Constitutional amendments put to referendum fail to correct existing strong imbalance of powers and may aggravate it – Venice Commission

February 22, BPN. The draft amendments to the Constitution submitted to the referendum “fail to correct the strong unbalance of powers which already exists under the current Constitution and indeed may even aggravate it,” states the interim Opinion on the constitutional reform in Belarus prepared by the European Commission for Democracy through Law of the Council of Europe (Venice Commission).

The Venice Commission criticized “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.”

The 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 document “does not analyze in detail all changes proposed,” rather focusing 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,” the document concludes. “It is regrettable that <…> the draft amendments were put to referendum directly, without any involvement of Parliament. Such situations carry the strong risk that the constitutional referendum <…> 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.”

It is noted that the drafting process did not “meet the criterion of transparency.” There is no evidence 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 after the draft amendments were published and open for public consultation.” The Venice Commission also found it impossible to organize the process of amending the Basic Law according to European standards “in the context of insecurity and repression after the August 2020 disputed presidential election, with the lack of pluralistic media.”

“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,” the document says. “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. The new qualifications for the presidential candidates would effectively exclude opponents [of the current authorities] 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 Venice Commission also drew attention to the fact that if constitutional amendments are adopted, the All-Belarusian People’s Assembly (ABPA) would become 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 Commission stated that “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, this body will have the powers to “give binding instructions to State bodies and officials and to annul all legal acts and other decisions, except for the acts of judicial bodies,” encroaching on the powers of other state institutions.

“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. It is difficult to see the logic behind such an institution, except as a tool of 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,” the statement concludes.

However, the Venice Commission believes that Belarus needs a constitutional reform, but one that would “correct the current unbalance of powers and introduce appropriate checks and balances, including with respect to the procedure of amending the Constitution.”

Early voting at the constitutional referendum in Belarus began on February 22. It will last until February 26. The main voting day is February 27. The only referendum question to be answered: “Do you accept the amendments and additions to the Constitution of the Republic of Belarus?”

Key proposed amendments include legitimisation of the All-Belarusian People’s Assembly, a restoration of the rule limiting the presidency by one person to a maximum of two terms, introduction of immunity for former presidents, and monopolization of the state ideology.