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Kyrgyzstan Review, 10 years ago

[19.09.2OO2] Kyrgyzstan: Recipes for Effective Constitutional Reform

This is the third and final article in a series that examines some of the dynamics and options for the ongoing exercise to revise the Kyrgyz Constitution. Before this newspaper publishes another edition, the President's Constitutional Council will have already submitted its report, and all the important decisions about change will have already been made.
So in as few words as possible, and in the hope that key national leaders will take note of the opinions and experiences shared in this newspaper, the writer offers some additional suggestions to those who will ultimately decide which revisions will be approved. In the final analysis, it is the Kyrgyz people who bear the responsibility for how they allocate their sovereign powers.
The Kyrgyz Republic is a small nation, with just five million inhabitants and, as nations go, a relatively small area of territory. Its people, despite multiple waves of foreign influence and forced immigration, have retained a certain dignity and character that is uniquely Kyrgyz. Its current legal system is a complicated mass of very complicated laws and decrees that most ordinary people do not understand, and which in the main reflect foreign legal concepts. Its constitution is largely an unrealized series of national aspirations. Most people seem content to resolve legal disputes without reference to the courts or the written law, just by mutual agreement and a common desire to move ahead with better, more productive activities. If we truly wish to be governed according to the rule of law, this state of affairs must change, and ordinary people must take a more active interest in their law and their government. This may as well start now.
We have already noted that some Presidential powers must be shifted to the government and to the legislature, and new mechanisms must be adopted to achieve minimal checks and balances. We have also noted the need for more comprehensive engagement by the people in all aspects of their governance. But beyond that, what others measures ought to be considered? How can we honor the Kyrgyz tradition of simplicity and openness, while still retaining a legal system that is attractive to 21st century foreign investors and supportive of real economic development? We need to adopt and affirm certain basic principles, and then incorporate into the constitution specific mechanisms to ensure those principles are translated into policy. For present purposes, let me highlight six principles that could make a big difference.
Principle #1
The constitution is not just a piece of paper, waiting to be implemented by special laws and decrees. It is a self-executing set of rights and duties that every citizen and every public official must regard as both a source of and a limitation upon their rights and obligations. Mechanism: add a new subparagraph to Article 12 of Section one, Chapter One to the following effect: "Public officials who approve, adopt or enforce laws or policies that are clearly contrary to the express provisions of this Constitution shall be held accountable both civilly and criminally by individuals or entities directly and adversely affected by such abuse of delegated powers.
Obedience to the orders of superiors shall not be a defense. " Rationale: the constitution belongs to all the people, and it needs to be protected and honored by all the people, as a precious jewel. Its self-executing character needs legal teeth, or it will remain illusory.
Principle #2
Corruption is a cancer that undermines the rule of law and destroys the capacity of a society to develop successful and enduring social, economic and political institutions. It is a recipe for stagnation and destruction of a nation from within. It must never be rewarded, but be categorically prohibited and sanctioned. Mechanism: new Article 13 to Section one of Chapter One, as follows: "1. All forms of public corruption are totally rejected as contrary to true Kyrgyz traditions and culture, and as undermining the hopes and aspirations of all peoples of the Kyrgyz Republic, as reflected in this Constitution. 2. Assets of all kinds that are judicially determined to be the instrumentalities or fruits of illegal activities specified by law, including bribery and all forms of public corruption, shall be forfeited to the state under civil procedures to be established by law, and either used for public purposes or sold to augment state budgets. 3. In any civil action under this provision, the owner shall have the burden of establishing that such assets were purchased by funds lawfully acquired or otherwise pursuant to law."
Principle #3
Regional and local authorities are closer to the people, more responsive and accountable to the people, and have a superior capacity to deal with matters of a regional or local nature. Within the constitutional framework, and without infringing upon the rights of any persons, regional and local authorities should be empowered to address all matters that are not by law reserved for national authorities. Mechanism: add the following to Article 91: "Regional and local authorities shall have full discretion to exercise their own initiative with regard to all matters which are not excluded by law from their competence nor assigned to any other authority. Public responsibilities shall generally be exercised by those authorities which are closest to the citizens. Any allocation of responsibility for regional or local matters to another authority must be based on the requirements of technical or economic efficiency."
Principle #4
The people must always be active partners with the government institutions to which they have delegated their sovereign powers in meeting the needs of society, and in helping those who are least able to help themselves. Individually, and through various nongovernmental organizations and business enterprises, they need to find effective ways to support public agencies in carrying out their responsibilities.
Especially in a young nation state with scarce economic resources and limited national budgets, a close and active partnership with the people is essential to meeting critical social welfare needs. A sense of greater "community" is a part of the Kyrgyz tradition, and should somehow be engrafted into the constitution. Mechanism: add the following to Article 23, Section three of Chapter Two: "Citizens also have the right and civic duty to support government agencies in carrying out their responsibilities, especially in meeting the needs of those unable to help themselves. To this end, government agencies shall implement public liaison programs that encourage citizen partnership, including through nongovernmental organizations."
Principle #5
Private contract rights and other property rights must be respected and protected by law, and government cannot be allowed to interfere with such rights or take private property without fair and just compensation as agreed by the parties or as determined by the courts. This is critical in terms of attracting and retaining the substantial foreign investment capital that is essential to the economic development of the country. This becomes especially important when government exercises proprietary functions, for example, when the government decides it will operate an industrial enterprise that could just as well be operated by private owners. The playing field must be fair and even, and independent courts must be available to quickly address and resolve disputes. Mechanism: add a provision to Article 19 to the following effect: "No person shall be deprived of private property without due process of law, nor shall private property be taken for public use without just compensation."
Principle #6
For any democracy to function effectively, the people must be informed on a timely basis as to the activities of government officials, except where disclosure would present a clear and present danger to national security. To that end, there must be a free and unfettered press (print media as well as broadcast journalism) that operates without fear of arbitrary government action. Experience has shown that existing constitutional protections of the press have proven inadequate. There is a need for more comprehensive limitations on government interference, and protection of the media from attempts to silence those who print unflattering reports. Several issues merit consideration. First is the principle of no prior restraint. This simply means that we do not use the law to prevent publication of a story, absent serious national security concerns that are sustained by judicial decision. Second, mere falsity should not be sufficient basis for imposing civil or criminal liability upon journalists or media organizations who write about public officials or other well known public figures; for liability in such cases there must be proof of actual malicious intent or reckless disregard for the truth.
Third and finally, government licensing, registration or other laws must never be used to monopolize, control or limit access to printing facilities. Mechanism: add a new and stronger protection for a free press to the existing constitution, incorporating the above principles.
The current revision process is awkward and artificially limited, both in time and public access. And of course, merely changing the constitution will not ensure successful implementation of the changes. But this is a unique opportunity for ordinary citizens and public officials alike to think hard about what kind of government they really want, and how much they are prepared to work for improvements.
By Matt Bristol, The Times of Central Asia, September 19, 2002

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