CDL(1996)076e-restr
Strasbourg, 15 October 1996
COMMENTS ON THE AMENDMENTS AND ADDENDA TO THE CONSTITUTION
OF THE REPUBLIC OF BELARUS AS PROPOSED BY THE PRESIDENT OF THE REPUBLIC
by Mr Sergio BARTOLE
(Italy)
I am dealing with the questions submitted to
the Venice Commission following the order of the request signed by Mr.
Sharetskiy, Chairman of the Supreme Council of the Republic of Belarus, October
9th, 1996.
a) It is a difficult task distinguishing a new constitution from a
variant of a constitution which is still in force and was (or should) be
amended. One can adopt substantive
criteria looking at the fundamental principles of the new text and comparing
them with those of the previous text: if the differences are substantial, the
conclusion could be drawn that we are in the presence of a new
constitution. But what does the
expression "substantive differences" mean? Opinions can differ according to the adopted yardstick. In the case which we are dealing with, it is
evident that the proposed amendments of the first two sections have the purpose
of emphasising the social nature of the Republic of Belarus and providing for a
great deal of State intervention in the economy. But we cannot say that if the amendments were adopted, Belarus
would become a socialist State. Perhaps
it would instead be easier defining the new text as a new constitution, if the
proposed amendments of the organisation of the State were approved. But even
from this point of view one could say that changes in the relations between the
top bodies of the State do not imply the passage from the old Constitution to a
new Constitution. Moreover, we have to
keep in mind that the Constitution of the Republic of Belarus which is today in
force and has to be complied with by the President and the Parliament, does not
limit the extent of changes that can be brought about by constitutional
amendments. Therefore we do not have
legal criteria according to which we could distinguish between
"substantial differences" and differences which are not substantial.
My guess is that we have to look at the formal
procedure which the President has chosen and at his real intention which
underpins this choice. The President
has the intention of submitting his draft directly to the people while
following an extraconstitutional procedure. In some way we can say that he
pursues the exit from the legal order which is presently in force, and the
passage to a new legal order, which should be based on a direct and explicit
vote of the people. This is the reason
why he does not comply with the constitutional provisions concerning the
revision of the Constitution (articles 146-149). He submitted the text to the Supreme Council but he does not ask
for a vote of this assembly. He wants
to call a referendum without leaving this decision to the Supreme Council which
art. 83.1 entrusts with this task. Even if the President were able to have his
extra-constitutional body, the so-called Assembly of the Belarusian people,
meeting October 19th, 1996, approve his initiative, this initiative should be
considered as adopted not in conformity with the Constitution. Pretending to call a referendum directly,
without asking a parliamentary decision according to art. 83.1 of the
Constitution, the President does not comply with the Constitution while it is
his duty to abide by it (art. 99). He
is envisaging the coming of a new legal order based on his will of calling a
people's decision without the consent of the Parliament.
This conclusion does not mean that a referendum
will not be called about the revision of the Constitution which is presently in
force. According to the decision of the
Supreme Council of calling a referendum (not on November 7th, 1996, as decided
by the President but on November 24th, 1996), there will be a referendum called
in conformity with the second alinea of art. 149 of the Constitution. A decision of the Supreme Council will be
the basis for the calling of the referendum and this is a procedure which
complies with the rules of the Constitution.
The President cannot object that art. 149 does not entrust a specific
State body with the task of calling the referendum: he cannot justify his own
initiative by pretending to exercise a power which is not given to another
State body because the competence of the Supreme Council in this field is based
on art 83.1 and has a general nature.
The referendum called by the Supreme Council
will be in conformity with the Constitution.
It will be a referendum aimed at passing amendments and addenda to the
Constitution. The result will not be a
new Constitution from the formal point of view even if the amendments and
addenda submitted to the people imply a great deal of change in the Belarusian
constitutional order. Actually the project prepared by the agrarian and
communist MP's aims at deeply modifying the Constitution and introducing a
system of government in some way similar to the socialist system of government
without substantially changing chapters 1,2 and 3 of the Constitution
itself. But the request by President
Sharetskiy I am dealing with at the moment concerns the presidential draft
only.
b) can the proposed changes be considered as of a democratic character?
Notwithstanding the retention of the adhesion
to the principle of the separation of State power into legislative, executive
and judicial power(s), it is evident that the amendments are aimed at increasing
the power of the President and of the bodies which are strictly connected with
him, that is the government, the Senate, the Procurator, the Committee of State
Control and the Constitutional Court.
1) One could say that the
"Presidency's complex" is entrusted with functions of control and
that the governing bodies are free in choosing the main trends of the internal
and foreign policy of the state. But
this would not be true, because the government is a component part of this
"complex": the President "shall be entitled, on his/her own
initiative, to take decisions on government resignation and to dismiss from
office any member of the Government (art. 106 of the draft). The Government itself shall be accountable
to the President and responsible to the Parliament, the expression
"accountable" probably meaning that the government is more dependent
on the decisions of the Chief of the State than on those of the Parliament.
2) One third of the members
of the Senate shall be appointed by the President (art. 91, second alinea, of
the draft), election being limited to the deputies (art. 68 of the draft) with
an evident violation of art. 3 of the draft.
There is a connection between these rules and the large powers which are
entrusted to the Senate in giving its consent to the major appointments made by
the President, electing half of the membership of the Constitutional Court and
considering the presidential edicts on the introduction of the state of emergency. Only the Senate is allowed to deliberate on
the accusation of high treason or other crimes levelled against the President
(art. 97 of the draft).
The Senate is empowered
with the task of cancelling the decisions of the local councils which are not
in conformity with the legislation: therefore it is on the top of a pyramid of
elected assemblies which is a reminder of the organisation of the elected
assemblies adopted by the socialist regimes (art. 122 of the draft in
combination with art. 98.5 of the draft).
3) The Procurator and the
Committee of State control should be independent but, on one side, the
Procurator is appointed (with the consent of the Senate) by the President and
is accountable to him. While, on the
other side, the Committee is established by the President, who appoints its
chairman also.
4) Apparently, the
Constitutional Court is no more a separated body but is a component part of the
judiciary (see the final chapter of the third section of the draft). Because its members are appointed by the
President and by the Senate on an equal basis, there is the evident danger that
its membership will be controlled by the entourage of the President. Moreover
only a restricted number of State Bodies are allowed to complain before the
constitutional court about the conformity of laws, decrees and edicts, acts of
the State's bodies with the Constitution.
5) Therefore it is easy to
understand the reason why in the draft, the rules concerning the Parliament
appear after those concerning the President (see Section IV of the draft). The President is allowed to issue edicts and
orders which have binding force within all the State's territory, but he has
also the power of adopting temporary decrees having the force of law which have
to be submitted for the consideration of the Houses of the Parliament and
"remain in force, unless the Houses abrogate them", no deadline being
established. (art.101, last alinea)
Even the acts of the government can be repealed by the President without the
explicit requirement of any justification (art. 84.23 of the draft). We have - therefore - two examples of
explicit violation of the principle of the separation of powers.
c) The third question has an evident political meaning but there are some
legal implications which deserve our attention.
The draft adopts the principle of continuity
for the President only: the incumbent President will keep his place exercising
the powers provided for him by the new Constitution if this draft is approved
by the people. Nothing is explicitly
said with regard to the other bodies of the State: probably the draft - in
contradiction with the provisions concerning the President - adopts the
principle of discontinuity (cf. art. 146).
All other State's bodies will have to be renewed because they are doomed
to be cancelled in their present composition. Only the members of the Supreme
Council will preserve their position if they adhere to a trade-off with the
President. According to art. 143 of the
draft they will be assigned, on one side, to the House of Representatives and,
on the other side, to the Senate on the basis of an agreement which has to be
reached with the President. In the
Senate, the members of the Supreme Council will be joined by the members
appointed by the President. If the
agreement is not reached, the President will be allowed to dissolve the Supreme
Council.
It is evident that this part of the draft can
be criticized from many points of view:
- it provides for a
membership of the two chambers which will not have an electoral
legitimacy. Even if the present members
of the Supreme Council adhere to the trade-off, their distribution between the
two chambers will not have an electoral basis.
- There is an evident
difference of treatment between the Presidency and other State bodies,
especially with regard to the principle of continuity.
- the Republic of Belarus
will not have any legal guarantee during the transition.
The whole design shows the intention of the
President of creating a regime of personal power, blackmailing the Supreme
Council and obliging its members to yield under his pressure if they want to
keep their seats. In the text of the
draft human rights, fundamental freedom the principles of the representative
government and the rule of law are proclaimed but the President apparently does
not have the intention of complying with them in the future.
Trieste, October 14th, 1996
Prof.
Sergio Bartole
