The Venice Commission in its urgent interim opinion on the constitutional reform in Belarus said that the draft amendments which will be submitted to referendum of 27 February 2022 “fail to correct the strong unbalance of powers which already exists under the current Constitution and indeed may even aggravate it”. The Venice Commission has also criticised the lack of involvement of Parliament into the elaboration of the amendments, deficit of transparency of the drafting process and obvious absence of meaningful cooperation between the government and the opposition in exile, as well as with other stakeholders and civil society.
This interim Opinion was prepared following an urgent procedure, in a short timeframe and in the absence of meetings with the authorities which were declined, despite the attempts of the Venice Commission, or with the opposition, State institutions and civil society in Belarus. The interim opinion does not analyse in detail all changes proposed, but rather focuses on the amendment process and on the distribution of powers under the draft amendments.
As regards the amendment procedure conducted by the authorities, the Venice Commission has noted a number of problematic issues. It is regrettable in the first place that, although an interpretation of the current Constitution may allow it, the draft amendments were put to referendum directly, without any involvement of Parliament. Previously, the Commission has found such situations to carry the strong risk that the constitutional referendum is turned into a plebiscite on the leadership of the country and is used as a means to provide legitimacy for authoritarian tendencies. Although there may be a question in relation to the democratic composition of Belarusian parliament, in the Commission’s opinion, it should have been involved in the amendment process.
Further, the drafting process does not seem to have met the criterion of transparency which the legitimacy of constitutional amendment requires. In addition, after the draft amendments were published and open for public consultation, nothing suggests that the opposition has been able to express its views, nor that the other stakeholders and civil society have been able to do so in a meaningful way. Moreover, it is difficult to see how in the context of insecurity and repression after the August 2020 disputed presidential election, with the lack of pluralistic media, the amendment process could duly ensure European standards, the Venice Commission stresses.
With regard to the balance of powers, despite introducing certain restrictions on the powers of the President, the draft amendments allow the current President to remain at the centre of the State power and his personal position appears to be even further strengthened, given that amendments include individually tailored rules and safeguards aimed at preserving the current state of affairs. Moreover, the new qualifications for the presidential candidates would effectively exclude opponents abroad from the electoral process. The limitation of the President’s terms to two periods would apply only after the next elections. Broadly formulated immunity enjoyed by the President would continue to apply after the expiry of the President’s term.
The draft amendments would enshrine in the Constitution and define the All-Belarusian People’s Assembly (the ABPA) as the highest representative body. A high number of ABPA members (whose manner of election has not been specified) raises questions about the capacity of such a body to fulfil the extensive executive functions assigned to it. The jurisdiction and powers of the ABPA Presidium have neither been specified, nor limited; its composition is undetermined, and some functions of the Assembly are unclear, notably the right of the ABPA to consider “the question of the legitimacy of elections”.
At the same time, the power of the ABPA to give binding instructions to State bodies and officials and its power to annul all legal acts and other decisions, except for the acts of judicial bodies, encroach on the competences of the other State bodies. It appears that the Presidium of the ABPA would constitute a sort of “parallel government”, which would function in parallel to the cabinet and to the elected Parliament and, if necessary in the eyes of the President, substitute for them. In sum, it is difficult to see the logic behind such an institution, except as a tool for retaining power and, above all, of control for the current President of the Republic, which makes it incompatible with the democratic values enshrined by the Council of Europe.
If the proposed institutional changes are therefore globally to be assessed negatively, this does not mean that constitutional reform in Belarus is neither necessary, nor desirable. On the contrary, the Venice Commission invites the authorities to undertake a constitutional reform which would correct the current unbalance of powers and introduce appropriate checks and balances, including with respect to the procedure of amending the Constitution, in line with international standards.
The interim Opinion does not contain a comprehensive analysis of all changes proposed to the constitutional text, in particular, of the issues connected with the guarantees of human rights in the Belarusian Constitution, although they raise serious concerns in the light of European standards. The Venice Commission will carry out a thorough review of the constitutional amendments if and after they are approved by referendum.
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