This article is part of ECFR's Wider Europe Forum
On 11 December, Kyrgyzstan will hold its sixth constitutional referendum since the country gained independence in 1991. The proposed constitutional amendments – which are likely to be endorsed in the popular vote – are set to roll back the country’s parliamentary system in favour of a strengthened executive.
If passed, the amendments will strengthen the powers of the president and prime minister, impinge on the independence of the judiciary, and curtail human rights and fundamental freedoms. The referendum follows a widely quoted interview with President Almazbek Atambayev in spring 2016, in which he mentioned the need for constitutional reforms in order to strengthen Kyrgyzstan’s sovereignty and national security.
The publication of the draft constitutional amendments on the Parliament website on July 29 has caused bitter controversy that risks plunging the country deep into political crisis. At the centre of this controversy stands President Atambayev himself, who has staked his political legacy on the success of the referendum, alienating many former political allies in the process and drawing sustained criticism from civil society activists. Politicians opposed to the draft amendments have recently become the targets of corruption investigations, the timing of which, rather suspiciously, appears to coincide with their criticism of the draft law.
International bodies such as the Venice Commission of the Council of Europe and the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) have also voiced their concerns on the amendments.Their preliminary joint opinion on the draft law stated that changes would negatively impact the balance of powers, strengthening the executive and weakening both the parliament and the judiciary, which could result in further erosion of human rights and fundamental freedoms.
Which articles are set to change?
From the outset, Article 1 of the amended Constitution would introduce a set of “supreme values” that include love for the motherland, honour and dignity and peace and accord in the country. As the Venice Commission-ODIHR review points out, such broad and ambiguous concepts could restrict the freedom of expression and opinion, especially in conjunction with Article 1’s new provision that “[n]o ideology can be aimed at undermining the highest values of the Kyrgyz Republic”. However, the amendments fail to specify what would be classified as a contradiction of the ‘supreme values’.
Changes to Article 6 and 41 appear to cater to Atambayev’s preoccupation with state sovereignty and the national interests of the Kyrgyz Republic. In its new formulation, Article 6 would remove the stipulation that “the norms of international human rights treaties are directly applicable and take precedence over provisions of other international treaties”, which could limit the extent to which Kyrgyzstan is accountable to international bodies. Changes to Article 41 would also rescind Kyrgyzstan’s obligation to provide redress and compensation to victims of human rights violations, following international adjudication.
The reforms would also severely undermine the independence of the judiciary. The amended Article 97, for example, would subject the decision of the Constitutional Chamber on the constitutionality of a law to the approval of the President and the Parliament – something that, at a basic level, contradicts the idea of separation of powers and independence of the judiciary. The amendments also expand the President’s powers over the judiciary by granting him “wide discretion” to appoint and dismiss Constitutional Chamber judges (Article 74).
Opacity in parliament
On top of the substantive shortcomings, the reform package has been marred by a series of procedural flaws. Activist-turned-parliamentarian Cholpon Djakupova revealed her lack of awareness that a draft law for constitutional reforms was even being prepared. This highlights the lack of transparency surrounding the drafting of the document. “No working group was created, this issue wasn’t discussed on the sidelines nor was it broached in parliamentary sessions or committees, so I doubt that this document was born inside Parliament”, Djakupova said in an interview with the Fergana News website. The head of the President’s own Social Democratic Party (SDPK), Isa Omurkulov, unwittingly confirmed this when he referred to the reforms as “an initiative of the country’s President”, despite it being within the constitutional remit of parliament.
Furthermore, the proposal was submitted shortly before the summer break, severely limiting the scope of any public debate, and without a prior opinion from the Constitutional Chamber as to its constitutionality, which Article 97 of the current constitution requires. This would appear to suggest that the President and his entourage wanted to avoid the serious and comprehensive public discussion warranted by the introduction of such sweeping changes. Indeed, the SDPK-led parliamentary majority hurried the draft law on the referendum through parliament in slightly over a month, in violation of Article 114 of the constitution, which stipulates that the three compulsory readings for a law introducing constitutional changes be held at two monthly intervals within a maximum timeframe of six months.
As a result, “the general public seems largely unaware of what the amendments entail”, civil society activist Edil Baisalov told the author. “The referendum is likely to pass anyway, though the situation is still too fluid to call. Still, Atambayev has hugely miscalculated and compromised his legitimacy in the process”.
The presidential gamble
Few appear reassured by Atambayev’s public guarantees that he will respect his constitutionally-mandated six-year single term and step down when it ends in late 2017, so speculation has been rife as to the President’s ulterior motives. Some have argued that he prepares to orchestrate a power swap, à la russe, and become the next Prime Minister, which would explain the broadening of the PM’s authority under the reform proposal. Others have contended that he wants to secure his position after his mandate ends, possibly retaining significant influence in the country from behind the scenes.
Only time will tell what President Atambayev’s long-term motives are for pushing the current constitutional reform package. Nobody knows whether his gamble will pay off, but the only certainty in Kyrgyzstan is that this process will take its toll on a democracy that is already fragile, and a country that can barely afford a weaker parliament and judiciary.
Franco Galdini is a freelance journalist specialising in the Middle East and Central Asia.