Kyrgyzstan Can’t Find Constitution, Referendum To Change It Moves Forward

It doesn’t really matter that Kyrgyzstan seems to have lost the original copy of its 2010 constitution, at least in the sense that it remains a legal document whether the state locates the original or not. But the missing paper is emblematic of the constitution’s impermanence and the Kyrgyz leadership’s apparent disregard for its own laws.

Kyrgyzstan has had three constitutions: the original 1993 post-independence document, which was amended twice before and twice after the 2005 Tulip Revolution; a constitution passed by referendum in 2007; and the present constitution passed by referendum in 2010 after the second revolution.

It seems the third time was not the charm. There has been talk for some time about constitutional changes. Kyrgyz President Almazbek Atambayev doubled down on the idea over the summer. He’d long been characterizing the constitution as being laced with “mines.” The spring decision by the UN Human Rights Committee that jailed activist Azimjon Askarov should be released — a decision the present Kyrgyz constitution mandates the state adhere to — added fuel to Atambayev’s argument in the public sphere. The Askarov case was parlayed as evidence that the Kyrgyz constitution, as it presently is written, gives away the state’s sovereignty to international bodies.

That was, of course, by design. Also by design was a stipulation written into the law that enacted the 2010 constitution that stated the constitutional provisions providing for amendments to the document would come into force as of September 1, 2020.

Recognizing, perhaps, that Central Asian leaders like to tinker with constitutions, the interim government punted the possibility past the term limit of the first post-second-revolution president. Atambayev’s term expires in 2017 and the constitution prohibits him from a second run.

The Venice Commission, a body of constitutional experts hosted within the Council of Europe, responded to a request from a member of the Kyrgyz parliament this summer to review the proposed changes with the determination that they would “negatively impact the balance of powers.” The commission noted that while the changes were described as needed to “clarify” the constitution, “the majority of the proposed amendments to the Constitution would appear to raise concerns with regard to key democratic principles, in particular the separation of powers and the independence of the judiciary.”

There seems to be disagreement within the Kyrgyz judicial branch about the constitutionality of amending the document now and the Venice Commission’s harsh comments about the changes. The Constitutional Chamber of the Supreme Court said earlier this month that the changes are not contrary to democratic principles and in line with constitutional procedures, but the Supreme Court has previously ruled that the constitution is not subject to change.

The Kyrgyz parliament passed through the bill for the referendum with little opposition. Recently parliament endorsed a bill setting the referendum date as December 11 (earlier versions set the date as December 4 — it’s not clear why the change was made but December 4 is incidentally the date set for Uzbekistan’s presidential election). Unless Atambayev decides to nix the bills setting up the referendum, it looks like this is happening — the constitution be damned.