Lawyers of the public fund “Legal Clinic Adilet” prepared a profound analysis of the draft Law “On the Constitution of the Kyrgyz Republic”. They came to the conclusion that many provisions of the draft law under consideration violate the principles of the rule of law and legal certainty; there are internal contradictions of a fundamental nature in it.
Men of law note that the text of the bill, published for public discussion on November 17, 2020, does not meet the legal requirements of the rule-making technique, the structural logic of the document is not followed, the content of individual articles does not correspond to the title of chapters and sections.
“The substantiation note does not contain any sense load, analysis of the situation and the normative base of the republic, specific grounds and reasons that prompted the exclusion or change of the wording of human rights, redistribution of powers between the institutions of power, etc. The reference contains only a brief description of some legal norms of the document, which does not correspond to the legislative rules for the preparation of draft normative legal acts,” write the lawyers.
At the same time, it is emphasized that the content of the section on human rights does not meet international standards, many of the most important rights and freedoms protected by international law are not in the draft Constitution.
“This concerns the right to refuge, the prohibition of the exploitation of child labor, personal integrity and other fundamental human rights guaranteed to every member of the human family. The guarantees of dual citizenship are excluded, therefore, at the legislative level, a ban on obtaining another citizenship can be established. The study of the draft Constitution shows a decline in the status of the principles of the rule of law and human rights. Instead, the dominant role is assigned to the supremacy of moral values, social justice and universal human moral principles,” note the lawyers of the public fund “Legal Clinic Adilet”.
The document strengthens the provisions on responsibility for statements or actions that contradict generally recognized moral values and traditions of the peoples of Kyrgyzstan. This will make it possible to establish and tighten criminal liability for expressing an opinion.
“It should be noted that currently the legislation also provides for certain types of liability for such behavior. However, now there are specific criteria established by the norms of laws, and the proposed changes will provide an opportunity for a broad, arbitrary interpretation of the concepts of moral and traditional values,” the lawyers point out.
The draft of the new Constitution provides for a radical redistribution of the powers of the institutions of state power in the direction of a significant strengthening of the President’s sole power. It eliminates the system of checks and balances, which is the central link in the principle of separation of state power.
“The executive branch, headed by the President, actually occupies a dominant position and has vast opportunities to influence the activities of all state structures, including the judicial system. The possibilities of ensuring the independence and self-reliance of the judicial branch are sharply reduced, which will inevitably affect the fairness of justice,” write the lawyers.
Jurists are sure that this undermines all the achievements of the country’s judicial and legal reform. The head of state is authorized by the new Constitution with broad opportunities in the field of forming legislation, as well as the exclusive right to call a referendum, including on changing the Basic Law, etc. The minimum number of formal mechanisms for monitoring the legality of the President’s activities will hardly allow them to be applied in practice.
“A comparative analysis between the authorities of various institutions of power under the Constitution of Kyrgyzstan (2007) and the proposed draft of the new Constitution shows that the initiators of the constitutional referendum are proposing to give the President even more power than he had before April 2010, including by reducing the powers of the Parliament,” note the representatives of the public fund “Legal Clinic Adilet”.
The lawyers also found that the status and role of the Parliament in the system of state structure of the republic is significantly reduced, its powers and guarantees of independence of deputies are being reduced.
At the same time, the authors of the analysis agree that the current Constitution of 2010, together with the amendments adopted in 2016, also requires qualitative revision.
“This concerns the same issue of the system of checks and balances. Now the status of the President remains uncertain, who does not belong to any of the branches of state power, but is the head of state and has significant powers. In such case, the draft Constitution accurately defines the role of the President, however, troubling the balance between the branches of government. In this connection, a repetition of serious mistakes made by the authorities in 2010 and 2016 is possible. In addition, the Institution of the People’s Kurultai is being introduced with an absolutely incomprehensible status in the system of state structure and functions characteristic of the Parliament,” the lawyers emphasize.
Based on the results of the analysis, they came to the conclusion that the initiated draft of the Constitution requires a qualitative revision in the field of harmonious and fair distribution of power between state institutions.
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