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The Constitution Losing Strength Of Law Due To Frequent Amendments

Thursday, November 24, 2016 - 23:39

In Kyrgyzstan, introducing amendments to the Constitution is becoming habitual, which results from the desire of the ruling political forces to remain in power as long as possible. Such amendments are not at all intended to achieve the objectives of ensuring sustainable and stable development of the country, as stated each time upon their introduction. All know that the Constitution merely formalizes the specific system of government, while practical implementation of this system is carried out by specific individuals, community groups and political associations. And the frequent introduction of amendments to the Constitution, even if they are the most correct and timely, leads to a reduction of its validity to zero, rather than to its perfection and, consequently, strengthening of the statehood. Such instability does not allow for certain rules of the political game to be established, and thus does not allow the Constitution remain the ultimate law. In addition, over the 25 years of the republic's independence, there have not appeared any individuals, social groups or political associations aimed at securing a particular system of government, rather than at coming to power for the purpose of easy profit, which is largely due to lack of strict rules not to be changed every five years. However, such people and political forces may emerge, and this will happen as soon as there is no other way to succeed in the political struggle and in government besides bringing your actions in line with the constant and strict rules laid down in the Constitution.


In Russia, both the opposition and the government, recognizing the urgency of introducing the constitutional amendments, currently refuse to do so, knowing that frequent changes to the Constitution lead to its devaluation: it actually loses its force as the ultimate law, turning into just an instrument of political struggle. The Russians fear that introducing amendments to the Constitution might become a precedent and a habit. Here, the precedent means that the political forces may obtain an unwritten right to change the Constitution to their advantage, and the habit means that they may explain their inability to effectively govern the state using the excuse of the basic law's imperfection. And they are rightly afraid, because in those countries where the Constitution is the basic law, it is this document that determines the rules of the political struggle. If introducing amendments to the Constitution becomes a precedent, it actually means changing the rules of the political struggle according to the interests of this or that political force. This is equivalent to loosening of the stability of the state. In the case of Kyrgyzstan, it means preventing the formation and firm establishment of a certain system of government – and, therefore, preventing the formation of the country as a state.


The amendments presently introduced to the Constitution by the Kyrgyz authorities will result in nothing else but its further devaluation. Due to the fact that these amendments create confusion in the public administration system, they will not lead to authoritarianism, as claimed by the opposition-minded political forces. They will simply lead to the state power degradation. In other words, as a lawyer friend of mine has figuratively remarked, to “kolkhozization” of the state bodies. Some mistakenly believe that A. Akaev and K. Bakiev established authoritarianism in the country by amending the Constitution. However, during their reigns, there was not authoritarianism; it was a simple corrupt use of the state power for personal, group and family interests. Authoritarianism is more related to the style and method of governing peculiar to a particular ruler, rather than to a constitutionally fixed system of government. Why is it associated with the style and method of governing peculiar to a particular ruler? Because the cause of authoritarianism is the ruler's excessively strong will and mood to control the state, rather than retain the power and profits, as it was in our country. In this respect, shining examples of authoritarianism are the reigns of Islam Karimov and Nursultan Nazarbayev, who, under the Constitution, had no greater power than that of A. Akaev and K. Bakiev.


Indeed, reading ourselves into the Explanatory Notes and the draft Law of Kyrgyzstan “On Amendments to the Constitution of the Kyrgyz Republic” passed for broad discussion on July 29, 2016, we will inadvertently pose the question: what is the purpose of all this? Judge for yourself: the Explanatory Notes read that “certain problems in the constitutional provisions can not be resolved without amending the Constitution,” but they do not explain why it is impossible to resolve these problems otherwise. Referring to the fact that “over the past six years, the world has undergone such changes that could not have been taken into account during the preparation of the Constitution,” neither these changes are listed even in a summary form, nor it is justified why they should be included in the Constitution and not in other laws. It is also noted that the proposed amendments will affect “the reflection of the highest values in the Constitution” and envisage bringing the articles of the Constitution in line with these values. However, they are simply listed in the draft Constitution without any presentation of specific mechanisms through which they are supposed to influence the effectiveness of certain articles of the Constitution. It is obvious that such a primitive understanding of “the reflection of the highest values in the Constitution” may transform the country's main legal instrument into a laughingstock! And why are the initiators of these amendments so eager to entrench the level of intelligence in the Constitution rather than in some other law? Are other, less important documents not sufficient for this purpose? For example, it may be the president-approved – perhaps, after the head of state read it thoroughly – law on the election of the heads of higher educational institutions of the republic. According to it, the person who receives the lowest number of votes among the three candidates with the highest numbers of votes can become the rector. One can not help asking oneself: is possible to trust the government that enacts such laws with the matters of amending the Constitution?!


It is impossible not to ask yourself these questions when the draft Law of Kyrgyzstan “On Amendments to the Constitution of the Kyrgyz Republic” introduces amendments to 26 out of the 114 articles of the Constitution. At the same time, these amendments are as follows: for example, one word that does not substantially change the article is removed (in Paragraph 1 of Article 86, Paragraph 1 of Article 96), a part of a sentence is removed (in Paragraph 2 of Article 41, in Paragraph 7 of Article 89, in Paragraph 2 of Article 102), or, conversely, one word is added (in Paragraph 7 of Article 97). Paragraph 3 of Article 96 and Paragraph 5 of Article 97 are omitted as no longer valid. Certain words are replaced as follows: “one-third” with “less than half” in Paragraph 4 of Article 64; “one-third” with “a majority of not less than half of the votes” in Paragraph 8 of Article 74; “majority” with “two-thirds” in Paragraph 4 of Article 85, and the word “law” with “legislation” in Paragraph 4 of Article 93, and “Defense Council” with “Security Council” in Paragraph 9 of Article 64. Without changing the essence of the articles, there are to be reformulated: Paragraph 3 of Article 6, Paragraph 5 of Article 20, Paragraph 2 of Article 24, Paragraph 5 of Article 36, Paragraph 2 of Article 50, Paragraph 2 of Article 72, Paragraph 3 of Article 80, Paragraph 2 of Article 81. Without changing the essence of the articles, there are to be reformulated, with additions: Paragraph 2 of Article 20, Paragraph 5 of Article 87, Paragraph 3 of Article 93, Paragraph 5 of Article 95, Paragraph 7 of Article 97, Paragraph 1 and 6 of Article 104. All of these changes can not be considered as amendments, especially as amendments aimed at solving the problems identified in the Explanatory Notes. They can only be considered as simple corrections of the text of the Constitution. Who ever heard of such a thing as holding a referendum on corrections to the text of the Constitution!


In addition to the above amendments – if they can be called amendments at all – and the list of the highest values, the Constitution is introduced the right to exemption from criminal liability for crimes committed beyond the expiration period of limitation (Paragraph 7 of Article 26). This could be legitimately entrenched in the Criminal Code, instead of in the Constitution. Paragraph 3 of Article 64 is added the following: President Jogorku Kenesh's dismissal of judges of the Supreme Court and the Constitutional Chamber as well as the President's discharge of local judges from their posts on the proposal of the Disciplinary Commission of the Judicial Council. According to the current Constitution, this procedure is carried out on the proposal of the Judicial Council. The question is, what will change if the proposal comes from the disciplinary committee of the Judicial Council, and not from the Judicial Council itself?! Is this what they call a constitutional reform of the judicial system?! It's rather a folly built up to the level of the constitutional law. Paragraph 3 of Article 70 is added a paragraph that defines the procedure for withdrawal from the parliamentary majority coalition – that is, what has to be provided for in the regulations of the Jogorku Kenesh. It is unclear why this should be introduced into the Constitution.


Paragraph 3 of Article 72 provides for the right of the deputy assigned to the post of Prime Minister or Deputy Prime Minister to retain his mandate and the right to vote in the plenary sessions of the Parliament, as well as the right to restore his parliamentary powers in full after his release from or termination of execution of the duties of Prime Minister or Deputy Prime Minister. This touching concern of the initiators of the amendments to the Constitution – the deputies of the current convocation – about themselves and about their employment rather than the welfare of the people is the most dangerous of all proposed innovations, because it violates the principle of separation of powers and turns the government into one of the departments of the Jogorku Kenesh apparatus. This proposed amendment is a clear manifestation of ultimate cynicism and total disregard for the interests of the people, nation and country on the part of the representatives of the political forces that are currently in power.


Paragraph 5 of Article 87 is to be reformulated, with certain additions. According to them, the Prime Minister can dismiss a members of the government by his decision, but only after a consultation with the leaders of factions of the parliamentary majority, if the President does not issue an order for his dismissal within 5 working days. And another one: a candidate for the vacant position in the Government suggested by the Prime Minister and approved by the Jogorku Kenesh shall be considered designated to the post, if the President does not issue a decree on his appointment within 3 days. This amendment goes beyond the scope of common sense! Indeed, does the government become more independent when it consults with the leaders of factions of the parliamentary majority coalition, rather than waiting for a presidential decree? To make decisions or consider the matter resolved without waiting for a presidential decree is pure lawlessness! Consequently, this new provision will not lead to strengthening of the powers of the Prime Minister (as, for example, upon his reception of the right to independently form the government), as claimed by the initiators, government officials and the opposition leaders. On the contrary, it will spread lawlessness in the supreme power and trigger a conflict between the branches of government.


The addition introduced in Paragraph 9 of Article 97 is also among such extremely harmful amendments. This amendment transforms the Constitutional Chamber into a legal department of the presidential administration and the Jogorku Kenesh apparatus, since the final decision on the presence of collisions with the Constitution in the law conflicts can be adopted by the Constitutional Chamber only after the consent of the President and the Jogorku Kenesh. Why is there a need for such a Constitutional Chamber that has no more authority than a mere legal department? It's just absurd!


While being considered as aimed at reforming the judicial system, the rest of the proposed amendments actually do not change the situation in this sphere at all. For example, there is the addition of Subparagraph 8.1 in Paragraph 8 of Article 94, according to which “the person applying for the position of judge is obliged to waive in writing the right to privacy of correspondence, telephone and other conversations, postal, telegraph and other communications for a period of office as judge.” In view of the specifics of a judge's work, this could have been included in his or her standard contract of employment. Nothing is changed by the addition to Paragraph 2 of Article 95: if the judge violates the requirements of integrity, this judge is dismissed from office on the proposal of the Disciplinary Commission of the Judiciary Council, and the judges of the Supreme Court and the Constitutional Chamber are dismissed by the Jogorku Kenesh on the proposal of the President – without receiving a proposal from the Judicial Council, as provided for in the current Constitution. The situation will not be affected in any way by another addition to the same paragraph: the judge dismissed for the above reasons “has no right to hold public office in the future, and loses the right to use the corresponding benefits.” Nothing is changed by merging Paragraph 4 and Paragraph 6 of Article 94 into one paragraph, according to which the dismissal from office, holding judges criminally and administratively liable is permissible with the consent of the Disciplinary Committee of the Judiciary Council, and not the consent of the Judicial Council itself, as it was before.


It is a shame that representatives of government, opposition and civil society see an opportunity to strengthen the power of government by introducing amendments to the Constitution. The “provisional government” says that “the proposed amendments to strengthen and increase the powers withdraw the government out of control of the Jogorku Kenesh and the prosecution bodies,” when, on the contrary, these amendments may result in merging the legislative power with the executive power and the judiciary, since the government is actually being transformed into a parliamentary structure, and the Constitutional Chamber into the legal department of the presidential administration and the Jogorku Kenesh apparatus. This all can be expected to cause irreparable damage to the Kyrgyz statehood! It's a shame that one can do nothing when these people, having fallen greedily upon the power government and believing in their impunity, intend to sacrifice the interests of the people and the country's statehood formation for the sake of their personal interests.


Well, if they want to entrench their true intentions in the Constitution and transform the Basic Law into a meaningless piece of paper, then, as the phrase goes say, good riddance!

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