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.




Women’s Day in Belarus: Celebrating the Real Heroes

On 8 March, Belarusians celebrate International Women’s Day. In the tradition of the Soviet Union, there is no special day for lovers such as Valentine’s Day, but men and women have separate holidays. This is the time to look at the relations between men and women in Belarus. Although both are equal in front of the law, in reality, women are not as equal as men.

23 February is Men’s Day, the Day of the Defenders of the Motherland, as it is called. This day is celebrated in the honour of the first victory of the Soviet Army near Pskow in 1918. Nowadays, 23 February is a day when all men feel like war heroes who defend their country and their families.

On their special day, men get shaving creme and socks as a gift from their wives, sisters and mothers. Women prepare cakes and food.  On the day before 23 February, the department stores look like they are for women-only. The department for men’s socks and toiletries are crowded with women buying presents for their beloved ones.

In return, women have their special day on 8 March, International Women’s Day. Here again, they prepare food, and their sons, husbands and brothers give them flowers, chocolate and household devices as presents.

Gender holidays as remnant of the Soviet past

Traditionally, these gender holidays are celebrated at work. Women prepare a party for their male colleagues, and men make up poems praising their female co-workers. Some companies have real competitions on which gender prepares the best party.

However, the gender holidays seem to be more and more a remnant of the Soviet past. According to opinion surveys, for the young generation of Belarusians, 8 March is just a day off (this is an example of positive discrimination: Women’s Day is a day off while 23 February is not). Only history students know that 8 March became the International Women’s Day to commemorate the role of women during the 1917 Russian revolution.

Some people in Belarus also prefer to celebrate the day of Belarusian Military Glory on 8 September instead of 23 February. This day refers to the victory of the Grand Duchy of Lithuania’s troops over the army of the Moscow principality in the battle on 8 September 1514 near the town of Orsha. This victory prevented Muscovite forces from occupying the territory of Belarus. Celebrating this holiday regularly leads to a deterioration in Russia-Belarus relations.

Women's rights in Belarus

No matter whether you celebrate Women’s day or not, it is still a day to have a look at the situation of gender equality in Belarus. Article 22 of the Belarusian Constitution states that all citizen are equal before the law. Belarus signed the optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. However, there is no separate law on gender equality in the country, and there are no quotas established for women’s participation in elections, employment, etc. in the legislation.

Belarusian law protects the physical integrity of women to a relatively high degree. However, violence against women, in particular sexual violence such as rape, sexually motivated murder, sexual harassment and trafficking in women, remains a significant problem. According to a survey conducted in 2004 by the Committee on the Elimination of Discrimination against Women (CEDAW), one-third of Belarusian women have suffered domestic violence. 

Even if Belarusian women are not beaten by their husbands, life is still hard for them, as Belarus is a country with a traditional paternalistic scheme of male and female roles. While most women work full-time, they also bear the basic load of housework. After their working days, they come home and cook, clean the flat and do the laundry.

Belarusian women, as every foreigner who has been invited to a Belarusian family knows, are exceptional: they always have several dishes readily prepared, even if they do not expect any visitors. If they have guests, or a holiday, the hospitality is legendary, and they will not stop cooking until the table is fully loaded with food. At the same time, Belarusian women manage to take care of themselves and are reportedly good-looking.

Importance of paternal role in raising children is underestimated

It is part of the traditional role-understanding that women stay at home looking after the children. Despite the Belarusian law providing for “parental leave” three years after the birth of a child, in 2010 only 2,000 fathers used it. According to the United Nations Population Fund, Belarusians underestimate in society the importance of paternity, a fact that led to a decrease in the influence of men raising children.

In Sweden and Germany, the same possibility of parental leave exists. However, in those countries, the state explicitly encourages fathers to profit from the occasion and stay at home. In Germany, for instance, the sum of payments last for only 14 months, and the payments can be received only if the fathers stay at home with their children at least two months of this time.

This shows that not only in Belarus but also Western countries have a long way to go towards true gender equality in child care. In contrast to Germany and Sweden, Belarus does not do anything to encourage fathers to stay with their children for some time.

A recent article in Nasha Niva weekly on the subject of child care underlines this problem: “Papas will not be forced to work as Mamas”. The fact remains that most mothers have to stay at home because women work in lower-pay jobs.  Women are often paid less, even if they do the same work as men do.

It is a pity that Belarusian young fathers are deprived of the possibility to spend more time with their children. In Belarus, it is unusual for a father to attend the antenatal classes or to be present at the birth of their children. Men who want still want to do so have to explain themselves when talking to others and are made fun of by their male friends.

Belarusian men can be great fathers; they have a lot to give to their children. It would be good for the future generation of Belarusians if the men were enabled by the society to assume their natural role in the upbringing of their offspring. That could be the best present for mothers on the Women's Day.