Referendum-96: new Constitution or “juridical Chernobyl“?
Egor Klimovich, Klim Haletsky, UDF.BY
24 November 2011, 16:23
After the president started to talk in summer of 1996 about the need to change the Constitution in a referendum, the most prominent lawyers declared the illegality of such a proposal. Chairman of the Constitutional Court Valery Tikhinya at that time called consequences of Lukashenka's proposals as a "juridical Chernobyl".
About the 15 years old events and their "juridical echo" in today's Belarus, UDF.BY spoke with former judge of the Constitutional Court Mikhail Pastukhov.
The relationship between the Constitutional Court (CC) and the president began to deteriorate during the first year of their collaboration. The tension only grew as the judges examined president's decrees in conformity with the Constitution. During the summer of 94 till autumn 96, 16 of these acts were unconstitutional and lost its legal effect. Another reason for the deterioration of relations was the refusal of judges to express a no-confidence vote to the chairman of the Court Valeriy Tikhinya. In December 1995, Lukashenka issued a decree for restricted usage, requiring the subordinate authorities not to execute conclusions of the CC and to implement the president's decrees, declared as unconstitutional. According to Mikhail Pastukhov, "it became not only an open challenge of the president to judicial power, but also a flagrant violation of the Constitution".
"The referendum was unconstitutional and illegal in its origin"
Motives of the president, who initiated changes in the Constitution were clear to all who had read it carefully. Despite the fact, that the Basic Law, as amended in 1994 edition, provided the necessary balance between the branches of power. "Presidential powers assumed his intrusion into the sphere of other branches of power, which, coupled with the peculiarities of Lukashenka's character, predetermined his strive to become a "chief" and get out of the policy of checks and balances".
"The referendum was unconstitutional and illegal in its origin", Pastukhov thinks. Majority of the Constitutional Court judges was critical about Lukashenka's proposals, as they saw in them "the desire to destroy the balance of powers and establish a dictatorship of the president". Also, the Court thought, that de facto, not the amendments to the Constitution of 1994 were put to the vote, but a totally new basic law with totally different separation of powers, which functioned at that time. On this basis, on November 4, the CC passed a judgment, that results of the referendum to amend the Constitution could only be advisory in nature. "This was the final principal decision of the Constitutional Court in its history". Abolition of this conclusion by a sole presidential decree of November 7 was "not only unprecedented violation of the Constitution, but was at odds with the global legal practice".
International experts agree that the amendments proposed by Lukashenka, were aimed at "unwanted concentration of power on the president", establishment of the president's control over the juridical authorities and prosecutors. The project to create a bicameral parliament, in which the upper chamber partially is formed by the president personally, was also criticized. This provision is contrary to Article 3 of the Constitution, which states that the only source of power in Belarus is the people.
Flagrant violation which doesn't allow to recognize the referendum of 1996 as legal, is the dismissal of Viktor Gonchar, chairman of the Central Election Commission. "Even under the strongest pressure, Gonchar remained true to the Constitution, - says Pastukhov, - He demanded from local election commissions and executive bodies to execute the election laws strictly".
Despite this, local officials were mobilizing the electorate to vote early, which began on November 9, and were actively campaigning for the adoption of proposals made by Lukashenka. "Were distributed sample ballots, which were invariably "marked" for the issues proposed by the president, and against the issues proposed by the deputies." The principled position of Viktor Gonchar, who claimed that, in the presence of so many violations he would not sign the protocol of election results, led to that the president, in violation of the law, freed him from his post and appointed Lidiya Yermoshina acting as chairman of the Central Election Commission.
"The Court, unfortunately, was unable to fulfill its constitutional duty"
While talking about the events of "hot autumn of '96," one can not but memorize the attempt of members of the Supreme Council to begin the process of giving an impeachment. It seemed that nothing could stop it: the required number of signatures were collected and transferred to the Constitutional Court, the Court set the date for consideration of the case - November 22, at the appointed date the process was attended by all the invited. Except for two persons: Lukashenka and Tikhinya. As it turned out, on the night of November 22 Tikhinya participated in the already famous meeting at the presidential residence, during which an agreement on settlement of the constitutional crisis in the country was signed. "By its terms, the president refused to bring amendments to the Constitution up for a mandatory referendum, and the Court, in its turn, didn't start the procedure on the issue of impeachment. It should be noted, that Tikhinya had no authority to undertake such obligations on behalf of the CC. Later, he explained his action, by the desire to avoid civil confrontation on this issue. However, in that fateful moment for the country, the Court, unfortunately, was unable to fulfill its constitutional duty".
"Pseudo authority of the constitutional control"
In 1997 only 4 of the 12 Constitutional Court judges (including Grigory Vasilevich, later served as chairman of the Court and the General Prosecutor) saved their positions. The rest, who had claimed in November 1996 against the president's position, were asked to write a resignation letter. Those who refused to do so, were dismissed by a presidential decree with the phrase "in connection with the expiry of the term", though technically this term expired only in 2005.
After this, the CC turned into a "pseudo authority of the constitutional control", that doesn't have its position, and is dependent on the president. It's enough to mention the fact, that for 15 years not a single act of the president and not a single government regulation have been reviewed for compliance with the Constitution by judges of the CC. "And in 2004, when the issue on election of the president was put to the nationwide vote, which was contrary to the Electoral Code, there were no government agencies in the country, which could prevent the holding of such referendum".
What to do?
"To restore the rule of law in the country, it is necessary to return to the Constitution of 1994, which was actually destroyed by the pseudo-referendum of 1996. Activity of a unicameral parliament in its new composition on results of democratic elections must be restored. This parliament, in its turn, should create the highest judicial authorities. It is also possible to consider the question on exclusion the presidency from the Basic Law. The Republic of Belarus may be a parliamentary republic, the presidency is an unnecessary burden to it, as a recent history has shown".
24 November 2011, 16:23
If this project tomorrow becomes the basic law of our country, we will have in Central Europe the country with totalitarian regime.
Valeriy Tikhinya, Chairman of the Constitutional Court in 1994-1996
Valeriy Tikhinya, Chairman of the Constitutional Court in 1994-1996
After the president started to talk in summer of 1996 about the need to change the Constitution in a referendum, the most prominent lawyers declared the illegality of such a proposal. Chairman of the Constitutional Court Valery Tikhinya at that time called consequences of Lukashenka's proposals as a "juridical Chernobyl".
About the 15 years old events and their "juridical echo" in today's Belarus, UDF.BY spoke with former judge of the Constitutional Court Mikhail Pastukhov.
The relationship between the Constitutional Court (CC) and the president began to deteriorate during the first year of their collaboration. The tension only grew as the judges examined president's decrees in conformity with the Constitution. During the summer of 94 till autumn 96, 16 of these acts were unconstitutional and lost its legal effect. Another reason for the deterioration of relations was the refusal of judges to express a no-confidence vote to the chairman of the Court Valeriy Tikhinya. In December 1995, Lukashenka issued a decree for restricted usage, requiring the subordinate authorities not to execute conclusions of the CC and to implement the president's decrees, declared as unconstitutional. According to Mikhail Pastukhov, "it became not only an open challenge of the president to judicial power, but also a flagrant violation of the Constitution".
"The referendum was unconstitutional and illegal in its origin"
Motives of the president, who initiated changes in the Constitution were clear to all who had read it carefully. Despite the fact, that the Basic Law, as amended in 1994 edition, provided the necessary balance between the branches of power. "Presidential powers assumed his intrusion into the sphere of other branches of power, which, coupled with the peculiarities of Lukashenka's character, predetermined his strive to become a "chief" and get out of the policy of checks and balances".
"The referendum was unconstitutional and illegal in its origin", Pastukhov thinks. Majority of the Constitutional Court judges was critical about Lukashenka's proposals, as they saw in them "the desire to destroy the balance of powers and establish a dictatorship of the president". Also, the Court thought, that de facto, not the amendments to the Constitution of 1994 were put to the vote, but a totally new basic law with totally different separation of powers, which functioned at that time. On this basis, on November 4, the CC passed a judgment, that results of the referendum to amend the Constitution could only be advisory in nature. "This was the final principal decision of the Constitutional Court in its history". Abolition of this conclusion by a sole presidential decree of November 7 was "not only unprecedented violation of the Constitution, but was at odds with the global legal practice".
International experts agree that the amendments proposed by Lukashenka, were aimed at "unwanted concentration of power on the president", establishment of the president's control over the juridical authorities and prosecutors. The project to create a bicameral parliament, in which the upper chamber partially is formed by the president personally, was also criticized. This provision is contrary to Article 3 of the Constitution, which states that the only source of power in Belarus is the people.
Flagrant violation which doesn't allow to recognize the referendum of 1996 as legal, is the dismissal of Viktor Gonchar, chairman of the Central Election Commission. "Even under the strongest pressure, Gonchar remained true to the Constitution, - says Pastukhov, - He demanded from local election commissions and executive bodies to execute the election laws strictly".
Despite this, local officials were mobilizing the electorate to vote early, which began on November 9, and were actively campaigning for the adoption of proposals made by Lukashenka. "Were distributed sample ballots, which were invariably "marked" for the issues proposed by the president, and against the issues proposed by the deputies." The principled position of Viktor Gonchar, who claimed that, in the presence of so many violations he would not sign the protocol of election results, led to that the president, in violation of the law, freed him from his post and appointed Lidiya Yermoshina acting as chairman of the Central Election Commission.
"The Court, unfortunately, was unable to fulfill its constitutional duty"
While talking about the events of "hot autumn of '96," one can not but memorize the attempt of members of the Supreme Council to begin the process of giving an impeachment. It seemed that nothing could stop it: the required number of signatures were collected and transferred to the Constitutional Court, the Court set the date for consideration of the case - November 22, at the appointed date the process was attended by all the invited. Except for two persons: Lukashenka and Tikhinya. As it turned out, on the night of November 22 Tikhinya participated in the already famous meeting at the presidential residence, during which an agreement on settlement of the constitutional crisis in the country was signed. "By its terms, the president refused to bring amendments to the Constitution up for a mandatory referendum, and the Court, in its turn, didn't start the procedure on the issue of impeachment. It should be noted, that Tikhinya had no authority to undertake such obligations on behalf of the CC. Later, he explained his action, by the desire to avoid civil confrontation on this issue. However, in that fateful moment for the country, the Court, unfortunately, was unable to fulfill its constitutional duty".
"Pseudo authority of the constitutional control"
In 1997 only 4 of the 12 Constitutional Court judges (including Grigory Vasilevich, later served as chairman of the Court and the General Prosecutor) saved their positions. The rest, who had claimed in November 1996 against the president's position, were asked to write a resignation letter. Those who refused to do so, were dismissed by a presidential decree with the phrase "in connection with the expiry of the term", though technically this term expired only in 2005.
After this, the CC turned into a "pseudo authority of the constitutional control", that doesn't have its position, and is dependent on the president. It's enough to mention the fact, that for 15 years not a single act of the president and not a single government regulation have been reviewed for compliance with the Constitution by judges of the CC. "And in 2004, when the issue on election of the president was put to the nationwide vote, which was contrary to the Electoral Code, there were no government agencies in the country, which could prevent the holding of such referendum".
What to do?
"To restore the rule of law in the country, it is necessary to return to the Constitution of 1994, which was actually destroyed by the pseudo-referendum of 1996. Activity of a unicameral parliament in its new composition on results of democratic elections must be restored. This parliament, in its turn, should create the highest judicial authorities. It is also possible to consider the question on exclusion the presidency from the Basic Law. The Republic of Belarus may be a parliamentary republic, the presidency is an unnecessary burden to it, as a recent history has shown".
