Kyrgyzstan: Is There a Need to Deprive the Immunity of Ex-presidents?

“Neglecting the role of the constitution as the basic state law creates dangerous opportunities for uncontrollable president’s activities and unconstitutional political malpractice,” lawyer Klara Soronkulova has written in her special article for CABAR.asia.

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The president’s immunity issue has become relevant again in 2018 due to the corruption scandals and accusations of complicity to them against the immediate environment of ex-president Almazbek Atambaev. This issue had come to a deadlock before the resolution made by the constitutional chamber. Its legal opinion has been that ex-presidents needs immunity as much as the sitting head of state. In the opinion of judges, president must have a chance to act without a fear of persecution for its actions in future, upon the expiry of his office. Thus, ex-president’s immunity is a logical continuation of guarantees provided to the sitting president.

At the same time, the constitutional chamber recognises that no one has and should not have absolute immunity and “the legal immunity of the ex-president should have specific legal limits,” and the procedure for stripping immunity “should be no less complicated than decision-making on impeachment of the current president”. In this regard, it is worth noting that now it is possible to strip the president of legal immunity through the impeachment procedure, which is long and rather complicated. In the law “On regulations of the Zhogorku Kenesh”, the constitutional norms on impeachment are arbitrarily interpreted by legislators so that it is impracticable.

Due to weird interpretations of the Constitutional chamber of the KR Supreme court, president and ex-president are equal in their statuses, and stripping of immunity of the latter is almost impossible. Meanwhile, it is worthy reminding that impeachment is not just a parliamentary procedure of bringing a president to criminal responsibility, but an important element in the system of checks and balances ^[1] Until 2003, article 53 of the Constitution guaranteed only material support, provision of services and security to ex-president.. The mechanism of removing the president from office is the means of protection of the principles of the constitutional order from usurpation attempts by the head of state. Just like immunity, impeachment is strictly bound by and based on the nature and extent of the powers exercised by the president. The greater the power and responsibility, the stronger the guarantees and the more difficult the procedure of impeachment. In this aspect, both ex-president’s immunity and impeachment are nonsense, absurdity, since the ex-president does not exercise any power functions and should be perceived as an honorary title, recognition and tribute to the merits of the former head of state.

It is necessary to emphasise the danger of the second-guessing of the basic law of the country by the constitutional chamber. The rules on the immunity of the ex-president, which were excluded 12 years ago, are being recovered today by an arbitrary, unjustified interpretation of the constitution. In fact, the constitutional chamber, exceeding its powers, has made an amendment, thus creating a very dangerous precedent for the state.

Background

For the first time in the history of sovereign Kyrgyzstan, the institution of immunity of the former president was introduced in February 2003. The new wording of the constitution, namely article 53, provides that all former presidents, except those who have been impeached, have the title of ex-president of the Kyrgyz Republic. The former head of state has been given absolute immunity. He cannot be held criminally and administratively liable for acts or omissions committed by him during the period of the presidential office, as well as cannot be detained, arrested, searched, interrogated or personally searched ^[2]https://rus.azattyk.org/a/2398398.html.

Following the new wording of the constitution of July 2003, the Law “On guarantees of the president’s activities” has been adopted, in which the constitutional norms on the immunity of the ex-president have been repeated word for word.

It is noteworthy that the same law has a separate chapter on the status of the first president. The law recognising the “historic mission accomplished by the first president to re-establish the Kyrgyz national identity” and his other great merits to the people has introduced the honorary title “First President of the Kyrgyz Republic” and established his special status. The first president and his family members have been granted absolute immunity.

“No person, no state body have the right to take measures or take actions that violate the immunity of the first president.”

The prosecutor-general was charged with defending his [president’s] honour and dignity. The first president was guaranteed a lifelong right to appeal to the people, state bodies and officials with initiatives on the most important issues of state activity, which should be subject to compulsory review. He could attend and speak at meetings of the Zhogorku Kenesh and the government, he had the right of life membership in the Security Council.

The first president was said to be provided with unprecedented government support: personal archives, library, secretariat, office premises equipped with all necessary things, including government call. An official apartment and state villas (one in the state residence “Cholpon Ata”) or a land plot on the shore of Lake Issyk-Kul, and a newly-constructed summer cottage were said to become the property of the first president. He and his wife were provided with personal executive cars with drivers for life, lifelong state security and more.

The introduction of the institution of immunity of the ex-president, recently unknown in Kyrgyzstan, and absolutely unreal guarantees to the first president have been due to political reasons only – the degree of protest mood of the society and opposition activity increased every day. Strangely enough, but on June 26, 2003, members of the Zhogorku Kenesh passed this law without discussion. On the same day, the public movement “For Akayev’s resignation, for reforms for the people” issued a statement protesting against the adoption of the law “On guarantees of the Kyrgyz Republic president’s activities”. The statement said that the first president of Kyrgyzstan should be held accountable for grievous state crimes. ^[3]Thus, the US Supreme Court in its decision Nixon v. Fitzgerald (457 US 731 – 1982) recognised that the president’s absolute immunity is rooted in the “constitutional tradition of the separation …

However, the first president has failed to use the “well-deserved” privileges, but after the events of 2005 the absolute immunity of the ex-president has become an impassable obstacle to prosecute Askar Akayev. That is, the “guaranteeing” norms of the constitution and the law on ex-presidential immunity have worked out right. The appeals and efforts of Prosecutor-General Azimbek Beknazarov in 2005 to bring Askar Akayev to criminal responsibility did not receive sufficient political support. The parliament has only removed the norms about the first president from the law, but has not dared to strip Askar Akayev of the status of ex-president.

Kurmanbek Bakiev, who has come to power amid revolution, has not been interested in creating such a dangerous precedent for ex-presidents. However, later on (in 2006 and 2007) the constitutional norms on the immunity of the ex-president were revised and excluded from the text of the constitution. Thus, the former heads of state retained their honorary status of “ex-president”, but were deprived of guarantees of immunity.

However, either unintentionally, or intentionally, the law adopted in accordance with the 2003 constitution remained unchanged. That is, at the legislative level, as before, ex-presidents have retained absolute immunity, which, however, did not become an obstacle to the “justice” of the transition period in 2010.

Stripping of immunity

The decree of the KR Interim Government No. 120 of August 12, 2010 gave a political assessment of Askar Akayev’s activities, given the gravity of crimes he committed, and he has been deprived of the status of ex-president and immunity. The General Prosecutor’s Office was instructed to take the necessary measures to bring him to trial and extradition to Kyrgyzstan.

The same happened to the former president Kurmanbek Bakiev. Decree No. 30 of April 26, 2010 lists abuses and crimes committed by him and rules that “by committing a particularly serious crime, namely the use of firearms against civilians, which resulted in numerous victims, Kurmanbek Bakiev went beyond the rule of law, thus depriving himself of the status of ex-president of the Kyrgyz Republic and immunity”. Thus, the first two presidents, despite legislative guarantees, were deprived of immunity under “the laws of revolutionary time”.

In 2013, Kurmanbek Bakiev was sentenced in absentia by court to 24 years in prison. The criminal case against Askar Akayev was suspended until the fugitive president returns to his homeland.

Same trap

As they say, “history teaches us that it does not teach anything”: despite the fact that the stripping of immunity of ex-presidents by decrees of the KR Interim Government has caused a lot of doubts and disputes about their legitimacy, this issue has not been resolved clearly and definitely afterwards. First of all, no special attention was paid to the drafting and discussion of the draft constitution on 2010, which should have clearly stated that the ex-president does not have immunity. It was a direct result of the conceptual constitutional innovations concerning the institution of the presidency.

Thus, 2010 was a starting point for revision and bringing the laws regulating the legal status of the president of the Kyrgyz Republic to conformity with the constitution. Therefore, the government has twice initiated amendments to the law “On guarantees of the president’s activities” (in 2011 and 2015), which intended to delete article 12 from the law, which provided immunity to ex-president, as inconsistent with the constitution. However, for reasons unknown, legislative initiatives have not moved beyond public discussion.

The status of the president under the new constitution has undergone significant changes: now the president is not “the chief executive”; not “the guarantor of the constitution, freedoms and rights of a person and citizen”; does not “determine the main directions of domestic and foreign policy of the state”; does not “represent the Kyrgyz Republic within the country and in international relations”; does not “take measures to protect the sovereignty and territorial integrity of the Kyrgyz Republic”. All these norms and many others allowing the president to become a “dragon” have been excluded. The president has been even deprived of the right to legislative initiative (in general, the president has lost more than 20 authorities).

A significant reduction in the scope of presidential powers and, accordingly, a fundamental change in the constitutional and legal status of the head of state have been caused by the transition to a parliamentary republic. In other words, by the inappropriate presidential domination in the mechanism of government, the need to exclude opportunities and conditions for the restoration of the authoritarian presidential regime in the republic.

Generally speaking, the analysis of historical background of emergence and development of the institute of immunity of ex-president in our republic makes us conclude that it was politically motivated because former heads of state wanted to avoid liability for what was done. In its current form, it is nothing but a personal privilege, which is unacceptable in a democratic state.

How ex-president’s immunity-stripping is regulated in other countries.

1. In the majority of countries, ex-presidents don’t have immunity. For example, in the United States, ex-president has a range of property privileges (retirement benefit, maintenance of service staff, medical services, etc.), however, he doesn’t have immunity. In France, ex-president may become a life member of the constitutional council, whose members have a right of immunity ^[4]Rapport de la Commission de réflexion sur le statut pénal du Président de la République remis le 12 décembre 2002 au Président de la République … . Other privileges (retirement benefit, housing, security, transportation) shall be provided if an ex-president would not be engaged in political activities and run for elective offices. Immunity alone, as a lawful exception from the principle of universal equality before the law and the court, is considered in these countries as a means of protecting public interests, and not as a personal privilege. Immunity is closely associated with the execution of powers: after resignation, immunity loses its legal meaning. In this regard, the decision of the constitutional chamber and the arguments of a number of political figures of Kyrgyzstan on the need to preserve the lifetime immunity for the ex-president look nothing but connivance, a personal privilege, guarantee of irresponsibility for any misuse, even crimes. An ex-president is an ordinary citizen and should be held accountable just like anyone else. By the way, the recent history has a lot of facts of conviction or indictment of ex-presidents. For example, ex-presidents who have been convicted for corruption are Lula da Silva for 9.5 years (Brazil), Svetozar Marović for 3.5 years (Serbia and Montenegro), Zine El Abidine Ben Ali for 10 years (Tunisia), Roh Tae-woo for 22 years and Roh Moo-hyun, who, after being accused of receiving a 6 million dollar bribe, has committed suicide (South Korea). Charges have been brought against Alejandro Toledo (Peru), Robert Kacharyan (Armenia), Mikhail Saakashvili (Georgia), etc.
2. In some countries, immunity to ex-president is seen as a logical consequence of the acting president’s immunity. However, the following rules are mandatory:

• ex-president should not be held criminally liable for previous actions related to the execution of presidential powers. It serves as a guarantee to the sitting president, which, to some extent, hinders his political repression after resignation (Czech Republic). In the majority of former Soviet authoritarian countries, ex-president has increased legal security; however, immunity may be stripped in case of committing serious and extremely serious crimes (Russia, Belarus). In other post-Soviet countries (for example, in Kazakstan, Uzbekistan, Tajikistan), irresponsibility for actions committed during the presidency is absolute.
• The term of legal immunity does not exceed the term of office served as a president (in a majority of Latin American countries).

Recommendations regarding ex-president’s immunity:

1. To exclude completely the rules on the immunity of the ex-president. Immunity should be directly set forth by the constitution as a special exception. Thus, according to the Constitution of the Kyrgyz Republic, the right of immunity is vested in the president, members of parliament and judges. At the same time, their immunity is relative and can be lifted by a certain procedural order. According to the constitution, ex-president does not have such a right.
2. Based on the decision of the constitutional chamber and the obligation to fulfil it, the legislator has to retain the ex-president’s right to immunity. Thus, in the bill initiated by deputies I. Masaliev and K. Zulushev, ex-president retains the right to partial immunity with the possibility of its withdrawal. In this case, it is necessary to take into account that immunity should extend only to actions arising from the exercise of presidential duties in the past. The ex-president should be held accountable for any other actions on a general basis. It is also necessary to exclude the norms that prohibit to detain, arrest, search, question or personal search and bring the ex-president to administrative responsibility. In any case, it is important to take into account that immunity should not become a lifelong, unjustified privilege.
3. If the ex-president maintains immunity in both full and limited forms, it is necessary to simplify the procedure for stripping it. For example, by a majority of votes of members of the Zhogorku Kenesh upon the recommendation of the Prosecutor-General.

Currently, the norms of article 12 of the law “On guarantees of the president of the Kyrgyz Republic” contradict not only the spirit and letter of the basic law, but also completely neutralise the achievements of the 2010 constitutional reform. It creates favourable conditions for the establishment and strengthening of the regime of irresponsible sole power. It is obvious that the constitutional norms defining the legal status of certain persons should not be arbitrarily extended by legislative acts. Otherwise, the very essence of constitutional and legal regulation is diluted. Neglecting the role of the constitution as the basic state law creates dangerous opportunities for uncontrollable president’s activities and unconstitutional political malpractice.

In general, as evidenced by the recent history of Kyrgyzstan, the issue of ex-president’s immunity is solved very simply: a president who does not violate the oath, observes and executes the law, puts public interest above personal, family clan, party and any other, is not at risk neither now nor in the future. Otherwise, people’s anger and justice will reach him regardless of the guarantees provided by law.

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This article was prepared as part of the Giving Voice, Driving Change – from the Borderland to the Steppes Project implemented with the financial support of the Foreign Ministry of Norway. The opinion expressed in the article does not reflect the position of the editorial board or the donor.