06 December 2005

The New Kyrgyz Constitution

The Kyrgyz government is working on some changes to the Kyrgyz Constitution. My husband, a con law professor, managed to find a copy in English of the current constitution and the proposed changes.

One interesting point about languages though- Kyrgyz is the official language of Kyrgyzstan, but my husband and the people he works with (lawyers and professors, almost all Kyrgyz) have not been able to find a copy of the constitution in Kyrgyz.

There aren’t major changes proposed to the structure of the government, but there are a few important changes. One is that the death penalty would be abolished. The arguments for and against this are similar to the arguments in the US, except that prison conditions in Kyrgyzstan are much worse than they are in the US (not that they’re great in the US). Some prisoners say they’d prefer the death penalty to living out their lives in a Kyrgyz prison.

The ex-president would lose his or her immunity, obviously, a direct reference to Akaev. The ex-president’s family also would not be supported by the state once he is out of office. The clause about term limits- 2 five-year terms for the president- has been more forcefully declared. This clause is particularly telling: "No change or amendment to this Constitution may be cause for reelection or extending the mandate of the incumbent President of the Kyrgyz Republic."

Term limits are always interesting though. Plenty of countries have term limits written into their constitutions, but they are all too often ignored. Kazakhstan is an excellent example of this since the president was just reelected for another term.

The system for electing members of Parliament would also change. Before the Constitution was amended in 2003, a party system was in place. After 2003, it was changed to a system more like the United States’ where the members of Parliament came from various areas of the country. The current proposal would go to a mix of the two systems; some one-mandate, others party. There are advantages and disadvantages to both systems and I think it would be interesting to see the two combined here.

Another proposed change is the abolishment of the Constitutional Court. Again, there are arguments for and against this. It is unquestionable that this court is not particularly well-used in Kyrgyzstan, and when it is, it often is simply a rubber-stamp for the president. For example, I mentioned the difficulties in delimiting the border with China. An agreement that gave up Kyrgyz territory to China was reached in 2000, but there were serious questions as to whether it was constitutionally done. The Parliament had almost no time to look over the agreement and many felt that Parliament was not part of the process as it should have been. In 2002, the Constitutional Court ruled that the agreement was constitutional.

There have been reports that the CC only hears two or three cases a year. I can understand the arguments in favor of abolishing it. It’s hardly useful in its current form. But I think abolishing it would be a mistake. It can’t be reformed or strengthened if it’s not even there.

There are many other small changes. One would require that anyone who is arrested or detained has the right to appear before a judge without delay to get a ruling about the legitimacy of the arrest. Another would require that the public have access to "documents and materials immediately affecting one’s rights and freedoms if not specified otherwise in the law." Homes would not be allowed to be searched without a court decision (however, language speficially protecting privacy would be removed). Impeachment of the president by the Parliament would require a 3/4 majority instead of the current 4/5. However, the Supreme Court would have first rule whether an attempt to remove the president was legal. The procedure for impeaching a judge would also be changed to require a simply majority of the Parliament instead of a 2/3 vote.

Many of these proposals are good- but if there is no enforcement of them, they will end up being a lot of nice words, as so many constitutions in the world are.

Comments are currently being accepted until December 15th, either by email or calling a telephone number. Final revisions may be made, and then a referendum is supposed to take place. We’ll see what really happens.

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