The administration of President Sadyr Japarov has initiated amendments, which make the decision made by the Constitutional Court revisable. To do this, the president or chair of the Constitutional Court should recommend revising it. Some lawyers have called it nonsense that breaches the basic principle of independence of the judicial branch.
The draft law is being publicly discussed now. According to the amendments, a decision made by the Constitutional Court, may be revised upon the recommendation of the president or chair of the Constitutional Court in the following cases:
- if a provision of the Constitution of the Kyrgyz Republic, on the basis of which the decision was made, has been amended;
- new circumstances essential for the subject matter came to light and were unknown to the Constitutional Court by the moment of decision-making;
- the decision contradicts moral and ethical values, public consciousness of the people of the Kyrgyz Republic.
According to Almazbek Moldobaev, permanent representative of the president and the cabinet of ministers in the Constitutional Court, no one is safe from making mistakes, and the new provision will strengthen the judicial protection of citizens.
“Decisions of the Supreme Court are not revisable, but, according to the Code of Criminal Procedure, if new circumstances come to light, the decision may be revised. In other words, it is a normal procedure in court. We have studied the legislation of our neighbours. In Lithuania, decisions made by the Constitutional Court may be revised. Such amendments were adopted in Kazakhstan in 2022, in Uzbekistan in 2021,” said Moldobaev.
It all began with matronymic
The initiative of the presidential administration followed the decision of the Constitutional Court regarding the high-profile matronymic case. In early July, the Constitutional Court allowed minor citizens to change patronymic to matronymic, if they want to. Thus, the Constitutional Court closed the case of writer, feminist Altyn Kapalova regarding giving matronymic to her children. In 2021, she gave matronymic and her surname to her children after depriving their biological fathers of their parental rights. Afterwards, the Department of Population and Civil Registry of the State Registration Service filed a suit to cancel records of the patronymic change. All three judicial authorities took the side of the State Registration Service, but the Constitutional Court.
“The Cabinet of Ministers of the Kyrgyz Republic should make respective amendments to the existing statutory regulation intending to fill the legal gap identified during 20 checks of disputed provisions for absence of matronymic and the right of choice of a capable citizen between patronymic and matronymic, which creates conditions for the breach of equality principles and prohibition of gender-based discrimination,” according to the relevant decision of the Constitutional Court.
This decision divided the society into two opposing camps. Opponents believed that the matronymic contradicts traditions and values of the Kyrgyz people. By the way, Chair of GKNB Kamchybek Tashiev was also against the decision, “those who made a matronymic decision should cancel it,” he wrote.
Now, if amendments to the law on the Constitutional Court are passed, the matronymic case can be unquestionably referred to the third paragraph of the rationale, ‘a decision contradicts moral and ethical values, public consciousness of the people of the Kyrgyz Republic.” By the way, this paragraph is considered by lawyers as creating a wide room for manipulation.
“A matronymic neuters the Constitutional Court”
Member of Parliament (Zhogorku Kenesh) Dastan Bekeshev said that the civic-mindedness of political leaders has turned into the law that “neuters” the powers of the Constitutional Court.
“There is no opportunity in our country for Elmira Gulmirovna, Begimai Umutkanovna, Bakyt Perizatovich, Ruslan Kanyshaevich, and others, who wanted to have matronymic at their conscious age. They will not exist as the civic-mindedness of political leaders has turned into the law that neuters the powers of the Constitutional Court. It’s not the point of matronymic, it’s something else: the Constitutional Court gets neutered and turned into a daughter,” the Member of Parliament said.
According to him, a decision of the Constitutional Court may be revised in the said countries – Uzbekistan, Kazakhstan, Lithuania – if there have been unknown circumstances during case consideration and during amendments to constitutional provisions. Kyrgyzstan adds the opportunity to revise the decision of the Constitutional Court if its decision contradicts public consciousness, moral and ethical values of the people.
“Of course, it’s not the people who will decide on behalf of the people. Read carefully the powers of the Constitutional Court and imagine what decisions can be revised if not liked by the president. What about the Constitution reading “Decisions of the Constitutional Court shall be final and not subject to any appeal”? We should rewrite the Constitution, not the laws. In fact, most people are scared of matronymic, rather than of the possibility to twist and twirl the decisions of the Constitutional Court. It would be more practical to liquidate it and give its powers to the presidential administration. Few people realise that their right to apply to the Constitutional Court becomes senseless,” Dastan Bekeshev said.
Arbitrary intervention into constitutional proceedings is unacceptable
Legal expert Timur Arykov considers the president’s initiative absolutely irrelevant today both in terms of practice and law.
“First of all, the Constitutional Court verifies compliance of legal provisions in many laws and regulations passed by law-making entities with the existing Constitution of the Kyrgyz Republic. The legal provision means universally binding rules of behaviour set for the indefinite group of people and designed for repeated use. The cases that can be revised, which are referred to by the representative of the President, are special. Some circumstances could be unknown to the court by the time of awarding a decision. It does have a logic of revision. In other words, we are speaking of different functions and nature of decisions of the Constitutional Court and the Supreme Court,” the expert said to CABAR.asia.
Second, he said, such a reason for revision of decisions of the Constitutional Court as contradiction to moral and ethical values, public consciousness gives a wide room for manipulation:
He also said that if the existing Constitution of the Kyrgyz Republic is amended, all laws and regulations will be brought into compliance with these amendments. Moreover, it is still being done after recent amendments in May 2021.
Lawyer Tattuububu Ergeshbaeva also analysed the draft law. According to her, revision of the decision made by the Constitution Court is intervention into its independent activity. The Constitutional Court considers cases on the basis of the Constitution and laws, taking into account additional grounds such as national strategic documents. Public opinion may not be the basis for decision-making without specific factual data and researches because morals and ethics cannot be measured in an unbiased manner.
Public Foundation “Media Policy Institute” urged to withdraw amendments to the law on the Constitutional Court. According to its message, constitutional control is important and determinative in the system of checks and balances. Being a collegial body, the Constitutional Court is committed to protect constitutional rights of an indefinite group of people from misuse and possible errors in law of the legislative and executive branches.
“The arbitrary intervention proposed by the presidential administration into the powers of the Constitutional Court of the Kyrgyz Republic leads to creation of the personalist autocracy, where human rights will depend on the whim of particular people, not on the provisions of the Constitution and laws. In order to ensure stability in the society and state structure, the proposal providing for arbitrary intervention into constitutional proceedings is unacceptable, and the draft law must be withdrawn by its initiators,” said experts of the “Media Policy Institute”.
Main photo: constsot.kg