PROBLEMS OF CONSTITUTIONALISM IN THE REPUBLIC OF KYRGYZSTAN
Abstract
The transformation and democratization processes have given rise to several regimes that are difficult to define and cannot be classified in the traditional categories of totalitarianism, authoritarianism, and democracy. Contradictory types of democratic and nondemocratic regimes are creating unusual political systems that can be defined as “hybrid regimes,” “imitative democracies,” or “delegative democracies.” The ambiguity of these regimes is making it difficult to classify them according to the well-known categories. On the one hand, they contain many elements characteristic of an authoritarian regime, while on the other, they appear to be close to democracy. As J. Linz showed,1 the authoritarian elements are related to the instability of the political system, the continuous constitutionalizing of which has introduced ambiguity into the rules of the game. The democratic elements, in turn, are related to the declared adherence to the democratic idea expressed in constant political revision of the constitutional norms. This situation, which is typical of many states (not only of hybrid, but also of democratic regimes), is manifested very clearly in Kyrgyzstan.
The political system that has been forming in Kyrgyzstan for 16 years is akin to a “mobile, chaotic” regime. Amendments and addenda were made to the Constitution almost every two years (1994, 1996, 1998, 2001, 2003, 2006, 2007) and almost every time the interrelations among the branches of government and their powers underwent dramatic changes. All the novelizations,2 however, were introduced in their own “particular” way—with violation of the constitutional procedures for making amendments and addenda. Moreover, the political system was essentially not regulated by the Constitution, but by the law for putting the Constitution into effect. This law, in turn, established entirely different, and at times contradictory, adaptive-temporary provisions. This was compounded by the differences in the Constitution texts in the Kyrgyz (state) and the Russian (official) language. Theoretically, the Constitution in the Kyrgyz language dominated and was considered the main document. In practice, however, despite the principal contradictions in content, both versions were in effect at the same level.3 A situation developed in which the formal-legal side of political life consisted of several layers (or elements): constitutional, legislative, presidential decrees with statutory force,4 and by-laws. Each layer was horizontally and vertically unstable and mobile, frequently contradicting the others, and seemed to live a life of its own.
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References
Novelization (from the Ital. novella, lit. novelty)—the introduction of new provisions, amendments, and addenda
into the legislation.
See: R. Esembaeva, “Konstitutsiia po-kyrgyzski…,” Obshchestvennyi reiting (Bishkek), No. 44, 18 November, 2004.
Presidential decrees with the force of law should be categorized separately, since they differ from laws adopted by
parliament.
Decree of the Kyrgyzstan President No. 235 of 26 August, 2002, On Measures for Preparing Constitutional Reform
in the Kyrgyz Republic (in the version of Decree of the Kyrgyzstan President No. 234 of 8 September, 2002).
Local authors introduced the concept “nomadic democracy” or “tribal democracy.” This was supposed to empha-size the regional (local) nature of the democratic heritage and not its adaptation to Western culture. In this text, however,democratic heritage means the heritage of liberal democracy.
See: “Konstitutsia KR—osnova pravovoi reformy,” Res Publica (Bishkek), 3 July, 1994, p. 3.
According to Art 42.2 of the 1996 version of the Constitution, the KR President was a symbol of unity of the na-tion and state power and the guarantor of the KP Constitution and human and citizen rights and freedoms. This regulation was retained in the novelizations of 1998, 2001, 2003, 2006, and 2007.
G. O’Donnell, “Demokracja delegacyjna,” in: Przysz
undacja Aletheia, Warszawa, 2005, S. 176.
The executive power was not included in this analysis, since it depended on the president and was the actual ex-ecutor of his policy.
The ZhK was not a monolithic body. In almost all the ZhK’s convocations, some of the deputies projected them-selves as supporters of the president’s policy, while others posed as its opponents. The oppositional-minded deputies closely cooperated with the extra-parliamentary opposition.
In the versions of the Constitution of 1993, 1994, 1996, 1998, and 2001, the legislator meant “discrepancies with the Constitution,” and in the versions of 2003, 2006, and 2007 “contradictions with the Constitution.”
See: K.S. Sooronkulova, B.O. Tungatarov, “Konstitutsionnyi protsess v Kyrgyzskoi Respublike (1991-1998)” (from personal archives).
See: M. Sherimkulov, “Stroit demokraticheskoe obshchestvo s chistogo lista nevozmozhno,” Svobodnye gory (Bishkek), No. 6, August 1991, p. 4.
“I believe in a time when everyone will live morally.” Interview with Ch. Baekova—chairman of the Stand-ing Supreme Soviet Commission of the republic on legislation, lawfulness, and law and order. The interview was held by G. Deviatov, Svobodnye gory (Bishkek), No. 6, August 1991, pp. 2-3.
See: U. Chotonov, Suverennyi Kyrgyzstan: vybor istoricheskogo puti, Bishkek, 1995, p. 66; J.J. Wiatr, Europa pokomunistyczna. 1989 roku, Scholar, Warszawa, 2006, S. 258.
See: J.J. Wiatr, op. cit., S. 114-120.
Decree of the KR President No. UP-226 of 5 September, 1994, On Ensuring Political Stability in the Kyrgyz Re-public and Urgent Socioeconomic Measures.
See: B. Shamshiev, “Osennie ‘igry,’” Res Publica, 22 September, 1994, p. 2.
See: M. Ukushov, “Krizis konstitutsionnoi zakonnosti v Kyrgyzstane,” Res Publica, 6 October, 1994, p. 7.
Correspondingly, in the president’s decree, this point was formulated as follows: “Amendments and adden-da to the KR Constitution, KR laws, and other important issues of state life may be brought up for discussion at a ref-erendum.”
Decree of the KR President No. UP-245 of 21 September, 1994, On a Referendum on Amendments to the KR Constitution.
See: “Pobeditelem stanet narod.” Statement by Felix Kulov, Slovo Kyrgyzstana, No. 49 (21811), 17 May, 2005;K. Mambetov, “Tak diktuet vremia,” Slovo Kyrgyzstana, No. 49 (21811), 17 May, 2005; F. Kulov: “Adilet biilikke adilet shailoolor arkyluu gana kel g bolot” (A Fair Government Can Only Come to Power through Fair Elections), Agym (Bishkek), No. 51, 1 July, 2005, p. 8.
Answers by T. Ibraimov, see: “Nash opros. Opros provel S. Chernov,” Delo ¹…, No. 6 (673), 21 February,2007.
See: T. Koychumanov, J. Otorbaev, S.F. Starr, Kyrgyzstan: put vpered, Johns Hopkins University-SAIS, Washing-ton, 2005, pp. 8-13.
See: “The New Constitution: Politics or Law? Roundtable Transcript,” in: Kyrgyzstan Brief, Institute for Public Policy, Bishkek, 2006, Issue 7, pp. 11-17.
See: K. Hendley, “Rewriting the Rules of the Game in Russia: The Neglected Issue of the Demand for Law,” East European Constitutional Review, Vol. 8, No. 4, Fall 1999, pp. 89-92.
Speech by the President of the Kyrgyz Republic K. Bakiev at a meeting with representatives of political forces and civil society, 27 October, 2006.
See: K. Hendley, op. cit., pp. 89-93.
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