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07.02.2005
Story of rejecting the registration of former ambassadors contradicts the Constitution of KR, Laws of KR, and the International pact on civil and political rights. According to the Constitution of the Kyrgyz Republic (s. 4, article 1) nation implements its power directly through government institutions system. Direct implementation of the power of nation through elections is an organization principle of the government system and local administrations. Will of the people, expressed through democratic, free and fair elections lets to implement the democratic organization of power. Adequate expression of this will is done by the organizational activities of the election commission. In relation to this, success of preparation and conduction of elections mainly depend on level of responsibility, professionalism, and civil position of each member of the commission. Therefore, in the process of forming the legislative branch of the government, local administrations, deputies to local administrations, and in electing the president crucial responsibility is given to the elections commission. On the one hand, elections commission is governmental body that organizes and provides preparation and conduction of elections in the country. On the other hand, it is a body that provides implementation and protection of citizens' rights to vote in the Kyrgyz Republic. As it is known, legal position of election commission is determined by the Constitution of the Kyrgyz Republic, Elections code in the Kyrgyz Republic and legislature of the Kyrgyz Republic. Mechanism of providing implementation of above positions is done by governmental institutions, local administrations and authorities (article 38 of the Constitution of the KR), by the president of the country, who is a guarantee of the Constitution, rights and freedoms of citizens (s. 2 article 42 of the Constitution of KR) and of course, by election commission itself and judges. However, practice shows something different sometimes. Lately, short notes about rejection of registration to some candidates appeared in the mass media. But, what is interesting: four former ambassadors of the Kyrgyz Republic were rejected of registration. It appeared for one reason; candidates do not match the requirements of the law. District election commissions united refer to the section 1 article 56 of the Constitution and section 1 article 69 of the Elections Code in the Kyrgyz Republic. We will quote from this important document, "A citizen of the Kyrgyz Republic of age of 25 years, with a right to participate in the elections and permanently living in the country during last five years before running as a candidate to the deputy may be elected as a deputy in the Jogorku Kenesh of the Kyrgyz Republic". For the first sight, seems everything is clear. However, only at first sight, and at second and third, there are terrible violations of rights of candidates to the deputy. For example, a story concerning R. I. Otunbaeva, an ambassador of the Kyrgyz Republic to United Kingdom was on the mass media and on web sites on the Internet. By adopting its decision the University elections district #1 commission made three principal violations of law. First of all, district commission was supervised by common understanding of the term "permanent residence", which caused a wrong determination of the fact about the permanent residence of R. I. Otunbaeva, even though according to the law it was supposed to be supervised by norms of the Elections code, but not by the personal information of the citizens. Thus, according to the personal information, starting from 1997 to 2002, R. I. Otunbaeva was an ambassador of the Kyrgyz Republic to the United Kingdom; from May 1, 2002 to September 1, 2004 she was in Georgia in a position of the deputy chair of the UN General secretary with a UN mission. As it is mentioned above, main motivation
of refusing the registration of candidate to the deputy is requirement
of articles the permanent residence of citizen in the republic. If
we look at the Elections code and try to look at the situation from
the legal point of view of the article 8. Below are the definitions
of main terms used in the elections code. First paragraph 29 of the
article, "Permanent residence - residence place of the citizens
under the presence of the registered note in the identification document
by registration institution". I think, it is not too difficult to understand that to determine the legal terms in a right way, and for applying the right norms of the given law in making such decisions special according article was introduced. It is necessary to note the fact that for right understanding of the content of the law norms (the given articles), it is not necessary to be a professional lawyer. In other words, if a citizen has a permanent residence in the passport, no matter in which country and how many years, he is a citizen of that country, where he is registered permanently and of course, proof is the note on the passport. If a citizen was in abroad for some time because of work position or other reasons, but kept a registration (did not cancel the registration), then according to the article 8 of the Election code, he should be considered as temporarily living in the territory of other country, for which a definition is given in the Elections code in the paragraph 22, "Arrival place - hotel, sanatorium, rest house, camping, tourist base, hospital, or other such institution, as well as the building which is not a place of residence of a citizen, in which he is living temporary." Especially this concerns ambassadors, diplomats and other state officials, whose work is directly connected to long term official journeys. Would you agree that it is hard to imagine that your entire diplomatic corps before leaving to foreign countries to serve the country and represents the interests in front of the international community of the young democratic country, would have to chose: To go, however by this be deprived of an election right, or refuse to go in order to have the right to be elected. It is not required to be extremely smart in order to understand that by its decision the election commission of Universitetskyi district #1 violates not only norms and principles of international law, agreements and treaties, however it also violates the norms of national legislation - of the Code on elections and of the Constitution of Kyrgyz Republic. That is why the positive reaction of Central Election Committee headed by S. Imanbaev and positive reaction of judicial bodies to such violations of norms and principles of international and national legislation can be considered as illegal acts. And the silent reaction of Constitutional court regarding this situation is not understood at all. And unlike district committee, the Central Election Committee exclusively consists of professionals, majority of which are lawyers - doctors and candidates of juridical sciences, honored lawyers. Among them there are authors of the Code and comments to the Code on elections. In this situation Central Election Committee as the highest body should have act in accordance to the norms of the Code (paragraph 6, article 9): first of all, to repeal the second part of the judgment (refusal to register) of the protocol #4 of the meeting of district committee (in the first part of the protocol #4 the first judgment was repealed, in accordance to the paragraph 7 article 18 of the Code on elections) as contradicting to the Constitution of Kyrgyz Republic, the Code on elections of Kyrgyz Republic. There were all bases for such act, because today Central Election Committee has enlarged powers: including the control after the realization and compliance of citizens' election rights on the territory of the republic, control after the realization Constitutional norms of Kyrgyz Republic, the Code on elections, the legislation of Kyrgyz Republic and their uniform application. second, due to brutal violations of citizens' (diplomats') election rights by district election committee, Central Election Committee had the right to dis-form the district election committee and adopt a decision on forming a new election commission. Such decision would comply with paragraphs 10, 11, 12 of the Code on elections of Kyrgyz Republic. Unfortunately, neither Central Election Committee nor rayon court, nor Supreme court of Kyrgyz Republic took any measures in order to control the compliance with the norms and laws of the country and international law. In order to fully prove above mentioned statement, norms of the national legislation can be listed which give the right to the realization of the rights and freedoms or limits some rights of participants in the process of campaign. If to talk about norms of national legislation which limit citizens' election rights, then except residential qualification and age, there are other norms: p. 2 article 56 of the Constitution of KR give an exhaustive limitation - a citizen who has been convicted for a crime, and if the conviction is not cancelled in accordance with the law cannot be elected as a deputy of the Jogorku Kenesh. There aren't any other limitations in
the Main law - the Constitution of the Kyrgyz Republic. In the Code
on elections this norm is more broad (p. 3 and 4, article 2) Now concerning the norms, which provide the right to elect and be elected. In the Code on elections of the Kyrgyz Republic the following norms which regulate election rights and freedoms of citizens are provided. For example, p. 2 article 2 in particular state: citizen of the Kyrgyz Republic who is living or staying beyond its territory, have all election rights during elections in the Kyrgyz Republic. P. 2 article 3 of the Code on election
states that a citizen of Kyrgyz Republic can elected and be elected
despite his origin, gender, race, nationality, professional or financial
status, religion, political and religious beliefs, and also other
conditions. It seems that all these norms are an impregnable protection
for every citizen, however, as life shows, it is not true. Further: district commission of Universitetskyi election district #1 ignored the number of existing international agreements and treaties, of which the Kyrgyz Republic is a participant, for example, Kishinev convention, which was ratified by the law of Kyrgyz Republic on August 1, 2003 #185 - on standards of democratic elections, election rights and freedoms in member-states of the Commonwealth of Independent States. Kishinev convention has the following norm: Every citizen, who is living or is present during national election beyond the borders of his country, has equal election rights with other citizens of his country: diplomatic representatives, consular offices, their officials help citizens to realize their election rights and freedoms. Article 25 of the International treaty on civil and political rights has the following principle - "the right to be elected". It states the following: "Every citizen without any discrimination and limitations has the right and opportunity to: elect and be elected during elections, which are conducted according to the election legislation." Besides, the decision of the district commission fully contradicts the international principle of equal access of citizens to state service. Paragraph "c" of article 25 of the International treaty on civil and political rights and p. 2 article 21 of the Universal declaration for human rights sets the norm, according to which every citizen should have the right without any discrimination and baseless limitation to have an access to state service in his country. If to consider the adopted decision of the election commission, then according to this decision all diplomats, officials of diplomatic and consular offices, members of international organizations, UN missions, who are citizens of KR, wittingly would be infringed upon their election rights - to be elected to state bodies, which means to be deputies of Jogorku Kenesh as well. The question then raises: maybe the reason of "refusal" is not in the articles and in something else? After the refusal of district election commission to register R. I. Otunbaeva, pro-governmental internet web sites published articles of "black pr", pro-governmental newspapers also started discrediting Otunbaeva. The answer is simple, because president Akayev's daughter decided to run from the same constituency. Unfortunately the so called "telephone rule" is still very powerful in our republic. This is needed to those who don't want to see independent, experienced, hones and smart deputies in the Jogorku Kenesh. Performance, played with R. I. Otunbaeva can be considered as a preparation to hidden or obvious usurpation of state power. Moreover, according to prognosis on all levels, soon our republic will turn into parliamentary, with huge deputy authority. But for now in one of the newspapers we read: "Legislation on elections considers the necessity to guarantee and protect elections rights of citizens of Kyrgyz Republic as one of the main tasks. Lawful, fair and free formation of state bodies and bodies of local self governance depends on the realization of citizens' election rights." Republic should earn democratic points: and soon, dear citizens, we will be high up. Janybek Sopuev, lawyer |