Updated at 23:19,25-10-2016

Belarusian Constitution: an obituary on democracy

Artyom Shraibman, BelarusDigest
25-03-2013, 22:36
Belarusian Constitution: an obituary on democracy

On 15 March 2013 Aleksandr Lukashenka congratulated Belarusians on the Day of the Constitution.

Since this document entered into force in 1994 it has suffered two substantial revisions, each of which emphasised the further decline to the authoritarian abyss.

Nowadays the Belarusian Constitution fails to fulfil its main purpose: to safeguard the country from usurpation of power. Instead it has become an instrument of such an abuse, entitling the all-powerful ruler to control the state machinery completely.

The Story of a Grand Takeover

Adopted in 1994 the Belarusian Constitution contained all the prerequisites to make this post-socialist state a European democracy based on the rule of law and the separation of powers. But it failed to resist the intentions of the first democratically elected president to grasp power.

Since Lukashenka won the presidential elections in 1994 he remained in a permanent conflict with other branches of power: the legislative (Supreme Soviet) and the judicial (Constitutional Court) until 1996.

In November 1996 Lukashenka initiated a referendum proposing a new version of the Constitution enormously enlarging his powers and demeaning the role of parliament. The Supreme Council came up with a counter-proposal to abolish the institute of president and reform Belarus into parliamentary republic.

The Constitutional Court unambiguously ruled that the results of the planned referendum could be only advisory, not mandatory. But Lukashenka issued a special edict making the referendum’s results legally binding.

A group of oppositional MPs initiated an impeachment procedure against president Lukashenka. They asked the Constitutional court to examine this issue. It was a culmination of the political crisis in Belarus.

After a night of secret talks with the Russian governmental envoys on 22 November 1996 ​Aleksandr Lukashenka and the Head of the Supreme Council of Belarus Syamyon Sharetski signed an agreement: parliament was to withhold the impeachment procedure and Lukashenka was to turn down the mandatory character of the referendum.

The next day, after the Russian envoys had left, pro-presidential fraction in the Belarusian parliament rejected the agreement. This gave Lukashenka a free hand to hold his referendum as legally binding just as he wished it to be.

On 24 November the referendum finally took place. Lukashenka according to the official figures won on all questions he had proposed.

The head of Central Electoral Committee, a famous Belarusian lawyer and politician, Viktar Hanchar refused to recognise the results because of multiple falsifications. Lukashenka dismissed him immediately without consulting the parliament as he had to. A few years later Viktar Hanchar was mysteriously kidnapped.

On 26 November 1996 the Constitutional court by the majority opinion terminated the proceedings on impeachment. That signified the end of the short-lived Belarusian democracy.

In the Aftermath of the Referendum

Soon after the referendum Lukashenka himself formed a new parliament out of 110 loyal MPs, having dismissed the others. The new body called the House of Representatives and became a lower chamber of the bicameral National Assembly.

In 2004 another referendum took place. Lukashenka removed a limitation of two presidential terms for one person, allowing himself to stay in power for as long as he wanted. This time the loyal parliament and judicial system kept silence about falsifications and a direct breach of article 112 of Electoral Code that prohibited putting issues dealing with presidential elections on a referendum

The Venice Commission, a reputable Council of Europe institution, tasked with observation of the constitutional development in the world, called the results of 1996 and 2004 referendums both unconstitutional and anti-democratic.

The EU, OSCE, USA followed the same line. After the events of November 1996 they withdrew recognition of Aleksandr Lukashenka and his puppet parliament as legitimate authority in Belarus. The Parliamentary Assembly of the Council of Europe expelled Belarus, where it had had a "special guest" status.

The Constitution Enables Autocracy and Contains "Dead" Norms

In the present-day Belarusian Constitution the president dominates over all the three branches (legislative, judicial and legislative) and has exclusive powers in their fields of competence.

For example, the president can to appoint and dismiss all the judges in the country except for six judges of the Constitutional Court (they are elected by the Council of the Republic, the upper chamber of Belarusian parliament). For the appointment of top judges of the higher courts the president needs a formal approval from the Council of the Republic, which he has always received during last 17 years.

Although the president is not de jure head of the executive power he appoints all the ministers and other members of the government. The House of Representatives must approve the person of prime-minister. If failed to reach such an agreement twice, president can dissolve the parliament. Once again the recent history shows that parliament has never disputed presidential decisions.

In the legislature the powers of the president seem to be overwhelming. Presidential decrees and edicts have the same legal force as laws. But article 137 of the revised Constitution specifies that presidential acts prevail in case of conflict with laws.

Symbolically, Article 84 that describes the powers of the president is the longest one in the entire Constitution.

Some norms in the Belarusian Constitution remain purely declarations. Cases of multiple human rights violations are de-facto deviation from the Constitution, but the situation with alternative civil service is a unique officially admitted legal gap in the Belarusian legislation.

Article 57 of the Constitution provides citizens with the right to choose alternative civil service instead of mandatory military service. But the mere absence of the corresponding law disables this provision. Young men referring to this norm risk to go to jail for claiming to exercise their constitutional right.

Even the Constitutional Court, cleansed of independent judges, several times referred to such gaps and other defects of the Constitution, such as the absence of an ombudsman-institute or the presence of death penalty. However, nobody responded to these unpretentious efforts of the Court.

The narrative of Belarusian modern history will always be a perfect example of how a country must not treat its most important law. When rewritten for political purposes of certain people, the constitution becomes a political tool instead of the foundation of democracy.