“It is obvious that in order to fight corruption, it is not necessary to change the Constitution; other measures are needed. In order to improve the work of the political parties, there is no need to change the constitution, it is necessary to change the parties themselves, or rather their qualitative component. We need to work on ideas, on the formation of the party elite. It is all much more complicated than just changing the Basic Law”, said Tamerlan Ibraimov, PhD in law, director of the Center for Political and Legal Studies, in an article written exclusively for cabar.asia.
Every year, on the eve of Constitution Day, it has become a tradition to remember the Basic Law of the country. This year was no exception. The peculiarity of the current discussion about the Constitution is caused by the fact that once again someone wants to change it for some reason. However, we know who, and we understand why. This process took place on a regular basis in our country, but, unfortunately, the quality of constitutional development was almost always poor.
A little bit more in detail: over the past 22 years, the Constitution, adopted in 1993, was changed 8 times (1994, 1996, 1998, 2003, 2006, 2007, 2007, 2010), which is about one time every three years.
In all eight cases, the changes of the Constitution mainly concerned the configuration of the higher authorities, which is a quite understandable process. Generally, the main purpose of the constitution is the regulation of activity of the government, as well as guaranteeing human rights and freedoms. Much has been said about the rights and freedoms, but they have never been the cause of the next amendment of the Constitution.
In simple terms, the political forces have always tried to generate political power in such a way that it was more profitable for them. If the political system is in an unstable state, if the political forces and their leaders cannot agree on the key issues of the organization of public relations, the result is the suffering Constitution, which is endlessly changed.
In almost all cases, the basic law reform took place in such a way that the President, who is on top of the power pyramid, further strengthened his powers by suspending a significant part of his social responsibility. Since 1993, in Kyrgyzstan, as well as in almost all post-Soviet countries, there was established a semi-presidential (mixed) form of government. As a result of subsequent changes, the political system became more and more unbalanced, as responsibility for the economic and political life of the country was delegated to the government, but, at the same time, the government was completely under the control of the President who would not bear any responsibility.
In the context of immature political traditions and difficulties of establishing a new sovereign state, which coincided with the period of transition from socialism to capitalism and the so-called stage of primitive accumulation of capital, this has led to a deep crisis in all spheres of public life, including public morality. Corruption has reached all the layers of political power, “family rule” nepotism and irresponsible way of management flourished. The quality of governance has been steadily falling.
One can trace the unconditional relationship between the rules laid down in the Constitution and the political and economic processes in the society. The imbalance of power, with a clear roll in favor of one branch, has never led to the emergence in the country of an “owner” who would strictly abide by the law and fervor toward the interests of society. Amendments to the Constitution have always led to strengthening of some political groups and to the suppression of others.
The only exception is when the reform of the Constitution took place on a different logic. We can recall only two cases. The first case happened in 1993, when the Constitution was first written. Or rather, the basic law had not been changed yet. The political forces that came to power were not skillful enough to manipulate the laws, and, besides, most of them really wanted to create a document that will work for the benefit of all the people of the new sovereign state.
The second case took place in 2010. Then the Constitution was altered at the moment, when it was not known exactly who would come to power, who would be the President and who would form the government. Therefore, the Constitutions of 1993 and 2010 are different, in my view, in a more balanced approach to the organization of public authorities. This does not mean that they are the ideal documents. Ideal constitutions do not exist. But these Constitutions, one of which we now follow, are still favorably different compared to the other versions.
All other versions of the Constitution were created and changed only in favor of the force that was ruling at that time. We know very well what that had led to. Collecting as many powers as possible, the President began to consider himself invulnerable to control. It would be great if he used his powerful opportunities to carry out the necessary reforms in the country. But the country was not lucky in this regard. Therefore, against the background of impoverishment of the considerable population and the growth of wealth of a very narrow group of people, the political processes began to take radical nature. Moreover, even the majority of the groups of so-called the political elite, who considered themselves entitled to claim a piece of cake on the table of public property, was removed from the division of financial flows. There is no oil, no gas, and people have not really learned how to work. The result was not only a decline in the authority of power in the eyes of the people, but also a sharp aggravation of inter-clan (inter-group) struggle for power.
Semi-presidential form of government is good for Presidents who have more resources and can skillfully manipulate the political groups of the country. In a poor country, the President, who has concentrated all the reins of power in his hands and, consequently, all the choicest economic “pieces of cake”, becomes the sole purpose of the attack of both “left” and “right” political forces. That is the main and only objective of all those who struggle for power. In Kyrgyzstan, all that has contributed to the rapid consolidation of the opposition forces of various kinds for the sole purpose – to remove the central power, embodied by the President. And the application of force was a priority, because the legal channels (via fair elections), were impossible to use.
In a country like Kyrgyzstan, where there are big problems with corruption, and the economic “cake” is not big enough, all of this has led to a violent change of government, which in turn destabilized the country and checked the strength of the foundations of the constitutional order of the republic. This was one of our problems, but perhaps this was our strength, too. No political group or person could usurp the power for a long time.
Speaking about the current version of the Constitution, one of the leitmotivs of its adoption was the desire to put a barrier in the way of authoritarian tendencies, constantly asserting themselves in Kyrgyz politics. As noted above, in 2010, Constitution was adopted in circumstances where nobody knew exactly who would be the President and who would sit in the parliament. There were, of course, assumptions and plans, but no precise assurances could not give. As we could see later, the highest number of votes in the parliamentary elections was won by the party that was not included in pro-government bloc. Therefore, the basic law contained the elements of checks and balances, which, to date, have shown themselves to a certain extent.
In my opinion, the form of government, which is incorporated in the existing constitution, has proved its value to the current level of development of political parties and the political system as a whole. This form implies that the parliament forms and can dismiss the government, but the popularly elected President also has some leverage. Given that this system has some drawbacks, in general, it is efficient. So I do not share the view that the time has come to change the Basic Law.
What are the main reasons offered by those who initiate a new constitutional reform today?
– the constitution does not allow to continue judicial reform;
– The Prime Minister has insufficient powers to work effectively;
– Party discipline among parliamentary parties is severely affected.
What innovations do they propose to introduce?
– Make it so that the chairman of the Supreme Court would be nominated by the President and approved by Parliament (currently the Chairman is chosen by the judges of the Supreme Court themselves)
– Withdraw the Constitutional Chamber of the judicial system and make a simple advisory body;
– allow the Prime Minister to keep a parliamentary mandate, if he was a parliament deputy before. Expand the powers of the Prime Minister with regard to the dismissal of individual ministers;
– Introduce the imperative mandate, but the right to recall a parliament deputy should be given not to voters but to party leaders who will be able to deprive a deputy their mandate if he would not amenable.
I am far from the thought to see a “sacred cow” in the Constitution, which cannot be touched under any circumstances. But the Constitution is not a simple law. It is the foundation on which public relationships are built, it should be changed only when there are really objective conditions for that, when the constitution becomes a cause of significant public crises and/or serves as a brake on the development of the country. We do not have anything like that today. Moreover, maybe, we do not notice it, but the current Constitution creates very good working arrangements for resolution of the crisis in the government.
Before starting to reform the constitution, we should use all other available methods for positive change. And we have many of them in Kyrgyzstan. In order to understand it, it is enough to look at the nature of the most pressing social problems: corruption, weak political parties, lack of ideas for the development of the country.
It is obvious that in order to fight corruption, it is not necessary to change the constitution, we need other measures. In order to make political parties improve their work, we do not need to change the constitution, we need to change the parties themselves, their qualitative component. We need to work on ideas, on the formation of the party elite. It’s all much more complicated than just changing the Basic Law. That is why some politicians and officials, once again obsessed with “reformist itch”, instead of trying to making real reform, are engaged in its imitation. They want to say: “We are changing the Constitution, isn’t it a reform?” It is obvious that this cannot give any significant progress in addressing the key issues facing society.
But the actions to reform the current Constitution are not just useless. They are harmful and even dangerous. Unlike in 2010, the current situation with the political leadership in power is more or less clear. In these circumstances, there is a real danger that the Constitution, as it has already happened before, may be changed for the benefit of a narrow group ruling today. We know well what this resulted in before. We can also well imagine, what it may lead to in the future.
In addition, constantly changing the Basic Law, we regularly violate the progressive development of our constitutional system. The law is fading into insignificance. Instead of living under a stable law, we break the laws in favor of short-term political interests. It is time for politicians to understand, at least, due to a sense of self-preservation, that it is the way to nowhere.
We need a stable Constitution, stable government institutions and stable movemenet forward, rather than the so-called mindless “Reforming” that has nothing to do with real reforms.
Tamerlan Ibraimov, PhD, Master of Laws (LL.M.), and director of the Center for Political and Legal Studies.
The views of the author may not necessarily represent those of CABAR