Given the vibrant opposition’s fervor to limit the President’s power through constitutional reforms, and the President’s stubborn determination to oppose that, the Kyrgyz Constitution appears a victim of the belligerent sides. Both opposition and pro-government parliamentarians ignored the voice of the Constitutional Court, which was to give a permission to consider the amendments, in November and December 2006. As an institution that should be at the center of the constitutional discussions, it remains highly constrained by the interests of some politicians and being used as a tool to delay constitutional reforms.

BACKGROUND: Established in 1993, the Constitutional Court quickly became a stumbling stone for other branches of government. During the regime of Askar Akayev, there were several attempts to abolish it by merging it with the Supreme Court. In 1995 the Parliament for the first time attempted to carry out a referendum on this matter; however it failed, since the Constitutional Court successfully disputed the constitutionality of the Parliament’s decision. In 2002, there was a second attempt to incorporate it into the Supreme Court on the wave of constitutional reforms initiated by the “expert commission” gathered by then President Akaev. The main argument was that merging the Constitutional Court with the Supreme Court, which has representatives at the local level, would bring it closer to the people by opening access for all citizens to turn to it. Experts argued that transferring its right of constitutional review to ordinary courts would contradict the basic principles of the legal system. They strongly contended that no local court could consider the cases of the Constitutional Court, decisions of which are final and cannot be disputed.

On 26 September 2005, acting Minister of Justice Marat Kayipov, after leaving the Constitutional Court as a judge, made a statement about radical reforms in the judicial branch. He resumed the efforts of the previous regime, arguing that the Constitutional Court failed to fulfill its tasks, pointing to its “inefficiency and detachment from the grassroots.” However, such radical moves on the part of government officials generated deeper suspicions. Undermined by the Akaev regime during the Constitutional reforms of 2003, the already weakened Constitutional Court again became threatened of abolition during the discussions on Constitutional reform that followed the ouster of Akaev. On the other hand, many pointed to Marat Kayipov’s bad personal relations with Cholpon Bayekova, the chairperson of the Constitutional Court. While Kayipov was part of Bakiev’s team, Bayekova was considered an Akaev cadre, and worked in the Court for more than 10 years. After the March 2005 events, she appeared critical about the new government’s unwillingness to proceed with radical reforms, especially in relation to the balance of power among the branches of government.

Formed after the March 2005 events to draft a new constitution, the variegated Constitutional Council, which included people from both the opposition and government, including local elders and high officials, had only one representative from the Constitutional Court: its chair, Cholpon Bayekova. The other five judges were excluded. The Constitutional Council proved inefficient in carrying out its task, given its cumbersome size and nature, representing people unwilling to compromise, and rather proving susceptible to advancing President Bakiev’s interests.

IMPLICATIONS: Over the last years, the Constitutional Court has remained paralyzed and sidelined from intensive discussions over Constitutional reform. It is unable to work fully because of the absence of a quorum. It presently has six judges, while one more is needed to form a quorum and three to fill all the vacant seats. Officially, the question of selection of judges stumbles on the “gender issue.” According to President Bakiev, the parliament is interested in choosing female nominees, which additionally should come from the southern part of Kyrgyzstan. And President Bakiev does not constrain himself from blaming the legislative branch for delaying the completion of a fully-fledged Constitutional Court, stressing that he nominated two candidates over six months ago.

Nevertheless, despite the President’s rhetoric about a “powerful and impartial” judicial branch, many experts and opposition parliamentarians claim that the president intentionally keeps the Constitutional Court idle by using his majority support in the Parliament. The Parliament has repeatedly postponed the process, thus hindering Constitutional reforms forced on the President by the strong opposition and geared towards limiting the President’s power.

Another reason why the Constitutional Courts remains paralyzed is related to the parliament itself. The rigged parliamentary elections of 2005, which led to ouster of Akaev, still mar the parliament’s legality and legitimacy. In a recent interview, newly appointed Prime Minister Almaz Atambaev expressed his skepticism that lawmakers would be in favor of the Constitutional Court’s activities, which among other would be scheduled to consider the numerous complaints coming from parliamentary candidates that were officially defeated in 2005 but claim their defeat was caused by fraud. If these cases were brought to court, several of the seats in the parliament could be disputed.

As the court remains crippled, its power has been considerably reduced. As a result of the constitutional amendments that were controversially passed during the political tensions of November and December 2006, the articles about the power of the Constitutional Court were cut to five out of nine guaranteed by Constitutional amendments in 2003. Moreover, according to the last draft of the constitution developed by the working group headed by Prime Minister Atambaev, some of the court’s function could be abolished. For example, if these amendments are passed, the Constitutional Court will not be able to assess the constitutionality of the activities of political parties and public organizations, while being confined to the issues related to state bodies and protecting citizens’ rights.

Last but not least, one reason for the impediments to a functional court is that if a sound and potent Constitutional Court is established, questions over the legitimacy of the constitutional amendments passed in November and December are likely to be raised. The November amendments, believed to usher in a parliamentary system, were pushed forward by the opposition parliamentarians backed by thousands of people on the streets. A month later, the pro-Bakiev parliamentarians returned the lost powers to the president, given the apparent contradictions in the constitution, falling short of considering provisions for a transitional period.

CONCLUSIONS: The necessity of staffing the Constitutional Court is apparent, and could come to the fore soon as the opposition and the government should come to an agreement on a draft of a yet again revised constitution. However, the Constitutional Court’s current state of idleness is favorable for the pro-Bakiev parliamentarians and for the President himself. It helps the president and his parliamentary supporters delay the process of constitutional reforms, which they firmly oppose, and prevents the legitimacy of parliament and the constitutional amendments from being questioned. Such foot-dragging could also serve to cool off the opposition’s supporters on the streets. In general, the judicial branch remains weak and susceptible to the influences of the other two branches. Not only the Constituional Court but other courts as well are far from fully staffed.

AUTHOR’S BIO: Joldosh Osmonov and Nurshat Ababakirov, American University of Central Asia, Bishkek, Kyrgyzstan.