How Strong Is Kyrgyzstan's New Constitution?
Last updated (GMT/UTC): 02.07.2010 06:40
By Charles Recknagel
Kyrgyzstan's new constitution does what often seems to be the unthinkable in Central Asia and across the former Soviet Union: It limits the power of the head of state in a region where a single man -- call him president or prime minister or simply leader of the nation -- reigns supreme.
The Kyrgyz interim government, reeling from this month's violence in the south, hopes the new constitution will finally put the country on a stable footing. It refused to postpone the referendum schedule for June 27 and hailed the "yes" vote as proof the public overwhelmingly agrees. The document came into effect today.
But if the constitution's intention to limit presidential power seems clear and welcome, the new charter does not create a fully parliamentary system as the alternative. Rather, it tries to balance presidential and legislative power in a way that even the constitution's authors have trouble naming.
"From the very beginning," says Omurbek Tekebaev, the deputy head of the interim government and chairman of the constitutional council, "our opponents tried to say it's not a parliamentary system but a mixed one. We said, 'We didn't write it as a parliamentary system in this project. Historians and other academics should determine what it is.'
"We offered a constitutional project which can help Kyrgyzstan to get out of its difficult situation. We, the initiators of this project, are calling it a parliamentary system."
Not Real Power
In fact, the Kyrgyz Constitution creates two powerful positions -- one for the prime minister, the other for the president -- whose day-to-day balance will have to be worked out in practice.
"True, this project still gives enough big powers to the president. The president can veto, or refuse to sign any laws, except for laws related to budget and fiscal policy. He can send a law back to parliament," says Tekebaev. "[But the] Kyrgyz people don't consider this as a real power. The Kyrgyz people say power is when you are in charge of personnel policy, finances, and licenses."
This means that in Kyrgyzstan the president will be far from a figurehead, as he is in many European parliamentary systems. But he also will be nowhere near as powerful as he was in the past when he personally controlled the government's purse strings and with them much of the country's economic life.
The new constitution ushers in other changes intended to broaden the base of power-sharing in the country, including increasing the size of the parliament from 90 to 120 seats. It also sets a ceiling on just how powerful any one party in parliament can become.
The ceiling is that no party can hold more than 65 seats. This means that, in theory, the party could rule alone because it would have a simple majority. But in practice -- because party defections by individual deputies are frequent in many parliaments -- it means any single party would have to form a coalition to rule effectively.
An Understandable Violation
The 65-seat limit has surprised some observers, including at the Council of Europe's Venice Commission, which advised Bishkek on constitutional issues. That is because democracies don't usually seek to limit the success of political parties when they compete freely for public support.
But commission Secretary Thomas Markert says the provision may make sense given Kyrgyzstan's experience with authoritarian rulers.
"On the one hand, my first reaction was that I understand where it is coming from and I understand that good intentions are behind it," Markert says. "But on the other hand, of course, it is a bit of a violation of the quality of the votes because if one party is so good, why should it not be able to get more seats?
"So let's say my position would be somewhat reserved. I would not have advised to do it, but I can understand why it is being done in Kyrgyzstan."
Since Kyrgyzstan declared independence from the crumbling Soviet Union in 1991, it has had two autocratic presidents and two street revolutions to depose them. The first revolution was in 2005 and the second just two months ago, on April 7.
Another provision in the Kyrgyz Constitution that is not found in most constitutions is its eschewing of a constitutional court. Instead, all disputes over interpretations of the constitution are to be handled by the Supreme Court.
Markert says that unorthodox approach, too, is due to Kyrgyzstan's political experiences.
"The explanation mainly lies in the recent history of Kyrgyzstan and in the fact that the constitutional court did not play a positive role in 2006 and took a decision which facilitated at the time President Kurmanbek Bakiev's efforts to concentrate all powers in his hands," Markert says. "Therefore, this decision is a counterreaction to what happened at the time.
"But on the whole it may not be a very wise counterreaction and the system may not be very coherent. So, in this case we would have preferred Kyrgyzstan to stick to the model of having a constitutional court."
Other key provisions of the new Kyrgyz Constitution are more in line with standard practice.
Parliamentary elections are to be held every five years, with the first scheduled for October this year, and all citizens aged 18 and over are entitled to vote.
Additionally, no political party can be created on religious or ethnic grounds, and members of the armed forces, police, and the judiciary are not allowed to join a political party.
The president is limited to a single six-year term and candidates must be between the ages of 35 and 70, fluent in Kyrgyz, and have lived in the country at least 15 years.
Tekebaev says that in preparing the constitution, the authors "followed about 90 percent of the Venice Commission's proposals" to stick with well-established precedents.
That has pleased the Venice Commission, which has praised the result.
"On the whole, our reaction was quite positive," Markert says. "I think the Kyrgyz have tried to learn from the experience of other countries and have on the whole tried to find a viable system and so our reaction was quite positive also concerning the judiciary -- for example, on human rights there are advances in the text.
"So I think on the whole we should now support them in the implementation of the constitution, which will not be easy and not criticize but try to support the process which could lead in a very positive direction."
Dangers That Lie Ahead
But Market and many other observers underline that the true test for Kyrgyzstan's new constitution will not be how it is written but how it is applied.
A good illustration of the dangers that could still lie ahead is Ukraine, another post-Soviet state where a popular protest toppled an authoritarian order and brought in reforms. But there the constitution alone was not enough to assure that even reformist leaders would, in fact, share power.
Ivan Lozowy, a U.S. and French-trained constitutional law expert who is president of the Institute of Statehood and Democracy in Kyiv, says part of the problem was that Ukraine's constitution also gave strong powers to both the president and prime minister.
"There is quite a bit of incompetence [in the wording of the Ukrainian Constitution] in terms of key issues not being ironed out -- for instance, the delegation of powers and authority," Lozowy says. "We saw that having a prime minister as head of the executive and a president who is also head of the executive branch but has a separate authority really provided the foundation of this protracted and very bitter struggle between President [Viktor] Yushchenko and Prime Minister [Yulia] Tymoshenko because their authority was not clearly defined."
Lozowy says the problem is not so much the Ukrainian Constitution as the political culture that exists in much of the post-Soviet world. He calls it a culture of "political expediency" with deep roots in the region's authoritarian past and a "winner-take-all" mentality.
With that mentality, the powerful use their power to bend the laws and circumvent or influence the courts. As a result, neither the courts nor the lawmakers consistently uphold the constitution and its values, such as freedom of speech or assembly, are reduced to an abstraction.
"The constitution can't solve everything," Lozowy says. "It can't solve much. It can't make a difference in a society if a lot of aspects in a society don't change: corruption, the chief institutions of government, responsible government, putting the big criminals -- not the small-time criminals -- in prison, a free aggressive media. These things have to develop for the constitution to function."
A Tough Question
The challenge for Kyrgyzstan now will be to go far beyond simply writing a new constitution to developing the whole body of institutions and public expectations which assure a constitution is upheld and guides a society.
As Kyrgyzstan took its first step this week, Russian President Dmitry Medvedev gave it a dubious send-off. He told reporters at the G20 summit in Toronto that he did "not really understand how a parliamentary republic would look and work in Kyrgyzstan."
Medvedev asked, "Will this not lead to a chain of eternal problems -- to reshuffles in parliament, to the rise to power of this or that political group, to authority being passed constantly from one hand to another, and, finally will this not help those with extremist views to power?"
Put another way, the same question would be: Are not parliamentary systems, though a proven success in democratic countries, doomed to failure in the post-Soviet space?
It is a tough question, and Medvedev seems to have already found his answer. Now the Kyrgyz will look for theirs.
Radio Free Europe's Kyrgyz Service correspondent Venera Djumataeva contributed to this report
Copyright (c) 2010. RFE/RL, Inc. Reprinted with the permission of Radio Free Europe/Radio Liberty, 1201 Connecticut Ave., N.W. Washington DC 20036.
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