The referendum is going to be held together with election to local councils, which will be held on April 11 in over 30 towns and 450 villages of the country. In November 2020, the constitutional panel was initiated by the incumbent president Sadyr Zhaparov. The panel was developing the draft constitution during these months.
It’s curious that the opinion of the members of the Constitutional Panel concurred with the opinion of Sadyr Zhaparov’s team that was advocating presidential government, strengthening of the president’s role in the state activity, and reduction of the parliament’s powers. A mini-referendum was held during the presidential election of January 10, 2021: are you for presidential or parliamentarian government? The majority of voters voted for the presidential government.
Since the independence of 1991, Kyrgyzstan has amended Constitution three times. Most often the amendments were proposed during the times of the first president Askar Akayev, 4 times. The current constitution was amended twice – in 2010 and 2016.
Here we are explaining the peculiarities of yet another constitutional alteration in the country.
What is the point of amendments?
Sadyr Zhaparov and Kamchybek Tashiev are prominent supporters of the presidential government and have criticised the current Constitution for nine years by saying that in Kyrgyzstan the president must be the direct leader of the state, supervising and accountable for the performance of the executive branch.
When they came to power after the October 5-6 events, these politicians and their team started amending the constitution. In November 2020, the Constitutional Panel was established to develop the new version of the constitution. Although it consisted of nearly 80 different lawyers and activists, their opinion happened to miraculously coincide with the opinion of Zhaparov and Tashiev.
The thing known to the public is that the president will be the head of the executive branch, may initiate laws and submit them to the parliament, and the parliament will be approving all key positions (security agencies, judges, law-enforcement bodies, ministers, heads of agencies, etc.) by recommendation of the president.
According to the current constitution, the president may not initiate laws, the parliament approves and controls the cabinet of ministers, which is headed by the prime minister. However, it was not so in the last 10 years. To be more exact, it has never been like this.
The new constitution appears to contain the things that take place, doesn’t it?
At first sight, it does. However, some MPs, members of the opposition tried to exercise their rights and criticised the performance of the president, government, to control the performance of some members of the government during previous presidents. MPs did not have enough courage to exercise all the powers they had by law. However, the laws did grant the powers to them and only more courageous politicians could exercise their powers.
The draft constitution seriously restricts the powers of the parliament, and MPs, no matter how courageous they are, will be encountering these restrictions of their legislative capabilities. For example, the new version of the constitution does not contain the right of the parliament to pass a no-confidence motion against or impeach the president. This right will belong to the People’s Kurultai only.
What is the People’s Kurultai?
It is the idea of Sadyr Zhaparov, the incumbent president, to enforce the kurultai. He used to speak about it when he was in opposition. According to the draft constitution, the People’s Kurultai will be the supreme advisory, consulting and coordinating body of people power. It will be working with the president, Zhogorku Kenesh, state bodies, local governments, and their officials.
It may listen to the reports of the toraga of Kurultai, speaker of the Zhogorku Kenesh, the president, as well as submit motions against officials of state bodies and local governments on their inaptitude to the position held.
The 2010 constitution contained the institute of People’s Kurultai, but, according to lawyers, it was on paper only.
“The current Constitution mentions the Kurultai as a way of self-organisation of citizens and discussion of important public issues. The draft constitution also contains the norm on the Kurultai and entitles it to listen to the reports of state bodies and to give recommendations regarding particular officials. In the draft constitution, Kurultai is a kind of a tool for public discussions, but the right to convene it now belongs to the president. In this form, the kurultai may not be independent and self-organising institute,” said law expert Tamerlan Ibraimov.
What are the key amendments to the constitution?
The suggested draft contains 5 chapters and its key amendments refer to the following items:
· Rights and liabilities of citizens;
· Rights and liberties of citizens;
· Introduction of the People’s Kurultai institution;
· Broadening of the president’s powers and holding the president liable for the formation and performance of the government;
· Decrease in the number of MPs and reduction of their powers;
· Separation of the Constitutional Court;
· Introduction of the Children’s Rights Office under the president;
Option to amend the Constitution.
What is the draft criticised for?
The draft of the country’s basic law has been amended in the preamble, which speaks about the focus on the traditions and experience of forefathers, Manas’ covenants and the value of customs. This amendment has been criticised by many experts both inside and outside the country. According to them, the draft lacks the rule of law unlike the 2010 Constitution, while the priority is given to the patriarchal standards: value of the family, religion and customs.
Lawyer Tamerlan Ibraimov has shared his opinion with CABAR.asia and said that the preamble of the Constitution reflects the general focus and priorities of the given instrument. It is important from this point of view.
“In practice, it will not necessarily but can lead, indirectly and in the long run, to the throwback of the state bodies and the society at large to the ancient times,” he said.
What does the international community say?
The Venice Commission of the Council of Europe, which deals with the constitutional legislation, and the OSCE Office for Democratic Institutions and Human rights have expressed their concern over the draft of the new constitution. The authorities of the United States have also heavily criticised both the draft content and the process of discussion and preparation to the referendum.
Generally, the above parties have expressed concern over the violation of the concept of separation of powers between various branches (the president, government, parliament, and the judiciary) and the reduced focus on the rule of law.
“We encourage the Kyrgyz Republic, in line with ODIHR’s and the Venice Commission’s recommendations, to ensure separation of powers is maintained, inclusive of an independent judiciary. The role of the kurultai should also be defined in the constitution to clearly delineate the power and role of the Parliament,” said Acting Political Counsellor Lane Darnell Bahl to the Permanent Council, Vienna.
“The power of the President to single-handedly appoint and dismiss almost the entire administration of the State may lead to the lack of accountability, undermine healthy democratic political processes, is prone to abuse, and thus is recommended to be significantly revised in the Draft Constitution,” according to the joint opinion of the experts of the Venice Commission of the Council of Europe and the OSCE Office for Democratic Institutions and Human Rights.
Among key amendments they emphasise the broadening of the president’s powers over the executive and other branches of powers, the weakened role of the parliament and potential encroachments on judicial independence.
The People’s Kurultai was also criticised as its provisions remain unclear. The initiators of the document recommended to further clarify as appropriate its status, composition and functions.
Rights and liberties of citizens – what has changed?
The draft constitution calls for unification of human rights and liberties in the following areas: personal rights and liberties, political rights, economic and social rights, guarantees of human rights and liberties, rights and duties of citizens.
According to Tamerlan Ibraimov, director of the Centre for Political and Legal Studies, the rights and liberties, with limited exceptions, suggested in the draft remain the same.
“What I mean here is that many of our constitutions have been quite detailed about the rights and liberties. The problem is that once the balance of powers is disrupted, the rights and liberties are at a risk of violation, even if they are written in the constitution. Therefore, it is important to pay attention first to the sections of the constitution that describe in detail how the higher bodies of state power are formed and how they interact with each other,” said the lawyer.
Will personal data of the Kyrgyzstanis be more protected?
Yes, they will. The draft introduces the article about the protection of personal data. According to article 29 of the draft, every person has a right to privacy of correspondence, telephone and other talks, postal, telegraphic, electronic and other communications. These rights may be restricted only according to the law and a court decision.
“It is very relevant in our society to use and distribute personal data. Therefore, we indicated that receipt and distribution of personal data is possible only in cases specified by law. This standard will protect the rights of privacy and personal data to a certain extent,” said Nurlan Sheripov, the member of the Constitutional Panel.
Is the president having more powers now?
Yes, the president is having more powers in the draft constitution. According to the results of January 10, over 83 per cent of Kyrgyzstanis voted for the presidential government. The head of the state is now elected for 5 years not more than 2 times and may perform the following functions:
– submit draft laws to the Zhogorku Kenesh;
– determine the structure and composition of the cabinet of ministers;
– propose candidates for judges of the Constitutional Court and Supreme Court at the suggestion of the Justice Council to the Zhogorku Kenesh;
– appoint a referendum upon the initiative of at least 300 thousand voters, the majority of the total number of the members of parliament.
President Sadyr Zhaparov will now be performing for 6 years and supervising the executive branch.
At the same time, lawyer Tamerlan Ibraimov said the fact of transfer of power to initiate a referendum was illegitimate.
“The voters have votes for the presidential form of government at the referendum. It means that the president must be the head of the executive branch, i.e. must have powers to form the cabinet of ministers. This is correct. What is wrong is that the right to initiate a referendum was granted to the president. This is the legislative function that must be available to the parliament. It is also wrong that there are overlaps between the position of the chairman of the cabinet of ministers and the president. The presidential form of government must not have such an overlap. There must not be two separate administrations (of both the cabinet of ministers and the president). There must be only one administration,” he said.
There will be fewer MPs with fewer powers
The draft constitution reduces the number of MPs from 120 to 90. A citizen of Kyrgyzstan who has reached the age of 25 years old by the time of the election may become a member of parliament. According to the existing law, a person at the age of 21 may become a member of parliament. Moreover, the procedure of election of members of the Zhogorku Kenesh will be established by the constitutional law. The procedure has not been established so far.
The representation of deputies elected under majority or proportional system (party lists) will also be specified in the constitutional law.
According to the amendments, a deputy will lose their mandate early if they miss 10 working days without valid excuse within one session. Previously, a deputy could miss 30 days.
In the draft constitution, the parliament will no longer determine the structure and composition of the government. Among other new legislative functions of the Zhogorku Kenesh are:
– it may elect half of the members of CEC instead of one-third;
– the speaker is now the connecting link between the People’s Kurultai, the president and authorities;
– it approves the heads of the Supreme and Constitutional Courts upon the president’s recommendation;
– it submits motions to the president on holding a referendum. Earlier, this function belonged to the Zhogorku Kenesh;
– it elects the members of the Accounts Chamber: one-third upon the president’s recommendation, two-thirds upon their own initiative; it removes them from office where the law permits.
Will the Constitutional Court be independent now?
Yes, it will. After the April 2010 events, the Constitutional Court was broken up by a decree of the Interim Government, and in 2013 the Constitutional Chamber of the Supreme Court emerged.
Its key functions are:
1) to provide official interpretation of the Constitution;
2) to solve the matters related to the compliance of laws with the Constitution;
3) to give a view on the necessary validity of international treaties that have not yet become effective, whose party is the Kyrgyz Republic;
4) to solve disputes about the competences between the branches of the state power;
5) to give a view on the draft law on amendments and modifications to the Constitution;
6) to give a view on the compliance with the procedure of legal proceedings against the president.
The court system has changed the requirements to the length of service of judges upon appointment. According to the draft, the judges of the Constitutional and Supreme courts may be the candidates who have at least 15 years of work as lawyers, including as a judge – at least 5 years. Previously, the length of work was 10 years.
The president appoints judges upon recommendation of the Judicial Council with the consent of the Zhogorku Kenesh for five years. They may be elected until they reach the limiting age.
On March 16, the member of the constitutional panel, Leila Sydykova, said to ‘Birinchi Radio’ that the draft was supposed to be community-focused. Thus, a relevant clause was added to article 44. According to it, the pension, social allowance and other social care maintain the living standard at the subsistence level specified by law.
Another change was the article relating to orphans – “the state takes care, educates and trains orphaned children and unparented children under 18. Meanwhile, they are given an opportunity to get free of charge secondary and higher vocational education. They are provided with social welfare”. It is worth mentioning that it is envisaged in special laws.
A mandatory item is the preschool education – everyone has a right to get pre-school, basic secondary, general secondary and basic vocational education free of charge at state educational institutions.
“The authorised body for child affairs will be performing under the president,” said the member of the Constitutional Panel.
May the Constitution be amended now?
The draft constitution does not impose a veto on amendments, as it was in 2010.
In future, the rights and liberties of citizens may be amended only if they are initiated by 300 thousand Kyrgyzstanis, 60 out of 90 deputies or the president.
The parliament may amend the powers of state bodies and local governments if 60 out of 90 deputies initiate such amendments.
What else should be revised in the draft constitution?
According to lawyer Tamerlan Ibraimov, the draft constitution must be revised.
“The most important thing is that upon initiation and promotion of the given draft constitution, the 6th convocation of Zhogorku Kenesh has violated many legal procedures. We must ensure that the procedures are rigorously complied with,” he said.
According to Ibraimov, most of the problems that are allegedly not solved by the “bad” Constitution may be and need to be solved without amending the Basic Law.
“If we are to change the Constitution, we need to do it after a long and wide public discussion and comply with all procedures. If we don’t follow the regular proceeding, there’s a high risk of strengthening of legal nihilism and reduction of legitimacy of the document,” he said.
When will the amendments become effective?
There are no clear data. But according to the last article of the draft, Zhogorku Kenesh and the cabinet of ministers are ordered to take appropriate measures within six months.
According to lawyer Edil Eraliev, when the current Constitution of 2016 was amended, it became effective right after the referendum results were published – according to the law “On enactment of the Constitution of the Kyrgyz Republic”.
Which laws need to be changed?
After the new Constitution becomes effective, the deputies will have to amend the constitutional law on presidential election and election of deputies of the Zhogorku Kenesh, to develop the law on People’s Kurultai, to amend the Regulation of the Zhogorku Kenesh and some other laws.
“The changes will concern many laws. How much time will it take? It all depends on the desire of the people’s elects. As you see, the draft Constitution was discussed in just two sessions, but it affected the quality of the document,” lawyer Eraliev said.
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