History of establishment and development
of the constitutional oversight
in the Kyrgyz Republic

 

The first steps to create a mechanism to protect the Constitution were made at the times of “perestroika” before the collapse of the USSR and the independence of the Kyrgyz Republic.

In accordance with the Law of the Kyrgyz SSR dated September 23, 1989 “On changes and amendments to the Constitution (the Fundamental law) of the Kyrgyz SSR” the constitutional oversight authority was created – i.e. the Committee of the constitutional oversight of the Kyrgyz SSR.

The Committee was tasked with providing the Supreme Soviet of the Kyrgyz SSR its conclusions on conformity with the Constitution of the Kyrgyz SSR the draft laws subject to scrutiny, the acts of the Supreme Soviet, the observance of compliance with the Constitution and laws of the Kyrgyz SSR the resolutions and directives of the Council of Ministers, the decisions of local Councils of people’s deputies as well as acts of other governmental agencies and public associations. The Committee was composed of the chairperson, deputy chairperson and seven members and was elected by the Supreme Soviet of the Kyrgyz SSR for the term of 10 years; the members were elected from among the specialists in politics and law.

Later the Law of the Kyrgyz SSR dated April 12, 1990 “On changes and amendments to the Constitution (the Fundamental law) of the Kyrgyz SSR” expanded the list of subjects entitled to the right of appeal to the Committee for the purpose of getting a conclusion on whether the acts of state bodies and public associations were in line with the Constitution of the Kyrgyz SSR. In addition, the law specified the procedure for the Committee to produce its conclusions and ensure their enforcement. These amendments formed the special law “On the constitutional oversight in the Kyrgyz SSR” dated April 14, 1990; the law defined the basic principles, competencies and procedures in the Committee of the constitutional oversight of the Kyrgyz SSR.

The competencies of the Committee of the constitutional oversight of the Kyrgyz SSR included the following issues in terms of correspondence to the Constitution the Kyrgyz SSR:

–   Draft laws of the Kyrgyz SSR as well as other acts to be reviewed by the Supreme Soviet of the Kyrgyz SSR;

–   The laws of the Kyrgyz SSR as well as other acts adopted by the Supreme Soviet of the Kyrgyz SSR.

In addition, the Committee of the constitutional oversight checked whether the following documents, adopted by the Supreme Soviet of the Kyrgyz SSR were in line with the Constitution of the Kyrgyz SSR and the laws of the Kyrgyz SSR:

–   Acts of the Supreme Soviet of the Kyrgyz SSR, as well as draft acts submitted for the consideration of this institution;

–   Resolutions and directives of the Council of Ministers of the Kyrgyz SSR;

–   Decisions of provincial, rayon, municipal, district Councils of people’s deputies of the Kyrgyz SSR;

–   International agreements and other commitments of the Kyrgyz SSR;

–   Acts of other governmental agencies and public associations which were not subject to the procuracy oversight in accordance with the Constitution of the Kyrgyz SSR.

At the same time, the jurisdiction of the Committee of the constitutional oversight did not cover the verdicts and other decisions of civil, criminal and administrative courts as well as the decisions of investigating bodies, prosecution and state arbitration.

The establishment of the position of the President of the Kyrgyz SSR on October 24, 1990, the adoption of the Law of the Kyrgyz SSR “On the establishment of the position of the President of the Kyrgyz SSR and introduction of changes and amendments to the Constitution (the Fundamental law) of the Kyrgyz SSR” as well as the elections of the first President of the Kyrgyz SSR resulted in significant changes of the system of state power and governance bodies. In accordance with the Law of the Kyrgyz SSR “On the reorganization of the system of state power and governance bodies in the Kyrgyz SSR and the introduction of changes and amendments to the Constitution (the Fundamental law) of the Kyrgyz SSR” dated December 14, 1990 the Committee of the constitutional oversight was abolished and Kyrgyzstan became one of the first former USSR republics to create the highest judicial body for the constitutional oversight, i.e. the Constitutional Court of the Kyrgyz SSR.

This day became the starting point for the constitutional justice in the Kyrgyz Republic.

The abovementioned law provided that the Constitutional Court be elected by the Supreme Soviet of the Kyrgyz SSR upon submission of the President of the Kyrgyz SSR for the term of 10 years and shall be composed of the chairperson, two deputy chairpersons and six justices. Persons elected to the Constitutional Court had no right to simultaneously be the officials of the supreme and local bodies of the state power and governance of the Kyrgyz SSR. On the same day the first chairperson and the deputy were elected.

In accordance with the Law of the Kyrgyz SSR “On the reorganization of the system of state power and governance bodies in the Kyrgyz SSR and the introduction of changes and amendments to the Constitution (the Fundamental law) of the Kyrgyz SSR” dated December 14, 1990, the Constitutional Court had the following competencies:

–   Oversee that the laws of the Kyrgyz SSR, the decrees of the President of the Kyrgyz SSR, the resolutions and directives of the Cabinet of Ministers of the Kyrgyz SSR, the decisions of provincial, Frunze municipal, rayon, other municipal and district Councils of people’s deputies are in line with the Constitution and the legislation of the Kyrgyz SSR;

–   Within its jurisdiction settle disputes between provincial, Frunze municipal, rayon, other municipal and district Councils of people’s deputies and state power and governance institutions of the Kyrgyz SSR;

–   Settle other disputes in the area of state power and governance of the Kyrgyz SSR, which were referred by the Constitution of the Kyrgyz SSR and other legislation of the Kyrgyz SSR to its competence.

Decisions made by the Constitutional court were mandatory for implementation by all state and governance institutions as well the officials of the Kyrgyz SSR.

The organization, competence and procedures of the Constitutional Court were defined in the Constitution as well as the Law “On the Constitutional Court of the Kyrgyz SSR”.

The establishment of the Constitutional Court as the special judicial body with the function of constitutional oversight was indeed the manifestation of the commitment of the Kyrgyz Republic to strengthen the statehood and create a democratic state based on the rule of law.

Nevertheless, as the subsequent events showed, all attempts to ensure effective constitutional oversight were in vain. The newly created state bodies were little effective or not operational at all.

More meaningful changes were observed after the proclamation of independence of the Kyrgyz Republic and adoption of the first Constitution of the sovereign country on May 5, 1993.

The Constitution of the Kyrgyz Republic redefined the place and role of the judicial system and the Constitutional Court in particular; it also laid the foundation for the judicial and legislative reform in the country.

In accordance with the Constitution of the Kyrgyz Republic of 1993 the Constitutional Court of the Kyrgyz Republic had jurisdiction over the following cases:

–   Recognition of unconstitutionality of laws and other normative and legal acts in the event of their contradiction to the Constitution;

–   Settlement of disputes related to the purview, enforcement and interpretation of the Constitution;

–   Producing the opinion on the legality of elections of the President of the Kyrgyz Republic;

–   Producing the opinion on the impeachment of the President of the Kyrgyz Republic, as well as dismissal of judges of the Constitutional Court, the Supreme Court as well as the High Arbitration Court of the Kyrgyz Republic;

–   Agreement to the initiation of criminal proceedings against the judges of local courts;

–   Producing the opinion on the changes and amendments to the Constitution of the Kyrgyz Republic;

–   Cancellation of the decisions of local self governance bodies in the event that they contradicted the Constitution of the Kyrgyz Republic;

–   Decision on constitutionality of law enforcement practice encroaching upon the constitutional rights of citizens.

The Constitutional Court of the Kyrgyz Republic was composed of nine judges; the candidates were nominated by the President of the Kyrgyz Republic and elected by the Jogorku Kenesh of the Kyrgyz Republic for the term of 15 years.

The Law of the Kyrgyz Republic “On the Constitutional Court of the Kyrgyz Republic” and the Law of the Kyrgyz Republic “On constitutional legal proceedings in the Kyrgyz Republic” were adopted by the Jogorku Kenesh of the Kyrgyz Republic on December 18, 1993.

The first decision of the Constitutional Court of the Kyrgyz Republic was pronounced only on November 9, 1995 by giving a positive opinion on the draft Law of the Kyrgyz Republic “On the introduction of changes and amendments to the Constitution of the Kyrgyz Republic”, which was initiated by the President.

Later during 15 years the Constitution was four times subject to changes and amendments, which were adopted through referenda. The referendum held on February 2, 2003 excluded from the competencies of the Constitutional Court the decisions on the constitutionality of law enforcement practices encroaching on constitutional rights of citizens – instead of that the Court was mandated to decide on the constitutionality of activities of political parties, public associations and religious organizations.

Manifestations of opposition in March 2005 resulted in the act of national disobedience and on March 21, 2005 caused the deposition of the first President of the Kyrgyz Republic. President Akaev and his allies fled the country. The constitutional reform process was initiated.

After having significantly updated its Rules of procedure, the Jogorku Kenesh adopted the laws “On the new version of the Constitution of the Kyrgyz Republic” on November 8 and December 30, 2006. But on September 14, 2007 the Constitutional Court made a decision that article 16-1 of the Law of the Kyrgyz Republic “On the Rules of procedure of the Jogorku Kenesh of the Kyrgyz Republic” was unconstitutional and declared the two above laws null and void. These developments resulted in a long-term confrontation between the Jogorku Kenesh and the Constitutional Court.

On September 19, 2006 the President issued a Decree to hold a referendum on adoption of the law “On the new version of the Constitution of the Kyrgyz Republic”. On October 21, 2007 the new version of the Constitution proposed by the President was adopted thereby vesting the President with unlimited powers.

On the next day i.e. October 22, 2007, the Jogorku Kenesh was dissolved by the Decree of the President of the Kyrgyz Republic.

The formal pretext for this political move was the protracted conflict between the Jogorku Kenesh and the Constitutional Court; the latter institution at that time has become a tool in the hands of the President in his pursuit of power.

In accordance with the Law of the Kyrgyz Republic “On the new version of the Constitution of the Kyrgyz Republic” dated October 21, 2007, the Constitutional Court was vested with the following constitutional competencies:

–   Recognize unconstitutional laws and other normative and legal acts in the event of their contradiction to the Constitution;

–   Settle the disputes arising from the purview and enforcement of the Constitution;

–   Provide the opinion on the constitutionality of the elections of the President;

–   Provide the opinion on the draft Constitution, laws on changes and amendments to the Constitution and its new versions;

–   Determination of constitutionality in the activity of political parties, public associations and religious organizations.

Later unlimited presidential power resulted in the establishment of privileged position of a certain group of people over the entire society which subsequently caused growing discontent with the state power among the civil society.

On April 7, 2010 popular unrest developed into clashes with the law enforcement agencies and subsequent multiple human casualties. President Bakiev and his allies escaped from the country, the state power on the entire territory of the Kyrgyz Republic became totally paralyzed.

In view of critical political situation in the country, the opposition forces formed the Provisional Government and by the Decree No 1 dated April 7, 2010 assigned to the Government the functions of the highest legislative and executive authority in the Kyrgyz Republic.

The second Decree of the Provisional Government included the historical and political assessment of the performance of the Constitutional Court of the Kyrgyz Republic since the moment of its creation.

DECREE OF THE PROVISIONAL GOVERNMENT

OF THE KYRGYZ REPUBLIC

On reformation of the Constitutional Court of the Kyrgyz Republic

April 12, 2010 VP No 2                                                                                                                                               Bishkek city,

The Constitutional Court of the Kyrgyz Republic, which was created in 1993 to protect the Constitution of the Kyrgyz Republic, during the years of its existence failed to meet the expectations and contributed to the concentration of powers in the hands of one individual persons both at the times of presidency of Mr. A. Akaev, as well as Mr. K. Bakiev.

The constitutional Court provided positive opinions on all changes and amendments offered to the Constitution in 1996, 1998 and 2003 by the referenda – these were aimed to strengthen the competencies of the Presidents of the Kyrgyz Republic. Therefore by acting so, the Constitutional Court contributed to the destruction of checks and balances mechanisms envisaged in the Constitution of 1993.

In 1998 the Constitutional Court of the Kyrgyz Republic roughly violated the provisions of the Constitution and delivered a verdict which allowed President Akaev to run for this position for the third time.

After the revolution of 2005 there were many hopes for the Constitutional Court of the Kyrgyz Republic. But within a short period of time this institution again demonstrated its dependence, as in September 2007 it again produced a positive opinion on the draft changes and amendments to the Constitution of the Kyrgyz Republic. These amendments were adopted at the so called “referendum”, which legitimized full usurpation of power by the President K. Bakiev.

In December 2009 President K. Bakiev submitted to the review of the Jogorku Kenesh of the Kyrgyz Republic a bill which envisaged the mechanism of transfer of Presidential competencies through the Presidential Assembly, while the composition of this body was not specified in the bill. Despite the fact that such mechanism of temporary transfer of Presidential powers actually meant the handover of competencies to the closest relatives of Mr. Bakiev with its subsequent legitimation, the Constitutional Court then produced its positive opinion, “requesting” the replacement of the Presidential Assembly by the State Council.

Therefore the Constitutional Court failed to implement its assigned functions to protect the Constitution and was transformed to a body contributing to the strengthening the power of an individual person.

The activities of the Constitutional Court of the Kyrgyz Republic to strengthen the power of one individual resulted in the events of April 6 – 7, 2010 and downfall of the unpopular regime of Mr. K. Bakiev.

In order to exclude the attempts of using the Constitutional Court of the Kyrgyz Republic for destabilization purposes, the Provisional Government of the Kyrgyz Republic adopts the following decree in accordance with Decree No 1 dated April 7, 2010:

The Constitutional Court of the Kyrgyz Republic shall be abolished until special decision is made by the Provisional Government of the Kyrgyz Republic.

Chairperson of the Provisional Government of the Kyrgyz Republic                                           Rosa Otunbaeva,

Thereby the Constitutional Court as the highest judicial authority to protect the Constitution, ceased to exist.

On June 27, 2010 the referendum (popular vote) was held, which adopted the new Constitution. In line with this Constitution a new constitutional oversight institution will be established i.e. the Constitutional Chamber of the Kyrgyz Republic, which shall be institutionally and from the organizational point of view the highest and independent judicial body.