–Alisher Juzgenbayev, Nazarbayev University, Kazakhstan
On October 24, the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic declared that the law lifting the immunity of the former President did not violate the Constitution. I observed the Chamber’s hearing and would like to share my commentary on this consequential decision.
In the wake of the October 2017 presidential elections, which OSCE declared as generally free and fair, many expected the outgoing President Almazbek Atambayev to remain as the real power-holder. Many thought he would continue to rule the country behind the curtain through his handpicked successor and friend Sooronbay Jeenbekov, who had won the election. Yet Jeenbekov unexpectedly refused to serve as a figurehead. He was able to quickly turn the state apparatus, public opinion, parts of Atambayev’s political party and the Parliament against his former ally. Subsequently, law-enforcement agencies arrested and imprisoned the members of Atambayev’s inner circle. At the end of 2018, the Constitutional Chamber ordered the Parliament to define the mechanism (akin to impeachment proceedings) for stripping away the immunity of ex-presidents. The Parliament promptly obeyed the Chamber’s decision, adopted the law on the procedure of lifting the immunity, and initiated an investigation against Atambayev.
In June, Atambayev’s lawyers and the members of the fractured presidential party asked the Constitutional Chamber to declare unconstitutional the law that had lifted his absolute immunity. They claimed that the law ex post facto limited the scope of ex-President’s protections. At around the same time, the Parliament’s investigative commission alleged that Atambayev had committed corruption and had unlawfully released a mafia boss from prison. Furthermore, on June 20, the Parliament elected a new judge, Karybek Duysheev, to the Constitutional Chamber. He was then quickly elected by the Chamber’s judges to be its new chairperson replacing the previous one whose term had expired. Duysheev was thought to be well-connected to President Jeenbekov because the former had previously served as an advisor to President’s brother and a former speaker of the Parliament. In early August, special security forces raided Atambayev’s villa and detained him after a one-night bloody siege, for which Atambayev was charged with a coup d’etat.
The Constitutional Chamber remained the last institution that Atambayev’s supporters had hoped for, and the observers, as well as myself, were not fully certain as to the outcome of the case. The Chamber had to confront the standard transitional justice dilemma: how to deal with the crimes committed by the previous regime? Three months later, on October 24, in a 42-page long decision, the 10-member Chamber ruled unanimously that law stripping the immunity of the former President did not violate the Constitution. It sided with the Parliament that claimed that establishing and executing the procedure of removal of immunity could not be construed as “establishing new obligations or aggravating responsibility” – acts that are prohibited by the Constitution.
Human rights activists do not deny that the ex-president has to be accountable for breaking the law, just like both of his predecessors, who are wanted on criminal charges. Yet some of them agree with the lawyer representing Atambayev, who claims that this Chamber’s decision set a dangerous precedent by which the new elite was able to retroactively pass laws in order to avenge their political rivals. This, in the opinion of the lawyer, also changes the calculus of the current President Jeenbekov, making him less likely to believe in legal protections and step down peacefully in the future.
What are the implications of this decision for the autonomy and perception of the Chamber by the ruling elite and the lawyers?
Widespread public support for the prosecution of Atambayev might mean that the Chamber simply followed the public opinion. Yet the Chamber surprised many scholars by making bold decisions against the interests of then-President Atambayev in politically sensitive cases.
Can the Chamber remain impartial while facing the consolidation of President Jeenbekov’s rule? At the Chamber’s hearing, the ex-president’s lawyer unsuccessfully requested the recusal of Duysheev. During the hearing I observed that on several occasions Duysheev asked the vice-chair of the Chamber, who had served on the bench since 2011, to lead the proceedings. This looked like it was done to avoid the perception of bias and reflected the trust between these two officials. But it could also mean the lack of the new chair’s experience of presiding over Chamber’s proceedings. This and the timing of his quick rise to the role of chairperson are seen as growing signs of Jeenbekov’s cooptation and also of the pressure on the tribunal.
Nonetheless, judging by the media coverage and my own interviews, the 6-year-old Chamber retains a broad perception as an authoritative and effective tribunal that can make lasting, impactful, and well-reasoned decisions on the politically neutral matters of legal procedure. It has become an unusually visible court: it posts videos of its hearings on Youtube and its rulings (including frequent dissenting opinions from its members) are closely monitored by both experts and laypeople.
Will the Chamber remain bold and capable of influencing larger political processes? Will it adapt to a “dual-state” where the judges pragmatically resolve “high-stakes” cases in favor of the regime, while at the same time building jurisprudence and authority in routine “low-stakes” cases?
Suggested Citation: Alisher Juzgenbayev, Constitutional Tribunal in Kyrgyzstan Decides Against the Former President, Clearing the Way for His Prosecution, Int’l J. Const. L. Blog, Nov. 5, 2019, at:
 OSCE/ODIHR. (8 March 2018). Kyrgyz Republic Presidential Election; 15 October 2017 [Election Observation Mission Final Report]. Retrieved from https://www.osce.org/odihr/elections/kyrgyzstan/374740?download=true
 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
 In re the appeal of Kasymbekov Nurbek Aytayvich and others. , Кл-к-48х (Constitutional Chamber of the Supreme Court of Kyrgyz Republic October 24, 2019).
 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.
 Trochev, A., & Solomon, P. H. (2018). Authoritarian constitutionalism in Putin’s Russia: A pragmatic constitutional court in a dual state. Communist and Post-Communist Studies, 51(3), 201–214. https://doi.org/10.1016/j.postcomstud.2018.06.002