Kyrgyzstan: The Challenge of Judicial Reform
Asia Report N°150
10 Apr 2008
EXECUTIVE SUMMARY AND RECOMMENDATIONS
Kyrgyzstan’s judiciary is failing to act as a neutral arbiter of political disputes or as a fair channel for economic arbitration. It requires significant reform to gain the trust of the public and to assert its role as an independent branch of government. A failure to achieve reform would make it impossible to develop a pluralistic and stable political system over the long term and also undermine attempts to tackle widespread corruption and encourage development. Unless the government allows greater self-governance for lawyers and independence for judges, no amount of education or piecemeal reforms will create an effective system.
A politicised judiciary was at the heart of the instability that rocked Kyrgyzstan in 2005. The courts had been used extensively by former President Askar Akayev to suppress opposition and remove political challengers. Judges proved unable to resolve the political disputes and electoral malpractice that characterised the 2005 parliamentary elections. Popular protests against court decisions contributed to the subsequent rebellion that overthrew Akayev and threatened to destabilise the country. Despite rhetorical commitments to judicial independence, the new regime of President Kurmanbek Bakiyev has continued to use the courts for its own political ends. During parliamentary elections in 2007, the courts were again used to deregister unwanted opposition parties.
This politicisation stems in part from a Soviet legacy that has proved difficult to overcome. In the Soviet system, the judiciary was completely subordinate to the political regime and was also largely subservient to the prosecutor’s office and the law enforcement agencies. Since independence, the judiciary has undergone constitutional and institutional reform, but much of the old ethos remains, particularly among the older generation of officials. Roughly 98 per cent of criminal cases result in convictions, for example, not least because of the respect judges instinctively give to any case brought by the prosecutor. Developing a judicial culture that values its independence highly remains a challenge.
The independence of the judiciary is also undermined by constitutional and institutional problems, which give the presidential administration considerable control over the selection of judges and their promotion, for example, and by funding methods, which provide too much control to the department of courts, which is part of the justice ministry. Informal methods of control remain the most significant problem, with so-called “telephone justice” – where political figures call judges to pressure them to deliver particular verdicts – still widespread in political cases.
For ordinary people the greatest problem is the high level of corruption in the justice sector. Bribery has undermined public confidence and has also worked against attempts to improve the professionalism of lawyers. Many lawyers complain that their main role is not to represent clients vigorously but to facilitate this endemic corruption. Part of the problem is the very low level of state funding and poor salaries, which in effect force judges to take bribes. The government has very limited revenue, but the judiciary should at least have the same priority as the law enforcement agencies. More efficient budgetary processes and spending could also maximise the impact of available funds.
A lack of faith in the independence of judges, widespread corruption and the extremely slow speed of many legal processes have all fuelled public disaffection with the court system. Some people have turned elsewhere to resolve disputes, particularly in civil matters. Informal local leaders, many with criminal connections, are called upon to arbitrate in some disputes. Others seek satisfaction through informal use of religious codes, such as Sharia law, which is not recognised in the legal system.
Despite some positive moves from the government, including improvements in sentencing policy and the abolition of the death penalty, there has been too little reform. Restoring public faith is a key element in state-building and an important step in undermining support both for non-state criminal groups and religious extremist parties. Most of the initiative for reform will have to come from inside the justice sector. There is no incentive for the political establishment to increase the independence of the courts, but concerted efforts by lawyers, judges and more enlightened political leaders can improve the situation slowly.
The international community can play a small but important role in this, but so far few international projects have made a real impact. A new U.S.-funded program has high aspirations but is unlikely to accomplish much unless it receives serious political support. The most important role for international counterparts is to assist in training and opening up Kyrgyz judges and other legal professionals to broader international practice and experience in achieving the rule of law.
To the Government of Kyrgyzstan:
1. Convene a working group of judges, lawyers, government officials and members of the public to draw up a new concept of judicial reform, which should address key issues of institutional reform, including how to give real substance to the rhetoric about judicial independence and seek in particular ways to:
a) remove the department of courts from the jurisdiction of the justice ministry and establish it as an independent body, with the additional staff and financial support required;
b) transfer the power to license lawyers from the justice ministry to a self-governing association;
c) increase the representation of judges in the National Council for Judicial Affairs (NCJA) and end participation by members of the presidential administration and parliamentary deputies; and
d) review procedures and criteria within the NCJA for selection of judges to ensure greater transparency and independence from political interference, including voting by secret ballot and wider media coverage of the process.
2. Introduce a more efficient system of financing for the judicial system, making full use of the new system of court budgets and ensuring that funds are received regularly and on time.
3. Proceed as soon as possible to start jury trials, on a pilot basis in urban areas.
To Judges and Lawyers:
4. Participate fully in ongoing discussions on judicial reform and initiate new groups and organisations to campaign for more reform.
5. Seek better methods of self-governance including through the Council of Judges, improve internal disciplinary procedures and pursue cases against judges accused of corruption or other malpractice.
6. Support proposals for all judges to undergo additional training in the Judicial Training Centre (JTC) and request extra resources for the JTC.
7. Seek to limit the practice of political interference in judicial processes through collective discussion of such practices, maintaining a common position with regard to political interference, establishing an internal complaints mechanism for such incidents and informing the media and civil society of attempts at interference.
To the Prosecutor General:
8. Strengthen the supervision of detainees to protect them from abuses, including by permitting access by lawyers, investigating fully allegations of torture and other ill-treatment and supervising thoroughly the conduct of officials in temporary detention facilities and investigative detention facilities.
9. Implement proposals for reform of the prosecutor’s office, including better definition of its role and functions, an effective separation between its prosecutorial and supervisory responsibilities and stronger internal disciplinary procedures to tackle corrupt practice.
To International Organisations and Donors:
10. Strengthen judicial reform programs that emphasise improved education and training, promotion of structural change and provide widespread access to knowledge of other legal cultures.
11. Ensure that reform plans will be sustainable given limited funding and Kyrgyzstan’s legal culture.
Bishkek/Brussels, 10 April 2008