Constitution May Result in Pliable Judiciary

Constitution May Result in Pliable Judiciary

Wednesday, 26 September, 2007
The president will end up having too much control over the courts if Kyrgyzstan votes to adopt his new constitution on October 21, say NBCentralAsia analysts.

In an annual address to the nation on September 19, President Bakiev announced a referendum on a new constitution, setting the date for October 21 and putting forward the version he would like to see approved. The move followed a September 14 ruling by the Constitutional Court that the current constitution, dating from December 2006, and also its immediate predecessor adopted the previous month, were null and void.

According to the December version of the constitution, judges at all levels and also the prosecutor general could be appointed and dismissed only with parliament’s assent.

Bakiev’s draft, however, gives the president powers to dismiss the prosecutor general and to initiate criminal proceedings against local judges without consultation.

As before, the appointment and dismissal of judges sitting in the Constitutional Court and Supreme Court will require parliamentary approval.

NBCentralAsia analysts warn that the judiciary could end up being even less independent than it was before if the constitution is passed.

Parliamentarian Kanybek Imanaliev believes the president is trying to appropriate the powers of the judiciary.

“The article [allowing the president] to dismiss the prosecutor general is one more step towards authoritarianism. Тhe prosecutor general has oversight over legislation and must be independent – but now he’ll be reliant on the president,” said Imanaliev.

The constitution envisages that the president will appoint and dismiss local judges based on recommendations from the National Council for Public Justice, which draws its members from the legislature, executive and judiciary as well as groups outside government. The deputy speaker of parliament, Kubanychbek Isabekov, fears that the president will be in a position to pressure this council.

“The way it will work is that the president appoints the judges himself,” said Isabekov. “Their nomination by the National Council for Public Justice will really be a fiction.”

Another member of parliament, Iskhak Masaliev, disagreed with the other commentators interviewed by NBCentralAsia, and argued instead that the Bakiev draft represents an improvement on all preceding versions of the constitution when it comes to ensuring the independence of the judiciary. He thinks the document accords a reasonable degree of power to the president.

“No one can be independent from society, so obviously some dependence remains,” he said. “For instance, there is the question of funding for the judiciary. Any government is going to have a regulatory relationship with the courts to some extent,” he said.

(NBCentralAsia draws comment and analysis from a broad range of political observers across the region.)

Support our journalists