2009 16/02

Alaksiej Lapicki, ŽodzinaDoes the current version of the Belarusian Constitution correspond to the universally recognized principles of the international law?
How does the state implement the imperative procedures of the international law, stated in the international treaties and resulting in its high obligations?
It is high time to raise these crucial questions. The answers to these questions will determine the country’s reputation and help Belarus find its place among other European countries.
As yet, the Belarusian society has at least two antipodal opinions concerning the matter. Some think that the Belarusian Constitution is perfect. Others claim to the contrary.
There surely are some intermediate treatments of the issue. Still, it is the comparative analysis of the provisions of the Constitution with those of the International Covenant on Civil and Political Rights that can help solve the problem. The Belarusian Constitution is directly linked with the Covenant in its second section entitled ‘The Individual, Society and the State.’ It features the basic political, civil, economic and social rights of the citizens, the terms and criteria of their restriction, the obligations and guarantees of the state…
It seems especially important that the Covenant, as an imperative instrument, has a direct effect and is obligatory for any State Party within its territory. The implementation of the international principles within the national legal system should be provided by the national legislation. The Constitution, as the basis of the system, should invariably, exactly and understandably reflect the essence of the universally recognized legal provisions, obligatory for any State Party and its legal subjects.
Obligatory Force of International Legal Provisions for Belarus
The obligatory force of the international treaties for any State Party is stated in the Vienna Convention, signed by the Republic of Belarus in 1993. The Convention gave birth to the Belarusian Law on the Law of International Treaties. Its provisions fully correspond to the Convention and feature the same objectives.
For example, the Vienna Convention states that ‘the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized.’ The term ‘party’ means a state which has consented to be bound by the treaty and for which the treaty is in force.
All this means that the Belarusian Constitution and its national legislation, which regulate interrelations between the national subjects of law, should not run counter to the provisions of the above-mentioned international treaty.
The Rights to Freedom of Thought, Conscience and Religion as Treated by the Covenant and the Belarusian Constitution. The Topicality of the Implementation Process.
Let us try to see how Belarus observes its obligations under the international treaties and integrates them into its national legislation, e.g. civil rights and freedoms – the right to freedom of speech, conscience, religion, opinion and expression.
Leaving alone an extremely disputable issue of legal proceedings and the practical application of international and constitutional legal provisions in the Belarusian judiciary, let us focus our attention on the accuracy and accessibility of these standards as provided by the Belarusian Constitution and their correspondence to the international legal acts.
Let us analyze Article 18 of the International Covenant on Civil and Political Rights and the respective provisions of the Belarusian Constitution enshrined in Articles 31 and 33 of the country’s fundamental law.
At the same time, we will try to find out whose opinion is closer to the truth – whether the Constitution is perfect or leaves much to be desired.
Indeed, the right to freedom of thought, conscience and religion, provided by Article 18 of the Covenant, stands for the ‘freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private.’ Article 19 also states mentions the right to freedom of expression. The right includes ‘freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’
Meanwhile, the idea is formally split by the Belarusian Constitution:
1) the right to freedom of religion (Article 31);
2) the right to freedom of thoughts and beliefs and their free expression (Article 33).
The right to freedom of religion reflects the respective provisions of Article 18 of the Covenant.
However, the key democratic Article 33 of the Constitution, which guarantees the right to freedom of speech, seems to be extremely abridged. In its essence, it does not fully correspond to the international standard, which was virtually ‘robbed’ of the right.
E.g. as compared with the right to freedom of religion (Article 31 of the Constitution), the right to freedom of beliefs and opinions (Article 33 of the Constitution) lacks the freedom ‘to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching’, provided by the Covenant, or, as it is stated by Article 31 of the Constitution, ‘to express and spread beliefs’ (which has nothing to do with religion).
As a result, Article 33 of the Constitution guarantees ‘freedom of thoughts and beliefs and their free expression’ to everyone. However, it lacks the essential possibility ‘to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private.’
Thus, Articles 31 and 33 of the Constitution reduce the ‘possibility to express and impart’ beliefs to mere possibility to ‘freely express one’s beliefs.’
The difference between equal civil rights does not contribute to the unified treatment and application of these rules of law. In other words, there emerges a perilous possibility of arbitrary interpretation of the essence of the concept of ‘free expression,’ One can express oneself in whisper or with the help of facial expression, but this would never be real freedom of expression…
Eventually, it is extremely important that after the standard is split into two separate parts, ‘the freedom of thoughts and beliefs and their free expression’, provided by the Constitution, has lost its status of the imperative rule of law jus cogens, which admits of no diversion, even in cases of emergency.
This arises from Article 63 of the Constitution, enumerating the rights (Articles 24, 25(3), 26 and 31) never to be restricted even in cases of emergency.
This is an outrage against the international treaties and the universally recognized standards of international law.
The conclusion can be supported by a number of respective instruments by the UNO, e.g. the Human Rights Committee General Comments under art. 40, para. 4, of the International Covenant on Civil and Political Rights; date: 19 May 1989, which directly states that ‘the right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18 (1) is far-reaching and profound; it encompasses freedom of thoughts on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. The Committee draws the attention of States parties to the fact that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief. The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4 (2) of the Covenant.’
Conclusions. Belarus as an International Subject of Law and Possible Impact.
Thus, we can conclude that the current version of the Belarusian Constitution does not fully correspond to the provisions of the International Covenant on Civil and Political Rights. The right to ‘freedom of speech and conscience’ has lost the necessary unambiguousness and is therefore deprived of jus cogens its status, which is a violation of Article 4, paragraph 2 and Article 5 of the Covenant.
Thereby it should be observed that the conclusions imply Belarus’ inability to follow its obligations to fully implement the international standards in the field of civil and political rights within its national legislation. This is an evidence of Belarus’ deliberate policy of being in conflict with its international commitments, the obligations under the International Covenant on Civil and Political Rights, in particular. In other words, the Belarusian government has violated the above-mentioned pacta sunt servanda principle of the Vienna Convention on the Law of Treaties.
Additional Criticism of the Constitution. Does the Amount of Human Rights Restrictions, provided by the Constitution, correspond to the International Standards?
We cannot but mention another essential aspect in the context of Article 33 of the Constitution.
When comparing the Covenant with the Constitution, it is easy to see that ‘the freedom of speech’ or the right to ‘freedom of conviction’ has adopted a harsher character of restriction, as provided by Article 23 of the Constitution.
At the same time, it lacks the essential criteria for evaluating the amount of human restrictions named ‘the necessity for a democratic society.’ Any restriction, imposed by the state, should have legal objectives and be proportional and absolutely grounded in terms of its necessity for a democratic society. This narrows the scale of possible unwelcomed restrictions. This is an international standard, universally recognized and obligatory for every State Party of the Treaty.
We have to conclude that the Constitution has intolerably broadened the limits for restricting the key civil and political rights enshrined in the Covenant. It is absolutely clear that the amount of restrictions exceeds the standards determined by the international law, which is an evident diversion from the international principles.
In reality, the amount of human rights restrictions in a totalitarian society will tend to infinity, i.e. the state system lacks the essential legal constraint, aimed at protecting the rights of citizens. As a result, the Belarusian state system is ruled by absolute bureaucratic irresponsibility and ideology expediency.
The perspectives seem rather pessimistic… Legal chaos breeds social confrontation and tension, degradation of morals, growth of risk, uncertainty and danger, decrease of the country’s reputation and overall life quality…
Possible Solutions
We would like to draw the attention of the Constitutional Court and the House of Representatives of Belarus to these diversions from the standards of the international law and suggest making a number of essential amendments to certain articles of the Belarusian Constitution, namely Article 63, which should mention Article 33 among other key articles.
Besides, Article 23, stating the legal criteria of human rights restrictions, should include the existing international rule of law of the ‘necessity for a democratic society.’
And finally, the Constitution should have clear wording of Articles 33 and 31, dealing with the right to freely express one’s opinions or convictions and impart one’s convictions pertaining to religion. The right should include the freedom ‘to impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’
Moreover, we cannot but mention that the international law of practice has worked out an effective and uniformly used mechanism of evaluating the legality, admissibility and proportional restrictions, which can be legally imposed during the realization of these or those civil rights and freedoms in the society.
In this connection, the principle of ‘necessity in a democratic society’ is decisive.
It once again indicates that any derogation from the universally recognized fundamental criteria of evaluating the admissibility of human rights restrictions is absolutely intolerable.
Thus, the above-mentioned non-compliance is an abrupt violation of Article 5 paragraph 1 of the International Covenant on Civil and Political Rights, which states that no subject of law ‘can to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.’
Final Conclusions. The Necessity of Initiating a Constitutional Claim.
Considering the above-mentioned arguments, we are absolutely confident that the Belarusian Constitution should be immediately reformed. We also call upon the Belarusian government, competent authorities, lawyers and human rights activists to consider the above-mentioned issues and share their opinions on the matter in public.
The Belarusian Constitution far from being perfect and will be reformed sooner or later. Belarus should develop its legal system through step-by-step democratic reforms. Every citizen of Belarus is sure to benefit from the progress.
Anyway, guided by the right of civil initiative and enjoying equal rights as the subject of international relations in the field of human rights, the author of the article is going to initiate a hearing of the issue by the Constitutional Court of Belarus to reform the Constitution in accordance with the standards of the international law, enshrined in the International Covenant on Civil and Political Rights.

Aliaksei Lapitski,

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