On March 15, 1994, the Supreme Soviet of the Republic of Belarus adopted a new constitution that enshrined democratic values and contained important human rights protections. The 1994 constitution was hailed by the Belarusian Government in its fourth periodic report on the implementation of the International Covenant on Civil and Political Rights (ICCPR) as proof that "Belarus [had] opted definitively for democracy and respect for human rights."3 At that time, Belarus had indeed made significant progress in respecting civil and political rights after decades of Soviet rule.
In the pre-perestroika Soviet Union, the right to freedoms of opinion, information and expression were severely restricted. The government used its monopoly on the media to disseminate carefully selected and censored information and propaganda. Attempts to express views that differed from official policy met with harsh repression. Similarly, freedom of association was seriously limited. Indeed, all forms of private initiative were not just actively discouraged but made impossible. In the prevailing atmosphere of intimidation and fear, only the most courageous dared publicly to challenge government policies. Discussion of policy matters took place behind closed doors by a small group of the Communist Party elite, while the Supreme Soviet, the parliament, was a rubber stamp institution where real discussion was not possible. Wherever the authorities thought it necessary, the judiciary administered justice according to Communist Party instructions.
In the early 1990s, the human rights situation in Belarus improved significantly. The government ended its monopoly on the media, allowed information in various forms and from various sources to circulate relatively freely, and stopped relying on repressive measures to suppress dissent, alleviating fear and self-censorship. Consequently, Belarusians started openly expressing their views and ideas, and founded or joined NGOs, independent media outlets, and similar institutions of civil society. In government, the Supreme Soviet became a forum for discussion among parties with differing political platforms. The judiciary began to function more independently.
In July 1994, only a few months after the adoption of a new constitution, voters in Belarus elected Aleksandr Lukashenka to the presidency, in quickly organized but relatively free and fair elections. Since his election,Lukashenka has clearly sought to subordinate and control all aspects of public life, both in government and in civil society. Three years after President Lukashenka's election, Belarusian civil society is nearly moribund and Belarusian society has in many important ways come to resemble its Soviet-era predecessor.
In November 1996, a referendum sealed the president's monopolization of state power, giving him quasi-dictatorial powers. Although formally the separation of powers still exists in Belarus, under the new constitution (hereinafter, the presidential constitution) the president overwhelmingly dominates the other branches of government. Indeed, he hand-picked the lower chamber of the National Assembly (the new parliament), he has substantial influence on the upper chamber, and can often bypass the legislature altogether and rule on his own. The judiciary, including both the Constitutional Court and the courts of general jurisdiction, are subject to strong presidential pressure and the judiciary does not exercise control over the actions and decisions of the executive.
Weakening Parliament and the Judiciary
The 1994 constitution provided for the separation of powers, even though it favored the parliament. Since assuming power, President Lukashenka has sought to maximize executive power and minimize that of the legislature and the judiciary.4 He openly urged Belarusian voters not to vote during the 1995 parliamentary elections, as a turnout of less than 50 percent would have given him legitimate grounds to disband the parliament and rule alone.5 With respect to the judiciary, President Lukashenka systematically ignored rulings by the Constitutional Court declaring presidential decrees unconstitutional, and ordered the Cabinet of Ministers and other government institutions to ignore such rulings.6
President Lukashenka's attempts to weaken the legislature and judiciary culminated in the November 1996 referendum. In July of that year, President Lukashenka had demanded that the Supreme Soviet extend his term of office from five to seven years and adopt legislation creating a second legislative chamber-whose members he would appoint-and limiting the powers of the Constitutional Court. When the Supreme Soviet refused to meet his demands, President Lukashenka called for a public referendum on these and other issues. According to official results, the referendum, held on November 24, 1996, yielded a large majority of votes favoring the presidential proposal for an amended constitution. The circumstances under which the referendum was held have been widely criticized7 and many countries, including those of the European Union and the United States, have not recognized its results.8 Human Rights Watch/Helsinki takes no position on the referendum's legitimacy; our concern lies with the negative effects of the presidential constitution on human rights in Belarus.
The presidential constitution declares that government is based on the separation of powers and a system of checks and balances, yet it completely undermines such a system. First, the head of the executive branch, the president, is granted very broad legislative powers. Second, the system of checks and balances is heavily skewed infavor of the president, who now enjoys vast control over the legislature and the courts, but who is largely unhindered by their authority. Indeed, not only does the president exercise exceptionally broad influence on the parliament, he can often bypass it altogether.
Legislative Powers of the President
The president enjoys vast legislative powers. Any draft legislation that requires state expenditures can be discussed by parliament only with his consent. Further, in circumstances of "specific urgency and necessity," the president can issue decrees that have the force of law without a parliamentary decision to delegate such powers. President Lukashenka has already done so on numerous occasions, demonstrating his loose interpretation of "specific urgency and necessity." In addition, the constitution provides only for brief parliamentary sessions, a feature likely to cause the legislature to delegate further power to the president, so as to allow him to issue binding decrees with regard to issues on which the legislature is unable to reach a decision during its sessions.
The National Assembly (Parliament)
The presidential constitution provides for the establishment of a new, bicameral parliament, called the National Assembly9 made up of the Chamber of Representatives and the Council of the Republic. Under the presidential constitution's article 143, the outgoing parliament (the Thirteenth Supreme Soviet) and the president were supposed to negotiate to form the first Chamber of Representatives from among the members of the Thirteenth Supreme Soviet.
Instead of making this a cooperative effort, as required in article 143, the president and a group of about 110 deputies of the Thirteenth Supreme Soviet, who had remained loyal to President Lukashenka, discussed and announced the formation of the Chamber of Representatives without inviting the other members of the Thirteenth Supreme Soviet to participate. The National Assembly has so far been notable for its inaction, and Belarus has therefore been ruled practically by presidential decree since the November referendum.
The Constitutional Court
Prior to the November 1996 referendum, President Lukashenka treated the Constitutional Court as a political opponent rather than an independent judicial body, ignoring some of its key readings. The presidential constitution ends the independent position of the court and places it under presidential control. Half of the twelve judges, including the chairperson, are appointed directly by the president; the other half are appointed by the Senate (the president, in turn, appoints one-eighth of the Senate's members). In addition, the number of institutions that can appeal to the court is restricted significantly and the right to initiate a case has been taken away from the court.
Immediately after the November referendum, five judges, including the chairperson, Valery Tikhinya, resigned in protest. Judge Mikhail Pastukhov, who refused to resign, was later dismissed by a presidential decree that stated as the reason for his dismissal: "expiry of the term in office as judge of the Constitutional Court." Pastukhov, however, was elected to the court in 1994 for a period of eleven years.10
On March 4, 1997, the "new" Constitutional Court was sworn in. It consisted of only eleven judges (under the constitution, the court should consist of twelve), a majority of whom were presidential appointees.11Unsurprisingly, in its first decision after the November 1996 referendum, the court ruled that the presidential decree declaring the results of the referendum legally binding was issued in accordance with the constitution.12
Courts of General Jurisdiction
The presidential constitution does not provide adequate protection for the independence of the judiciary. It fails to regulate the tenure of judges and contains only the following very general provision in article 111 on the appointment and dismissal of judges: "Grounds for electing (appointing) judges and their dismissal shall be determined by law." In other words, the constitution contains no protection against politically motivated dismissals. All ordinary judges in Belarus are appointed by the president. Supreme Court judges are nominated by the president, confirmed by the Senate, and dismissed by the president alone, which seriously compromises judicial independence.
Further, the Belarus Law on Judges authorizes local governments to request court qualification commissions to investigate judges for procedural or other violations, which may result in sanctions. If the qualification commission finds a judge guilty, the president can dismiss him or her by decree. This procedure appears to be open to abuse. Court qualification commissions reportedly tend to be biased in favor of requests from local governments. Further, given the country's overburdened court system, procedural violations might be found in the practice of almost any judge in Belarus. In selecting which judges to prosecute, therefore, local governments and commissions can easily be swayed by political considerations.
As in other republics of the former Soviet Union, the judiciary in Belarus was never truly independent. Legal professionals currently observe a further bias in the practice of ordinary courts in cases that have political overtones. This is, no doubt, directly related to the vulnerable position of judges in relation to the executive branch. Most illustrative are cases involving people accused of participating in unsanctioned demonstrations and disturbing public order in Minsk. Courts have heard hundreds of these cases over the last six months but have yielded extremely few acquittals, even though a substantial proportion of such prosecutions have been groundless.
One lawyer told Human Rights Watch/Helsinki: "Judges review such cases practically according to instructions from above. They do have their own opinion but cannot realize it and do not have the wish to do so because they might lose their job tomorrow."13 Human Rights Watch/Helsinki did not find proof of any judicial dismissals as punishment for acquitting individuals who faced charges with a political orientation. However, considering the blatantly unfair nature of trials of individuals charged with offences related to demonstrations, it appears that judges feel a certain pressure to convict.3 CCPR/C/84/Add.4, September 3, 1996. The report was submitted by the Belarusian government in 1995 and was supposed to be considered by the Human Rights Committee in August 1997. However, the Belarusian government recently informed the Committee that the report would be updated in light of changed circumstances. The consideration of Belarus' report during the August session has therefore been canceled. 4 The term "1994 constitution" refers to the constitution adopted by the Supreme Soviet in 1994. 5 James Rupert, "Belarus Voters' Turnout Blocks President's Plan to Rule Alone," Washington Post, December 1, 1995, p. 30. 6 "Message from the Constitutional Court of the Republic of Belarus on the State of Constitutional Legality in the Republic of Belarus in 1995," Minsk 1996, p. 45. 7 See Lawyers Committee for Human Rights, Presidential Powers and Human Rights under the Draft Constitution of Belarus (New York: American Bar Association Central and East European Law Initiative (CEELI), October 1996), and Analysis of the Draft Constitution of the Republic of Belarus with Alterations and Amendments, October 15, 1995, Washington. 8 The most notable exception is Russia, whose parliament and government have recognized the results of the referendum. 9 The National Assembly is distinct from the now defunct Thirteenth Supreme Soviet, which was the parliament that was elected by popular vote in 1995. The Chamber of Representatives is comprised of 110 popularly elected members and the Council of the Republic consists of eight representatives of each of the six regions and the city of Minsk, and eight presidential appointees. 10 Human Rights Watch/Helsinki and Memorial interview with Mikhail Pastukhov, Minsk, April 1, 1997. 11 OMRI, March 5, 1997. 12 Interfax (Moscow), cited in WNC, April 15, 1997. 13 Human Rights Watch/Helsinki and Memorial interview, Nadezhda Dudareva, Minsk, April 2, 1997.