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The Law and Politics of Keeping a Constitutional Order: Kyrgyzstan’s Cautionary Story

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Abstract

What is needed for stability of a constitutional order and what can constitutional courts do in that task? This article considers the question through the example of Kyrgyzstan: a country beset with constitutional instability for some 20 years, where a forceful change of government in 2010 fortuitously produced a real balanced playing field of political powers which, in turn, allowed for adoption of a new, well-balanced constitutional framework. In such a context, the work of the Constitutional Chamber (of the Supreme Court) has been that of a bold, independent institution of constitutional control. Through an overview of the instructive example of Kyrgyzstan, the paper argues that an emergent constitutional order, to be viable, requires a real balance of political powers; if such balance is present, constitutional courts reinforce that balanced order by playing the role of impartial political arbiters. They play a vital political role, exercised through the medium of law, to ever so often defend or restore a constitutional order when questions or doubts arise. The work of constitutional courts, thus viewed, stands as a reminder that there is an inseparable continuity between law and politics in constitution.

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Notes

  1. Halmai (2012, p. 182), at p. 193.

  2. ‘Rule of law’, for legalists, comes in its narrower version, attributable to Albert Dicey and Friedrich Hayek, to follow a poignant essay on this eminent concept by Judith Shklar. Broader and constitutionally more appropriate roots of rule of law, by Shklar, can be attributed to Aristotle, on the one hand, and to Montesquieu, on the other (Shklar 1998, pp. 21–38).

  3. Elkin (2006). See also Bellamy (2007) above n. 3, Sajo (1999, pp. 9–13), Sunstein (1987, p. 421), at pp. 422–423; Akerman (1997, p. 771), at pp. 788–791; Sartori (1962, p. 835), at pp. 853–859; Rosenfeld (1994, pp. 5–10).

  4. Breslin (2009), Epstein (2011), Lijphart (2004).

  5. Elkin (2010, p. 223).

  6. See, for example, a glimpse of the debate in a critical review of Richard Bellamy’s important book on political constitutionalism by Alec Walen (2009, p. 329). Marco Goldoni opens his recent article this way: ‘The antagonism between legal and political constitutionalism has almost monopolized the discussion on constitutional theory during the last years’ (sic) (Goldoni 2012, p. 926).

  7. Elkin (2006). Among representatives of the legal constitutionalist perspective, one may count, through their various works and to varying degrees, Friedrich Hayek, Ronald Dworkin, Lee Epstein, Richard Posner, and many more.

  8. Hirshl (2007). See also Shapiro (1986).

  9. Bellamy (2007) above n. 3. See also Thomas (2004, p. 55), Tomkins (2005) and Griffith (1979, p. 1). For a good recent overview of the ‘political constitutionalist’ argument, with ‘two critiques’, see Goldoni, above n. 7.

  10. Brown (2002).

  11. Okoth-Ogendo (1993, pp. 65–80); Zhiang (2010, pp. 950–976).

  12. Law and Versteeg (2013, pp. 865–911).

  13. Mazmanyan (2012, pp. 313–333).

  14. Trochev (2011).

  15. ‘Constitutional order’ here refers to democratic, accountable political order, not any stable order. Certainly, the North Korean regime is an order of some sort, and it has been relatively stable in its institutional framework. That, however, is not the kind of order this paper is concerned with. Stability of a constitutional order means, to borrow from Elkins and Ginsburg, ‘endurance’ of a particular constitutional framework, without major changes, over longer periods of time; a country that changes its Constitution (revises distribution of powers) frequently does not have a stable constitutional order. Where Elkins et al. write about the endurance of constitutional texts, we refer to the stability of constitutional orders (Elkins et al. 2009, pp. 1–272).

  16. A similar logic is the basis of Barry Weingast’s much-cited argument on that underlying a working legal-constitutional order is the rationality of political actors (Weingast 1997, pp. 245–263).

  17. So, the important point is not that there is a balance of specific set of powers, but that all political powers that matter coexist in a condition of balance, or equilibrium. J. A. G. Griffith’s description of constitution as a state of equilibrium among numerous interests and powers (that he lists) is an apt formulation (Griffith above n. 9, pp. 1–2).

  18. Bellamy (2007) above n. 3; Thomas above n. 9, pp. 233–256.

  19. The argument of this paper, that a constitutional court is an impartial political arbiter in a constitutional system of balance of powers, underscores the emergent chasm between separation of powers and balance of powers. For Montesquieu, who is usually cited as the author of the constitutional doctrine of separation of powers, there would be no juxtaposition between the legal provision for separation of powers and the political reality of balance of powers—for him, separation of powers as a matter of course had to imply a workable balance of powers (Charles Louis de Secondat, Baron de Montesquieu, The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. vol. 1. http://oll.libertyfund.org/titles/837. Accessed 4 August 2015.

  20. Griffith above n. 9, pp. 1–21.

  21. Tushnet (2008, pp. 1473–1495).

  22. Elkin, above n. 3, pp. 109–111.

  23. E.g. Anderson (1999). ‘Island of democracy’ is a regular reference in the media, in critical or approving tones.

  24. In that vein, it is noteworthy that two important developments took place as this paper was going through reviews. One was a legally dubious call for a referendum to introduce changes to the Constitution, which eventually was dropped in June 2015. Another was the removal of a judge of the Constitutional Chamber under even more dubious circumstances.

  25. See Beyer (2015), Hale (2011, pp. 581–617), Huskey (2007), Iskakova (2003), Jones Luong (2002).

  26. See Anderson, above n. 23, Ch. 2.

  27. See e.g. Ishiyama and Kennedy (2001).

  28. For a related observation, see Huskey and Iskakova (2011).

  29. On the role of constitutions for the authoritarian regimes in the Middle East, see Brown above n. 10.

  30. See Beyer, above n. 25, on the symbolic meanings attached to the adoption of a constitution among ordinary citizens in the run-up to the 2010 referendum.

  31. A work fully analyzing Bakiev-time constitutional issues has yet to be written. But from the 2005 revolution taking place amid calls for constitutional reform, to numerous political protests demanding such reform, to the succession of November and then New Year’s Eve makeovers of the constitution in 2006, to erasure of those two episodes by the Constitutional Court followed by adoption of a new Constitution in October 2007, to another major makeover looming when the April 2010 fall of government happened, the period was indeed intensely ‘constitutional’. For a short critique following 2010 Constitution, see Jones Luong (2010).

  32. For a succinct good overview, see Engvall (2011, p. 53) et seq.

  33. See Trochev (2013, p. 67).

  34. Tekebaev et al. (2008) produced and distributed a brief outline of these ideas.

  35. See Scheppele (2003, pp. 296–324).

  36. According to Art. 85 of the Constitution, a cabinet of ministers/government is accountable and responsible only to the Parliament (see Konstitutsiia Kyrgyzskoj Respubliki [Constitution] 2010).

  37. Once a year Prime Minister may ask Parliament for a vote of confidence in the Government. In case of Parliament`s refusal to grant the vote of confidence, President either dismisses the government or dissolves the Parliament (see Konstitutsiia Kyrgyzskoj Respubliki [Constitution] 2010, Art. 86).

  38. The Decision of the Constitutional chamber of the Supreme court of the Kyrgyz Republic, The case on evaluation of constitutionality of provisions of the Law of the Kyrgyz Republic ‘The status of deputies of the Jogorku Kenesh of the Kyrgyz Republic’ which allow the existence and functioning of the group of deputies in the Jogorku Kenesh of the Kyrgyz Republic accordingly to the appeal of Kochkarova E. A, factions ‘Respublika’ and ‘Ata-Jurt’, September 24, 2014.

  39. Besides cutting down on president’s powers in favor of the parliament and prime minister, some other provisions in the Constitution—such as the ceiling of 65 seats in the 120-seats legislature for any single party, the granting of two key parliamentary committees to opposition parties—are meant to preserve the competitive and plural field.

  40. All decisions are accessible on the website of the Constitutional Chamber at: http://www.constpalata.kg. Accessed 4 August 2015. At the time of finalizing this paper in July 2015, the number of decided cases had doubled.

  41. Given the highly discredited record of the erstwhile Constitutional Court, which was abolished after April 2010 events, it was a debate-born compromise to institute a Constitutional Chamber of the Supreme Court. While to date, in practice, there is virtually full autonomy of the Constitutional Chamber, it is thinkable that the Supreme Court authority over it may become more pronounced as a result of certain changes, such as one of the points in the called off idea of a referendum for constitutional amendments.

  42. Constitution of the Kyrgyz Republic, 27 June 2010, Art. 97(1); Constitutional Law on the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic, June 13, 2011, No. 37; Constitutional Law on the Status of Judges in the Kyrgyz Republic] July 9, 2008, No. 141.

  43. Constitution of the Kyrgyz Republic, 27 June 2010, Art. 97; Constitutional Law on the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic, June 13, 2011, No. 37, Art. 4.

  44. For a review of models of constitutional review see Alec Stone Sweet, ‘Constitutional Courts’, in Rosenfeld and Sajo (2012, p. 823).

  45. Constitutional Law on the Constitutional Chamber of the Supreme Court of the [Kyrgyz Republic] June 13, 2011, No. 37.

  46. The Decision of the Constitutional chamber of the Supreme court of the Kyrgyz Republic, The case on evaluation of constitutionality of item 1 of part 1 of Art. 34 of the Criminal Procedural Code of the Kyrgyz Republic accordingly to the appeal of Abdykalykov M., January 13, 2014.

  47. The Resolution of the Constitutional chamber of the Supreme court of the Kyrgyz Republic on Explanation of the Decision of the Constitutional chamber of the Supreme court of the Kyrgyz Republic from 13 January 2014, The case on evaluation of constitutionality of item 1 of part 1 of Art. 34 of the Criminal Procedural Code of the Kyrgyz Republic accordingly to the appeal of Abdykalykov M., January 30, 2014, No. 01-Р.

  48. Decision of the Constitutional chamber of the Supreme court of the Kyrgyz Republic, The case on evaluation of constitutionality of item 2 of part 2 of Art. 5 of the Law ‘On republican budget of the Kyrgyz Republic for 2013 and prediction for 2014–2015’ accordingly to the appeal of the Government of the Kyrgyz Republic, April 11, 2014.

  49. Decision of the Constitutional chamber of the Supreme court of the Kyrgyz Republic, The case on evaluation of constitutionality of item 2 of part 2 of Art. 5 of the Law ‘On republican budget of the Kyrgyz Republic for 2013 and prediction for 2014–2015’ accordingly to the appeal of the Government of the Kyrgyz Republic, April 11, 2014.

  50. The text of the decision makes clear this is an important novelty of the present Constitution.

  51. The Decision of the Constitutional chamber of the Supreme Court of the Kyrgyz Republic, The case on evaluation of constitutionality of Art. 427 of the Labor Code of the Kyrgyz Republic accordingly to the appeal of Toktonaliev A. S. and Chokmorov B. S., 26 November 2013.

  52. The Decision of the Constitutional chamber of the Supreme court of the Kyrgyz Republic, The case on evaluation of constitutionality of decrees of the Interim Government of the Kyrgyz Republic, 11 July 2014.

  53. By the time of the final revision of this paper, the Constitutional Chamber had been active for closer to two years. In the meantime, there was an attempt to schedule a constitutional referendum for Fall 2015, where one proposed change would diminish the status of the Constitutional Chamber. The referendum initiative was called off under heavy civic pressure. In another development, one of the judges of the Constitutional Court was urgently removed from office. The real reason for her removal was to prevent a decision, which she was assigned to draft, that would leave in limbo the government’s expensive project of mandatory collection of citizens’ biometric data. These have only amplified the precariousness of the Constitutional Chamber’s ability to continue on its independent track.

  54. Namely, he made such remarks in January 2014, in announcing 2014 the Year of Strengthening the State, in October during a meeting of the council on judicial reform, and in December, in a year-end press conference.

References

  • Akerman B (1997) The rise of world constitutionalism. Va Law Rev 83:788–791

    Google Scholar 

  • Anderson J (1999) Kyrgyzstan: Central Asia’s island of democracy?. Routledge, New York

    Google Scholar 

  • Bellamy R (2007) Political constitutionalism: a republican defense of the constitutionality of democracy. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • Beyer J (2015) Constitutional faith, law and hope in revolutionary Kyrgyzstan. Ethnos 80:320–345

    Article  Google Scholar 

  • Breslin B (2009) From words to worlds. The Johns Hopkins University Press, Baltimore

    Google Scholar 

  • Brown NJ (2002) Constitutions in a non-constitutional world: Arab basic laws and the prospects for accountable government. SUNY Press, Albany

    Google Scholar 

  • Elkin SL (2006) Reconstructing the commercial republic. U Chicago Press, Chicago

    Google Scholar 

  • Elkin SL (2010) Constituting the American republic. J Soc Philos 41:223

    Article  Google Scholar 

  • Elkins Z, Ginsburg T, Melton J (2009) The endurance of national constitutions. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • Engvall J (2011) Flirting with state failure. A silk road paper. SAIS, Washington, DC

    Google Scholar 

  • Epstein R (2011) Can we design an optimal constitution? Soc Philos Policy 28:290–324

    Article  Google Scholar 

  • Goldoni M (2012) Two internal critiques of political constitutionalism. Int J Const Law 10:926

    Article  Google Scholar 

  • Griffith JAG (1979) Political constitution. Mod Law Rev 42:1–21

    Article  Google Scholar 

  • Hale H (2011) Formal constitutions in informal politics: institutions and democratization in post-Soviet Eurasia. World Polit 63:581–617

    Article  Google Scholar 

  • Halmai G (2012) Unconstitutional constitutional amendments: constitutional courts as guardians of the constitution? Constellations 19:182

    Article  Google Scholar 

  • Hirshl R (2007) Towards juristocracy: the origins and consequences of the new constitutionalism. Harvard University Press, Cambridge

    Google Scholar 

  • Huskey (2007) Eurasian semi-presidentialism: the development of Kyrgyzstan’s model of government. In: Elgie R, Moestrup S (eds) Semi-presidentialism outside Europe. Routledge, New York

    Google Scholar 

  • Huskey E, Iskakova G (2011) Narrowing the sites and moving the targets. Probl Post Communism 58:3–10

    Article  Google Scholar 

  • Ishiyama J, Kennedy R (2001) Superpresidentialism and political party development in Russia, Ukraine, Armenia and Kyrgyzstan. Eur Asia Stud 53:1177–1191

    Article  Google Scholar 

  • Iskakova G (2003) Elections and democracy in Kyrgyzstan: constitutional design of president-parliament relations [Vybory i demokratiia v Kyrgyzstane: konstitutsionnyi dizain prezidentsko-parlamentskikh otnoshenii]. Biyiktik, Bishkek

    Google Scholar 

  • Jones Luong P (2002) Institutional change and political continuity in post-Soviet Central Asia. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • Jones Luong P (2010) Recurring referendums: the struggle for constitutional ‘reform’ in Kyrgyzstan. In: Kyrgyzstan: recovery and reformation. Policy perspectives, PONARS Eurasia, Washington, DC

  • Law DS, Versteeg M (2013) Sham constitutions. Calif Law Rev 101:865–911

    Google Scholar 

  • Lijphart A (2004) Constitutional design for divided societies. J Democr 15:96–109

    Article  Google Scholar 

  • Madison J (2003) Federalist No, 10; The union as a safeguard against domestic faction and insurrection. In: Hamilton A, Madison J, Jay J (eds) The federalist papers. Signet Classics/Penguin Books, New York

    Google Scholar 

  • Mazmanyan A (2012) Failing constitutionalism: from political legalism to defective empowerment. Glob Const 1:313–333

    Article  Google Scholar 

  • Okoth-Ogendo HWO (1993) Constitutions without constitutionalism: an African political paradox. In: Greenberg D, Katz SN, Oliviero B (eds) Constitutionalism and democracy: transitions in the contemporary world. Oxford University Press, New York, pp 65–80

    Google Scholar 

  • Rosenfeld M (1994) Modern constitutionalism as interplay between identity and diversity. In: Rosenfeld M (ed) Constitutionalism, identity, difference and legitimacy: theoretical perspective. Duke University Press, Durham NC

    Google Scholar 

  • Sajo A (1999) Limiting government: an introduction to constitutionalism. CEU Press, Budapest

    Google Scholar 

  • Sartori G (1962) Constitutionalism: a preliminary discussion. Am Polit Sci Rev 56:853–859

    Article  Google Scholar 

  • Scheppele KL (2003) Aspirational and aversive constitutionalism: the case for studying cross-constitutional influence through negative models. Int J Const Law 1:296–324

    Article  Google Scholar 

  • Shapiro M (1986) Courts: a comparative and political analysis. University of Chicago Press, Chicago

    Google Scholar 

  • Shklar J (1998) Political theory and the rule of law. In: Shklar J (ed) Political thought and political thinkers. University of Chicago Press, Chicago, pp 21–38

    Google Scholar 

  • Stone Sweet A (2012) Constitutional courts. In: Rosenfeld M, Sajo A (eds) The Oxford handbook of comparative constitutional law. Oxford University Press, Oxford

    Google Scholar 

  • Sunstein CR (1987) Constitutionalism after the new deal. Harv Law Rev 101:422–423

    Article  Google Scholar 

  • Tekebaev, Movement “For Justice” (2008) The new concept of political system in Kyrgyzstan: looking for sustainability’ [sic], Bishkek

  • Thomas G (2004) Recovering the political constitution: the Madisonian vision. Rev Politics 66:55

    Article  Google Scholar 

  • Tomkins A (2005) Our republican constitution. Hart Publishing, Oxford

    Google Scholar 

  • Trochev A (2011) Judging Russia: the role of the constitutional court in Russian politics 1990–2006. Cambridge University Press, Camdrigde

    Google Scholar 

  • Trochev A (2013) Fragmentation? Defection? Legitimacy? Explaining judicial roles in post-communist ‘colored revolutions’, about the behavior of high courts (Kyrgyzstan’s Supreme Court, not constitutional) in crumbling authoritarian regimes. In: Kapiszewski D et al (eds) Consequential courts. Cambridge University Press, Cambridge

    Google Scholar 

  • Tushnet M (2008) Some skepticism about normative constitutional advice. William Mary Law Rev 49:1473–1495

    Google Scholar 

  • Walen A (2009) Judicial review in review: a four-part defense of legal constitutionalism. Int J Const Law 7:329

    Article  Google Scholar 

  • Weingast B (1997) The political foundations of democracy and rule of law. Am Polit Sci Rev 91:245–263

    Article  Google Scholar 

  • Zhiang Q (2010) Constitution without constitutionalism? Int J Const Law 8:950–976

    Article  Google Scholar 

Download references

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Authors and Affiliations

  1. Department of International and Comparative Politics, American University of Central Asia, Bishkek, Kyrgyzstan

    Emilbek Dzhuraev

  2. Department of International and Business Law, American University of Central Asia, Bishkek, Kyrgyzstan

    Saniya Toktogazieva, Begaiym Esenkulova & Ayaz Baetov

  3. Law School, Kyrgyz National University named after J. Balasagyn, Bishkek, Kyrgyzstan

    Ayaz Baetov

Authors
  1. Emilbek Dzhuraev
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  2. Saniya Toktogazieva
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  3. Begaiym Esenkulova
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  4. Ayaz Baetov
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Correspondence to Emilbek Dzhuraev.

Additional information

The authors thank the Norwegian Institute of International Affairs (NUPI), and Helge Blakkisrud and Kristian Gjerde, for support of this research under their Research Beyond the Ivory Tower project. We also thank Jorn Holm-Hansen and Alexei Trochev for their valuable feedback. Two anonymous reviewers gave insightful and appreciated comments. All shortcomings of the article are authors’ own, of course.

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Dzhuraev, E., Toktogazieva, S., Esenkulova, B. et al. The Law and Politics of Keeping a Constitutional Order: Kyrgyzstan’s Cautionary Story. Hague J Rule Law 7, 263–282 (2015). https://doi.org/10.1007/s40803-015-0013-7

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