Volume 7 Number 3

Summer 1998

Constitution Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Belarus
     The fourth anniversary of Alexander Lukashenka’s presidency (July 20) was marked by both the strongest-ever international criticism and the most pronounced isolation of his regime since he took office. At a meeting in Brussels, on July 13, EU foreign ministers unanimously adopted a resolution to impose immediate travel restrictions on Belarusian officials. Citing gross violations of the Vienna Convention on Diplomatic Relations of 1961, the ministers made it clear that their action was taken in retaliation for the Belarusian government’s closure this spring of the diplomatic residences in the Drozdy diplomatic compound, outside Minsk. Luka-shenka’s absurd eviction of the diplomats seems to come down to the fact that he does not want foreign ambassadors living near his own personal residence. (See the article by Alexander Lukashuk in this issue and the Belarus Update, EECR, Vol. 7, No. 2, Spring 1998.) The US, Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Romania, Slovakia, Slovenia, Iceland, and Norway all joined the EU in condemning the closure of the compound. While declaring its solidarity with the EU and condemning Belarus, a wavering Poland declined to join the action, pointing out that such restrictions could place a burden on the approximately 300,000 ethnic Poles living in Belarus. Lithuania and Latvia—also neighbors of Belarus—abstained as well. The EU action prohibits specific Belarusian officials from gaining entry into any of the 15 EU member states. Among the Belarusian persona non grata are Lukashenka, his cabinet ministers and their deputies, army and KGB generals, a number of Constitutional Court justices, parliamentary head and deputy speakers, and other lesser officials. The first list of banned officials totaled 131. “Each travel request, except those to international organizations in the US, will be examined with the presumption of denial,” read the statement issued by the US State Department spokesman James Rubin. Lukashenka sent a letter of protest to the Austrian government, which now holds the rotating EU presidency, calling the visa ban “unreasonable.” The Ministry of Foreign Affairs accused the EU of double standards and of violating the freedom of travel. “Belarus is counting on a compromise,” said ministry spokesman Ihar Paluyan, who also added that the government’s position with regard to the diplomatic crisis remains unchanged and that ambassadors would not be allowed to return to Drozdy. The German chargé d’affaires in Minsk, Hans Gnotke, was appointed to head talks on behalf of the EU. By late August the diplomatic dispute was still unresolved.

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     At the seventh session of the Organization for Security and Cooperation in Europe (OSCE), held in July in Copenhagen, the following question was put to a vote: “Do you support the replacement of the Republic of Belarus Supreme Soviet delegation with the National Assembly delegation at the OSCE Parliamentary Assembly?” (The thirteenth Supreme Soviet was the parliamentary body before Lukashenka gutted the Constitution, dismissed the Supreme Soviet, and installed a new parliament—the Nacyianalny Skhod or National Assembly—along with a constitution more to his liking; see Belarus Update, EECR, Vol. 5, No. 4, Fall 1996.) Both bodies had sent delegations to the session, with Syamon Sharetski representing the Supreme Soviet and Vladzamir Konoplov representing the National Assembly. Fifty-two countries voted in favor of recognizing the Supreme Soviet; only Russia and Kazakhstan voted against. As a result, the thirteenth Supreme Soviet will retain the powers of a fully legitimate representative of the Belarusian parliament in the OSCE Assembly. The conflict had little or no impact on the internal situation in Belarus, but Belarusian official propaganda exploited the event as “further proof of the West’s evil intentions toward Belarus.” Konoplov said: “that the…[OSCE] Assembly did not recognize the powers of the delegation of the new Belarusian parliament was predetermined.” The activities of the Supreme Soviet within Belarus are strictly limited. The remaining members who actively oppose the president continue to meet in private and face a variety of obstacles, from travel restrictions to outright persecution.

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     Since May 1997, increasing state involvement has, by now, almost completely monopolized the legal profession and made it nearly impossible for citizens of Belarus to exercise their constitutional right to independent representation. On May 3, 1997, Lukashenka handed down presidential Decree No. 12 on Some Measures to Improve the Activity of Lawyers and Notaries in the Republic of Belarus. The edict violated Arts. 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Nadzeya Dudareva, a prominent lawyer who once represented Lukashenka’s opposition in court, was disbarred after refusing to join a collegium of barristers. More recently, on May 27, Decree No. 7 made additions and changes to Decree No. 12, further subordinating the legal profession to the state. The renowned Belarusian attorney Harry Pahaniajla was stripped of his license to practice law in Belarus by the Justice Ministry’s qualification commission. The commission ruled that Pahaniajla’s resignation from the Minsk Municipal Lawyers Association (MMLA) and his current status as an attorney registered in the Russian Federation rendered him ineligible to practice in Belarus. The decree made membership in the MMLA a prerequisite to the practice of law. In essence, all lawyering bodies are now accountable to the Justice Ministry, which decides on the granting or revoking of all licenses. And last January 23, the Constitutional Court ruled in the president’s favor by upholding a law establishing a retroactive tax rate of 80 percent on notaries who sell their services privately. (See Belarus Update, EECR, Vol. 7, No. 1, Winter 1998.)

     On June 22, Valiantsin Shuklin was named the twelfth member of the Constitutional Court (this last seat had been vacant since the referendum of 1996). Shuklin praised the Court’s legal “professionalism.” Chairman of the Constitutional Court Ryhor Vasilevich as well as other justices have also been banned from entry into the EU states and the US. On June 19, the Constitutional Court declared Art. 246 of the Admini-strative Code to be in violation of the Constitution. The article specifies the procedures for appeal in cases of administrative detention or the examination or seizure of personal belongings or documents. On June 26, Art. 116.2 of the Marriage and Family Code, which allowed the adoption of children without court intervention, was also canceled. Currently, Art. 123 of the Criminal Code, which regulates the investigation of juvenile crimes, is under consideration. All of these Court proceedings were initiated by the president himself and are consistent with his desire to augment still further the already considerable powers of his office.

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     Both chambers of the National Assembly finished their fourth session. From April 2 to June 30, deputies held 9 plenary meetings, approved 62 bills, voted down 6, and adopted 108 resolutions. Last April’s presidential Decree No. 99 on Some Questions Concerning Legislative Activity in the Republic of Belarus, and the subsequent vetting procedure adopted by the extraparliamentary National Legislative Center, virtually guarantees that any legislation passed by the National Assembly will be strictly in accord with the president’s agenda. (See Belarus Update, EECR, Vol. 7, No. 2, Spring 1998.) The only bill with practical consequences was the Law on the Status of the Deputy of the National Assembly, passed on June 25. The law made deputies’ salaries and their personal privileges (free health care, free transportation, and the like) equal to that of ministers.

     A draft bill under consideration by the National Assembly, introducing a new article to the Penal Code, would impose harsh punishments for insulting the head of state. The draft is a virtual carbon copy of the Law on the Protection of the President’s Honor and Dignity of Tajikistan. The first article reads: “Public insulting of the President of the Republic of Belarus is punishable by a prison term of up to four years, corrective labor of up to two years, or a fine. If recurring, broadcast through mass media, or linked to treason, these actions are punishable by up to five years in prison or two years of corrective labor and a fine.” Participants in protests could be penalized under the following article: “Public usage of placards, slogans, or other means whose content dishonors the President of the Republic of Belarus entails a fine of 20 to 100 times the minimum monthly wage [the minimum monthly wage is currently around $5] or a detention of three to fifteen days, with obligatory confiscation of the above means.” Executive officials in the mass media would also face fines of 50 to 100 times the minimum wage, if their broadcast services are in any way deemed overly critical of the president. According to the new draft law, suits can be filed by the prosecutor general and by regional and Minsk city prosecutors, with the president’s signature. One can only expect that the final version of the bill will be adopted with little resistance by the National Assembly.

     On May 29, the State Committee on the Press issued a warning to the independent weekly Nasha Niva regarding the use of “unauthorized” Belarusian grammar. The weekly sticks to the classic version of the Belarusian language, in use prior to Stalin’s 1932 language reform. The Supreme Economic Court, which has an arbitrary and unusual jurisdiction and was able to ban the independent newspaper Svaboda in November 1997 for defaming the state, will consider the issue. (See Belarus Update, EECR, Vol. 7, No. 1, Winter 1998.) In summing up four years of Lukashenka’s presidency, one columnist for the Beloruskay Delovaya Gazeta has insightfully observed: “The Belarusian Constitution seems to be unlimitedly flexible—any bill adopted is fully in accord with it.”

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