“Although president Sooronbay Jeenbekov regularly asserts that there is political will to carry out judicial reforms, it is clear that implementing such reforms will require complicated, thorough planning. Political will and appeals to corrupt officials are, by themselves, far from sufficient,” Emilbek Juraev , a political scientist and Associate Professor at the OSCE Academy, noted in an article written specially for CABAR.asia.
Follow us on Facebook
Authorities – from the lowest officials to those in high offices – are supposed to do everything in accordance with the law in Kyrgyzstan as defined in the constitution of the country. They should act as they would in any state bound to the rule of law. Witnessing clearly illegitimate and unfair cases carried out, seemingly, within the framework of the law, however, will soon cause the citizens of Kyrgyzstan to lose faith in the law itself. About seven years ago, I remember some central government departments being concerned about the problem of legal nihilism in society. They should have looked for the problem of legal nihilism, however, in government itself.
Legal Conflict and the Legacy of Almazbek Atambayev
People are forgetting how severely laws were abused under Atambayev’s reign as his presidency recedes into the past. One hears more and more people saying that “it wasn’t so bad during Atambayev’s presidency.” The key logic in abusing the law is for those in power to carry out actions in their favor, or for the sake of their power, within the framework of the law. There have been such actions in Kyrgyzstan in which this motive has been central.
A referendum was held on amendments to the country’s main law during a moment of legal confusion in 2016: who initiated this process or had the right to do so, how the moratorium on amendments was set aside before 2020, who the parties involved in implementing the adopted changes were and the manner in which they were realized – these are all only procedural questions. They do not get to the essence of the matter. Several criminal cases were subsequently opened. Omurbek Tekebaev’s case was particularly memorable among these: a prominent politician turned effective critic of the regime was sentenced to 11 years in prison together with a colleague on the basis of misleading testimony provided by a foreigner and two additional unreliable witnesses.[1] Criminal cases neutralized others in the political field, including Sadyr Zhaparov, a group of politicians led by Dastan Sarygulov, and a little earlier than the others, Melis Myrzakmatov. Similar actions sidelined Omurbek Babanov in the most recent period of Atambayev’s presidency.[2]
There was something clearly “far-fetched” and invented in all these cases: from the charges and evidence to the necessary specialized examinations, defense petitions refusals, and sentencing. A number of these cases remain force in today.
In a kind of team effort, authorities at one point initiated an entire range of actions to protect the honor and dignity of the President of Kyrgyzstan, with the campaign resulting in millions of fines and with travel restrictions for defendants such as journalists and human rights defenders. As they did in the criminal cases against politicians, authorities ignored defense arguments, provided “made to order” expert examinations, and invented fines out of thin air. The outcome of the cases was always obvious in advance.
The important thing about all this is that these operations were carried out within the framework of the law. All the relevant rules under the legislation of Kyrgyzstan were formally observed. Atambayev obviously did not invent such methods. It is as a result of his presidency, however, that they most clearly and vividly remain part of the country’s inheritance. Actions formally legal but in essence mercenary are a hallmark of his reign. And if at the end of the day Atambayev can and should be held accountable for one thing, it is his manipulation of the law for the sake of his goals, or to put it another way, for the political games he played under the cover of the law.
The practice of abusing the law should have ended with his departure and the collapse of the vicious system he built, one in which the law was subordinated to political ends.
The legal system under Sooronbay Jeenbekov: old practice?
After two years of Sooronbay Jeenbekov’s presidency, we must admit that there has been no cessation of these vicious practices or collapse of this pseudo-legal system.
President Jeenbekov touched on the issue of judicial reform in a speech to the country’s parliament on February 20, noting the political will for this task and the funds available for it. He nevertheless remarked that such reform also requires a “bar of conscience,” with each judge and each responsible person in the system having to approach their work with integrity.[3] It is with conscience, however, that problems occur.
As president, Jeenbekov systematically appeals to the rule of law when questions are raised about law and justice, as Atambayev did before him. He says these questions are not for the president but for the courts, or that these questions should be answered in reference to the relevant laws and procedures. What happened in the prosecution of Omurbek Tekebaev is now being repeated with the detention of Sadyr Zhaparov. Authorities have prosecuted similar criminal cases in the last two years, with some already involving people from the Atambayev team. The latter knew perfectly well and possibly participated in pseudo-legal operations under the former president, but they now suggest this never happened before in statements to the public.
In early 2019, several laws governing criminal and administrative charges were enacted simultaneously. The administrative offenses were divided into two parts – violations and misconduct. This division, in addition to much else in the new laws, was explained as a desire to humanize justice and reduce the number of prisoners. This humanization, however, either failed to happen or provided possibilities for new techniques and procedures in seemingly “legal” cases.
In this connection, a large number of people were detained in the last two years as part of investigations.
Cases involving “cooperation with the investigation” have systematically reinforced this suspicion. What is practiced in other countries — but is also a controversial institution — can lead to abuse in a country like Kyrgyzstan with an extremely compromised system of justice. This cooperation is often only in name only. There have been a series of news reports indicating that one person or another was released, or removed as an investigative target, on the grounds they “agreed to cooperate with the investigation,” prompting suspicions, among all those concerned with this practice, that they were forced to provide the necessary evidence and then sign it. This practice has extremely dangerous and far-reaching consequences for justice, though it is legal. The fact that all those released, as well as those interrogated, leave their offices and remain silent, having signed documents to “not disclose secrets of the investigation,” is also completely legal. At the same time, it is a convenient cover, leaving people to guess what secrets are hidden.
When it is more convenient to take a slightly different position, then the relevant officials and bodies are obviously ready to insist on the maximum degree of evidence before starting criminal or other investigative cases. Such was the case during Radio azzatyk’s investigation of corruption in the customs system of Kyrgyzstan. The president himself, the heads of several relevant departments, as well as various deputies and journalists, demanded Azattyk and its colleagues “provide facts.”[4] Although tragically comic, this appeal to “facts” is completely legal. It is also convenient. When there are no solid facts, one cannot hold anyone accountable for anything. And the question of where, when, and from whom to get these facts is one that officials can spin in any manner that is convenient.
Kyrgyzstan is approaching 2020 with a very controversial practice of applying the law, a year in which parliamentary elections will take place and lead to a new composition of the legislative institution. The question is whether any changes to this practice, especially for the better, can be made in 2020?
The law on elections as the main “rule of the game”
There has been a question about election law lingering since 2019. It is a question, among other things, of the percentage required for political parties to win seats in parliament – this number is 9% of the vote as a result of changes that came into force in January 2019. When president S. Jeenbekov was asked about the possibility of reducing this barrier, he answered, in complete accordance with the law, that it was a question for parliament, while expressing surprise that the same deputies now wanting to lower this barrier had voted to raise it to 9% in 2017.
The Jogorku Kenesh was unable to address the issue for some underlying reason. This despite the fact that most deputies were in favor of lowering the barrier. The case, perhaps, will no longer be a dead issue given that the president greenlit a decrease in this indicator in a parliamentary speech on February 20. It will decrease, moreover, to 7% of the vote, the number the president simultaneously noted as the most acceptable.[5]
If Kyrgyzstan leaves this law unchanged, then parliamentary elections in the fall of 2020 will probably result in a small number of parties in the Jogorku Kenesh and a huge number of votes “unaccounted for”. This would also be legal – that is how the law is written, although it is not clear why and on what grounds. The same applies to the pre-election deposit for parties in the amount of 5 million KGS[6], even though the parties are not financed by the state, and despite the fact that they have no sources of money beyond the private funds of their leaders, members and patrons.
As regards elections, the law continues to be a convenient tool to prevent undesirable figures from winning power, something that has been the case since Askar Akayev. This occurred in the matter of Omurbek Tekebaev, the leader of the Ata-Meken party, whose absurd criminal case put him in jail for several months, a sentence that will no doubt lengthen when it comes to revising this farce. The authorities have applied the same mechanism, with some adjustments, to several other persons. Legal prosecution and punishment are now hanging over all of them like the sword of Damocles.
Unfavorable civil and media organizations?
Independent civil and media organizations most often become the main critics and whistleblowers in cases in which practices in violation of the spirt of the law are realized under its cover. The authorities have issued a new draft, reminiscent in content of laws on “foreign agents,” specifically for these organizations. The majority of deputies rejected a similar law in 2016, but proponents have proposed additional reporting measures for such organizations since the beginning of 2020, using a less noticeable form of “amending” the law on non-profit organizations.[7] Though appearing quite harmless – they only duplicate existing norms, these changes will in effect place a completely “legitimate” and additional burden on organizations that question the pseudo-legal affairs of the authorities.
2020 is expected to be a politically charged year. Will it be a turning point in the legal field? Based on the trends and examples noted above, it is difficult to expect change for the better. The dangers from such practices will need to become obvious to those who employ them for positive changes to happen. Beyond this, there will need to be an effective and real action plan for such changes before the country moves away from pseudo-legal practices and embraces the actual rule of law. Either that or the people responsible for the changes will have to be replaced.
As to the first point, there is most likely little recognition of the danger given how few people have been held responsible for such matters. In relation to this, it should be noted that both revolutions abandoned their emphasis on justice. As to the second matter, although President S. Jeenbekov regularly asserts that there is political will to carry out judicial reforms, it is clear that implementing such reforms will require detailed, thorough planning. Political will and appeals to corrupt officials are, by themselves, far from sufficient. Regarding the emergence of new people responsible for reform – this is a question for the elections in the fall of 2020.
In conclusion
The elections, however, are still unclear: which parties will participate, who will be in them, who will cooperate with or compete with whom – all these issues are widely open. The President has firmly asserted, at least twice, that he will ensure fair and equal elections and not patronize any party – that is, he will act as required by law. I clearly remember how his predecessor interfered in the election processes on the side of some and to the detriment of others, in the most blatant way, in 2015 and in 2017. The current president needs to break this practice and end the vicious circle.
In the near future, the president will have the opportunity to confirm his words in practice, and the citizens of the country will be able to verify his sincerity. There is, for example, the strange matter of large numbers of active voters moving to take up new permanent residence in several cities in which elections to local councils are to be held in April 2020. This raises suspicions.[8] In response to the “warnings” regarding such facts, the responsible authorities at first shrugged, reiterating again that this is legal – a legal decisions of citizens to choose for themselves where to live. Nevertheless, seeing the facts, and with hundreds of people registering in non-residential premises and small apartments, the prosecutor’s office began to investigate and opened several criminal cases. It is clear and obvious to anyone that thousands of voters only move for a reason, and that certain people contributed to this decision on the part of so many citizens. Whether the investigation will touch or impact these people remains unclear.
This matter should be seen as a test of the determination of the president and not of other bodies. There is no contradiction in this. The president is ultimately responsible when a question concerns fundamentally important matters or if it involves the correction of systemic and abusive practices of power in the country. If President S. Jeenbekov wants to correct this and force the relevant authorities to take responsibility and provide results in accordance with their legal competencies, then he needs to teach/show them one way or another.
In the meantime, it is difficult to see any tangible or systemic changes. The republic has the same judges. The same authorities are responsible for legality. And the law in Kyrgyzstan is similar to a drawbar in that it will follow in any direction in which it is lead or turned.
This article was prepared as part of the Giving Voice, Driving Change – from the Borderland to the Steppes Project. The opinions expressed in the article do not reflect the position of the editorial or donor.
References:
[1] Kaktus.media, the Supreme Court of Kyrgyzstan upheld the verdict of Tekebaev and Chotonov, https://kaktus.media/doc/366448_verhovnyy_syd_kyrgyzstana_ostavil_v_sile_prigovor_tekebaeva_i_chotonova.html
[2] 24.Kg, Security Council: Omurbek Babanov and Melis Myrzakmatov will be detained sooner or later, https://24.kg/obschestvo/86273_sovbez_omurbeka_babanova_imelisa_myirzakmatova_rano_ili_pozdno_zaderjim/
[3] Jeenbekov accentuated. The main message from his speech to the Jogorku Kenesh https://kaktus.media/doc/406430_jeenbekov_rasstavil_akcenty._glavnoe_iz_ego_rechi_v_jogorky_keneshe.html
[4] Final press conference – 2019 of President Sooronbay Jeenbekov. Broadcast https://kaktus.media/doc/403378_itogovaia_press_konferenciia_2019_prezidenta_sooronbaia_jeenbekova._transliaciia.html
[5] Radio Azattyk, the President spoke about the electoral threshold in parliamentary elections, https://rus.azattyk.org/a/prezident-kyrgyzstan-ob-izbiratelnom-poroge/30446536.html
[6] 24.Kg, in anticipation of the election. Electoral bail for parties requires reducing youth, https://24.kg/obschestvo/111777_vpreddverii_vyiborov_izbiratelnyiy_zalog_dlya_partiy_trebuet_snizit_molodej/
[7] Official website of the Jogorku Kenesh of the Kyrgyz Republic, Public discussion of draft laws, http://www.kenesh.kg/ru/article/show/6241/na-obshtestvennoe-obsuzhdenie-s-31-dekabrya-2019-goda-vinositsya-proekt-zakona-kirgizskoy-respubliki-o-vnesenii-izmeneniy-v-nekotorie-zakonodatelynie-akti-kirgizskoy-respubliki-zakoni-kirgizskoy-respubliki-o-nekommercheskih-organizatsiyah-o-gosudarstvennoy-registratsii-yuridicheskih-lits-filialov-predstavitelystv
[8] 24.Kg, Mass registration of citizens. The CEC assures that the voter lists will not change, https://24.kg/obschestvo/143532_massovaya_propiska_grajdan_tsik_zaveryaet_chto_spiski_izbirateley_nenbspizmenyatsya_/