The Opinion of the CoE Venice Commission on the February Constitutional Referendum in Belarus is Published
Published on November 05, 2022
The Venice Commission has ended its October plenary session. As a result, it adopted a Final Opinion on the Constitutional Reform in Belarus and its non-compliance with the standards of the Council of Europe.
Venice Commission
The European Commission for Democracy through Law — better known as the Venice Commission as it meets in Venice — was created by the 18 member states of the Council of Europe shortly after the fall of the Berlin Wall in 1990. The Commission played a key role in the adoption by Eastern European countries of constitutions that met the standards of the European constitutional heritage.
The main task of the Commission is to provide constitutional and legal assistance — mainly to states that participate in its activities. The Commission provides opinions upon request, not only to States but also to the statutory bodies of the Council of Europe and international organizations participating in its work. In addition to opinions, the Commission prepares general reports within the following main areas:
Originally created as an instrument of urgent constitutional construction in the situation of democratic transformation, the Commission has gradually become an internationally recognized independent forum for the exchange of ideas in the legal field. The Commission promotes a European constitutional heritage based on the basic norms of the European continent while continuing to provide "urgent constitutional assistance" in Europe and beyond.
The main task of the Commission is to provide constitutional and legal assistance — mainly to states that participate in its activities. The Commission provides opinions upon request, not only to States but also to the statutory bodies of the Council of Europe and international organizations participating in its work. In addition to opinions, the Commission prepares general reports within the following main areas:
- democratic institutions and fundamental rights;
- elections, referendums and political parties;
- constitutional justice.
Originally created as an instrument of urgent constitutional construction in the situation of democratic transformation, the Commission has gradually become an internationally recognized independent forum for the exchange of ideas in the legal field. The Commission promotes a European constitutional heritage based on the basic norms of the European continent while continuing to provide "urgent constitutional assistance" in Europe and beyond.
- The Venice Commission and Belarus: a brief history of relationsThis is not the first time the Venice Commission has given its expert opinion on the events and reforms taking place in Belarus. Here you can find a complete list of the Commission's opinions on Belarus.
On March 17, 2022, the Committee of Ministers of the Council of Europe, reiterating its condemnation of Belarus' active participation in the aggression of the Russian Federation against Ukraine, decided, among other things, to deprive Belarus of the right to participate in the Commission’s work as an associate member. With the same decision, the Committee of Ministers decided to strengthen the relations of the Council of Europe with the Belarusian civil society and opposition in exile. On 7 September 2022, the Committee of Ministers agreed to hold regular exchanges with representatives of the Belarusian democratic forces through the "Contact Group" to be created within the Secretariat of the Council of Europe.
Urgent interim opinion on the Constitutional Reform (February 2022)
The Final Opinion on Constitutional Reform adopted by the Venice Commission at its 132nd plenary meeting (Venice, October 21-22, 2022) is the document that logically follows the Urgent Interim Opinion (published on February 21, 2022).
In the Interim Opinion, the Venice Commission examined the constitutional reform process from the perspective of international standards on the rule of law: the constitutional reform procedure was criticized for the fact that the national parliament as an institution was not involved in the amendment process. As noted, “there is a strong risk, in particular in new democracies, that referendums on the constitutional amendment are turned into plebiscites on the leadership of the country and that such referendums are used as a means to provide legitimacy to authoritarian tendencies”.
The process of drafting the constitutional amendments, the Opinion states, did not meet the criterion of transparency, which is required for the legitimacy of amendments: the working group for drafting the amendments did not conduct its activities with sufficient transparency; representatives of civil society and private individuals were kept away from the draft.
The Venice Commission reiterated that democratic referendums are not possible without respect for human rights, in particular freedom of expression and of the press, freedom of movement inside the country, freedom of assembly and freedom of association for political purposes. If in a functioning democracy sovereignty rests with the people, and it is open to them to decide to give themselves a basic law in whatever terms they wish, this proposition presupposes a choice that is arrived at by the people following a full public debate during which all points of view may be freely expressed and there are no restrictions on the media.
In the Interim Opinion, the Venice Commission examined the constitutional reform process from the perspective of international standards on the rule of law: the constitutional reform procedure was criticized for the fact that the national parliament as an institution was not involved in the amendment process. As noted, “there is a strong risk, in particular in new democracies, that referendums on the constitutional amendment are turned into plebiscites on the leadership of the country and that such referendums are used as a means to provide legitimacy to authoritarian tendencies”.
The process of drafting the constitutional amendments, the Opinion states, did not meet the criterion of transparency, which is required for the legitimacy of amendments: the working group for drafting the amendments did not conduct its activities with sufficient transparency; representatives of civil society and private individuals were kept away from the draft.
The Venice Commission reiterated that democratic referendums are not possible without respect for human rights, in particular freedom of expression and of the press, freedom of movement inside the country, freedom of assembly and freedom of association for political purposes. If in a functioning democracy sovereignty rests with the people, and it is open to them to decide to give themselves a basic law in whatever terms they wish, this proposition presupposes a choice that is arrived at by the people following a full public debate during which all points of view may be freely expressed and there are no restrictions on the media.
Final Opinion (October 2022)
Among the experts who prepared the final opinion:
Mr Nicos ALIVIZATOS (Greece)
Mr Philip DIMITROV (Bulgaria)
Mr Bertrand MATHIEU (Monaco)
Mr Vladan PETROV (Serbia)
Mr Kaarlo TUORI (Finland)
The Opinion contains a full chronology of events related to constitutional reform in Belarus; past reforms are also recalled, such as one that took place in 2004, when amendments were made to the Belarusian Constitution, allowing the president to be re-elected indefinitely, which, according to the Venice Commission, generally exacerbated the democratic deficit in the country.
The process of amending the Constitution took place after the presidential election, followed by the imprisonment of activists, civil society representatives, and opinion leaders. Accordingly, one cannot speak of a genuine public debate and an informed choice by the population. All the more, the constitutional referendum took place on 27 February 2022, as announced, just a few days after the full-scale military invasion of Ukraine by the Russian Federation which was conducted partly through the territory of Belarus and with the active support by the official Belarusian authorities, having an obvious chilling effect on the population of Belarus, which further undermined the legitimacy of the democratic process.
The Commission concludes that the amendment procedure did not meet the standards of requisite parliamentary involvement, transparency in the drafting process, public debate, and general respect for human rights and fundamental freedoms.
The experts also presented an analysis of certain articles, which introduced amendments to the constitutional legal order. For example, as to Article 4, it is noted that the former reduces the principle of respect for the diversity of political opinions, placing it within the framework of the "ideology of the Belarusian state". This amendment may be used as a tool for limiting democratic freedoms.
The Commission notes with regret that Article 24, providing for the death penalty has been maintained, despite the numerous recommendations on its abolishment by both the Venice Commission and the Council of Europe bodies.
The All-Belarusian People's Assembly (ABPA), the provisions regulating which have been included in the Basic Law, has not been ignored. The very rationale for the new body, the Opinion notes, is questionable: the "representative" nature of this body raises questions since the exact composition of the ABPA is not described in detail, nothing is said about the procedure for electing its members, which poses a significant risk of abuse.
The jurisdiction and powers of the Presidium of the ABPA have neither been specified, nor limited, nor has its composition been determined. It is only logical to assume that the President of the Republic would be likely to become the Chairman of the ABPA or play a decisive role in the Presidium. In sum, it is difficult to see to what extent this body will be truly representative of Belarusian society and thus legitimate to express the will of the people. The Commission believes that the ABPA’s composition and competence are incompatible with the principle of separation of powers; its main objective seems to be maintaining the rule of and control for the current President of the Republic and of its entourage forever, which makes it “incompatible with the democratic values enshrined by the Council of Europe”.
The Venice Commission reiterates that the basic guarantees ensuring the independence of the judiciary should be enshrined in the Constitution. Although the new Constitution proclaims the principle of independence of the judiciary in Article 110, there are no guarantees to ensure such independence.
Despite the fact that the competence of the Constitutional Court has been expanded and modernized, the Venice Commission, taking into account the specific context of the Belarusian constitutional and legal system, which lacks adequate systems of checks and balances and ensures the dominant role of the President (including in the appointment of members of the Constitutional Court) concludes that the amendments enhancing the role of the Constitutional Court only serve to mask the authoritarian essence of the system. This conclusion can also be confirmed by the long lack of autonomy and the practice of the Constitutional Court without actually performing the classical functions of constitutional review.
Summarizing its analysis of the constitutional amendments, the Venice Commission reiterates its criticism of the excessive concentration of power in the hands of the president, the lack of control over his power, and the creation of normative conditions for the re-election of the first president for successive terms.
The Venice Commission concludes that the constitutional amendments fail to correct the strong unbalance of powers that already existed in the Constitution of 1996 as amended, and indeed even aggravate it, facilitating the operation of an authoritarian regime. In addition, the constitutional amendments were adopted in disregard of the basic democratic principles.
Given numerous procedural, substantial and structural deficiencies in the constitutional reform, a holistic revision of the whole Constitution appears to be indispensable, provided that the conditions for free and pluralistic public debate and fair expression of the popular will are reinstated.
Mr Nicos ALIVIZATOS (Greece)
Mr Philip DIMITROV (Bulgaria)
Mr Bertrand MATHIEU (Monaco)
Mr Vladan PETROV (Serbia)
Mr Kaarlo TUORI (Finland)
The Opinion contains a full chronology of events related to constitutional reform in Belarus; past reforms are also recalled, such as one that took place in 2004, when amendments were made to the Belarusian Constitution, allowing the president to be re-elected indefinitely, which, according to the Venice Commission, generally exacerbated the democratic deficit in the country.
The process of amending the Constitution took place after the presidential election, followed by the imprisonment of activists, civil society representatives, and opinion leaders. Accordingly, one cannot speak of a genuine public debate and an informed choice by the population. All the more, the constitutional referendum took place on 27 February 2022, as announced, just a few days after the full-scale military invasion of Ukraine by the Russian Federation which was conducted partly through the territory of Belarus and with the active support by the official Belarusian authorities, having an obvious chilling effect on the population of Belarus, which further undermined the legitimacy of the democratic process.
The Commission concludes that the amendment procedure did not meet the standards of requisite parliamentary involvement, transparency in the drafting process, public debate, and general respect for human rights and fundamental freedoms.
The experts also presented an analysis of certain articles, which introduced amendments to the constitutional legal order. For example, as to Article 4, it is noted that the former reduces the principle of respect for the diversity of political opinions, placing it within the framework of the "ideology of the Belarusian state". This amendment may be used as a tool for limiting democratic freedoms.
The Commission notes with regret that Article 24, providing for the death penalty has been maintained, despite the numerous recommendations on its abolishment by both the Venice Commission and the Council of Europe bodies.
The All-Belarusian People's Assembly (ABPA), the provisions regulating which have been included in the Basic Law, has not been ignored. The very rationale for the new body, the Opinion notes, is questionable: the "representative" nature of this body raises questions since the exact composition of the ABPA is not described in detail, nothing is said about the procedure for electing its members, which poses a significant risk of abuse.
The jurisdiction and powers of the Presidium of the ABPA have neither been specified, nor limited, nor has its composition been determined. It is only logical to assume that the President of the Republic would be likely to become the Chairman of the ABPA or play a decisive role in the Presidium. In sum, it is difficult to see to what extent this body will be truly representative of Belarusian society and thus legitimate to express the will of the people. The Commission believes that the ABPA’s composition and competence are incompatible with the principle of separation of powers; its main objective seems to be maintaining the rule of and control for the current President of the Republic and of its entourage forever, which makes it “incompatible with the democratic values enshrined by the Council of Europe”.
The Venice Commission reiterates that the basic guarantees ensuring the independence of the judiciary should be enshrined in the Constitution. Although the new Constitution proclaims the principle of independence of the judiciary in Article 110, there are no guarantees to ensure such independence.
Despite the fact that the competence of the Constitutional Court has been expanded and modernized, the Venice Commission, taking into account the specific context of the Belarusian constitutional and legal system, which lacks adequate systems of checks and balances and ensures the dominant role of the President (including in the appointment of members of the Constitutional Court) concludes that the amendments enhancing the role of the Constitutional Court only serve to mask the authoritarian essence of the system. This conclusion can also be confirmed by the long lack of autonomy and the practice of the Constitutional Court without actually performing the classical functions of constitutional review.
Summarizing its analysis of the constitutional amendments, the Venice Commission reiterates its criticism of the excessive concentration of power in the hands of the president, the lack of control over his power, and the creation of normative conditions for the re-election of the first president for successive terms.
The Venice Commission concludes that the constitutional amendments fail to correct the strong unbalance of powers that already existed in the Constitution of 1996 as amended, and indeed even aggravate it, facilitating the operation of an authoritarian regime. In addition, the constitutional amendments were adopted in disregard of the basic democratic principles.
Given numerous procedural, substantial and structural deficiencies in the constitutional reform, a holistic revision of the whole Constitution appears to be indispensable, provided that the conditions for free and pluralistic public debate and fair expression of the popular will are reinstated.
