COMMENTARIES ON THE KIRGHIZ CONSTITUTION
By John Crouch, Attorney at Law,
Crouch & Crouch, Arlington, Virginia; (703)
528-6700;
Other Crouch Articles
Comments to the Kirghiz constitution drafters on their draft constitution,
given through the Central and Eastern European Law Initiative of the American
Bar Association.
[I think these are still worthwhile to read -- for nearly all of them, you
don't need to have a copy of the 1993 draft Khirghiz constitution to know
what they are talking about.]
______________________
In general, I would trade constitutions with you guys anytime. However,
you should beware of the way in which this constitution commits government
to do a lot of good stuff: culture, health etc. If society has the wealth
to do this stuff, then it can do it directly, rather than through the state.
If it hasn't the wealth, then these "positive" rights will be
empty promises, which will devalue other rights which governmentt never
has a real excuse to violate.
Article-Section-Comment
5-2 Commendable
7-3 "independently together" sort of summarizes article 7. If
it seems consistent to you, fine.
8 In general, I wish U.S. policy was this clear and consistent. But
8-5 Badly worded, appearing to contradict 8-4. Should specify that these
offices are the ONLY
exceptions to 8-4. DEFINE rights and prohibitions PRECISELY.
EMERGENCY---Specify that same safeguards apply to state of war.
9-3 Good.
11-2 Good
13 U.S. found by experience that we had to be wholly explicit about right
to citizenship, guaranteeing it to "all persons born or naturalized"
here.
13-4 Will worry Westerners, reminding us of Nazis & Serbs. Nonetheless,
this commitment is appropriate to a historically nomadic people, for whom
a purely geographic definition doesn't work. Explain more, perhaps.
17-2 Generally superior to our Bill of Rights.
Corollaries to free speech: Freedom of radio & TV broadcast.
Freedom from being forcibly taxed to fund dissemination of someone else's
opinion.
(If the government can do that to you, your own speech is of little use.)
19-3 Good. But too good. Regardless of what you intend, this law will be
used to punish people who accuse the government of committing a crime, or
of ignoring crimes committed by the powerful. You must salvage this by making
more narrow and explicit.
30-2 "State takes care of training & ... professional qualifications."
Does this mean the gov't undertakes education, or even monopolizes it? If
teachers are mostly state-employed, how can this be reconciled with "freedom
of teaching" in 17-2?
30-2 "strengthening and regulating the right ...". Over here,
strengthening a right and regulating it are usually thought of as opposites.
And these "international organizations"--are they socialists promoting
full employment, or anti-union "right to work" committees?
36-2 Regulating medical & other professions: In U.S., since mid-19th
century, such regulation has partly been exploited by people in a business
who simply want to supress competition, making their careers secure regardless
of cost to society.
Be careful, especially if your country's under-provided with doctors.
37 Compensation. Every civilized society should have this, but U.S. doesn't.
Specify that compensation is owed by the exploiters, not by current government
that took power from them.
38 "Free" meaning "no state control," or meaning "complete
state funding?" Sometimes incompatible.
42 Right to counsel. Unlike most "positive" rights, this right
to free juridical assistance is necessary because it mitigates a state-imposed
burden (prosecution).
48-5.1 Should avoid making legislature depend on president for its election.
51 Should only let president issue decrees executing specific laws, if provided
for in those laws.
54-1 President's honor. Must specify that this won't limit political speech
rights.
58 Russia's experience warns that legislators' terms should not be too long:
in changing times, legislature can grow unrepresentative & lose legitimacy.
60-5 In context of corruption & state economy, this is presently appropriate.
But could make this more specific.
61 Good idea
70-3 Great idea
88-2 Wish we had the guts to stick to this one.
100 to 102 These voluntary alternative court systems are a great thing,
and should lead market forces to make the most just and sane judges thrive
and multiply. You are wise to define and protect their status in this way.
106 Priceless
115-1 Is that "and," or "or"?
- John Crouch
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