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Kyrgyzstan: Saving the Constitutional Court

Proposal to do away with a key institution could leave the courts weaker and more vulnerable to political interference, say opponents of the scheme.
By Leila Saralaeva
The debate about how much power the president should get in Kyrgyzstan’s planned constitutional overhaul has overshadowed another issue that some argue is at least as important – fundamental changes to the judicial system.



A package of amendments to the constitution which was been published in the press on November 14 includes a plan to abolish the Constitutional Court, currently the country’s supreme arbiter on matters relating to affairs of state and fundamental rights. It would be subsumed into the Supreme Court as a special chamber.



The plan has come under fire from experts at the Council of Europe, CoE, which Kyrgyzstan joined in 2004, as well as from politicians in the country, who argue that it is an attempt to weaken the judiciary and therefore a step away from democracy.



Some Kyrgyz politicians even suggest the authorities are pressing for the change simply as a way of getting rid of the Constitutional Court’s current head, Cholpon Baekova.



The amendments were approved in the second week of November by a 289-member Constitutional Conference convened after the March revolution, and once a public debate has taken place, they could be ordered into law by President Kurmanbek Bakiev before the year is out.



The authorities insist that dissolving the court as a separate institution makes sense.



“Our small republic does not need so many higher courts. All efforts can be united in a single court. It’s more of an organisational decision than a legal one,” Daniyar Narynbaev, the president’s official representative in parliament, told IWPR. “No one is abolishing the Constitutional Court. The scope of its jurisdiction will not decrease, and the legal protection afforded to citizens will not suffer. The organisational side of it is another matter, but that really relates to what makes sense in terms of administrative decision-making.”



Justice Minister Marat Kayipov – himself a recent member of the Constitutional Court –also backs the proposed change, arguing that the institution does not justify its existence in its present form since it only reviews two or three cases submitted by citizens every a year. This low level of activity, he says, is a result of the sheer complexity of getting a case heard by the court.



Baekova strongly opposes moves to abolish her nine-member court, recalling that similar attempts were made when President Askar Akaev was in power.

In 2002, for example, a cross-party parliamentary committee recommended that the Constitutional Court should be merged with the Supreme Court and the Court of Higher Arbitration. Then, too, IWPR interviews suggested that the reform was prompted by a desire to get Baekova out.



As Baekova told IWPR last week, “The Constitutional Court’s record and the principles by which we were guided in administering justice mean it cannot be made pliable.



“Former president Akaev did not spare the Constitutional Court, either, and attempts to abolish it have been going on since 1994. At that time, they tried to reduce the court’s functions and later to raise a supervisory body above it. And the supporters of that scheme were the same experts who’ve been involved in developing the new version of the Constitution.



“The same process of making the Constitutional Court more docile and obedient is continuing.”



Kurmanbek Osmonov, who chairs the Supreme Court and would thus take charge of the constitutional affairs remit if the reform goes through, is similarly opposed to the idea.



Osmonov also objects to other revisions which would make it much easier to dismiss high court judges for political reasons, and which would require all of them to leave office once the new-style constitution is passed even though he and his colleagues were appointed for a term that runs out in 2014.



“These issues provide reasons to say… that these changes are being made to get rid of Baekova, Osmonov and others. I regard it as an encroachment or narrowing of the guarantees of the courts’ independence,” he said.



A number of politicians including Emil Aliev, leader of the Ar-Namys party, agreed with this point, and Baekova herself said, “It’s alarming that what is going on here is not about improving the judicial system, but rather taking revenge on specific persons who head these institutions.”



The proposed changes was roundly criticised by speaker after speaker at a November 24-25 conference on constitutional reform organised by parliament and the presidential administration, and attended by experts from CoE’s European Commission for Democracy Through Law, better known as the Venice Commission.



Speaking to IWPR afterwards, Kestutis Lapinskas, a Venice Commission member, repeated the main thrust of his remarks at the meeting, “An attempt to do away with the Constitutional Court weakens the country’s court system. Abolishing it is no less than a direct assault on judicial authority with the aim of weakening it, since the court’s purpose is to protect human rights and freedoms and solve disagreements and disputes over jurisdiction between the top institutions of authority… a constitutional court makes a final decision and puts an end to the matter.”



Lapinskas concluded, “It’s impossible to understand why such an attempt is being made…. It is unacceptable for a state that is democratic and governed by the law.”



Kyrgyzstan has recent experience of the kind of arbitration role referred to by Lapinskas. When President Akaev fled and his administration collapsed after a popular uprising on March 24 this year, the country was in a state of near-anarchy and for a critical moment the Constitutional Court was the only functioning legitimate institution. In an overnight meeting following the revolution, it was Baekova who recognised the new interim authorities and allowed the process of a formal transfer of power to go ahead.



Many other participants in the conference expressed the same kind of concerns as Lapinskas in subsequent interviews with IWPR.



“One gets the impression that the president wants to return to a monopoly judicial system, creating a single, self-monitoring and self-appointing court,” said member of parliament Melis Eshimkanov. “This is not right. We must find a mechanism where all branches of power are independent.”



Burul Makenbaeva, an activist in the non-government sector who took part in the Constitutional Conference as well as attending the meeting with CoE experts, is worried that removing a unique institution of state will reduce the curbs on the president’s powers, render the courts more vulnerable to political manipulation, and thereby make an already fragile state even more shaky.



“The court is the only institution able to pass judgement on whether the actions of the president are constitutional. I therefore believe that abolishing it is an attempt to weaken judicial checks on the president’s actions,” she said. “The judicial system needs to be removed from the influence of two other branches of power – parliament and president.”



If that does not happen, Makenbaeva warns that the consequences could be “destructive”.



“Especially in a situation where the judicial system is [already] weak and organised crime is rearing its head, it could prove be very dangerous to further weaken the court system,” she said.



Presidential representative Narynbaev was dismissive of the criticism made by the CoE experts, saying the countries they came from had “a completely different culture”.



“They’re offering a recipe which works well in other countries, but we must take into account our own specific features and realise that not everything that’s good there will work well here, too,” he said.



However, even though the published draft of the constitutional changes includes abolition of the court, opponents of the change may gather some hope from remarks made by President Bakiev, who now appears to share their concerns.



“I’ve received a lot of letters and petitions and seen many judges and lawyers,” Bakiev told reporters on November 23. “I have come to the firm view that the Constitutional Court should be preserved as an independent body within the judicial system. It is another thing if the court has not been operating effectively – [in that case] its working procedures, its status, and the procedure by which citizens can make appeals need to be reviewed.”



Leila Saralaeva is an IWPR contributor in Bishkek.

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