A COUNTRY IN SEARCH OF LOST CONSTITUTION: KYRGYZSTAN


27/11/2016





 In modern jurisprudence and legal theory, the principle of separation of powers has been defined as the existential condition of democratic government. Having described by Montesquieu as vesting of the legislative, executive, and judiciary powers of government in separate bodies, the principle of separation of powers provides a form of government which was not excessively centralized in all its powers through distributing it among several bodies. In this context, this principle strictly protected as the essential ingredient of modern constitutional democracy since it prevents the fusion of legislative, executive and judicial organs and concentration of power in one hand.On the other hand, existing systems of government are far from theoretically defined ideals since today we can even face with the loss of the constitution as a set of fundamental principles according to which a state is governed.In recent days, Kyrgyz parliament was the scene of the referendum debate between President Almazbek Atambayev’s party so-called the Social Democratic Party and the coalition partners, - Kyrgyzstan Party, Development and Progress Party and the Socialist Ata Meken Party – about the constitutional amendments scheduled on December 11.  The Social Democratic party broke up with its coalition partners over their refusal back to amendments to the Constitution which would strengthen the powers of the executive; President Atambayev has accepted the resignation of the government. During a debate over proposed changes to the constitution in Kyrgyzstan, something interesting has emerged and politicians have lost the country’s constitution. The copies of Kyrgyz Constitution exist but the original and signed version of it is still missing.Having spoken to 24.kg News, Farid Niyazov, head of the president’s administration, stated that 2010 Constitution might have no signature and his statement has raised a question mark in minds. Kyrgyzstan had been the most democratic state in authoritarian Central Asia after leaving the Soviet Union. Nevertheless, the country had turned into an authoritarian regime under the leadership of Askar Akayev and later Kurmanbek Bakiyev; the government has changed hands as a result of the riots occurred. The Tulip Revolution of 2005 led to President of Kyrgyzstan, Askar Akayev' fall from power and The Kyrgyz Revolution of 2010 ousted Kyrgyz president Kurmanbek Bakiyev following by increased tension in the country. Immediately after the constitutional referendum held to consolidate a new parliamentary system from the presidential system and Almazbek Atambayev has become the president. Omurbek Tekebayev, one member of the ruling coalition, the Ata Meken party leader and the head of the commission that drafted the constitution in 2010, has opposed the amendments, arguing that reforms would never come into force under the leadership of Atambayev and the country would never have a parliamentary system of governance.Over the constitutional amendment debate, Tekebayev made a statement and argued that while the 2010 Constitution of the Kyrgyz Republic introduced a more balanced distribution of power, a stronger legislature, and an improved section on human rights, the proposed amendments to the Constitution would negatively impact the balance of powers. Likewise, the 2010 constitution opposes any constitutional amendment to be made until 2020.On the other hand, the constitutional referendum is important regarding Atambayev' political future. Since the 2010 Constitution strengthened the powers of the executive and the parliament while it has been weakening both the executive and limited presidential term of office into a period. Atambayev’s term of office which will expire in 2017, but it is not yet known whether Atambayev has plans to become the president again since he did not comment on the issue. However, changing the form of government by shifting parliamentary system is among the changes.The Venice Commission as an advisory body, composed of independent experts in the field of constitutional law, has published joint opinion in order to review draft amendments to the Constitution of the Kyrgyz Republic. While the Commission has accepted that it may be justifiable to clarify certain parts of the 2010 Constitution, the Venice Commission also noted, “the proposed amendments to the Constitution would negatively impact the balance of powers by strengthening the powers of the executive, while weakening both the parliament and, to a greater extent, the judiciary. ” Furthermore, the Commission stated that some of the proposed amendments raise concerns with regard to key democratic principles, in particular the rule of law, the independence of the judiciary, and have the potential to encroach on certain human rights and fundamental freedoms. As stated in the Joint Opinion, the initiative for a referendum does not only require adoption by a two-thirds majority, but should also only take place following at least three readings with two months’ intervals in between. Additional recommendations are also included in the text of the Joint Opinion and added.On the one hand, the loss of the constitution has brought light into political situation in Kyrgyzstan; on the one hand it has demonstrated that existing systems of government are far from theoretically defined ideals of separation of powers. Following the collapse of the Soviet Union in 1991, Kyrgyzstan became an independent country. Distinguishing from some of its neighbors, Kyrgyzstan has been notable progress to develop a pluralist polity; the country has been called as “island of democracy in Central Asia”.Still it is hard to say that people from Kyrgyzstan will do the same things as politicians did and take a step into uncertainty in constitutional referendum which is planned to be held on 11 December 2016. Thus we will see what will happen next. Nuran YILDIRIM 

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