Belarusian Constitution: An Obituary on Democracy
On 15 March 2013 Alexander Lukashenka congratulated Belarusians on the Constitution Day.
Since this document entered into force in 1994 it has suffered two substantial revisions, each of which emphasised the further decline into an authoritarian abyss.
Nowadays the Belarusian Constitution fails to fulfil its main purpose: to safeguard the country from the usurpation of power. Instead it has become an instrument of such 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 has remained in permanent conflict with other branches of power: the legislative (Supreme Council) and the judicial (Constitutional Court) until 1996.
In November 1996, Lukashenka initiated a referendum proposing a new version of the Constitution which would enormously enlarge his powers and demean the role of parliament. The Supreme Council came up with a counter-proposal to abolish the institution of president and reform Belarus into a 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 MPs opposed to the edict initiated an impeachment procedure against President Lukashenka. They asked the constitutional court to examine this issue. Ultimately, it culminated in a major political crisis in Belarus.
After a night of secret talks with Russian governmental envoys on 22 November 1996, Alexander Lukashenka and the Head of the Supreme Council of Belarus, Syamyon Sharetski, signed an agreement: parliament was to withhold the impeachment and Lukashenka was to withdraw the mandatory implementation of the referendum by edict.
The next day, after the Russian envoy had left, the 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 official figures, won on all the items that he had proposed.
The head of the 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 required under law. A few years later Viktar Hanchar was mysteriously kidnapped.
On 26 November 1996 the Constitutional Court, by a majority opinion, terminated the proceedings on impeachment. This event 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 that, having dismissed the others, counted among its ranks 110 loyal MPs. The new body was called the House of Representatives and became the lower chamber of the bicameral National Assembly.
In 2004 another referendum took place. Lukashenka removed the limitation of two presidential terms for any individual, allowing himself to stay in power for as long as he wanted. This time the loyal parliament and judicial system kept silent about falsifications and a direct breach of article 112 of the Electoral Code that prohibited putting issues dealing with presidential elections to a referendum.
The Venice Commission, a reputable Council of Europe institution, tasked with observation of constitutional developments in the world, called the results of the 1996 and 2004 referendums both unconstitutional and anti-democratic.
The EU, OSCE, and USA followed the same line. After the events of November 1996 they withdrew recognition of Alexander Lukashenka and his puppet parliament as the legitimate authority in Belarus. The Parliamentary Assembly of the Council of Europe expelled Belarus. It now holds a "special guest" status.
The Constitution Enables Autocracy and Contains "Dead" Norms
In the present-day Belarusian Constitution the president dominates all three branches (legislative, judicial and executive) and has exclusive powers in each of their fields of apparent competence.
For example, the president can 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 to the higher courts, the president needs formal approval from the Council of the Republic, which he has always received in the last 17 years.
Although the president is not de jure the head of the executive branch, he appoints all the ministers and other members of the government. The House of Representatives must approve the person of prime-minister. If it fails to reach such an agreement twice, the president can dissolve the parliament. Once again the recent history shows that parliament has never disputed any 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 are to prevail in any case of conflict with other laws.
Symbolically, Article 84, which describes the powers of the president, is the longest one in the entire Constitution.
Some norms in the Belarusian Constitution remain purely declaratory. 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 going to jail for claiming to exercise their constitutional right.
Even the Constitutional Court, cleansed of independent judges, has several times referred to such gaps and other defects of the Constitution, such as the absence of an ombudsman-institute or the presence of the death penalty. Nobody, however, has responded to these unpretentious efforts put forth by 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 the political purposes of specific personalities, the constitution becomes a political tool instead of the foundation of a democracy.