Constitutional Reform in Belarus: Feasible Changes or an Imitative Process?icelds
Since the 9 August 2020 presidential elections, Belarus has experienced socio-political turmoil. The announcement of President Aliaksandr Lukashenka’s victory for a sixth term, with an alleged 80% of votes in his favor, sparked unprecedented and largely self-organized protests against electoral fraud and demands for Lukashenka to step down. The regime responded with excessive force against the protesters, leading to the most violent domestic clashes in the country’s history. Like in 2006 and 2010, the 2020 presidential elections were not recognized as legitimate either by the opposition or by the international community. The US and EU reintroduced economic sanctions against Lukashenka’s regime seeking to target and isolate regime supporters from their financial resources. However, such interventions by Western countries have had limited influence on the political situation in Belarus.
Following talks with Vladimir Putin and the Russian Ministry of Foreign Affairs in November 2020, Lukashenka publicly embraced a process for constitutional amendment – a demand initially put forward by the opposition ahead of the 2020 elections but which included substantive elements that Lukashenka did not agree to. The aims of Lukashenka’s process have never been clearly stated and opposition democratic actors have been effectively excluded. Lukashenka’s process thus appears unlikely to encompass substantive changes to the authoritarian nature of the regime, which was entrenched through sweeping, regressive amendments enacted via referenda in 1996 and 2004. Progress to date indicates that the languid process instead serves as a way to quell the protests, secure Lukashenka’s potential post-presidency influence, and assuage Russia – a key Lukashenka ally and backer – to accelerate a promised loan.
There is broad consensus among the opposition that democratic forces need to provide an alternative to Lukashenka’s forthcoming proposals.
Given the legitimacy, credibility and inclusion challenges facing the Lukashenka process, opposition actors are undertaking their own transparent, participatory and inclusive process of constitutional reform. This endeavor aims to restore democracy in Belarus through (re)building a system of separation of powers with effective checks and balances between the executive, the legislature and an independent judiciary; reducing the powers of the presidency; and mitigating the capacity of the president, as an individual, to consolidate informal power. While there is disagreement within the opposition camp – which remains fragmented – on the best legal foundation for democratic constitutional change, there is broad consensus that democratic forces need to provide an alternative to Lukashenka’s forthcoming proposals, even if such alternatives could only be enacted after significant political change.
Lukashenka’s proposed reform and the Constitutional Commission
Lukashenka has not yet presented a clear vision for his constitutional reforms. Apart from some vague substantive concepts and cosmetic changes, his main aim seems to be to limit the powers of any potential future president while securing his own personal authority.
As part of his public outreach campaign, Lukashenka is leveraging the All-Belarusian People’s Congress (ABPC), an assembly initiated in 1996 that meets every five years. The ABPC operates ostensibly as a means of representative public consultation on the direction of the country, but the attendees are mostly connected to the government or run state-owned businesses and institutions. The first assembly took place in October 1996 with 4,700 delegates. It was held just a few weeks before the referendum that effectively eliminated all checks on presidential power except that of term limits (which were later eliminated in 2004). In February 2021, the ABPC met with 2,700 people (mostly regime loyalists) amid the COVID-19 pandemic, to discuss Belarus’s social and economic development for the next five years, including constitutional matters. Many in the opposition opposed the ABPC’s reduced size and lack of inclusion.
Lukashenka had initially promised to present a draft set of amendments to the ABPC at the February meeting, but instead pushed the review to the end of the year. In his ABPC speech, Lukashenka underlined his concern about excessive presidential powers in the constitution – a view shared by the democratic opposition, but for different reasons. Lukashenka believes that a new president might not be ready for the type of authority that Lukashenka himself has wielded, even warning that a new president may request that foreign troops enter the country.
Allegedly to counteract excessive presidential powers, Lukashenka has proposed granting constitutional status to the ABPC and endowing it with some of the current presidential powers. Post-presidency, Lukashenka would subsequently be able to head the ABPC, where he could block unwanted decisions made by the parliament, government and a future president. Lukashenka therefore seems to be following the model employed by the former president of Kazakhstan, Nursultan Nazarbayev, who, after leaving the office of the president after 29 years, became head of the Assembly of Peoples of Kazakhstan.
The ABPC’s resolution included a call to confirm the body’s special legal status as per Lukashenka’s recommendations, to create a constitutional commission to forward proposals in 2021 to amend the constitution, and to submit the proposals for public discussion and to national referendum. Substantive recommendations include redistributing authorities between government bodies – including between local and self-government bodies – strengthening political parties, and promoting patriotic education and traditional moral values. Lukashenka established the 36-member Constitutional Commission by decree in March 2021. All representatives, appointed by Lukashenka, are of the state machinery, education, culture, business, sport, and pro-government political parties. Representatives of the political opposition and human rights organizations are excluded. The Commission convenes twice a month, with its first meeting held on 31 March. The Commission’s draft proposal should be submitted by 1 August 2021 to the President in preparation for a referendum that is reportedly scheduled for early 2022.
Despite calls from the opposition to explore a semi-presidential or parliamentary system, the current system of (hyper)presidentialism will likely remain in place, as will the bicameral legislature, both of which were established under the 1996 amendments. One of the members of the Constitutional Commission, Kaciaryna Rechyts, claimed that Belarusian society tends toward stronger presidential power, and the head of the Commission stated that no shift towards a semi-presidential or parliamentary system is needed. Though Lukashenka’s ABPC speech indicated a commitment to reduce and redistribute presidential powers – in part to a strengthened ABPC which he would likely chair – more recent comments from Commission members indicate that Lukashenka would like to preserve the existing power structure and perhaps run for another term. Since the Commission draft is not yet publicly available, no concrete proposals can be assessed. Possible changes include expanding the Prime Minster’s powers, particularly in the process of government formation. At the same time, the principles of the country’s electoral system will likely remain unchanged because the Constitutional Commission sees them as consistent with international standards. This, however, does not exclude possible amendments to the Electoral Code, which could take the form of restrictions on opposition participation in elections as candidates, observers, and members of electoral commissions.
The opposition believes that proposed changes aim to replicate Lukashenka’s system without Lukashenka.
In the meantime, Lukashenka is also enacting constitutional change by decree – unconstitutionally. In May 2021, he decreed that power should be transferred to the Security Council in the event of the death of a president. This contravenes Article 89 of the current Constitution, which specifies that the President’s duties pass to the Prime Minister in the event of a vacancy prior to a new president assuming their position. The decree also expanded Council membership from five to eight permanent members. In addition to Lukashenka as the chair, the council currently includes the Prime Minister, the chairs of both houses of the legislature, the head of the President’s administration, and the State Secretary of the Council. Ex officio members include the heads of security services, law enforcement and several ministries and committees. Lukashenka justified the change thus: “Even if I would not be here … over my dead body, they [the opposition] would not succeed”. It is expected that the decreed change will be included in the Commission’s constitutional amendment proposal. The opposition believes that the changes aim to replicate Lukashenka’s system without Lukashenka in the form of a “collegial body”, thereby preserving the established model of power.
The decree on presidential succession, which bypasses current constitutional law, and the fact that the Constitutional Commission is not inclusive, works in secret, and is developing proposals in alignment with Lukashenka’s statements and instructions, impugn the legitimacy of Lukashenka’s constitutional amendment process and indicate that the proposed reforms are purely decorative: an attempt to draw attention away from the substantive changes being developed by the opposition.
Constitutional reform efforts by the democratic opposition
The democratic opposition is comprised of several key actors and organizations. Sviatlana Tsikhanouskaya, Lukashenka’s highly popular opponent in the 2020 elections and currently in exile, leads a team comprised of long-time opposition politicians and democracy activists. Her group is headed by the former deputy of the Supreme Council and ex-chairman of the United Civic Party, Anatol Liabiedzka, and ex-speaker of the Supreme Council, Mechyslau Hryb. While Tsikhanouskaya’s camp is among the largest and most internationally connected of the opposition groups, other key actors, leaders and organizations are actively involved in the democratic movement. The opposition is not a cohesive group: it is a collective of activists, jurists, opposition politicians and youth that reject Lukashenka’s non-inclusive and undemocratic facsimile of constitutional reform, but who hold differing visions of how best to pursue a democratic transition in Belarus.
A key difference among opposition groups is which document should be the foundation for constitutional reform.
A key difference among the groups is which document should be the foundation for constitutional reform: the original 1994 constitution, which was developed through a four-year process of pluralistic negotiations, or the current Constitution as amended by referendums in 1996 and 2004. Many democratic actors argue that the 1996 amendments, and thus the current Constitution, are illegitimate since the arguably manipulated referendum formalized Lukashenka’s already unconstitutional consolidation of power by eliminating core safeguards of democratic governance. As a matter of pragmatism, Tsikhanouskaya’s camp is developing a constitutional amendment proposal based on the current 1996 Constitution and initiating a public consultation process.
Former Constitutional Court Judge Mikhail Pastukhou, on the other hand, argues that since the 1996 constitution is illegal, it is essential to restore the 1994 constitution as the basis for further amendments and the revival of democracy. He suggests that ongoing attempts to create a new constitution would fail due to the lack of legitimate legal mechanisms to adopt the changes (the feasibility of a citizen initiated referendum under Article 74 is unlikely given Lukashenka’s control over the electoral apparatus). Pastukhou has also criticised Tsikhanouskaya for ignoring the principle of constitutional succession. Debates around the optimal approach continue among democratic opposition actors.
In the meantime, Tsikhanouskaya’s team has developed a draft constitutional amendment proposal and on 10 March released it for public consultation and debate. The proposal would restore core democratic principles and institutions, including separation of powers and a system of checks and balances across the three branches of government buttressed by enhanced independent oversight and integrity institutions. A key element of the Tsikhanouskaya draft is a transition from the current form of (hyper)presidentialism to a semi-presidential system with a directly elected but weak president and a prime minister elected by and accountable to the legislature to oversee the majority of day-to-day governance matters. The proposal would shift significant appointment powers to the legislature, strengthen the independence of the judiciary and create a collaborative appointment mechanism, reduce executive law-making authorities, align electoral principles with international standards, revise referenda powers, mandate direct elections of local governance bodies, and enhance decentralization, among other changes. The president would be limited to two terms of four years and the president’s main competencies would be foreign policy, security issues, and various aspects of internal affairs. Suggested amendments also include the abolition of the death penalty, a crucial issue for Belarus’s future prospective membership to the Council of Europe.
To support ongoing public discussion on the proposed amendments, Tsikhanouskaya’s team has developed an online platform to enable debate. Consultations and online and in-person discussions are planned for the spring and summer of 2021 and will be used to prepare a revised full version of the constitutional text for the fall.
What is next?
Considering that Lukashenka’s Constitutional Commission does not propose any significant governance reforms apart from those that would strengthen presidential power and/or ensure a place for Lukashenka’s continuing influence, the regime’s constitutional amendment process is more declarative and decorative than substantive. More than that, following the 26-year tradition of undemocratic referendums since 1996, one should not expect a legitimate referendum nor anticipate transparent and inclusive discussions.
The opposition can, and should, continue its work to prepare a comprehensive proposal for a new, democratic, and people-driven constitutional text . . .
The major role of the opposition, in the current circumstances, is to find a way to ensure fair and transparent elections, or to find a way to push Lukashenka into dialogue on meaningful political change. The opposition also can, and should, continue its work to prepare a comprehensive proposal for a new, democratic, and people-driven constitutional text that could be used in case the desired opportunity for political change occurs – either through a negotiated agreement or other means. This will ensure the opposition is prepared for a political transition and that the new constitution enjoys legitimacy. For that, consolidation within the opposition itself is needed, as well as consensus on which legal basis the proposed new draft constitution should rest upon.
The preparation of the new constitution is important regardless of the political processes in Belarus and willingness of Lukashenka’s regime to engage in dialogue with the opposition (which is very unlikely). First, a draft of the new constitution and its implementation plans will provide the opposition with strategies for change after Lukashenka. Second, it will serve as an essential consolidation factor backed by inclusive and transparent deliberations involving all relevant political and civic actors in drafting the proposed revised constitution. Third, it will positively increase society’s acceptance of future changes as a transparent process, including in a participatory drafting process, will allow their voices to be heard.
Lukashenka’s main goal in proposing constitutional reform is primarily based on his wish to lead this process to the exclusion of the opposition, imitating an open dialogue with civil society and ensuring his political influence after quitting the presidency. For the opposition, it is a tool for consolidation, legitimisation and a wider acceptance by the country’s civil society. It is also a ground for future reforms aimed at Belarus’s democratisation after Lukashenka.
Hanna Vasilevich is Lecturer at Europa-Universität Flensburg and Chair of the Board at the International Centre for Ethnic and Linguistic Diversity Studies, Prague.
Note: This article was originally published by ConstitutionNet.
Image: Protests against President Aliaksandr Lukashenka in Minsk, Belarus in August 2020, photo credit: Reuters.