{"id":98561,"date":"2024-08-01T15:22:07","date_gmt":"2024-08-01T12:22:07","guid":{"rendered":"https:\/\/pozirk.online\/en\/longreads\/98561\/"},"modified":"2026-03-09T20:10:49","modified_gmt":"2026-03-09T20:10:49","slug":"constitutional-court-too-submissive-to-stand-up-to-codification-of-lawlessness","status":"publish","type":"longreads","link":"https:\/\/pozirk.online\/en\/longreads\/98561\/","title":{"rendered":"Constitutional Court too submissive to stand up to codification of lawlessness"},"content":{"rendered":"\n

by<\/em> Kaciaryna Dejka\u0142a,<\/em> of the Belarusian Helsinki Committee,<\/em> a Ph.D. candidate in law<\/p>\n\n\n\n

Alaksandar \u0141uka\u0161enka met with constitutional judges on July 18 to discuss ways to enhance the role of the Constitutional Court. Belarus\u2019 legal system eroded during his rule as the government tries to legalize political reprisals.<\/strong><\/p>\n\n\n\n

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Erosion<\/strong><\/h2>\n\n\n\n

At the previous meeting held in 2018, \u0141uka\u0161enka said that the Constitution needed improvement “because society is changing and we are changing.” As testified by the 2020 postelection protests, Belarusian society had indeed changed, and the government responded to these changes by amending laws.<\/p>\n\n\n\n

The Belarusian Helsinki Committee, based on its analysis of the National Human Rights Index data for the last five years (2019-2023), noted that the government has adopted legislation to justify political reprisals and legalize lawlessness, accelerating the erosion of the legal system.<\/p>\n\n\n\n

Ideological foundation<\/h2>\n\n\n\n

The system designed by \u0141uka\u0161enka is characterized by the lack of a real ideological foundation.<\/p>\n\n\n\n

Soviet law was based on Soviet concepts and notions, different from European and generally recognized ones. In particular, the principle of socialist lawfulness enshrined in the Constitution – the Soviet version of the rule of law – was the basis of the Soviet law and state administration system.<\/p>\n\n\n\n

Laws adopted during \u0141uka\u0161enka’s rule are based on legal concepts and notions of democratic countries, but the government has significantly distorted their meaning. This distorted meaning is also transmitted to legal education. Over time, the distorted meaning has become so natural that most officials, judges and lawyers take it at face value.<\/p>\n\n\n\n

Before the disputed presidential election of 2020, distortions mostly manifested themselves in law enforcement practices, explanatory notes or presidential acts.<\/p>\n\n\n\n

In 2023, the government for the first time codified the ideological basis of lawlessness in a strategic document called the Concept of Legal Policy of the Republic of Belarus.<\/p>\n\n\n\n

It is a mosaic of relevant concepts, commonsensical provisions and legal nonsense. The latter includes the notion of “historical and cultural foundations and ideological imperatives of legal policy,” an attempt to set laws on an ideological foundation, according to Volha \u010cuprys, deputy head of the \u0141uka\u0161enka administration.<\/p>\n\n\n\n

\u0141uka\u0161enka\u2019s conversation with judges<\/strong><\/h2>\n\n\n\n

\u0141uka\u0161enka’s conversation with the constitutional judges was also a part of this semantic jumble.<\/p>\n\n\n\n

Lamenting that the Constitutional Court is not eligible to initiate constitutional proceedings, \u0141uka\u0161enka recalled his favorite legal principle, which permeates the whole system: he urged the judges to “follow life.”<\/p>\n\n\n\n

That was just another version of his notorious appeal to officials to ignore laws.<\/p>\n\n\n\n

“I often say in public: do what you want and how you think necessary,\u201d \u0141uka\u0161enka told officials on April 4. \u201cOf course there are laws and rules, they have been in our blood for a long time. But when a result is needed, we must stand side by side, shoulder to shoulder to bypass this law and make a decision.”<\/p>\n\n\n\n

That was an echo of his infamous 2020 appeal to the security brass: \u201cSometimes you have other things to worry about, not laws.\u201d<\/p>\n\n\n\n

\u0141uka\u0161enka encouraged constitutional judges to be pro-active in prompting government agencies to initiate hearings in the Constitutional Court.<\/p>\n\n\n\n

Pyotr Mik\u0142a\u0161evi\u010d, chairman of the Constitutional Court, gave credit to the Constitution, which, he said, in itself prevents the adoption of unconstitutional laws.<\/p>\n\n\n\n

The question is: if the Constitution is so good, why do we need the Constitutional Court?<\/p>\n\n\n\n

The last time Belarusians saw the Constitutional Court in action was in 1996. It dismissed amendments proposed by \u0141uka\u0161enka for a referendum as unconstitutional, but he just ignored the ruling.<\/p>\n\n\n\n

The Belarusian ruler crushed the Constitutional Court in 1997 as he tightened his grip on power.<\/p>\n\n\n\n

Not surprisingly, the Concept of Legal Policy adopted 26 years later notes a lack of initiative by government agencies in making independent decisions as a negative tendency to be eliminated.<\/p>\n\n\n\n

\u0141uka\u0161enka asked the judges whether more entities or citizens should be allowed to appeal to the Constitutional Court. Obviously, he sees the court as just a box for collecting citizens\u2019 appeals to him.<\/p>\n\n\n\n

An appeal to the Constitutional Court, in his view, is like a letter to his administration, which sometimes helps people solve issues faster than court.<\/p>\n\n\n\n

Mik\u0142a\u0161evi\u010d cautiously explained that a constitutional appeal is something different.<\/p>\n\n\n\n

Still, the Constitutional Court, despite its crippled functions, is a court of higher order as far as the reasoning of judgments is concerned.<\/p>\n\n\n\n

It would be very interesting and important for the history of Belarusian law to hear its judgements on laws, on the basis of which people are sentenced to prison on political grounds. This is especially important now that the government works hard to establish the legal framework for political reprisals.<\/p>\n\n\n\n

Shrapnel effect<\/strong><\/h2>\n\n\n\n

The codification of lawlessness harms society more than the government\u2019s ambiguous ideology. When \u0141uka\u0161enka falls, society will quickly rid itself of his ideology.<\/p>\n\n\n\n

Lawlessness codified is like shrapnel wounds. Splinters penetrate deep into soft tissues, and some of them cannot be pulled out.<\/p>\n\n\n\n

So, \u0141uka\u0161enka\u2019s rule has a really disastrous effect on the legal system.<\/p>\n\n\n\n

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