On April 11, Kyrgyz voters headed to the polls to cast ballots in local council elections will also be asked to approve or reject a draft constitution that aims to shift Kyrgyzstan’s government back to a presidential model, which it had abandoned after 2010’s revolution.
In a joint legal opinion issued March 19 in response to a December 2020 request from Kyrgyzstan’s Ombudsman, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the Venice Commission of the Council of Europe outlined several serious concerns regarding the draft constitution as well as the hurried process by which it has come to fruition.
One of the most serious concerns about the draft constitution relates to the “overly prominent role and prerogatives” of the president over the executive branch. The weakened role of parliament and “potential encroachments on judicial independence” are consequential features of the draft, as well, which the OSCE ODIHR and Venice Commission recommend be rectified. They also recommend revising the draft’s provisions related to human rights and fundamental freedoms to avoid “vague wording.”
U.S. officials echoed the concerns listed by the OSCE ODIHR and Venice Commission, with Deputy Assistant Secretary for Central Asia Jonathan Henick highlighting in an interview with The Diplomat three primary areas: the issue of judicial independence, the tricky matter of defining “Kyrgyz values,” and potential threats to civil society inherent in the draft constitution.
With regard to the judiciary, the opinion notes that the “The practical result of the proposed set-up appears to be that the President will have a pivotal role in the appointments of judges (all the way down to the local level).”
Henick echoed the opinion’s recommendation that judges in the Judicial Council be chosen by the judiciary rather than the president. “In that regard we think that judicial nominees should be chosen by the judiciary rather than by other branches of government,” Henick said, highlighting the need to maintain the independence of the judiciary.
The opinion warns that the draft’s provisions “introduces a high degree of politicization in the judicial appointment procedure,” thus raising concerns about independence and undue presidential influence.
When it comes to the matter of “Kyrgyz values,” Henick said that “Kyrgyz people value human rights.”
“Any kind of constitutional reform that runs the risk of undermining universal human rights I think would be contrary to the values of the Kyrgyz people,” he said.
While the opinion welcomes references to the “protection of human and civil rights and freedoms” it is concerned by references to “morals, ethical values and the ‘public conscience of the people’ as potential grounds for restricting activities and human rights and fundamental freedoms…” Such language invites abuse through subjective interpretation of the terms – what, exactly is the “public conscience of the people”? In addition, the fact that the chapter on the “spiritual and cultural foundations of society” comes before the section on human rights “tends to suggest a shift of priorities and a dilution of the weight and value given to human rights and fundamental freedoms.”
Henick characterized this putting of “universal human rights” in a secondary position as a “mistake.”
Lastly, Henick raised concerns about the draft constitution’s implications for civil society.
One article in the draft, which references the “protection of the younger generation,” outlines that “activities that contradict moral and ethical values and public conscience of the people of the Kyrgyz Republic may be restricted by law.” Using ill-defined “moral and ethical values” as potential grounds to limit the freedom of expression opens a Pandora’s box of excuses to crack down on media and civil society.
“It would really be unfortunate,” Henick commented, “since Kyrgyzstan has certainly been a leader in the region in encouraging and developing civil society organizations.”
Henick pointed to provisions in the draft that reference the “financial transparency” of civil society organizations as running the risk of undermining progress. The opinion echoes this, commenting that “The U.N. Special Rapporteur on the rights to freedom of peaceful assembly and of association specifically warned against the misuse of transparency as a pretext for ‘extensive scrutiny over the internal affairs of associations, as a way of intimidation and harassment’.” (For an example, look no further than neighboring Kazakhstan or Tajikistan, where the taxman serves as the means by which to exert pressure on civil society organizations and media).
The OSCE ODIHR and Venice Commission opinion is painstakingly thorough, pointing out inconsistencies and recommending changes throughout the draft constitution. It’s no accident that the first recommendation is ensuring that the constitutional reform process “allows for informed, inclusive and meaningful discussions within and outside parliament, with the participation of all relevant stakeholders, guaranteeing adequate time for discussion of the draft constitution at all levels.”
That one of the very first comments in the section-by-section analysis of the draft is that it is “difficult to read” and features numerous inconsistencies is indicative of the opaque and rushed process by which the draft has been slapped together.
With the vote on the draft just about three weeks away, it’s difficult to envision the kind of meaningful discussions and necessary revisions to the draft before people head to the polls.
“Broadly speaking, we’re hopeful that the [OSCE ODIHR/Venice Commission] report can be studied closely and taken into account as the Kyrgyz government and the Kyrgyz people map their way forward,” Henick said.