Ex-President of Kyrgyzstan Almazbek Atambayev was arrested on August 9th as a result of a security forces raid, which left one person dead.  The former President, who served as a head of state from 2011 to 2017, was stripped of his immunity by the Parliament in June earlier this year. He is now being charged with corruption, release of criminals during his Presidency, and organization of a coup d’état.

Meanwhile, Atambayev and his supporters insist on Atambayev’s immunity from criminal prosecution. They asked the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic to declare unconstitutional the law adopted in April that retroactively amended Atambayev’s status and allowed Parliament to strip him of his immunity 1. After Atambayev’s arrest, his daughter publicly condemned the raid and insisted that the authorities abused their power by failing to wait for the decision of the Chamber on the matter first 2. How did the Constitutional Chamber find itself in the center of high politics in Kyrgyzstan, an unusual place for post-Soviet constitutional courts?

Kyrgyzstan remains one of the few places in post-Soviet authoritarian neighborhood with elements of a competitive electoral democracy. The current constitution was drawn after the 2010 Kyrgyz Revolution (otherwise known as “Second Kyrgyz Revolution”) and the exile of Kurmanbek Bakiyev. The constitution established a mixed parliamentary system with a unicameral parliament, abolished the previous standalone Constitutional Court in spite of the Venice Commission’s objections, and instead set up the Constitutional Chamber within the Supreme Court, the highest court in the land. Scholars have argued that the balance of political powers at the time of the creation of the Chamber allowed it to emerge as a significant political actor that plays the role of impartial arbiter in disputes between branches of government. 3

The Chamber proved to be remarkably bold in some of its decisions and very strategic and incremental in others. It declared the delegation of anti-corruption cases to the State Committee for National Security unconstitutional as a blow to the President Atambayev’s promises of tackling corruption with all possible means. In another case on the constitutionality of nationalization decrees of the post-revolutionary provisional government, in which a decision in any direction could hurt Chamber politically, the Chamber released an opinion stating that those decrees were extra-constitutional and free from review on one hand, but on the other, ordered the government to legislate post-facto compensatory measures to previous owners. (The complete up-to-date dataset of Chamber’s decisions and biographical data on its judges is available for anyone interested in exploring the rest of the Chamber’s decisions 4). 

The Chamber proved to be so politically active that it found itself it the center of controversy in an elections law dispute. In 2015, the Parliament decided to enact legislation that would gather biometric information on citizens and that ceding this information would become a mandatory requirement to vote in elections. The Judge-Rapporteur for this case Klara Sooronkulova, who was allegedly poised to vote against the law, came under investigation of the judicial council for disciplinary violations, prompting the President of the Venice Commission G. Buquicchio to call on Kyrgyzstan not to dismiss the judge for political reasons 5. Sooronkulova’s dismissal from the bench was followed by small scale street protests in Bishkek and condemnations from international legal community 6.

In this current presidential immunity case, the Chamber will again be involved in the game of “high politics.” It had already ruled that the amendments to the law on immunity were constitutional only insofar as the law stipulated a clear procedure by which former president’s immunity can be removed. The Parliament went ahead and clarified this procedure, later casting a vote on removing immunity from Atambayev.

There are several explanations why the current President Jeenbekov decided to turn against his former friend and backer, who helped him become installed into the Presidency. One explanation focuses on outright revenge for challenges to Jeenbekov that Atambayev had attempted to mount in recent years. Similar criminal prosecutions of high political figures has occurred in Armenia, Georgia, Ukraine, and Uzbekistan. The other explanation could be based on the theory of patronal politics in Kyrgyzstan 7, according to which, Jeenbekov’s desire to build a single authoritarian pyramid requires removal of all potential rivals. Finally, some speculate about Russia’s retaliation against some of Atambayev’s anti-Russia rhetoric and policies.

Whatever the reason for Atambayev’s prosecution might be, there is much uncertainty with the future of the case. Given that the claims of Atambayev’s legal team against retroactive amendments are quite solid, by protecting Atambayev from prosecution the Chamber might help Kyrgyzstan avoid patterns of Post-Soviet patronal politics, in which every autocrat clings on to power to avoid retribution from his or her successor.

However, it is unclear if the balance of political powers that scholars have described still exists today 8 .Since the Chamber already saw outside interference in its decision-making in the case of Sooronkulova, it remains to be seen what benefit the Chamber would have from ruling against a President who did not shy away from using special forces to move against his foe.

Suggested Citation: Alisher Juzgenbayev, Ex-President Arrested in Kyrgyzstan: Constitutional Tribunal in Central Asia in the Center of High Politics, Int’l J. Const. L. Blog, Aug. 22, 2019, at: http://www.iconnectblog.com/2019/08/ex-president-arrested-in-kyrgyzstan:-constitutional-tribunal-in-central-asia-in-the-center-of-high-politics

1 Catherine Putz, T. (2019). Defiant Atambayev Refuses Second Subpoena. Retrieved 21 August 2019, from https://thediplomat.com/2019/07/defiant-atambayev-refuses-second-subpoena/

2 Atambayev’s daughter accused Kyrgyz government of lies. (2019). Retrieved 21 August 2019, from https://eadaily.com/ru/news/2019/08/08/doch-atambaeva-obvinila-vlasti-kirgizii-vo-lzhi

3 Dzhuraev, E., Toktogazieva, S., Esenkulova, B. and Baetov, A. (2015). The Law and Politics of Keeping a Constitutional Order: Kyrgyzstan’s Cautionary Story. Hague Journal on the Rule of Law, 7(2), pp.263-282.

4 Juzgenbayev, Alisher, 2019, “Decisions and Biographies of Judges of the Constitutional Chamber of the Supreme Court of Kyrgyz Republic”, https://doi.org/10.7910/DVN/3F9TLI, Harvard Dataverse, V1

5 Venice Commission:: Council of Europe. (2019). Retrieved 21 August 2019, from https://www.venice.coe.int/webforms/events/?id=2044

6 Yalovkina, A. (2019). Kyrgyzstan Judge’s Dismissal Looks Like Government Interference. Retrieved 20 August 2019, from https://iwpr.net/global-voices/kyrgyzstan-judges-dismissal-looks-government; Human Rights Watch, World Report 2016 – Kyrgyzstan, 27 January 2016, available at: https://www.refworld.org/docid/56bd99336.html [accessed 20 August 2019]

7 Hale, H. (2015). Patronal politics. New York: Cambridge University Press.

8 Dzhuraev et al. (n 3).