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: Law at the End of the Day

Form and Function in Constitutionalism--Diverse Perpsectives on the Kyrgyzstan Experience

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The people of Kyrgyzstan have been living through interesting times recently. Fresh from the overthrow of their former ruler, the people of Kyrgyzstan people have also sought to replace their constitutional framework as well.

Residents in the Kyrgyz capital celebrated Constitution Day on Wednesday with the city's streets in full bloom and a new government promising to turn the troubled state into an oasis of democracy in authoritarian Central Asia. . . . "We are surrounded by authoritarian countries, and now we want to become the first to introduce a real, working democracy,? said Mirzad Adzhiyev, an activist with the Kebel youth movement and a member of the Constitutional Council that is drafting the new document.
If the constitution is approved in a referendum scheduled for June 27, political observers say Roza Otunbayeva, head of the provisional government, could become the first female president of a post-Soviet country outside the Baltic states.

Nikolaus von Twickel, With Bishkek Calm, Kyrgyz Leaders Draft New Constitution, Moscow Times, May 6, 2010. The Draft Constitution is well work reading. The Decree of the Provisional Government of the Kyrgyz Republic on the Referendum (Nation wide vote) on adoption of the New Constitution of the Kyrgyz Republic provides the official background for the exercise of constitutional reform.

DECREE OF THE PROVISIONAL GOVERNMENT
OF THE KYRGYZ REPUBLIC [1]

On the referendum (nation wide vote)
on adoption of the new Constitution
of the Kyrgyz Republic

1.   On April 7, 2010 the popular revolution swept away the regime of antipopular president. The unique opportunity for the establishment of a truly democratic order has emerged in the country.
2.    The necessity to adopt new Constitution creating the conditions for stabilization of social, political and economic situation in the country and further development of democracy is more than evident.
3.    The Provisional Government of the Kyrgyz Republic is convinced that the new Constitution will draw a line for the tradition of authoritarian transformation of the state power.
4.    In order to elicit the will of the population of Kyrgyzstan, which is the bearer of sovereignty and the only source of state power, in accordance with the Decree No 1 dated April 7, 2010, the Provisional Government of the Kyrgyz Republic hereby adopts the following Decree:
a.     To call the referendum (nation wide vote) on the entire territory of the Kyrgyz Republic on Sunday, June 27, 2010.
b.     To submit for approval of the citizens of the Kyrgyz Republic during the referendum the draft Constitution of the Kyrgyz Republic and the Law of the Kyrgyz Republic "On enactment of the Constitution of the Kyrgyz Republic" (attached).
c.     To approve the following wording of the question to be included in the ballot paper for voting:
5.   ?Adopt the Constitution of the Kyrgyz Republic and the Law of the Kyrgyz Republic ?On enactment of the Constitution of the Kyrgyz Republic?, which were submitted for the referendum (nation wide vote) as drafts by the Provisional Government

     YES _______________________________________________

     NO _______________________________________________
(mark as appropriate in the square based on your preferred choice)?.

d. The Central Commission on elections and referenda of the Kyrgyz Republic, the Ministry of finance of the Kyrgyz Republic and the Ministry of internal affairs of the Kyrgyz Republic shall:
- solve the issues of organizational, material and financial support to the referendum as well as other issues resulting from this Decree;

- during the preparation and conducting of the referendum ensure public order, observance of the Constitution and laws of the Kyrgyz Republic.
e. The Central Commission on elections and referenda of the Kyrgyz Republic in close cooperation with the executive power agencies and local self governance bodies shall ensure organized referendum, oversight over the compliance with the legislation as well as shall systematically inform the public on the process of its preparation and conduct.
f. It is hereby established that the Constitution of the Kyrgyz Republic adopted at the referendum (nation wide vote) shall have the highest legal force and shall be not subject to any approval whatsoever.

Unofficial translation from the Russian produced by the Council of Venice.

Americans (and n ow Europeans) love constitution making. The formalism of the process and the fact of the elaboration of an institutional apparatus of government--and its embrace of rule of law (process and substance)--has been one of the great missions of the Americans at least since 1945. See, Larry Cat� Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008. The constitutional document has now acquired extraordinary symbolic meaning for Europeans and Americans, evoking everything from the notion of sovereign consent memorialized to the ceremonials of the articulation and vesting of sovereign authority on the representatives of the body corporate the embodies the state. And this new Kyrgyzstan version, like its predecessors, is likely to represent an excellent version of the standard model third generation constitutionalism.

But I am reminded that ll of this work for the general good might well require a caution. That caution is provided in an excellent recent essay by M Ulric Killion, Democracy on Trial: From Kyrgyzstan and ?Mobocracy?, to China and ?Proletariat Democracy?, April 17, 2010.

The case of Kyrgyz politics via ?the mob? presents issue of whether there can be positive relationship between Western ideal democracy and ?the mob.? Generally speaking, it is difficult to justify ?mob rule? as a tool (or means) to promote democracy. Mob rule is problematic for obvious reasons. This is because the concept of ?the mob? is contra distinguishable to the ideal of democracy. In modern times, ?mob rule? represents the decline rather than fostering of democracy.

Id., citing Jerzy Chlopecki (The Decline of the Democracy. The Mob and its leaders, Thought, Aug. 24, 2009). Yet the mob has played a role in democratic politics in any number of ages. From the politics of the late Roman Republic and the deployment of the mob controlled by Publius Clodius Pulcher to mass democracy and its colored revolutions. In its rightist forms it might even be said to color the current political activities of Sarah Palin and the Tea Party Movement in the United States.

Killion notes

Chlopecki, after first characterizing ?mob rule? as ?mobocracy?, contends, ?The mobocracy does not derive from democracy itself, but from its decline.? In addition, just as the examples of Hitler and Stalin presented ?dramatically opposed types of demagogic leadership?, the examples of Kyrgyzstan and ?mob rule? and China and its ?proletariat democracy? also present contrasting forms of democracy, which are also in stark contrast to Western ideal democracy.

Id. And the rule of the mob, as a substitute or proxy for democracy--or perhaps better put as its manifestation--becomes more interesting still in a nation that is really an amalgamation fo three traditionally distinct ethno-nationalities: Kyrgyz 64.9%, Uzbek 13.8%, Russian 12.5%, Dungan 1.1%, Ukrainian 1%, Uyghur 1%, other 5.7% (1999 census). Central Intelligence Agency, World Factbook, Kyrgyzstan. When the religious element (Muslim 75%, Russian Orthodox 20%, other 5%) and language elements are is layered into the mix, the disjunctions between constitutional and functional governance becomes more acute.

On the other hand, the draft constitution effectively acknowledges both the importance and danger of this mix. See Draft Constitution art. 4:

4. The following shall be prohibited in the Kyrgyz Republic:
1) merger of state, municipal and party institutions; establishment and activity of party organizations in state and municipal institutions and organizations; carrying out party activity by civil and municipal servants except for the cases when such activity is implemented outside their official duties;
2) membership of those serving in the army, law-enforcement agencies as well as judges in political parties as well as their statements in support of any political party;
3) creation of political parties on religious or ethnic basis as well as pursuit of political goals by religious associations;
4) creation of militant formations by associations of citizens;
5) activity of political parities, public and religious organizations, their representations and branches in the event that such structures pursue political goals aimed at forced change of the constitutional setup, undermining national security, incitement of social, racial, inter-national, inter-ethnic and religious hatred.

Krygyzstan Draft Const. Art. 4(4) and Article 5: "The state and its authorities shall serve for the benefit of the entire society and not a certain part thereof." Id., Art. 5(1).

We ought to welcome the reflex toward constitutionalism. We ought to wonder whether constitutionalism, reflected in constitutional reconstructions that coincide with and are meant to legitimate irregular changes in governments, actually serves the cause of deepening rule of law governance. In the case of Kyrgyzstan, that is not clear.

Food for thought.

Full post as published by Law at the End of the Day on June 06, 2010 (boomark / email).