On November 15, 2006, the Institute for Public Policy held a roundtable on “The New Constitution: Politics or Law?”

Guest speakers included Aida Salyanova, Head of the Support Department for the Parliamentary Committee on Constitutional Law, State Structure, Legal Refom and Human Rights; Suerkul Kasakov, Dean of the Law Department of Kyrgyz State University; Galina Mukambaeva, Head of the Department of State Theory and Law of Kyrgyz State University; Gulnara Iskakova, Assistant Professor of Law at American University-Central Asia; Zainidin Kurmanov, UNDP Expert; Nurlan Sadykov, Director of the Institute of Constitutional Policy; and Tamerlan Ibraimov, Director of the Center for Political and Legal Research.  

In his introductory speech, the President of the Institute for Public Policy, Muratbek Imanaliev, noted that the new constitution came as a forced compromise between political actors. In light of the politically-intense situation, this document was adopted and signed in a short period of time, not only according to local criteria, but according to international criteria as well. The barely-born constitution has already caused hot debates among politicians, lawyers, and political analysts due to the numerous contradictions and vague points of the text.

Experts stated first of all that the new constitution is more a political agreement than a legal document. Agreed upon in light of high political tension, this document has many contradictions, which are already the cause of various initiatives for amendments and changes.

Participants noted that it was not clear for what purpose this new constitution was adopted so hastily.

“If the purpose of adopting a new constitution was to reduce the President’s power, then this goal was not achieved. According to the new constitution, the President’s powers are limited only in the section that addresses the President’s powers; these powers were simply moved to other sections. The system remains the same: the President has maintained his main powers. Therefore, what the victory of opposition is remains unclear to me” – said Gulnara Iskakova.

One of the key issues of the new constitution is the provision on how the government is formed. The Cabinet of Ministers will be formed not by parliamentary majority or coalition majority, as it is in many countries, but by an individual party. According to the new text of the Basic Law, the prerogative to form the government is given to the party which gets more than 50% of those seats of parliament that are elected according to a proportional system (in which seats are distributed according to party lists, i.e. the proportion of votes that a party receives across all voting districts). According to the constitution, no less than 50% of the seats in parliament are to be allocated according to party lists.    

In theory, this “majority” could be any party which gets twenty-three seats out of ninety, under the conditions that the half of all MPs are elected according to party lists. If none of the parties are able to get more than half of the parliamentary seats that are elected according to the proportional system, then the President has a right to choose any political party which won elections, and ask them to form the Government of the Kyrgyz Republic.

“If a party has won only three seats in parliament, then three MPs will have the right to decide, which puts forth the question as to whether the rest of the MPs would tolerate such a circumstance? Herein lies a possibility for conflict” – said Tamerlan Ibraimov.

If even the second party is not able to form the government, then the right to do so is given to any party (chosen by the President) that just participated in the elections – i.e. potentially even a party which may not have any deputies in the parliament.

Furthermore, if even this third party is not able to form the government within two weeks, then the President will dissolve Jogorku Kenesh, and form the government himself (Article 70, Chapter 3). Thus, the Parliament’s prerogative to form the government remains rather a declaration.

According to the new text of the constitution, the President still has the right to approve the candidate for Prime-Minister, but there is no guideline in the text for a case in which the President refuses to approve a certain candidate.

In view of all these contradictions and deficiencies, political assessment of the new constitution is still an important issue. On the one hand, experts noted that the existence of many contradictions means that the political elite of Kyrgyzstan is hopelessly lagging behind the times. Instead of the expected instruments of conflict resolution, the constitution presents a “bomb of delayed-action,” which will inevitably result in further political crises if no appropriate changes are taken.

On the other hand, the fact that the official authorities and opposition have been able to reach a compromise after negotiations means that there is a turn towards liberal politics. Additionally, one does not have to worry too much about the mentioned contradictions in the new constitution, as Kyrgyzstan has never following its laws strictly anyway. As Zainidin Kurmanov noted, this new constitution would indeed create serious conflicts if Kyrgyz political groups really obeyed the law and adhered to their respective ideologies. Under the current situation however, it is more important that there emerged a precedent of ‘contract’ between political forces, and that this agreement was clearly driven by liberal motives. 

“We have advanced towards liberalism, since the main aspect of liberal politics is consensus between power structures, between authority and opposition, authority and the people” – stated Zainidin Kurmanov.

At the time of discussion, none of the experts had seen the final version of the new constitution signed by the President. Therefore, the participants of the roundtable agreed that a detailed discussion is possible only after official publication of the new constitution.