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Amendments To Kyrgyzstan's Constitution As An Act Of Mythmaking

Saturday, January 14, 2017 - 23:33
  • Every creator of a constitution is secretly an Utopian.

 

  • Frank E. Manuel

 

The specific feature of the calendar off-season in Kyrgyzstan is usually the increased degree of social and political tensions. With that, the “political autumn” in the country is calmer in this regard than the “political spring.” It's because during this period: a) the population has not yet faced the energy-related issues; b) there is received the bulk of remittances from labor migrants; c) harvesting is in full swing in the agricultural sector. Accordingly, the population is inert in terms of motivation to participate in the protests. In view of this, the major competition within the state bodies takes place, followed by its projection on the public political arena in the form of personnel castling and adoption of legal acts.

 

Autumn 2016 was distinguished by actualization of the “constitutional question.” After the state had functioned in accordance with the Constitution of 27 June 2010 for six years, the authorities revealed serious shortcomings in the document. In their opinion, this fact cast doubt on the further viability of parliamentarism. In these circumstances, it seems appropriate to consider the nature of this legal instrument in terms of its significance for any secular nation-state, followed by projecting the findings on the realities of Kyrgyzstan.

 

Today, the Constitution is a fundamental document of a secular nation-state. It has supreme legal force; it establishes the legal framework of society and government, as well as the position of the man and citizen. However, it should be emphasized that the effectiveness and enforceability of constitutional norms depend on how they correlate with the traditions of the political life of a particular society – the specific features of the functioning of political institutions and the interaction of political forces. In turn, this interdependence determines the two main types of constitutions that exist in any state:

 

  • - the legal constitution – as the proper order of the social and political system established by the enforced legal act;
  •  
  • - the actual constitution – as a system of principles of the social and political system that exists in the given reality; that is, the
  • “materialized” legal constitution.

 

If the legal constitution corresponds to the actual constitution, it is real. Otherwise, it is a fictitious constitution; its provisions do not mean anything in the aspect of regulation of the system of social relations and the functioning of political institutions.

 

On this basis, experts in the sphere of constitutional law argue that the fundamental axiom in their field of expertise is preventing the gap between the constitution and the social practice. In view of this, it is inevitable to amend the fundamental law of the state, as new trends develop in the social and political life. In this aspect, it is important to emphasize that the changes are reflected in the constitution after they occur in the social and political life of the country.

 

Experts say that there are no ideal models of constitutions. Being aimed at preserving the stability of the political system through the regulation of the behavior of its members and elements, this legal document can not reflect the possible socio-political dynamics caused by both internal and external factors.

 

Based on this, we can draw two conclusions:

 

  • - Firstly, the evaluation of the constitution of any state in the dichotomic plane “bad – good” is unacceptable in terms of its objectivity;
  •  
  • - Secondly, the constitution contains the general rules for the functioning of the political system that ensure its stability; the constitution requires changes in order to avoid turning into a fictitious document.

 

However, although the positive aspects of the transformation of the basic law reflect its development, they are canceled out in the conditions when the amendment process becomes uncontrollable due to the desire of political actors either to swap around the cause and the effect (changing the constitution means changing the socio-political reality), or to exercise their subjective interests. In both cases, it is a violation of the normal process of constitutional development that adversely affects the stability of the state.

 

In this respect, the case of Kyrgyzstan is illustrative. Over 25 years of independence, Kyrgyzstan has witnessed not only the adoption of numerous amendments to the Basic Law (in 1994, 1996, 1998, 2001 and 2003.); its Constitution has been changed twice (in 2007 and 2010). However, despite the fact that these amendments were a priori meant to enhance the stability and efficiency of the state machine by setting the balance in the system of relations “man – society – state,” Kyrgyzstan is the only country in the Central Asian region, in which:

 

  • - there have been two unconstitutional changes of the government;
  •  
  • - there have changed 29 heads of the Cabinet of Ministers of the Kyrgyz Republic; as many as 9 people occupied this government position during the last six years.

 

Meanwhile, the population currently shows no demand for any democratic transformations of the political system. According to a survey conducted in March 2016 by the Center for specialized assessment of public opinion polls, 49 percent of the population of the Kyrgyz Republic see unemployment as the main problem in Kyrgyzstan; 31 percent are focuses on corruption, and 12 percent are concerned about the republic's economic development. As a consequence, economic prosperity is more important than democratic values for 68 percent of the surveyed Kyrgyz people ​​(only 25 percent of respondents consider preservation of the democratic principles to be more important than economic growth).

 

Accordingly, the directly proportional relationship established by representatives of the political establishment of the Kyrgyz Republic between the changes in the Constitution and the republic's stability and economic prosperity is the product of political mythmaking. Its process is the generation of stereotypes in order to divert public attention from the pressing problems, while meeting the short-term interests of political groups in terms of division of the zones of influence. In this context, it seems appropriate to refer to the 1990s study of A. Przeworski and F. Limondzhi. After analyzing 16 research materials on the relations between the regime and the type of economic development, they concluded that there was no strict logical correlation between them.

 

Worth noting, the countries distinguished by advanced liberal democratic policies also often use the methods of political mythmaking, making populist statements. This was demonstrated especially vividly in 2016, during the presidential election campaign in the United States, which is considered the flagship of the democratic world. The most important statements of both Hillary Clinton and Donald Trump concern either some materials compromising the opponent, or the US foreign policy. From that perspective, Russia is convenient mechanism to divert attention from domestic problems, such as inter-ethnic harmony.

 

However, a retrospective look at the development of the United States indicates that whoever occupies the Oval Office of the White House, the political system operates without interruption, because: a) the history of the functioning of political institutions and the US legal system goes back to more than two centuries ago; b) in the political consciousness of the population, it is consolidated as an axiom that the stability of the state depends on compliance with the established laws. A similar situation is observed in the UK and New Zealand, where the constitution as a single document is absent at all. Instead, it is represented by the body of case law, legal traditions and specific legal acts, which, nevertheless, does not result in a constitutional crisis.

 

In Kyrgyzstan, on the other hand, using the Marxist terminology, it can be argued that the political groups are trying to change the “superstructure” of the political system, while maintaining the existing “base” (the economic system and the specific social organization). As a result, the entire history of independent Kyrgyzstan is a reminiscence of the “black swan” theory of N. Taleb: the functioning of the political system is unpredictable due to hypertrophic personalization of power. Hence the frequent collapses of coalitions and changes of the government. In the structure of the political system of the Kyrgyz Republic, the latter has the function of resolve the political crisis, rather than implementing the declared development plan.

 

The change of heads of the government is solely the result of interpersonal conflicts among the deputies who seek to score political points and to realize their interests, using the tactics of “front attacks” and “guerrilla attacks,” which are the demonstration of patriotism (the debates on the nationalization of the “Kumtor” field) and revealing of compromising information. To prove the objective unreasonableness of these, we can consider the example of the resignation of J. Satybaldiyev in spring 2014, following the withdrawal of the party “Ata-Meken” from the majority coalition. Party leader O. Tekebayev's dissatisfaction with the government work was accompanied by rather general wording regarding the fact that the Prime Minister had allegedly exhausted his “moral and political resources.” However, after the Cabinet's resignation, the majority coalition was rather quick to reunite in the same composition. A similar situation is observed presently, when the mechanism of promotion of the constitutional reform initiatives is the Social Democratic Party faction's efforts to split the majority coalition. With that, the explanation of the reasons is also subjective: the connection between a number of functionaries of the “Ata-Meken” party and the ex-presidents, as well as their involvement in the looting during the 2010 riots.

 

On this basis, it appears the next set of amendments to the Constitution of the Kyrgyz Republic that is currently initiated will not change the situation, because the country's political groups have no understanding of the need for compliance with the rules they have established. If the “traffic regulations” were observed in the political space of the Kyrgyz Republic – namely, if there were no frequent collapses of coalitions because of the unrealized ambitions of individual politicians – the situation on the “political road” of the Kyrgyz Republic would be stable without frequent “traffic accidents” that occur in the form of changes of the government and corruption scandals.

 

The lack of understanding of the importance of compliance with the letter of the law is pointed out by two facts:

 

  • - Firstly, the recognition of inappropriateness of the moratorium on amendment to the Constitution until 2020;
  •  
  • - Secondly, the story of the missing original script of the Constitution.

 

In the first case, it is necessary to focus attention on the fact that the immutability of the Constitution was not originally protected from the legal point of view, as the norm regarding the ban on changes to the Constitution has the form of remarks to Paragraph 2 of Article 114 of the Constitution of the Kyrgyz Republic dated June 27, 2010. The ban was enshrined in Article 4 of the Decree of the Provisional Government of the Kyrgyz Republic “On the President of the Kyrgyz Republic during the transition period” dated May 19, 2010. In turn, the immutability of the Basic Law of the Kyrgyz Republic was to be guaranteed by the immutability of the article that provided for the ban on changing the Constitution. Accordingly, being duplicated in the Constitution as an unfortified remark, this Article of the Decree of the Provisional Government does not guarantee its stability.

 

In the second case, it is important to note the fact of the possibility of this situation, which, along with the cancellation of the moratorium on changes to the Basic Law of the Kyrgyz Republic, demonstrates: a) the disregard of the legal procedures for adoption of normative legal acts; b) the latent formation of conditions for subsequent circumvention of the previously adopted normative act or its recognition as inexpedient.

 

In general, the world practice has seen precedents of introduction of restrictions on changes to the Constitution for a certain period in order to ensure continuity (despite some dysfunction) of the process of registration of political institutions and the system of interaction between them. On this basis, since Kyrgyzstan does not have a long tradition of independent existence within the framework of the liberal-democratic paradigm, it is appropriate not to introduce changes to the Constitution, but to improve the work of the state institutions through the adoption of legal acts that develop and supplement the constitutional provisions or are related to the optimization of management and financing of public institutions, the elimination of corruption schemes, the strengthening of inter-agency cooperation, the introduction of criminal liability for non-performance of duties by officials, etc. In this respect, illustrative is the example of the judicial reform: its actual failure is connected not with the constitutional standards, but primarily with the level of professionalism of the judiciary and the corruption schemes.

 

In summary, we would like to emphasize that the problem of dysfunction of the Kyrgyz political system lies not in the content of the Constitution, but the fact that its provisions are not complied with, the fact that there is a gap between the legal constitution and the actual constitution. If the consciousness of society and the political establishment have no firm values ​​of constitutionalism, any manipulations with the Basic Law remind the calculations of profits that the country can obtain by allowing the transit of goods through its territory in the absence of a railway network. The train can only go where the rail is laid.



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