“Kyrgyzstan has become a hostage of frequent constitutional changes and amendments, and this does not allow the full establishment of the rule of law and constitutionalism in the country,” mentioned Saniya Toktogazieva, a lawyer, an expert on constitutional law, in an article for CABAR.asia.
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On April 11, Kyrgyzstan will host another referendum on the adoption of a new constitution. In total, this will be the ninth constitutional reform. Why the fact, that is now happening in the Kyrgyz Republic reminiscent of the phenomenon that is called “constitutional dismemberment” in comparative constitutional law,[1] namely, a deliberate attempt to abandon the principles, foundations, and values of the constitution and constitutionalism? Why is the ongoing constitutional reform in Kyrgyzstan illegal and illegitimate? What are the risks of the new draft Constitution? To answer the above-mentioned questions, it is important to start with an explanation of constitutional stability.
Constitutional stability is an essential prerequisite for a stable and consolidated democracy.[2] This is an axiom. The constitution must be inviolable and have the highest degree of legal force.[3] Any changes to the Constitution, even the smallest ones, do not allow this fundamental law to acquire the very highest legal force. Frequent changes to the Constitution paralyze the entire legal system and prevent state institutions and citizens from creating a strong, developed, and stable state.
Kyrgyzstan has become hostage to frequent constitutional changes and amendments, this does not allow the full establishment of the rule of law and constitutionalism in the country. This is precisely the reason for frequent insurrections (coups d’état) and the reason that the country has a Constitution, but no constitutionalism. The events of 2005 are the result of four constitutional reforms by Askar Akayev. The events of 2010 are the result of an unprecedented decision of the Constitutional Court (under pressure from Bakiyev) to annul the 2006 Constitution and return the 1993 Constitution, and then the 2007 Bakiyev Constitutional Referendum. The October events of 2020 are the result of the Atambayev constitutional referendum.
The Constitution is the basic law of the country, a social contract that has the highest legal force. The Constitution must be coordinated, not imposed, and this document must have the highest legitimacy, and the legitimacy of any law begins with the legal process and compliance with the procedure for adopting the Constitution. Unfortunately, the general legal and political foundation of the constitutional referendum indicates that the new version of the constitution of the Kyrgyz Republic does not have that supreme legitimacy, since the procedure for adopting this edition was carried out with gross violations, bypassing all the established stages of the legislative process.
The ongoing constitutional reform in Kyrgyzstan cannot be considered legal and legitimate for the following reasons:
- The sixth convocation of the Jogorku Kenesh of the Kyrgyz Republic (JK) was not a competent subject to initiate amendments to the Constitution of the Kyrgyz Republic.
According to Article 114 of the Constitution of the Kyrgyz Republic, neither the Prime Minister nor the President can initiate amendments to the Constitution (they cannot convene a referendum, only the Jogorku Kenesh of the Kyrgyz Republic can do this). Did the current sixth convocation of the Jogorku Kenesh have a legal and legitimate right to amend the constitution or call a referendum? The answer is NO.
According to Art 70 of the Constitution of the Kyrgyz Republic, the Jogorku Kenesh is elected for a period of exactly five years, respectively, at the sixth convocation of the Jogorku Kenesh, the term of office ended on October 28, 2020. At the same time, Article 71 of the Constitution states that from the day of the first meeting of the Parliament, the powers of the previous convocation are terminated.
Under what circumstances did the sixth convocation of the Jogorku Kenesh initiate the constitutional reform? The new seventh convocation of parliament was not formed due to the recognition by the CEC of the voting results of the parliamentary elections on October 4, 2020 invalid.
The sixth convocation of the Jogorku Kenesh was forced to continue working to prevent a power vacuum, but this convocation no longer had the right to use its powers for fundamental and extraordinary measures like a constitutional referendum. Through the current sixth convocation of the Jogorku Kenesh it was impossible to hold a referendum and amend the Constitution. Accordingly, only the seventh convocation of the Jogorku Kenesh of the Kyrgyz Republic could legally and legitimately carry out the constitutional reform.
- Over the past months, there has been a de facto replacement / substitution of the Constitution (and not the introduction of amendments) and artificial “imposition” of the draft Constitution on society and the country.
Changing the foundations of the constitutional system, the form of government, the fundamental and supporting structure, or a sign of the identity of the constitution is considered a replacement / substitution of the constitution, or, as it is called in constitutional law, “constitutional dismemberment”.[4]
In such a situation, the direct submission of a ready-made draft constitution for public familiarization (with the possibility of changing some details, but not the logic and main accents of the Constitution), coupled with a short discussion period for the draft document, actually represents an artificial forceful “imposition” of the new Constitution on society. The draft Constitution submitted for public discussion did not carry the character of amending the present constitution of Kyrgyzstan but looked like an attempt to replace or substitute the present constitution with an absolutely new one. The Constitution of the Kyrgyz Republic, namely Article 114 gives the right to initiators only to amend this Constitution, and not to replace / substitute it with a new Constitution. Accordingly, the proposed draft Constitution completely contradicts Article 114 of the Constitution of the Kyrgyz Republic.
- The Venice Commission, in its urgent opinion – Amicus Curiae, concluded that during the prorogation period, the parliament cannot approve emergency measures, including constitutional reforms.
“In the period of prorogation, that is, with a decrease in powers, the parliament can perform only some ordinary functions, while it cannot approve emergency measures, including constitutional reforms. Instead, the current parliament suspended the constitutional law and changed the rules of the democratic game. The process of initiating and carrying out constitutional reform requires comprehensive analysis and public discussion both inside and outside the legislative branch. In many constitutional traditions, the constitutional reform process requires a specific mandate for the constitutional assembly or for holding special elections prior to the adoption of changes. This process goes beyond the powers during the transition period. In any case, it is necessary to comply with the constitutional procedure and the time frame for introducing constitutional amendments.”[5]
- Gross violations in the work of the Constitutional Council
The activities of the Constitutional Council cannot be considered as a public discussion. According to the Constitution, the president, especially the acting president, does not have the right to initiate legislation, moreover, to initiate amendments to the Constitution. This right belongs exclusively to the Jogorku Kenesh. The constitutional meeting was originally supposed to be formed by the deputies of the Jogorku Kenesh, and not by the president. What do we have? The Constitutional Council was created by decree of the acting president Talant Mamytov (he had no right to do so under the Constitution). Therefore, the legality and legitimacy of the Constitutional Council is under great doubt. According to the law on LSI and the Jogorku Kenesh regulations, public discussion is carried out by the initiators of the draft laws, that is, in this matter only by the Jogorku Kenesh deputies. Accordingly, the activities of the Constitutional Council cannot be considered as a public discussion.
On March 11, the sixth convocation of the Jogorku Kenesh, with limited legitimacy, with gross violations and bypassing all the established stages of the legislative process (without receiving the conclusion of the Constitutional Chamber and without waiting for the conclusion of the Venice Commission) and without public discussion, adopted a bill on the appointment of a referendum on the adoption of the Constitution.
It should be noted here that many scientists[6] give a number of arguments against the use of referendums, especially in transit countries, substantiating the fact that:
- A referendum is a means used by the authorities to avoid responsibility for taking an unpopular position on a controversial issue.
- Voters do not always have the ability or information to make grounded decisions about a question under consideration.
- A referendum weakens representative democracy, undermining the role and importance of elected representatives.
- The referendum is often used as a political instrument that meets the needs of the ruling group, rather than the interests of democracy and the people.
What are the risks of the new draft Constitution?
- The new version of the Constitution absolutely lacks an effective system of checks and balances. On the contrary, it contains an atrophied system of checks and balances with a huge advantage in favour of the president. A constitution where there is no effective balance of power between the branches of government will surely lead the country and its citizens to tyranny, oppression, and arbitrary rule.
- The potential for strengthening authoritarianism in public administration and decision-making has been significantly increased. Conditions are being created for a systemic tendency of usurpation / concentration of power in the hands of one subject, namely the president. This is due to the lack of an effective system of checks and balances, which creates an imbalance in the implementation of the principle of dividing state power into legislative, executive, and judicial branches. At the same time, this imbalance was created, first of all, through the reduction of guarantees for the independence of the judicial system and also the complete concentration of all levers of control over the power structures in the hands of the President.
- The Constitution is saturated with vague and populist concepts like the rule of people, moral, spiritual, and cultural values. The emphasis of the authors of the basic law on such concepts is a populism built on the exploitation and manipulation of people’s emotions, rather than on rational and realistic arguments based on the rule of law.
- Further, the most important and alarming: the article on general restrictions on rights and freedoms (apparently now Article 23) has been significantly reduced, and the list of absolute rights, which is contained in Article 20 of the current constitution, has simply disappeared. In other words, the list of absolute rights has disappeared, as well as the prohibition of those that are not subject to any restrictions. For example, such as a ban on the use of the death penalty, torture, medical, biological, psychological experiments, slavery, human trafficking, exploitation of child labour and much more. Of course, these prohibitions are enshrined in other articles, but any Constitution that has an article on general restrictions on rights and freedoms is obliged to contain in this article a list of absolute rights.
- The likelihood of censorship in the information sphere and the danger to the principle of pluralism of opinions and positions in the political system and in the sphere of public administration.
- According to Article 10 of the draft Constitution, in order to protect the younger generation, events that contradict moral and ethical values, the public consciousness of the people of the Kyrgyz Republic may be limited by law. It also says that the list of activities subject to restrictions and the list of restricted access and dissemination of information are established by law. This regulation raises many legal issues and has serious consequences for the already deteriorating situation of freedom of speech, press and assembly in the territory of the Kyrgyz Republic. Under the guise of strengthening public morality, this article aims to put pressure on the media and those who criticize the government’s policies.
It should be noted that the lack of transparency in the process of preparing the project, the vagueness of the definition of “generally recognized moral values and traditions” allow us to conclude that Article 10 is nothing more than a pretext for the establishment of censorship by the authorities, with complete disregard for the primary importance of the role of the press in critical coverage of events in society. This article may adversely affect the ability of citizens to exercise their fundamental constitutional rights in a spirit of peace, human rights, and democracy. The use of penalties by the state for the legitimate exercise of constitutional rights leading to self-censorship will be a natural consequence of the introduction of Article 23.
- The second is due to the fact that the new project allows concentrating the management of all power, law enforcement and inspection structures (including the Ministry of Internal Affairs and paramilitary (semi-militarized) departments, which, according to the current Constitution, are accountable to parliament) in the hands of one entity – the president, but at the same time the project did not provide for the relevant guarantees of independence of the legislative and judicial branches (unilateral gain), which will undoubtedly harm the principle of pluralism in the political system.
Conclusion
It should be remembered that any constitutional reforms directly depend on the general political context in the country. However, the current political context does not create favourable conditions for this. For the adoption of a Constitution with an effective mechanism of checks and balances and aimed at protecting the rights and freedoms of citizens, it is necessary to have political pluralism, strict adherence to the procedure for adopting the constitution and maximum representation in the process of drafting the Constitution. Alas, all this was not in the process of writing the new version of the Constitution. Such a political and legal context can never lead to the adoption of a democratic and true people’s constitution. On the contrary, the Constitution will become a shield protecting the interests of certain individuals.
In certain countries, there is now an ascent of legalist autocrats[7] who use the rhetoric of democracy and constitutionalism to destroy both. Far too often, people do not see or feel danger until it is too late. Unfortunately, the same trend is observed in Kyrgyzstan.
What methods do they use?
- A new charismatic leader comes to power, promising to eliminate the dysfunctions of the state system, amend laws, eliminate bureaucracy, raise the economy, etc. They mobilize people, assuring them that the state and power belongs to them, and only to them.
- Their main weapons are laws, constitutional changes, and institutional reform. They use constitutional changes as a tool to achieve a unified domination of all institutions of power.
What can society do to oppose legalist autocrats and defend constitutionalism and the rule of law?
- Lawyers, especially constitutional lawyers, need to keep a close eye on new autocrats to see how they work in detail.
- Then lawyers need to educate others through civic education and enlightenment.
- Law and justice are too important to be left only to lawyers. Citizens also need to learn about the tools of the law.
- Democratic constitutionalism cannot remain the ideal of the elite without resonance in society. We need to stop taking for granted that the constitution can protect itself, it needs to be protected by society.
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 opinions expressed in the article do not reflect the position of the editorial or donor.
[1] Richard Albert, Constitutional Amendment and Dismemberment, 42.1 The Yale Journal of International Law, 2018.
[2] Ordeshook, P.C. Constitutional stability. Constit Polit Econ 3, 137–175 (1992)
[3] Andras Sajo, Limiting government: an introduction to constitutionalism, 9-13 (Central European University Press, 1999). Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56.4 American Political Science Review 853-55(1962). Michel Rosenfeld, Constitutionalism, identity, difference and legitimacy: theoretical perspective, 5-10, (Duke University Press, 1994). Andras Sajo, Renata Uitz, The Constitutions of Freedom: an Introduction to Legal constitutionalism, Chapter 1 (Oxford University Press, 2017). Louis Henkin, Elements of Constitutionalism (New York: Columbia University Press, 1994). Tamas Gyorfi, Against New Constitutionalism, (Edward Elgar Publishing, 2016). Larry Alexander, Constitutionalism: Philosophical Foundations (Cabridge University Press, 1998)
[4] Richard Albert, Constitutional Amendment and Dismemberment, 42.1 The Yale Journal of International Law, 2018.
[5] Urgent Opinion by Amicus Curiae on the postponement of elections motivated by constitutional reform, endorsed by the Venice Commission at the 125th Online Plenary Session (11-12 December 2020) https://www.venice.coe.int/ webforms / documents /? pdf = CDL-AD (2020) 040-rus
[6] Elliot Bulmer, Direct Democracy, International IDEA Constitution-Building Primer 3, https://www.idea.int/sites/default/files/publications/direct-democracy-primer.pdf International IDEA, Direct Democracy: The International IDEA Handbook Stockholm: International IDEA, 2008), <http://www.idea.int/publications/ catalogue/direct-democracy-international-idea-handbook>, accessed 9 December 2016, Qvortrup, M., A Comparative Study of Referendums: Government by the People (Manchester: Manchester University Press, 2005, 2nd edition), Tierney, S., Constitutional Referendums: The Theory and Practice of Republican Deliberation (Oxford: Oxford University Press, 2012)
[7] David Landau, Abusive Constitutionalism, 47 UC Davis Law Review ,189, (2013). Rosalind Dixon, David Landau, 1989–2019: From democratic to abusive constitutional borrowing, 17.2 International Journal of Constitutional Law, 489(2019). Nancy Bermeo, On Democratic Backsliding, 27.1 Journal of Democracy 5, (2016). Larry Diamond, Marc F. Plattner, Christopher Walker, Authoritarianism Goes Global: The Challenge to Democracy (John Hopkins University Press, 2016). Aziz Z. Huq, Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA Law Review, 95(2018). David Landau, Populist Constitutions, 85 The University of Chicago Law Review (2018). Paul Blokker, Populist Constitutionalism, International Journal of Constitutional Law Blog, 4 May 2017, http://www.iconnectblog.com/2017/05/populist-constitutionalism/ (last visited May 2019). Paul Blokker, Varieties of populist constitutionalism: The transnational dimension, 20.3 German Law Journal, 332 (2019) Dixon, Rosalind: Populist Constitutionalism and the Democratic Minimum Core, VerfBlog, 26 April 2017