Law is
considered as potentially problematic.
31. Article 12 enumerates,
though not exhaustively, the main rights of political parties necessary to
carry out their essential activities. It might be useful to include expressly
fund-raising among these main activities since politics involves money and
parties should have an expressly stated right to raise funds.
32. Further, the Draft
Law does not grant the right to political parties to get some form of state
support (either in-kind or financial) for the carrying out of their essential
activities. In contemporary politics, such support is generally provided by the
state. Most democracies provide for different forms of state support for the
political parties, with the understanding that they play a key role in
elections and in the formation of public policy. Many countries have had
special campaigns and programmes to strengthen their political parties.
Financial or in-kind subsidies are essential in these programmes. Kyrgyzstan’s democracy would be likely to benefit from some special state support to the
political parties, which aims to strengthen their resources in a fair and
pluralistic way. It is suggested that the level of
state subsidy received should be dependent upon parties’ participation in the
last elections.
33. Of course, it could
be that Kyrgyzstan has decided to grant state support through its electoral legislation
(or other legislation, for that matter). It is important to note, however, that
apart from electoral costs parties have routine costs of operation as well
during non-election periods. A healthy party system contains political parties,
which are active and functioning properly not only during elections, but
throughout the whole electoral cycle. Therefore, if a political decision is
taken to support the parties and strengthen the party system, the political
party law should be the place to provide for various forms of state aid and
support.
34. The second and the
third clauses of Article 13 raise some questions and concerns. The second
clause appears to be too broad (“...except for cases provided by law”) and in
fact invites the passage of legislation interfering with the activities of
political parties. It should be clear that state intervention must be
exceptional, and only for the limited purposes strictly required by
constitutional requirements and the legislation regulating political parties.
Opening the door to interferences provided by other legislation is problematic
and undermines the regulation established by the Draft Law. Generally,
interference should be possible only when the party fails to comply with its
essential legal duties and when there is some immediate and serious danger for
the constitutional order posed by the activities of the party.
35. The provision that
“the Ministry of Justice is entitled to require explanations from the political
parties’ leading bodies on the issues, connected to violation of political
party charter and legislation” is very broad and grants too much power to the
administrative authority. For instance, it is said that the charter includes
the “goals and tasks” of the political party. The current wording of the
article suggest that the Ministry could require an explanation as to why the
party is not addressing these goals and tasks or why the party is addressing
them in a certain manner or way. The Ministry should not be in the position to
pass political judgements on the goals and tasks of parties. Without sufficient
guarantees against such interferences, it is recommended to reconsider this provision.
36. Further, the
Ministry could seek explanations for any form of violation of Kyrgyz
legislation by a political party. It is possible to imagine a situation in
which a given party fails to pay the rent for its premises, or violates the
labour legislation regarding some of its employees. Clearly, such violations
should not be a ground for an administrative interference with the affairs of
the party, which could ultimately lead to party suspension or closure. As it
stands, the Draft Law does not exclude such possibilities for abuse. Thus,
clarification and some fine-tuning of the discussed provision is recommended.
37. Article 14 of the
Draft Law provides an opportunity to the Ministry of Justice to exercise oversight over the
activities of political parties. In case a party violates existing legislation,
the party could be officially warned by the Ministry – a step which might lead
to the eventual suspension or the closure of the party. This procedure must
take seriously into account the right of political parties to internal
autonomy, which is an essential part of their freedom of association.
38. Further to the
above, the formulation of Article 14 raises some of the questions discussed in
the previous sections. The Ministry, for instance, can issue a warning “in case
a political party undertakes actions, extending beyond the limits of the
goals and tasks determined in the charter, or not complying with the acting
legislation”. As drafted, the provision gives powers to the Ministry to assess
the substance of the goals and tasks of the political party. For instance, if a
party has as a goal to represent the interests of the rural population, but
does not support increases for public subsidies to farmers, should it be warned
for deviating from its goals and tasks? Or, if a party suddenly decides to
campaign for a constitutional amendment that has not been mentioned among its
concrete tasks and goals, is it to be considered as “going beyond” its goals? Because
of these possibilities for abuse, it is necessary to describe in greater detail
only serious violations which would justify interference by the Ministry of
Justice in the activity of a political party.
39. Article 15 describes
the procedure of “suspending” a political party by a court after two official
warnings by the Ministry of Justice. Generally, it is a very positive practice if
an independent judicial body is to decide on such a serious interference with
freedom of association, such as suspension of political activities. There are
some remaining ambiguities, however, which could potentially become a source of
problems. Therefore, the Draft Law would benefit from indicating the
appropriate Court for appealing such suspension.
40. Further to the
above, it is not clear whether suspension could be initiated only after two
official warnings concerning one and the same issue, or after two warnings on
different violations. Presumably, the first should be the case, as the Ministry
should not be satisfied with the measures undertaken by the party to address a
specific problem after two warnings. Otherwise, it would be possible for suspension
to be initiated after two separate warnings on different and potentially minor
matters, which the party could be addressing at the time of suspension
proceedings. Some clarification on this issue is advisable since the text lends
itself to more than one interpretation.
41. More importantly,
however, the concern is that suspension could be initiated and imposed for relatively
minor violations of legislation. Indeed, it is expressly stated that political
parties (with the exception of parliamentary parties) could be suspended for
violations not included under Article 3 - the severe violations for which
political parties are normally banned or suspended. Thus, the law actually
provides that parliamentary parties enjoy a higher degree of protection from
suspension than extra-parliamentary parties. This arrangement raises
constitutional objections of discrimination and lack of equality. This
arrangement is also contrary to OSCE Commitments and Venice Commission
recommendations as well as international principles that require
non-discrimination and equal treatment before the law. Additionally, this arrangement
leaves political parties outside of parliament to the discretion of the
Ministry of Justice and the courts. If these are demanding and pursue
restrictive and punitive policies, they could easily find two violations of
rules pertaining to parties (party funding, auditing, taxes, etc.) in order to
initiate and obtain the suspension of a political party. Thus, the law does not
provide sufficient guarantees for the fair and non-arbitrary application of
party suspension procedures. It is possible, of course, that the courts and the
Ministry of Justice develop fair practices even under provisions similar to
those of the Draft Law, but, legally speaking, the possibilities for abuse
would remain. This is an important issue that should be addressed in the law,
including both the discriminatory nature of the law on its face and the
potential for abuse in the subjective application of the law.
42. Article 16 describes the procedure
of dissolution of political parties and the grounds for doing so. First of all,
it is positive that the decision to dissolve a party is to be taken by a court.
Further, the Draft Law postulates that a party which has failed to take part in
more than two periodical (consecutive?) elections is automatically dissolved. Although
this provision is similar to arrangements in other countries, there is no
justification for requiring forfeiture of the freedom of association because a
political party has not participated in elections. Freedom of association, as
formulated in OSCE Commitments and in regional and international human rights
instruments, is not conditioned upon the standing of candidates in elections or
some other form of participation in elections. Nor should failure to stand
candidates or participate in elections be construed as a threat to the
constitutional order or state institutions. As the European Court of Human
Rights has observed, political parties play a role not only in elections but
also in the formation of public policy and conduct of public affairs. Thus,
Article 16 should be improved to reflect that a political party may
legitimately exist even if it does not present candidates in elections.
43. Another potentially
problematic element of Article16 of the Draft Law is the stated grounds for
dissolution by a court. Firstly, it is only normal that political parties could
be dissolved for violations of Article 3 (please also see comments to Article 3
on possibilities of abuse). However, the Draft Law provides for another
possibility for dissolution on the ground of measures not being taken after the
suspension of a political party. As mentioned in the previous comment, this
provision opens opportunities for possible arbitrary closures especially of
extra-parliamentary parties. Therefore, the unproblematic application of
Article 16 would require revisions and reformulations of the article, as well
as of Article 3 and Article 15, along the lines suggested in previous comments.
44. Article 16 also states that “stopping activity
of political party stops activities of its deputy fraction”. Although this is
subject to different interpretations, it would be problematic if this were
interpreted to mean that an elected deputy must forfeit the parliamentary
mandate based on the “stopping activity” of the deputy’s political party. The case-law
of the European Court of Human Rights and several national courts clearly
establishes the principle that retention of the elected deputy’s mandate is not
conditioned upon the continuation of the political party. This is because the
right to be elected is an individual human right.
45. Article 17 of the Draft Law
prohibits certain forms of funding of political parties by banning a number of
possible sources of funding. These bans are compatible with normal democratic
and constitutional principles. Probably there is an excessive emphasis on the
bans on all forms of foreign donations, but this is a political choice. The Draft
Law also contains two clearly anti-corruption measures: the ban on anonymous
donations and the ban on recently established legal personalities to donate
money.
46. It is strongly
recommended that the Draft Law introduces limits on private donations (or a
prohibition of donations over a particular limit). Unless such limits exist in
other regulations, the Kyrgyz model would allow for unlimited private
(including corporate) donations. This is a practice, which is generally
untypical of Europe and North America, and is increasingly rare in contemporary
developed democracies.
47. Article 18 specifies
the legitimate sources of funding of the political parties. All forms of state
aid are excluded from the list. This is an exception to the general practice in
a fledging-democracy, which needs to develop a strong and stable party system.
The list of sources is non-exhaustive, which leaves the possibility for some
forms of state aid to be introduced by means of other legislation (budget law,
electoral laws, tax law). However, the absence of state aid in the Draft Law is
an uncommon choice in a new democracy.
48. Articles 18 and 19 regulate the property of political
parties and disbursement of their income. Generally, political parties are
allowed to own movable properties as well as real estate. They are permitted
set up companies for the purposes of pursuing their programmes (essentially
publishing houses). Yet, the law does not exclude the possibility for parties
to own companies. Indeed, one provision suggests that they can: “The party
members do not have entitlement to income and property of the enterprises and
organisations established by political party, and are not responsible under
their obligations.” The Draft Law is recommended to be more precise on this
issue. Generally, it is not advisable for political parties to own networks of
firms and companies, since this leads to patronage and (possibly) corruption,
and distracts the party officials from their main activities. If parties rely
on their own companies for financing, it would be better to discontinue the
practice and to substitute it with forms of state aid to compensate for the
initial financial shock.
49. Article 21 of the Draft
Law provides for an annual reporting procedure to the Ministry of Justice. The
positive elements of the procedure are, first, that the report must disclose
the names of the party donors (individuals and legal personalities) and the
amount of their donations. Secondly, the law provides for a public disclosure
of the annual party reports through a media outlet (“…with a copy of
corresponding printed mass-media outlet...”).
50. Further to the
above, it may be more beneficial for the Draft Law to provide for the
publication of the annual reports of political parties in the State Gazette or
on the website of the Ministry of Justice. This would make the comparison of
different party reports easier and would provide for the possibility to track
funding trends through the years.
51. The Draft Law
attempts to break down the income and expenditure of political parties in
categories of public interest. On the expenditure side, it will be useful if
the law requires the parties to disclose separately their expenses on public
relations and advertising. On the income side, it will be useful if the law
distinguishes between financial and in-kind donations. A general weakness of
the regulation is that it does not take explicitly into account possibilities
for in-kind support for the political parties, which sometimes can be very
substantial. Disclosure of such donations is also important.
52. It is a generally
commendable practice that Article 23 of the Draft Law does not require
re-registration of already existing parties upon its entering into force. Such
provisions have elsewhere proven to be sources of administrative abuses against
specific parties.
