Monday, June 14, 2010

Kyrgyzstan: The road from “Mobocracy”, to Constitutional Reform

by M. Ulric Killion

Armoured vehicles arrive in Osh, in southern Kyrgyzstan, after rioting in the city. Photograph: Reuters.

In an earlier article entitled Democracy on Trial: From Kyrgyzstan and “Mobocracy”, to China and “Proletariat Democracy” (2010), this author characterized the on-going plight (or violence and rioting) in the Republic of Kyrgyzstan as a challenge to the ideal of democracy. In the context of Kyrgyzstan, the article further explored the issue of whether Kyrgyz politics via “the mob” ultimately constitutes or represents “mobocracy” or “democracy in action.”

The test of Kyrgyz politics via “the mob” apparently still represents an on-going crisis for the citizens of Kyrgyzstan. As news sources are reporting a new round of violence and rioting in Kyrgyzstan, the world may be witnessing the continuing repercussions or even after shock of “mobocracy” and its inherent, inevitable forces of instability. 

On June 11, 2010, news sources were reporting that the government of Kyrgyzstan deployed soldiers and armoured troop carriers on to the streets of Osh, the “second city.” Following clashes that left at least 39 persons dead and more than 600 injured, the deployment of military force was necessary to quell the on-going violence and rioting (Kyrgyzstan declares state of emergency as 45 killed, Guardian, June 6, 2010).

The transitional government now in place declared a state of emergency in four southern regions. This is the same transitional government that took power after ousting then President Kurmanbek Bakiyev in a seemingly popular revolt, or simply, his ousting by “mob rule.”

Apparently, following the ousting of President Bakiyev in April, violence and/or rioting, though on smaller scale than before, continued to plague the Republic of Kyrgyzstan. Media sources (Guardian, 2010; Kyrgyzstan looks to Russia for help in quelling violence, Deutsche Welle, June 12, 2010), however, in terms of the degree of continuing violence and rioting, are characterizing the violence and rioting as the most serious since the institution of the new government by “mob rule.” This is the newly installed government that former diplomat Roza Otunbayeva, as the interim-Kyrgyz leader, continues to lead.

In the interim, and presenting additional challenges to Kyrgyz politics, the newly constituted government by “mob rule’ is also seeking to amend or rewrite the constitution of Kyrgyzstan (See Larry Catá Backer, Form and Function in Constitutionalism--Diverse Perspectives on the Kyrgyzstan Experience. Law at the End of the Day, June 6, 2010; discussing the Decree of the Provisional Government of the Kyrgyz Republic on the Referendum (Nation wide vote) on adoption of the New Constitution of the Kyrgyz Republic and Draft Constitution.).

As mentioned in an earlier article (Democracy on Trial, 2010), “the 1993 constitution of Kyrgyzstan actually defines the form of government as a democratic republic.” Nonetheless, and despite constitutional language prescribing a democratic republic for Kyrgyzstan’s government, as Larry Catá Backer (Form and Function in Constitutionalism, 2010) explained, “Fresh from the overthrow of their former ruler, the people of Kyrgyzstan people have also sought to replace their constitutional framework as well”.
When discussing the proposal to amend or totally replace the 1993 constitution of Kyrgyzstan, Backer (Form and Function in Constitutionalism, 2010) writes:
Americans (and now Europeans) love constitution making.  The formalism of the process and the fact of the elaboration of an institutional apparatus of government--and its embrace of rule of law (process and substance)--has been one of the great missions of the Americans at least since 1945.  See, Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008. The constitutional document has now acquired extraordinary symbolic meaning for Europeans and Americans, evoking everything from the notion of sovereign consent memorialized to the ceremonials of the articulation and vesting of sovereign authority on the representatives of the body corporate the embodies the state. . . .
Backer (Form and Function in Constitutionalism, 2010) also opines, “And this new Kyrgyzstan version, like its predecessors, is likely to represent an excellent version of the standard model third generation constitutionalism.” By so characterizing the potential of constitution reform, Backer also provides us with a more positive and forward-looking approach concerning what is transpiring in Kyrgyzstan. 

Otherwise, observers of Kyrgyz politics, especially recent actions via “the mob,” are seemingly only left with the dilemma of attempting to reconcile “mobocracy” with genuine “democracy in action,” though admittedly a seemingly backward-looking rather than forward-looking approach. In this respect, Backer rightly observes that the potential of constitution reform, especially what he hails a third generation  model of the constitution, could provide an impetus for moving forward and beyond pending crises. 

A problem remains, however, with the environment for reform, especially constitutional reform. This is because those advocating constitution reform do so in a socio-political environment plagued with violence; i.e., from the violent usurpation of power or the ousting President Bakiyev by “the mob”, to the most recent outbreak of violence and rioting. 

This socio-political environment also encompasses serious clashes between two ethnic groups, which were a core source of the spark for a new round of violence and rioting in Osh, the “second city.” There are also the more subtle external influences, such as the geo-political tug of war between the United States and Russia; both of which have military bases in this central Asian country. 

Moreover, one suspects that a greater problem for constitutional reform will be the on-going clashes between ethnic groups. This is because constitutional government erects on the consent of the people, rather than by force or coercion; i.e., the deployment of soldiers and armoured troop carriers. 

Employing the most simplistic terms, one could say that somewhere lying at the core of a democratic constitutional form of government are two key ideas: consensus building and compromise. Both of which are essentially core Western sentiments lying at the heart of ideal democracy.

A potential problem, however, might be clashes between ethnic groups, which generally only serve to exacerbate respective tensions, rather than enhancing consensus building between clashing ethnic groups. In other words, addressing the problems of consensus building and ultimately resolving the crisis of pluralism becomes critical to constitutional reform.
For instance, this also serves as reminder of Hugo Grotius’s earlier thesis of “overlapping consensus” of diversity in worldviews based on natural law, in his On the Laws of War and Peace (De jure belli ac pacis libri tres, 1625), though a thesis that also earlier  begins to take form in his De Indis and the Meletius. There is also John Rawls and his more recent thesis of “overlapping consensus,” in his Political Liberalism (1995). Many actually argue that Grotius anticipated Rawls with his earlier thesis of “overlapping consensus.” 

The genius of Grotius lies in what many characterize as his “Grotian liberal consensus,” which, in essence, theorizes a solution to the problem of pluralism. He uniquely theorized the resolution of religious conflict by reducing religion to ethics, while at the same time leaving religious beliefs diverse, and then seeking to show Christians of different sects that it was possible. It is essentially by this means that Grotius allows liberalism to resolve the problem of pluralism, or simply, his localization of theological barriers to a Grotian liberal consensus. 

For Rawls, however, an “overlapping consensus” was critical simply because those holding comprehensive moral views must necessarily seek a common ground for reaching consensus about principles of justice. In terms of the liberalism of Rawls, this meant that the successful localization of liberalism (or liberal constitutionalism) remains contingent on a social unity and concord that requires agreement on a general and comprehensive religious, philosophical or moral doctrine. 

Granted, these are only small samplings of the thoughts of both Grotius and Rawls, and equally small samplings of Western literature addressing the problem of pluralism. Nonetheless, in the context of Kyrgyzstan, these brief introductions to the thoughts of both Grotius and Rawls, more importantly, serve to demonstrate the critical issue of consensus building and the attendant potential problem of clashing ethnic groups. 

Then there is the issue of a new constitution. As constitution-writers draft a potentially new constitution, we should be reminded first and foremost that we are talking about a written document.  This is important to understand, because the meaning and legitimacy of a written constitution derives not from the document (i.e., the written constitution) itself, rather from the sort of consensus on religious, philosophical or moral doctrines that both Grotius and Rawls sought. 

This is also in large part due to Joseph de Maistre’s earlier thesis that, “The fundamental principles of a political constitution and constitutional law “exist before all written law,” as the development of “an unwritten preexisting right” that is “intrinsically constitutional, and truly fundamental,” but “never written, and could not be, without endangering the state”; and “the weakness and fragility of a constitution are actually in direct proportion to the multiplicity of written constitutional articles” (M. Ulric Killion, “Building-Up” China’s Constitution: Culture, Marxism, and the WTO Rules, Loyola of Los Angeles Law Review, Vol. 41, No. 2, 563 (2008); Joseph de Maistre, Essay on the Generative Principle of Political Constitutions and of other Human Institutions, The Works of Joseph de Maistre (1809)).

All of these forces will eventually influence the shape or form of constitutional reform. Kyrgyz politics and the socio-political environment of Kyrgyzstan will especially influence the success or failure of constitutional reform. Additionally, a question that remains is whether Otunbayeva, as the interim-Kyrgyz leader and a former teacher of Marxist-Leninist theory, can truly embrace Western mores, especially Western constitutional mores. 

At the end of the day, whether one is attempting to reconcile “the mob” or “mobocracy” with “democracy in action”, or whether one is anticipating constitutional reforms reflective of Western ideal constitutionalism and democracy, the world is relegated to a game of “wait and see.” In the end, as for what will actually transpire because of the new constitutional reform movement presents a host of other issues that we have yet to explore. 

Again, for now the world will just have to “wait and see” when and how Kyrgyzstan and its unique variety of politics will move beyond now seemingly perennial civil unrest without actually having to resort to violence in quelling violence on the streets. It is for this reason that the interim government of Kyrgyzstan may find itself struggling to shed the stigma of “the mob” or “mobocracy,” notwithstanding successful constitutional reforms moving the country beyond pending crises. All of this also makes the journey from “mobocracy” to constitutional reform an arduous one.

Copyright © Protected - All Rights Reserved M. Ulric Killion, 2010.