Presidential Powers and Human Rights under the Draft Constitution of Belarus _*

The Lawyers Committee for Human Rights _**

Lawyers Committee for Human Rights
October 1996

I.  Introduction

  From its emergence as an independent state, Belarus has had a constitutional government founded on the principle of the separation of powers. In 1994, the Soviet-era Constitution of 1978 was replaced with a Constitution that declared Belarus a unitary, democratic state based on the rule of law. Since his election as the first President of Belarus in 1994, however, Aleksandr Lukashenko has continuously attempted to erode the checks on his power by the legislative and judicial branches. Often, this has had a detrimental impact on human rights. In 1995, he promised to impose direct presidential rule and propounded his own theory of the separation of powers: the judicial, executive, and legislative branches all stem from the presidency and thus are subject to his own oversight and control. Lukashenko has assaulted the authority of both the Supreme Soviet (Parliament) and the Constitutional Court on numerous occasions, and the introduction of a new draft Constitution just two years after the adoption of the current one represents yet another attempt to curtail the activities of the other branches of power.

  Although the analysis below concentrates on the language of the draft Constitution and, in particular, on the articles that may affect human rights protection in Belarus, it must be noted that the constitutionality of the way in which the draft has been presented may also be questioned. This is particularly true if President Lukashenko proceeds with his plan to organize the referendum on November 7, 1996 and not on the date the Parliament has chosen (November 24). Such a referendum would be in direct conflict with the current Constitution, which expressly states that referenda "shall be scheduled by the Supreme Soviet" (Article 74). Another point that casts doubts upon the legality of the referendum on the draft Constitution is that, under Article 149, a referendum can result in additions and amendments to the Constitution, but not in a whole new Constitution. Although the presidential draft is presented as putting forth "amendments and additions" to the current Constitution, the changes are so fundamental that the draft document can be seen as an entirely new Constitution. Yet another point that may jeopardize the legitimacy of the referendum is the presidential control over media. As a result of restrictions and censorship by the Government it is unlikely that the voters will be able receive impartial information upon which to base their vote.

 

II.  Constitutional Rights

  The draft Constitution, which will be put before the people for a referendum in November 1996, retains much of the human rights language of the present Belarus Constitution. The changes in Section II on human rights (entitled "the Individual, Society and the State") relate mainly to social and economic rights, which are given more prominence. However, Section IV, entitled "the President, the Parliament, the Government, the Court," has been dramatically reworked, and threatens to establish the foundations for a particularly autocratic form of governance. Many of these changes have a direct impact on the protection of human rights enumerated in Section II. For instance, the draft Constitution states (as does the current Constitution) that all rights included in the Constitution can be limited in the cases "stipulated by laws" (predusmotrennykh zakonom), "in the interests of national security, public order, protection of citizens' morality and health, as well as the rights and freedoms of other persons" (Article 23). Even the current Constitution has been criticized for this sweeping restriction provision, which does not explicitly exclude restrictions on such rights as torture, the limitation of which would violate Belarus' international commitments, including the International Covenant on Civil and Political Rights (ICCPR). But changes in Section IV of the draft greatly expand the scope of this provision. This is due to the fact that 101 of the draft allows the president to issue provisional decrees "having the status of law" (imeiushchie silu zakon). In other words, whereas under the current Constitution only the legislature can invoke Article 23, the draft allows both the legislature and the president to do that.

  Some of the changes in the Constitution are designed to address the areas where the President has used particularly harsh methods in the past years. For instance, in 1995, strikes to protest late payment of wages prompted the government to detain a number of employees and union leaders. The draft would expand the president's powers in this realm by giving him/her the right to delay or suspend a strike (article 84(21)) indefinitely. The current Constitution has a similar provision, but it states that such a measure may not be in effect for longer than two months (article 100(19)).

 

III.  Checks on Presidential Powers

  Under the current Constitution, potential attacks by the executive on human rights may, at least in theory, be barred by two other branches of power. True, in practice, the President has ignored these constitutional checks on his activities. The Constitutional Court, in particular, has tried to protect the rule of law in Belarus, but with little results. In its message "On the State of Constitutional Legality in the Republic of Belarus in 1995," the Constitutional Court notes that the executive power has ignored the decisions of the Court in which it found 11 presidential decrees from 1994 and 1995 unconstitutional. The draft Constitution reacts to the disregard of the control mechanisms not by enforcing the mechanisms but by undermining them. Section IV of the draft deletes or at least weakens most of the judicial and parliamentary checks on presidential powers.

1. Legislature

  The boldest step toward presidential control of the legislative branch is article 91, according to which the president will directly appoint one third of the members of the Senate, the upper chamber of the new two-chamber parliament. (Currently, the sole legislative organ is the Supreme Soviet, the 260 members of which are all elected). The effect of this power is highlighted by the fact that many essential functions of the legislature are to be performed solely by the upper chamber. A number of these functions are directly relevant to human rights protection. For instance, whereas under the current Constitution a presidential decree introducing the state of emergency must be approved by the Supreme Soviet within three days, Article 84(21) of the draft requires only approval by the Senate. (It should also be noted that both under the current Constitution and the draft Constitution, the conditions under which a state of emergency can be declared are much more numerous than those stipulated in the ICCPR). A declaration of a state of emergency, in turn, allows the government to derogate from a number of constitutional rights.

  According to the draft Constitution, several checks on presidential powers many of them directly relevant to human rights can be employed only with the support of a qualified majority of the Senate. Given the president's right to appoint one-third of the members of the Senate, such checks are, of course, particularly vulnerable to presidential manipulation. For instance, the president can be dismissed for committing high treason or another grave crime (instead of any "crime," as provided in the current Constitution), and such a decision must be voted for by at least three-fourths of the complete membership of the Senate (in addition to two-thirds of the members of the lower chamber). To further insulate the president from outside control, the authors of the draft have deleted the provision of the current Constitution that provides that the president may be removed from the office in the event of a "violation of the Constitution" (Article 104).

  In contrast to new safeguards on the president, the drafters have severely compromised the immunity of parliamentarians. According to Article 102 of the draft Constitution, their immunity does not cover, inter alia, charges of "insults." This provision should be read together with Article 79 which provides that the president's "honor and dignity shall be protected by law." No language of this nature exists in the present Constitution. President Lukashenko has in the past acted as an intractable foe to the freedom of speech in Belarus. He has ordered, for example, the cancellation of printing contracts of major daily Belarus newspapers and dismissed editors of papers for their attempts to publish stories critical of the government. While its wording is not necessarily in conflict with international human rights law, draft Article 79 may have the further effect of giving Lukashenko constitutional pretexts to curtail the freedom of speech guaranteed by article 33 of the Constitution. Moreover, draft Articles 94 and 84.3 provide that if there is "a systematic or grave violation of the Constitution" by the legislature, the president may dismiss both chambers. The decision that such a violation has occurred shall be taken by the Constitutional Court, which under the draft is, as explained below, heavily under the control of the president.

  Article 100(20) of the present Constitution provides that the president, upon receipt of a law, return it to parliament with objections. If more than two-thirds of the members of Parliament uphold the law it adopted earlier, then the president is obliged to sign it. The draft Constitution discards this clause and, instead, Article 84(22) states that the president "shall have the right in the order stipulated by the Constitution to return the bill or certain provisions thereof together with his objections to the Chamber of Representatives." Article 100 of the draft Constitution elaborates on this procedure and provides that the president's veto can be overruled by a two-third majority of the members of both chambers of the parliament. In other words, the president has the absolute veto power over legislation as long as she/he is supported by his/her direct appointees and one additional member of the Senate. When it comes to "programmatic laws" (programmnyi zakon) a category not defined in the Constitution the scale is tipped even more in favor of the president; in such instances, the presidential veto can be overruled only by three-quarters of the members of both chambers of the parliament. Moreover, according to draft Article 99, the laws that require state expenditures may be submitted to the legislature "only upon the consent of the President." This would, of course, give the president direct control over a great number of laws, many of them related to human rights. For instance, the implementation of the proposed law on the ombudsman, or human rights commissioner, of Belarus would certainly require state funds and, therefore, require the consent of the president.

  Under the draft, however, the president does not have often to control the lawmaking activities of the Parliament in order to govern the content of the dominating norms of Belarus. This is due to the fact that the draft shatters the current hierarchy of normative acts by deleting the current constitutional rule included in Article 146 which provides that a law enacted by the legislature shall always take precedence over a conflicting enactment, including presidential decrees and edicts. Instead, the draft states, in Article 137, that if a decree or edict contradicts a law, then the law takes precedence only in the case that "the power to issue the decree or edict has been granted by the law." As read, the draft Constitution only gives laws adopted by the legislature precedence over presidential norms if the laws in question contain express language allowing decrees or edicts to be issued on the subject matter of the law. A law is superior, in other words, only if it expressly gives power to the president to issue norms in a particular area. If laws are silent on the subject of edicts and decrees, the president would theoretically be free to legislate on the subject matter of those laws and his issuances would thus have priority over the laws. Presidential decrees and edicts would be a fundamental source of the law in Belarus, thus further encroaching on the legislative branch. Recent developments in Belarus indicate that presidential decrees are hardly a future source of generous human rights norms; rather, they have repeatedly undermined human rights standards included in both the Constitution and the laws adopted by the Supreme Soviet. Therefore, from the human rights point of view, turning the current norm-hierarchy upside down should been viewed as a negative development. It should also be noted that, in the domestic context, international human rights treaties are not going to provide strong normative grounds to counter possible attacks on human rights, although Belarus has ratified, for example, the ICCPR and is seeking to join the Council of Europe and its human rights treaties. This is due to the fact that Belarus, unlike the Russian Federation and many other states of the former Soviet Union, continues to reject monism in its approach to international law. This is true with respect to both the current Constitution and the draft prepared by the presidential administration.

2. Constitutional Court

  The president of Belarus has, on several occasions attacked the work of the Constitutional Court and portrayed it as a tool of the legislature, despite the fact that the Court has also found some norms adopted by the Supreme Soviet unconstitutional. Therefore, it is not surprising that one of the most drastic changes in the draft Constitution relates to the Constitutional Court. Given that more than half of the 26 cases examined by the Constitutional Court in 1995 concerned constitutional rights, changes in the norms on the Constitutional Court should be a key issue in any human rights analysis of the draft Constitution.

  The present Constitution provides that judges of the Constitutional Court are elected by Parliament. In contrast, draft section 8 authorizes the president to appoint the chairman and five regular members of the 12-member Constitutional Court. Given that in the event of a tie the chairman will cast the decisive vote, the presidential appointees will control the work of the Court. Moreover, the additional six members of the Court will be appointed by the Senate, which, again, is a body at least partly controlled by the president. The power of the president to elect members of a Constitutional Court does not immediately endanger the principle of separation of powers. Indeed, the president already has the power to appoint the judges of regular courts. However, this rule may be seen as Lukashenko's attempt at reeling in a Court that has tried to control his autocratic methods. Whereas the judiciary in Belarus in general "is not independent and is largely unable to act as a check on the executive branch and its agents," the Constitutional Court, in 1995 alone, examined 14 presidential decrees and declared 11 of them partly or wholly unconstitutional and, consequently, invalid. Lukashenko, nevertheless, issued another decree in late December of that year obliging government and local authorities to disregard the Court's rulings. This decree was also ruled unconstitutional by the Constitutional Court in April 1996. The presidential administration also told the chairman of the Court that if he did not "voluntarily" resign his post the president would force his resignation. In light of these and other attacks by Lukashenko on the Constitutional Court, one should also note with a critical eye that the prohibition, included in Article 126 the current Constitution, of "direct or indirect pressure on the Constitutional Court or its members connected with activity pertaining to the exercise of constitutional suprevision" does not appear in the draft Constitution.

  In addition to the presidential domination over appointments, the draft Constitution includes a number of changes that would fundamentally alter the functions of the Constitutional Court. In general, these changes such as the elimination of the immunity of its members serve to lower the status of the Constitutional Court. It is revealing that, whereas in the current Constitution there is a whole Chapter (No. 6) with seven articles devoted to this organ, the draft contains only one article pertaining solely to the Constitutional Court. Granted, many of the articles on courts in general should be applicable to the Constitutional Court as well. But even their solidity has decreased with the changes. For instance, although the draft repeats the language of the present Constitution and provides that the bases for dismissal of judges shall be determined "by law" (zakonom), the practical significance of this language is quite different. As explained above, the president has, under the draft Constitution, the power to issue "laws" and, consequently, to stipulate the grounds upon which judges can be dismissed.

  The number of entities entitled to appeal to the Constitutional Court are drastically cut in the draft Constitution, from seven to four, although the corresponding norms in the present Constitution are not too liberal either (for instance, individuals have no right to lodge a constitutional complaint). The deletion with perhaps the strongest potential impact is the exclusion of the Court's right to examine cases on its own initiative. Not surprisingly, the draft mentions the president as the first entity entitled to initiate cases before the Constitutional Court. Legislators are allowed to do that only if such a decision is taken by a majority of either Chamber of the Parliament. It should be noted that the Constitutional Court reacting to hundreds of letters it has received from individuals on human rights violations has called for reverse changes in the complaint procedure and advocated for the right of individuals to lodge constitutional complaints with the Court.

  The new hierarchy of norms included in the draft would also have an impact on the status of the Constitutional Court. For instance, with the higher status of decrees and with the power to adopt "laws," the president would probably be able to block such laws as the amendment to the Penal Code (adopted in July 1996 by the Supreme Soviet after it overruled the presidential veto) according to which any person who has coerced officials into not abiding by the decisions of the Constitutional Court would face up to three years in prison. Also, Article 116 of the draft Constitution states that the jurisdiction, organization and procedures of the Constitutional Court "shall be determined by law." Here again, the president's power, under the draft, to adopt "laws" becomes a powerful tool in manipulating other branches of power, in this case the judiciary.

  The Constitutional Court is not the only judicial organ that is placed under direct control of the president. This is, in many respects, true with the courts of general jurisdiction as well. For instance, the draft Article 84(9) grants the president the rights to dismiss the Chairman of the Supreme Court "for the reasons envisaged in the law, with notification of the Senate." Once again, the presidential power to adopt laws, together with a general Constitutional provision, creates potential for abuse by the president.

 

IV.  Democratic Process

  Finally, it should be noted that the draft Constitution is in many respects an attempt by President Lukashenko to secure his post as president well beyond his current mandate. Under draft Article 144, Lukashenko's term would be automatically extended to the year 2001. The draft also includes language that appears specifically to be designed to foil the attempts of some candidates to challenge the sitting president. Draft Article 80 provides that candidates for president must have lived in the Republic of Belarus for at least ten years immediately before the elections. The present Constitution requires candidates to have lived at least ten years in the Republic of Belarus, but places no limitations with respect to whether those ten years were spent in one unbroken time period before the elections. This change was obviously prompted by the fact that, in 1996, the opposition leader Zyanon Paznyak of the Belarussian Popular Front was forced to flee Belarus and to apply for asylum in the U.S. As a result, the draft Article 80 could have the effect of rendering viable challengers to Lukashenko ineligible to take part in a presidential election.

  Given that the current draft would extend the term of the president, the draft's rules on presidential control over referenda process are also relevant when examining the future of the democratic process in Belarus. So far, the Supreme Soviet has had the power to develop electoral and referenda rules and to set the date for referenda. The draft would lift most of these functions to the president, who would control the process, directly or through his/her appointees. Also of importance is that the draft Constitution denies the legislature the power to initiate an amendment to the Constitution (Art. 138) but grants it to the president.

 

V.  Conclusions

  Although the draft Constitution states, in its Article 6, that "State power is founded on the principle of separation of powers," other articles of the draft erode this principle into an empty promise. In September 1996, President Lukashenko stated in his address to the Supreme Soviet that the amendments to the Constitution are needed because "the current Constitution does not contain legal mechanisms to block the attempts by politicians to carry out their ambitions at the expense of destroying the state." But it is exactly these mechanisms that are in danger if the president's draft is adopted. Without sufficient checks on presidential powers, the human rights situation in Belarus could continue to deteriorate, with the president stifling freedom of the press, silencing members of the opposition and engaging in other violations of the rights entailed in Section II of the Constitution. The human rights violations have so far been possible due to the fact the executive power has been willing to ignore both regular legislation and the Constitution, taking Belarus toward what the Chairman of the Constitutional Court calls the "Chernobyl of Law." The proposed changes to the present Belarus Constitution would, unfortunately, lend some constitutional credibility to these acts.

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*: For more information contact:
Antti Korkeakivi
Lawyers Committee for Human Rights
330 Seventh Avenue
New York, NY 10001
Tel: (212) 629-6170
Fax: (212) 967-0916
E-mail: korkeakivia@lchr.org
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**: Since 1978 the Lawyers Committee for Human Rights has worked to promote international human rights and refugee law and legal procedures in the United States and abroad. The Chairman of the Lawyers Committee is Norman Dorsen; Michael H. Posner is its Executive Director. Stefanie Grant is Director of Program and Policy. George Black is Research and Editorial Director.

Lawyers Committee for Human Rights
330 Seventh Avenue
New York, NY 10001
Tel: (212) 629-6170
Fax: (212) 967-0916
E-mail: comm@lchr.org

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