On October 3, Kyrgyzstan’s President Sadyr Japarov signed a bill into law that allows the Constitutional Court to revise prior decisions.
Revisions can be instigated by the court’s chairperson or the president in three cases: if constitutional norms have shifted since a decision was made, if circumstances relevant to a decision come to light after a decision was made, or if a decision contradicts the “moral values” or “public consciousness” of the people of the Kyrgyz Republic.
Others have written about how this is another instance of Japarov invoking vague notions of “morality” to justify eroding the rule of law. The history of Kyrgyzstan’s Constitutional Court – and Japarov’s efforts to actually give it more power – are worth exploring as well.
Kyrgyzstan’s Constitutional Court theoretically has sole authority over constitutional interpretation. Individual citizens, registered organizations, lower courts, or political parties can appeal to the Constitutional Court if they believe a law goes against the spirit or letter of the constitution. Other courts, even Kyrgyzstan’s Supreme Court, do not have the authority to make sense of what the constitution does or does not allow.
This model of concentrating the authority of constitutional interpretation in one court was widely embraced in countries across Central Asia, the Caucasus, and Eastern Europe following the collapse of the Soviet Union. Many countries that emerged from communist rule took their time with adopting new constitutions that formalized rights and civic responsibilities, but they were quick to establish Constitutional Courts with teeth.
Small differences in how these Constitutional Courts were designed had big impacts on political trajectories across the post-Soviet space. Design features like term limits and the process for appointing judges could be tweaked to reflect the interests of political parties. Even in contexts where a single party controls the political system, and could theoretically do away with the Constitutional Court altogether, leaders of some post-Soviet countries kept them around and used them as tools to legitimate their rule by requiring judicial intervention in elections and other big political controversies.
That’s how Kyrgyzstan’s Constitutional Court was used under the country’s second president, Kurmanbek Bakiyev, when the Constitutional Court ruled that reforms adopted following the Tulip Revolution were null and void. The politicization of the court led post-2010 reformers to demote it to a Constitutional Chamber situated under the Supreme Court. The 2010 Constitution said that the chamber’s “decisions shall be final and not subject to appeal,” as well, but its symbolic authority was slightly reduced.
Fast forward to January 2021, when Kyrgyzstan held a referendum on a new constitution that concentrated power in the hands of the president. Among the bundle of changes was reestablishing the Constitutional Court, a move that was welcomed by the Venice Commission.
It may seem counterintuitive that someone trying to build a power vertical would also empower a court with more authority to check his influence. But research on the justice systems in Russia and Central Asia shows that strong patronal regimes accept the risks of strong courts because of their legitimation benefits. An autocrat can point to a constitutional court decision affirming his re-election, for example, to deflect criticisms.
The very same president that revived the Constitutional Court and expanded its authority has, two years later, pushed through a law that restricts the court’s power. How should we make sense of the contradiction?
Almazbek Moldobaev, the president’s permanent representative to the Constitutional Court, might say that this law merely matches international precedent. On July 17, immediately following the bill’s introduction in parliament, Moldobaev pointed to similar legislation in Lithuania (although Lithuania’s Constitutional Court has never flexed that feature), as well as neighboring Kazakhstan and Uzbekistan.
This law has been framed from the beginning by the presidential administration as a response to the Constitutional Court’s decision about matronymics, another instance of Japarov deftly employing populist and nationalist rhetoric. I previously wrote about how activist Altyn Kapalova’s efforts to give her children her own name in lieu of their father’s has been leveraged by politicians to distract from the government’s shortcomings and justify a presidential power grab.
Certainly, the speed with which this bill was passed in parliament and the slipperiness of “morality” as a reason to undermine the court’s authority are deeply concerning. As Chris Rickleton wrote for RFE/RL, it’s a clear example of Japarov “saying the quiet part out loud.”
Given that this law directly contradicts Kyrgyzstan’s constitution, which reads, “Decisions of the Constitutional Court shall be final and not subject to appeal,” there is a clear opening for activists to challenge it in the Constitutional Court.
It is highly unlikely that the Constitutional Court will be sympathetic to such an appeal, however. The fate of former Constitutional Chamber judge Klara Sooronkulova is illustrative. She was dismissed in 2015 for criticizing a government-sponsored law. She advocated in front of the court in December 2020 to challenge the constitutionality of the referendum that reinstated the court. And in October 2022 Sooronkulova was detained for six months and now faces aggravated charges of “forcible seizure of power.”
The government has made an example of judicial activism with Sooronkulova. Three of the court’s nine members were appointed during Japarov’s administration, one of whom, Zamirbek Bazarbekov, was once the president’s lawyer. This means that regardless of the blatant contradiction of the constitution, it will be nearly impossible to challenge from the inside.