New Constitution and Kyrgyzstan

At last, after two years of argument about the constitution, President Bakiev is pushing through a quick solution – although not everyone is happy with his vision of how Kyrgyzstan should be governed.

Kyrgyz citizens are due to vote in a national referendum next month that could finally put paid to two years of turbulent debate about what kind of constitution their country should have.
However, many analysts interviewed by IWPR say a new constitution put forward by President Kurmanbek Bakiev leaves the balance of power with him rather than parliament, and does not advance the cause of democracy in Kyrgyzstan.
Bakiev announced the October 21 referendum only a month beforehand, in a state-of-the nation speech he gave on September 19. The move was a response to a Constitutional Court ruling five days earlier that the current constitution, passed in December 2006, was null and void.
The present said his hand had been forced by the court’s decision. “Quite frankly, that news was difficult for me to take, but once I had looked at the Constitutional Court’s documents and conclusions, there was nothing left to do but and admit it was right and acknowledge that the law is supreme… It should serve as a lesson to all of us.”
Bakiev used his speech to set out the main points of a new constitution which he wants people to vote on. It is unclear when and how this document was drafted, since the court ruling came as a surprise to many.
If this draft is approved in the referendum, the current parliament or Jogorku Kenesh (Supreme Assembly), elected in early 2005, could be dissolved by the end of the year to make way for a new one.

CONSTITUTIONAL REFORM A HIGHLY POLITICISED ISSUE
The constitution has been at the centre of political debate since the March 2005 revolution which ousted the then president Askar Akaev from power.
In October 2005, Bakiev, who had been elected president three months earlier, set up a “constitutional conference” with nearly 300 members, tasked with drawing up a new document. By December 2005, after months of work, there were multiple drafts of the constitution in circulation, but no conclusive result, and Bakiev decided to put the whole process on hold.
Demands for constitutional reform then became a central rallying-point for the opposition, which accused Bakiev of failing to deliver on reform pledges and accumulating too much power. They wanted a new constitution to slash the authority of the head of state and give more powers to parliament instead.
In November 2006, under pressure from large opposition demonstrations, the authorities agreed to a compromise document, which parliament swiftly adopted. This version of the constitution strengthened the role of parliament and limited the president’s authority.
At the end of December, however, the constitution was reworked yet again and rapidly passed by parliament, reportedly after Bakiev threatened to dissolve the body if it did not comply with his wishes. The revisions largely re-established the status quo ante and restored most of the powers the president lost in the previous month’s version.
The Constitutional Court ruling of September 14 said that neither the November nor the December 2006 constitutions counted as valid, because they were passed without reference to the court.
Reviewing a case brought by two members of parliament, judges ruled that it was not lawful for the legislature to amend its rules of procedure to allow itself to pass constitutional amendments without referring them to the court.
The court said that Kyrgyzstan must revert to the constitution of 2003 for the time being.

NEW DOCUMENT STRENGTHENS ROLE OF PARTIES
Outlining the new version, Bakiev said its main thrust was to increase the role political parties play in Kyrgyz political life. All elected members of parliament should be answerable to parties rather than being “unaccountable and beyond anyone’s control”, he said.
At present, he argued, “even a small number of deputies protecting local interests or the interests of a narrow group of businessmen can block the passage of important pieces of legislation, or push through laws that suit them”.
The proposed constitution draft would see the one-chamber legislature increase in size from 75 to 90 seats. That change is not new, but inherited from the December and November 2006 documents.
However, whereas those versions envisaged that the old first-past-the-post electoral system would be replaced with proportional representation for just half the seats, the latest draft would see all seats filled by the new method, which is based on party lists.
As Bakiev pointed out, in the Kyrgyz political environment, the first-past-the-post system has worked to the advantage of local strongmen rather than democracy. In past elections, he said, that has allowed “votes to be bought, a divisive situation in every village and even every family…, armed clashes between candidates’ supporters, pressure on election commissions and even the seizure of [buildings of] the judiciary”.
“All this has to be stopped,” he said. “We need responsible parties which decide on a strategy of action and put their ideas and decisions into action.”

HARD FOR PARTIES TO WIN ABSOLUTE MAJORITY
The change to full proportional representation will affect the way governments are formed, and Bakiev’s critics say he is placing himself in an unassailable position since it will be difficult for any one of Kyrgyzstan’s numerous political parties to win a parliamentary majority.
Under the proposed system, if one political party wins over half of the 90 seats, it can nominate a prime minister for the president’s approval. With such a high hurdle for parties to meet, some analysts doubt any will be successful, so that Bakiev will be able to exercise the alternative provision which allows him to approach any party and ask it to form a government.
According to political scientist Shairbek Juraev, the possibility that a marginal party could be asked to form a cabinet goes against the spirit of proportional representation.
“The whole idea behind shifting to a proportional system is that the government must have the support of parliament,” he told IWPR’s News Briefing CentralAsia agency.
Moreover, he said, the parties’ room for manoeuvre is further restricted by the fact that there is no mechanism for them to build parliamentary coalitions in cases where none of them has an individual majority.
“However you want to describe this form of government, it will in practice be a presidential system,” he said Juraev.

PRESIDENT MAKES KEY APPOINTMENTS
In his speech, Bakiev identified another element of the proposed constitution as being to “strengthen the hierarchy of executive power, and give [regional and district] governors a greater role and more accountability, making them effectively into the president’s representatives on the ground”.
The new draft gives the president powers of appointment to most senior positions – he approves a prime minister, whose name is put to him by parliament. The prime minister then comes up with a cabinet which the president again approves.
The president also names the members of the National Security Council, and appoints and dismisses local judges. He also submits nominations to parliament for the posts of Constitutional Court and Supreme Court judges, the prosecutor general, the National Bank chief and the head of the Central Election Committee.
The president has wide-ranging powers to dismiss some, but not all, senior officials without consulting the legislature. These include the prime minister, cabinet members, the prosecutor general, and the National Bank and Central Election Committee heads
His critics argue that this leaves Bakiev and his successors as president with far too much power.
“This new draft constitution is aimed at creating a super-presidential system, since the president has all the leverage when it comes to appointments and dismissals,” said Asiya Sasykbaeva, the head of the Interbilim rights group.
Gulnara Iskakova, a constitutional law expert who is acting professor at the American University of Central Asia, says the mechanism by which the president can sack the entire government replicates the 2003 constitution.
“What’s the point of having a government formed by political parties when it can be dismissed by the president?” she asked.

PRESIDENTIAL PARTY COULD TAKE CONTROL
One obvious result of the change to the election system is that political parties will have more of a formal role to play. More than any other Central Asia country, Kyrgyzstan has a large number of parties representing a wide range of political views. In practice, though, they do not play much of a role because the current parliament – elected under the old system – is still in place.
Many observers believe that if parliament is dissolved to make way for an election to a new-shape legislature, there will be a flurry of activity as parties – both pro-government and opposition – join forces to create bigger, more powerful entities that are capable of winning substantial numbers of seats.
Iskakova points out that members of parliament can lose their seats if the political party they belong to ceases to enjoy legal recognition. This would make it possible to get rid of troublesome deputies by refusing to grant their party a renewal of their registration with the justice ministry – something all parties require to be allowed to stand in elections.
In his speech, President Bakiev also indicated that he wanted to set up his own political vehicle, which he described as “a party of creation, a party of responsibility, a party of action”.
Political scientist Turat Akimov believes such a pro-government force is likely to include Moya Strana (My Country), which is led by the head of the presidential administration Medet Sadyrkulov; Novy Kyrgyzstan (New Kyrgyzstan), headed by presidential adviser Usen Sydykov; and the Social Democratic Party, which is led by Prime Minister Almaz Atambaev and Finance Minister Akylbek Japarov.
Akimov fears that such a pro-government alliance might dominate Kyrgyz politics, as has happened in Russia and Kazakstan, where the sheer weight of the pro-presidential parties United Russia and Nur Otan, respectively, have left the opposition on the margins.
In an August 18 election in Kazakstan, which also followed changes to the constitution envisaging a new-shape legislature, Nur Otan, swept the board and won every seat in the lower chamber.
Political scientist Zayniddin Kurmanov does not think Kyrgyzstan will go this way, as the opposition is more established there. “A presidential party in Kyrgyzstan is going to win most of the seats, but not 90 per cent like in Kazakstan. Opposition parties will get 25 to 30 per cent of the vote,” he said..

END TO CURRENT PARLIAMENT ALMOST INEVITABLE
Perhaps surprisingly, the Kyrgyz opposition has so far not seized on Bakiev’s unilateral move to call for new protests. Its last major action was in April this year, when a street rally calling for Bakiev’s resignation and a new constitution fizzled out after police moved in to break up protestors.
Following the Constitutional Court ruling, Valentin Bogatyrev, director of the Fund to Support Development Programmes, said he doubted a major new political crisis was on the way.
Assuming the referendum result goes in Bakiev’s favour, Bogatyrev predicts that a new constitution will be in place by the end of the year.
While the November and December constitutions also envisaged changes to parliament and led to calls for the legislature to be dissolved to make way for fresh elections, nothing happened. In his speech, Bakiev said legislators had actively blocked attempts to unseat them.
This time round, it seems certain that parliament will be dissolved. In his speech, Bakiev made it clear he did not envisage a period where the new constitution was in force yet the old-style legislature remained in place, seeing out a mandate which ends in 2010.
“The majority of the Jogorku Kenesh’s members do not plan to shift to a party based system, and are doing everything they can to sabotage it,” he said. “So in addition to the constitutional bill, we’ll be putting a draft election law on the referendum agenda. That’s because there is a need to pin down as quickly as possible the legal mechanisms for holding elections under the new party-based system.”
On September 18, parliament reacted to the Constitutional Court ruling by passing a vote of no confidence in the institution, and asked the president to nominate new judges.
Bakiev’s views can be judged by his state-of-the-nation speech the following day, in which he did not even refer to the no-confidence motion and urged everyone to get on with the constitutional reform so as to put an end to political battles and focus on economic and governance tasks”.
IWPR