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Âû çäåñü: ÑÒÀÒÜÈ / Strategies / Comprehensive Development Framework for the Kyrgyz Republic (2001)


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Kyrgyzstan Review, 10 years ago




4.1. Effective and Transparent State Governance

Creation of effective and transparent administration of the state  will give a new impulse to political, social and economic reforms. This envisages formation of a democratic, pluralistic and open system of government based on the principle of independence of the three branches of government, their coordinated functioning and interaction in order to settle public and private issues effectively and fairly.
            The Constitution of the Kyrgyz Republic is the Main Law that serves a foundation for passing all laws and legal documents of the state. However, experience shows that there have been significant deviations from constitutional norms in law adoption and application, violation of constitutional legitimacy, inconsistencies between laws and administrative decisions, as well as undisciplined actions by some elements of the legal system. Often general principles established by law, priority of human and civil rights, widely acknowledged principles of international law that are fixed in the Constitution of the Kyrgyz Republic, are not consistently and fully implemented.
            Reforms of judicial and law enforcement systems should be carried out in order to provide protection of human rights, openness at all stages of preparation and adoption of legislation and regulations, judicial procedures and decisions, involving participation not only of state bodies, but also of representatives of the civil society.
            Reforms must provide increasing efficiency of state administration, create conditions for sustainable economic growth, poverty reduction, and comprehensive development of democratic institutions.
In order to use state resources more rationally and efficiently, the country is to pursue a policy aimed at decentralization and reorganization of executive power. While reforming state administration, the structure of state bodies of the Kyrgyz Republic will be improved. A more professional, effective and accountable civil service will be created.
Reforms will provide for development of democratic institutes to become the principal factors of the country’s political, social ad economic development.
 
4.1.1. Improving the effectiveness of legislative activities. Legal reform
 
Cardinal changes in legislative processes and implementation of laws will be made comprehensively, recognizing constitutional principles regarding the separation of state powers and their relationships, as well as providing human and civil rights and freedoms.
Following are the actions to be taken:
 
            1. Establishment of the legal framework to promote implementation of CDF objectives. This requires revision of the existing legislation, drafting and enactment of new laws and other legal acts:
 
           An overall Concept and Program for developing and improving the legislative system will be developed for open discussion and approval in a manner consistent with principles set forth in this CDF report. The Concept and the Program will foster correlation of monitoring and execution of laws by executive bodies (with a view to: eliminate contradictions in the laws; settle issues emerging as a result of inability of executive bodies to ensure execution of laws in their full measure; ensure orderly processing and coordination of continuously emerging new rules and norms that may duplicate, contradict or distort existing laws).
 
           The rules of procedure of the Jogorku Kenesh (the Parliament) of the Kyrgyz Republic as well as procedures of drafting and approving laws are subject to be altered with the aim of improving transparency and the order of processing draft laws. All stakeholders should have access to pending draft laws, and have an opportunity to introduce their comments and suggestions both at the law drafting and execution stage. With that objective in view the Jogorku Kenesh of the Kyrgyz Republic will set up a mechanism to collect and summarize comments and suggestions on effectiveness of laws in addressing social issues.
Improvement of efficiency of the legislative process and adequate co-ordination of efforts of the President of the Kyrgyz Republic, the Jogorku Kenesh, the Government and judiciary authorities claim elimination of duplication in law-making, ensuring co-ordination at the earlier stages of the legislative process, making more active use of the opportunity of establishing work-groups and committees representing all branches of the state power.
           People’s representatives, the Government and judiciary authorities will closely co-operate with a view to improve quality and eliminate contradictions in laws and legal acts adopted after 1991. These efforts shall also include harmonizing the national legislation with the international contracts and agreements ratified by the Kyrgyz Republic.       
Special Committee to be established under the President of the Kyrgyz Republic will be comprised of representatives of all branches of the government and non-governmental organizations. During its regular meetings members of the Committee will make efforts to settle some pending points at issue, vexed issues of law-making and law-executing processes.
 
2. In accordance with the Constitution of the Kyrgyz Republic, the Jogorku Kenesh - Parliament of the Kyrgyz Republic - holds the legislative power in the state. In order to increase the efficiency of the Parliament’s activities in the fulfillment of its constitutional function, it is necessary to improve functioning of the Jogorku Kenesh and its administration. The Parliament’s financing, its structure, number of the office employees and technical personnel will be optimized. In the budget law adopted on an annual basis, a guaranteed minimum of expenses on financing activities of chambers of the Jogorku Kenesh of the Kyrgyz Republic will be envisaged.
It is necessary to study thoroughly and analyze issues of structural reorganization of the Parliament, reduction of expenses on its maintenance, to sound out public opinion on actual problems of improving the functioning of the legislative body of the country.
Changes into legislation that regulate labor relations and work of civil servants of the Office of the Jogorku Kenesh of the Kyrgyz Republic, should be made. This will allow the Jogorku Kenesh of the Kyrgyz Republic to increase efficiency of functioning of its office, based on competitive selection of employees, organization of training programs on different aspects of parliamentary activities, and also attraction of independent, highly qualified experts into legislative process, increasing social, economic and financial validity of the laws adopted.
 
3. Providing for access to adopted normative documents, improving the dissemination of legal information and providing general education concerning the law to the population.
The Parliament, working closely with the Government, will allocate available budgetary resources appropriately to improve the dissemination of information about new laws and to provide for better implementation and enforcement of laws in general.
 
4.1.2. Improvement of judicial, legal implementation and law enforcement institutions
 
The formation of a democratic jural state is inseparably connected to improving the judicial system as a whole, provision of its genuine independence and extending the role of courts in the public life.  These are the main goals of the judicial and legal reform underway in the country. The reform must be comprehensive and include the reform of law enforcement bodies, bodies of justice, penitentiary, judicial enforcement, etc.  Effective judicial system is required for successful implementation of other social and economic reforms in the country.
Great changes have occurred in the judicial system in recent year. The principal one being lifting of all limitations to the rights of individuals and citizens to appeal to court to protect violated rights. There are new categories of law suits emerging: on protection of private property rights; rights to vote; appeals of normative and legal acts, actions and decisions of state bodies. Appellate procedures commonly accepted throughout the democratic world have been introduced into the court proceedings, and the foundation has been laid down in order to provide for the independence of judges, adversary system of trials, transparency and accessibility of the judicial protection.
Meanwhile, there is still widely accepted notion that court protection of human rights and freedoms is at a very low level and not effective. Despite the judicial reform and significant progress, the judiciary system as a whole is not able to provide effective protection and sufficient clarity of rulings required for a dynamically developing society. Weaknesses of the system and problems identified in the CDF require great efforts and adequate resources for creation of a politically and financially  independent judiciary.
 
The main measures to be taken are as follows:
·         To provide for financial independence and appropriate incentives, amendments to the Law on Principles of the Budget and each year’s Budget Law will be made to provide a guaranteed minimum amount for expenses of the judicial system, and to create powers of the courts to independently administer the allocated budget resources.
·         Changes to laws regulating labor relations and the work of civil servants are also necessary. Such changes will be made to give courts and related law enforcement organs flexibility to improve the quality of their work, while eliminating opportunities and incentives for corruption.
 
      To provide for political independence of the courts, an additional group of measures will be adopted to protect the judiciary from interference by other governmental structures. For this purpose, measures will be adopted to:
-       alter the relationship between judicial organs and other government organs;
-       provide for openness and transparency of judicial processes, strengthening the accountability of courts to the society (to require income and asset declarations of judges and to provide for appropriate sanctions of court personnel violating laws or ethical responsibilities);
-       provide transparency in selection processes for remaining judges;
-       clarify rules of impeachment;
-       provide stricter penalties for attempts to infringe upon independence or attempts to illegally interfere in decision-making processes of courts;
-       reduce the number of hierarchies within the judicial system itself, hierarchies must be strictly procedural and not administrative; and
-       provide for publication of all court decisions and open access of the people to court decisions (with some minor exceptions to protect matters such as state secrets).
 
An overall Concept and Program for developing and improving the judicial system (along with law enforcement organs as an integral part of the judicial system) will be developed for open discussion and approval in a manner consistent with principles set forth in this CDF report. The concepts and program will resolve issues about:
-       the overall design of the court system;
-       introduction of a transparent procedure for election of judges;
-       clarifying rules of dismissal of judges;
-       providing appropriate salaries to match judicial status, defining the number of courts and judicial system personnel that can be financed within budget limitations;
-       reducing expenses for those who initiate and participate in litigation;
-       social and legal protection of court personnel, advocates, attorneys and other legal personnel from persecution or unlawful interference by anyone in their legal activity and personal lives;
-       discussion of issue about introduction of a jury system and a system of collegial decision making during initial arrangements in criminal matters in the presence of a “people’s representative”;
-       introduction of principles of adversarial practice and raising the prestige and financing of public defenders for free legal assistance to indigent layers of society, reformation of criminal investigation organs and rationalization of the penitentiary system.
-        the creation and administration of “non-judicial” proceedings (third party arbitration) where citizens and foreigners could more efficiently resolve economic disputes and also systems to recognize and enforce both foreign judicial decisions and foreign “third party arbitration” awards; and
-       creating new and improving the existing law implementation and law enforcement organs in accordance with the Constitution of the Kyrgyz Republic.
-       reforms of prosecution and justice bodies, Judicial Department and other law enforcement agencies: reorienting their activities to equally represent and protect the interests of citizens and the state.
 
      Reform of the judicial system is impossible without changing the role of advocates (public defenders), an important institution of Civil Society. Changes will be made to laws that will guaranty the right of an accused to a defense and appointment of an advocate. Interrogation of an accused outside the presence of his attorney will not be allowed unless an accused waives the right in writing. The powers of advocates to free access to information obtained during investigation, pre-trial preparation or pre-administrative hearing will be expanded.
 
      Laws and normative acts that regulate judicial procedures will be reviewed and changed to provide greater defense of citizens’ interests in court proceedings and to reduce current burdens related to judicial proceeding for all participants.
 
      In order to raise the “legal culture” of society and to create a harmonious, continuous, interrelated modern system of legal education, the judicial system as a whole will need much assistance, both in human and financial resources. Legal “informatization” will need to continue. At present an electronic system for distribution of official legal information has been created, but there is yet no wide access to this system for all strata of society. Wide access will be provided. The state will work with NGOs and local communities to provide linkages with this electronic database.
 
      Also, educational and training programs are needed to train judges, lawyers and all other participants involved in civil and criminal proceedings about rapidly changing laws and normative acts. While state-financed educational systems and existing judicial system organs and executive branch organs will continue current efforts, budgeted funding for such information and training needs is inadequate. Participation of NGOs, local societies, individuals and donors is to be widely solicited for the financial support of such activities.
 
4.1.3. Improvement of the Executive branch
 
Decentralization and re-organization of executive branch and rational use of public resources.
 
While decentralization processes are continued, all executive branch organs will concentrate their efforts on performing the following functions:
·         ensuring defense capacity and national security of the country;
·         providing an effective body of laws and normative legal acts;
·         assuring political stability and security;
·         maintaining law-and-order, protecting human rights and private property;
·         assuring macroeconomic stability;
·         providing effective health and educational systems;
·         supporting socially unprotected and vulnerable sectors of the population;
·         assuring the development of market institutions and economic infrastructure; and
·         protecting the environment.
Responsibility for functions not listed above will be transferred to organs of local self-government, other democratic institutions or to the private sector. Certain government functions also will be transferred from central organs to territorial organs of the Executive branch. To accomplish this, a careful functional analysis must be undertaken immediately, widely and in an open fashion, of the distribution of responsibilities, powers and available resources among central ministries and administrative bodies, territorial state bodies and organs of local self-government. This analysis is necessary to provide a proper foundation for decentralization and the adoption of changes in relevant legislation and the financing of government activity.
              As part of the careful functional analysis, every state organ will be evaluated with regard to its capacity to perform desired functions (in the light of the available resources to perform those functions). Good analysis and appropriate adjustments of government activity will require regular feedback concerning the performance of a desired function by each organ.
            Based upon the functional analysis, the number of state agencies will be reduced to the minimum necessary to perform the listed administrative functions. At the same time it is necessary to ensure application of new technologies for acceleration and simplification of the procedure and methods of financial planning, coordination and control, as well as for improvement of the decentralization process.
            The process of decentralization and reduction of administrative staff must be accompanied with streamlining the functional responsibilities alongside with respective powers required for making and implementing decisions. Responsibility of service delivery must be delegated to the level of government closest to the citizens served. Processes of transferring functions from divisions of ministries or agencies to territorial administrative organs or local self government bodies will also include eliminating duplicative structures, duplicated authorities and powers, and will facilitate development of standard, appropriate regulations for executive bodies (regulations will be clear to avoid disputes and inconsistent interpretations).
             Mechanism will be developed for separation of duties and authorities among central, territorial and local self-government bodies. Simultaneously adequate systems will be developed for the allocation of expenditures and revenues of the republican and local budgets, as well as for generating revenues at local government levels through local taxes.
             Ownership of community property transferred from the state to local self-government bodies will be confirmed and registered to the local government body. Income from these assets will belong to local self-government. Bodies of local government will control use, disposition, and management of community property, subject to open, accountable and transparent procedures, without intervention of state administrations. Procedures for direct or indirect election of the heads of local self-government bodies will be developed further.
            Decentralization will be effective only when the people assuming responsibility will be ready to use resources for development of the locality rationally and for the benefit of all those who live in the locality. Before transfers of authorities are made to more local levels, efforts will be directed at training the people in the localities. In light of limited budget resources, developing appropriate training will require not only active participation of professionals from the government sector, but also professionals from the private sector to develop and implement appropriate training programs.
            Some social and mandatory services will continue to enjoy support of the state, as well as the system of equalizing the revenues of regions. Measures on distribution of revenues and budgetary relations between territorial bodies of the state and local self - government must be predictably stable and transparent. Approved budgets will be based upon realistic projections and must be made available for the public scrutiny.
            Generally, central government organs will retain political functions such as strategic planning, drafting of laws, development of minimal standards, norms, analysis and assessment of sectoral policy and economic forecasting. Such functions require specialized skills and usually are undertaken by key ministries. The state function of service provision will be delegated by central organs of public administration to a lower level or to the private sector.
            The financing by "special funds" of official state supervision and regulation over the private sector will cease, to be financed instead from budget resources. "Special funds" financing has so far only preserved the size - or expanded the size - of a menacing bureaucracy and corruption. The powers of various governmental organizations to perform necessary regulatory functions, including licensing, certification, issuing of permits, accreditation, inspections, notarization, spot audits and financial auditing, will be reduced to the minimum necessary to accomplish the appropriate functions of the government, listed above. Functions of coordinating, supervising and monitoring will be separated from functions of providing services, in order to eliminate conflicts of interest and opportunities for corruption.
 
Principles of financial management
The manner in which the state’s finances are handled by public agencies has an impact on all citizens. This impact can be either direct through the benefits and services provided by the state – as well as through taxation and other payments, or indirect through the influence of the state’s financial management on the economic and social climate of the country.
For efficient financial management the state will be strictly guided by the following principles:
·         At all levels of government, all financial transactions are to be transparent and fully accountable (i.e., they are to be fully documented, justified and available for public inspection).
·         All forms of revenue - taxes and charges - at all levels of government are to be levied strictly in accordance with established laws and regulations. All revenues will be deposited in properly constituted official bank deposit accounts and fully accounted for in national or local budgets.
·         All payments by state agencies to individuals, firms or civil bodies, will be made strictly for the purposes approved under budgets formulated and approved at either national or local government levels.
·         Strict financial discipline for all bodies of the state, as well as other agencies that use funds of the budget.
·         Introduction and full implementation of international standards of accounting and financial audit in economy and all state institutions.
 
4.1.4. Professional, efficient, accountable civil service
 
            Confidence of the population in the state institute relies heavily on accountability of civil servants and transparency of decision-making process in the area of state governance. Public accountability and transparency of the public service are necessary to ensure and promote reforms in the short and medium run, and guaranty efficient performance of the state governance system in the long run. Development and enactment of legislative framework for administrative procedures in the Kyrgyz Republic will be an important component of the process leading to establishment of efficient co-operation between the society and the state bodies.
            Development of effective state governance system is not possible without creation of professional, competent and stable civil service. Improvement of qualifications and professional competence, as well as observance of ethical standards should become the starting steps in creation of professional civil service.
            Since issues of increasing professionalism in public administration cannot be decided separately from wage issues and the provision of appropriate incentives, reform of the wage system will be carried out.  Wages and incentives must encourage people to work in government organs and to concentrate exclusively on fulfilling functional responsibilities.
            In conjunction with reduction and appropriate separation of functions within administrative organs, a systematic, reasonable reduction of the number of civil servants will be undertaken, in a manner that eliminates positions and functions that do not yield benefits to society as a whole. Financial resources made available as a result of staff reductions will be used to increase the salary of remaining workers to stimulate professionalism and more effective work. Salaries will match job responsibilities. Qualification and ethical standards for civil servants will be developed and modern management methods introduced.
A legally protected “administrative” class of civil servants will be created and a clear distinction made between administrative positions and politically appointed and elected positions. Systems for competitive selection, training, retraining, attesting and certifying civil servants will be created. To the extent possible, resources from the budgets of each government organ will be set aside for developing such systems. In order to create such systems with the limited available budget resources, professionals from outside government will be invited to work with professionals within the civil service to develop the necessary skills. Donor assistance in this is to be solicited.
 
The problem of eradicating corruption.  Since corruption is a two-sided coin, involving corrupt private sector participants and corrupt government workers only a comprehensive approach supported by all segments of society will reduce the well-known problem. While ethical standards for civil servants and requirements for declaration of all sources of income by civil servants will be introduced, along with efforts to enforce stricter laws to fight corruption, an anti-corruption program will be initiated. In addition to the various strategies set forth elsewhere in this chapter, the anti-corruption program will include:
·         close coordination of activities of law-enforcement organs and courts concerning implementation and enforcement of existing and anticipated new anti-corruption laws;  
·         general education of the public through mass media and other means;  
·         specialized training of law-enforcement bodies in the methods to detect, prevent and act against corrupt activities;
·         development of a system of ethic norms for civil servants. 
While all segments of society must react swiftly to thwart corruption, the Office of Ombudsman will be created as one measure that may provide a focal point in efforts to try to eliminate problems related to waste and corruption in government. The Office of Ombudsman will also provide a focal point to lead efforts to protect human rights against abuse from government and non-government sources.
 
4.1.5. Democratic institutions
 
            Economic and political accountability of government to society is only possible where democratic institutions are well developed and provide feedback and inputs that cause the changes that meet the real needs of society. Democratic institutions will bear, together with all other structures, joint responsibility for the success of reforms in the country.
            A key element of the strategy will be the expanding of access by NGOs, local communities and the independent mass media to information about government activities, particularly official information. Such access will be made available through the existing electronic information system of state bodies and by causing open hearings and open discussions of issues concerning implementation of all government activities relevant to the CDF. Hopefully, democratic institutions such as non-governmental organizations, political parties, public movements, associations, and the mass media will participate actively during realization, monitoring and appraisal of CDF programs.
            The government will continue its policy to help develop democratic institutions throughout the country, by emphasizing the systematic protection of such constitutional norms as human rights and freedom of speech, as part of all reforms mentioned in this report. Particularly with respect to mass media, the state will eliminate criminal prosecution for libel, anticipating that representatives of the mass media will be able to suggest and help government and Kyrgyz society adopt better forms of regulation of the activities of journalists.
            All CDF participants will have the responsibility to improve the election system, to make it more transparent in order to ensure free and complete exercise of suffrage rights by citizens.
            To encourage their financial viability and voluntary contributions to private sector organizations established to provide social services such as protection of the rights of socially vulnerable people, women’s rights and veterans, or those directed at the development of culture and sport, preferential tax treatment in accordance with international norms will be provided.