2009 29/05

Alaksiej LapickiOr how ‘the improper Freedom’ stains the image of ‘the true democracy’ in the Belarusian Constitution…
(in continuation of the conversation on the issues covered in the article ‘The Freedom of Speech… in the International and Belarusian Legal Context’)
While the post-Soviet countries of the European Partnership are starting their trip towards the European Union, Belarus, just like 10-12 years ago, is stagnant and absolute predictable stability in the civil and political area…
However, this time, we will try to analyze but one, purely legal issue and see whether all’s well in our Kingdom, as it is advertized by ‘highly appointed’ or, should we say, ‘highly anointed’ persons of the country…
So, why does the Belarusian Constitution limit the freedom of thought and conscience… and belief (their free individual or public dissemination and distribution), set out in Part 1 of Article 18 of the International Covenant on Civil and Political Rights (ICCPR) as the freedom of thought, conscience and religion, to mere Freedom of religion and the right ‘to profess any religion individually or jointly with others, or to profess none at all, to express and spread beliefs connected with one’s attitude towards religion’ (Article 31)?!
Why is a very significant and broad part of the Freedom of beliefs and free expression of one’s attitude towards them, that does not deal with religious beliefs, but with, say, political and other beliefs, found in Article 33 of the Constitution and is thus merged with the Freedom of thoughts, for which the ICCPR provides a considerably wider range of restrictions?
At the same time, why is the Freedom to choose beliefs with the prohibition of constraint in the sphere, provided by Part 2 of Article 18 of the ICCPR, as well as the Freedom to freely have and manifest various kinds of this kind of beliefs (Part 1 of Article 18), also deprived of its high status of the jus cogens imperative, guaranteed by Articles 4 and 5 of the ICCPR? It is easy to see that the right, mentioned in Part 2 of Article 18 of the ICCPR, can be found in Part 2 of Article 33 of the Constitution, which is not encompassed by Article 63 of the Constitution, enumerating the inalienable imperative rules of law.
Thus, how important are these discrepancies? Can we speak of their illegality? And is there anything to be done about it?
First of all, it should be noted that, indeed, Article 63 of the Belarusian Constitution, enumerating the rights and freedoms that cannot be restricted even in a state of emergency, does not mention Article 33 of the Constitution. Thus, the right has lost its high status in the Belarusian Constitution. At the same time, the enlarged list of legal restrictions, set out in the Belarusian Constitution, is a direct violation of Article 5 of the ICCPR and an outrage the international rule of law.
In a wider context, the Freedom of thought, conscience and beliefs, is an extremely vital rule of law. It cannot be controlled or restricted, by interfering in the citizens’ manifestation of their private intellectual and moral aspirations, consciously adopted priorities! The right must not be restricted in any democratic society.
Apart from that, the Freedom to choose beliefs and absolute prohibition of any constraint (Part 2 of Article 18 of the ICCPR) cannot, together with the above-mentioned Freedom to freely have and manifest one’s beliefs (Part 1 of Article 18 of the ICCPR), be deprived of its high jus cogens status, enshrined in Articles 4 and 5 of the ICCPR! Every provision of the Belarusian Constitution that does not comply with that is a violation of the international legal standards and is therefore illegal.
In terms of the logics of law and bearing in mind that the current version of the Belarusian Constitution was adopted after the ratification of the International Covenant on Civil and Political Rights, the above-mentioned ‘combinations’ in the fundamental law are even more surprising.
Yet, it is absolutely evident that after dividing the components of the rule of law of the ICCPR (Article 18), they should have preserved their jus cogens status. Otherwise, it would mean a direct violation of international standards and deliberate or misleading narrowing of the sphere of application of the cited rights and freedoms, their illegally larger restriction in Belarus, than it is allowed by the generally recognized standards of the law and the respective international treaty.
All that calls for a Constitutional reform. In case it is impossible due to some reasons, certain legal measures should be done towards it – to expressly in a legislative way confirm the implementation by the state (all of its subjects) the analyzed significant international legal standards as they are guaranteed by the ICCPR, with due respect to the provisions of the Vienna Convention on the Law of Treaties and respective specialized national legal acts.
In any case, the judiciary and the legislative power should at least make a public statement on the issue and take measures to clear up the situation – to inform all persons concerned with human rights and freedoms of the rules of law to be implemented under the circumstances and of the means of their implementation, as well as of the status of their possible restriction. As yet, so long as the discrepancy exists, any ‘fortuitous events’ or abuse of authority are possible. In Belarus, they have not been for a long time treated in favour of democratic rights and freedoms of citizens.
A rule of law, stated in a legal act, should meet the criteria that the law itself is demanded of – comprehensibility and unambiguousness. In case it (even if is a provision of the Constitution) runs counter to the binding international treaty (the ICCPR), it is the latter that should come into effect within the national legal area of the party to the treaty.
Speaking of the essence of the possible amendments, it is seems that one will have to do much more that just add Article 33 to Article 63 of the Constitution.
Another separate article is likely to be added, which will cover the provisions set out in Part 1 and 2 of Article of the ICCPR; Article 31, 33 and 63 of the Constitution will also have to be corrected. Or correct the Articles of the Constitution so that all the imperative jus cogens provisions could be grouped in one Article 31 of the Constitution. In this case, the total number of articles of the Constitution remains the same, and only two Articles (31 and 33) will be amended. Which seems to be the most reasonable variant.
To eliminate all possible disputes and understand that the Constitution, namely Articles 31, 33 and 63, will have to be amended anyway, one has to go back to the authority of the UN Human Rights Committee and its documents.
E.g. ‘General Comment, adopted by the UN Human Rights Committee in accordance with Part 4 of Article 40 of the International Covenant on Civil and Political Rights of 19 May 1989’, in the foreword to Document CCPR/C/21/Rev.1, has a direct proof indicating to the accuracy of the above-stated thoughts.
Thus, the document designed for parties to the Covenant provides a comment on Article 18 of the treaty:
‘…The right to freedom of thought, conscience and religion (including the freedom of beliefs), enshrined in paragraph 1 of Article 18, is rather broad and deep; it encompasses the freedom of thought in all respects, as well as human beliefs and adherence to a religion or convictions, professed individually or collectively. The Committee stresses that the freedom of thought and the freedom of conscience are protected likewise the freedom of religion and beliefs. The fundamental nature of the freedoms is proven by paragraph 2 of Article 4 of the Covenant, which allows of no derogation from the provision even in a state of emergency.’
Thus, one can arrive at a logical conclusion, that the current Belarusian Constitution in this respect does not meet the provisions of the International Covenant on Civil and Political Rights. While ‘the right to freedom of beliefs’ in its broader meaning (their free individual or collective profession and manifestation), as well as the Freedom to choose or change one’s attitude towards beliefs, are illegally deprived of their jus cogens status by Articles 33 and 63 of the Belarusian Constitution, and, in violation of Articles 4 and 5 of the Covenant is burdened with groundless and intolerable restrictions.
When analyzing the discrepancy and the illegality resulting from it in detail, the author tried to address the Constitutional Court and, later, the Belarusian Parliament with a special appeal… however, no response addressing to the matter has yet been received.
The above-mentioned subjects of power (the judiciary and legislative ones) are more obsessed with procedural, rather than essential part of the issue – the Constitutional Court expects some legislative initiative subject (the Parliament, the Government or the President) to lodge a similar complaint. Still, it is unclear why cannot one open the text of the Constitution and see the discrepancies? The Parliament, in its turn, refers to the regulation that Section II of the Constitution ‘The Individual, the Society and the State’, with all the above-mentioned drawbacks, can only be amended through a nation-wide referendum. In other words, individuals have no legal competence to initiate such amendments.
One may wonder what question the people of Belarus will have to answer in case such a referendum does take place – ‘Shall Belarus implement its own international commitments and the international human rights standards?’
Still, it is the Parliament that could under Part1 of Article 140 of the Constitution pass an Act of Comments to the cited provisions of the Constitution, to provide explicit explanations in terms of the priority of implementation of the provisions of the Covenant in the field of civil and political rights and secure adequate and uniformed treatment and application of the rules of law by all the national subjects of law. E.g. the Act could provide facts from the practice of the UN Human Rights Committee, which in its regular General Comments, aimed at explaining the provisions of the Covenant, pursues a uniform understanding and implementation of internationally recognized and binding for every Party to the treaty standards in the field of civil rights and freedoms.
It is of little importance in which way the flaws and the problems resulting from it will be corrected. What is important is that in the end the analyzed rules of law did not run counter to the international legal standards, and civil, political and judicial practice did not use illegally discriminative approaches to such fundamental and unrestrictable democratic rights and freedoms, as the Freedom of thought, conscience… and the Freedom of beliefs, their free individual or collective adoption and manifestation, as well as the Free choice of one’s attitude towards any existing beliefs with no restrictions and constraints.

***

AS WE CAN SEE, THE MECHANISMS OF LEGISLATIVE INITIATIVE DO NOT WORK SO FAR. ESPECIALLY WHEN CIVIL AND POLITICAL RIGHTS AND FREEDOMS ARE ON THE AGENDA, AS WELL AS THEIR CORRECT TREATMENT BY THE FUNDAMENTAL LAW. IS A TOTALITARIAN SYSTEM CAPABLE OF SELF-ANNIHILATION, TRANSFORMATION OR SELF-DEMOCRATIZATION? AND WHAT WILL THIS ‘DEMOCRATIZATION AGENT’ LOOK LIKE TO DO ALL THE WORK?

These aspects are yet to be analyzed in future materials on the issue.
Still, there is one more thing to add – as it appears, due to the Constitution, the legal area of Belarus is populated with system illegal restrictions of the imperative rules of law, directly connected to the fundamental civil and political RIGHTS AND FREEDOMS OF BELARUSIAN CITIZENS. This situation is not addressed by today’s authorities. Instead, an unprecedented high level of ‘democracy’ is advertized all over the world… In the context of recent statements on an ‘unprecedented transparent’ and ‘democratic’ parliamentary election, it seems extremely cynical and trivial…

Does any community admit new members if they do not implement their partner’s commitments under international treaties? They question is surely a rhetorical one…

There is no doubt that in the context of the recently launched European Partnership programme and further perspectives of cooperation with the EU, and bearing in mind the social and political reality in which today’s Belarusian civil society has to live, the fact turns into a negative aspect – an index of actual social, political and legal progress of Belarus. It is a reflection of actual level of legal and legislative culture in the country, the development of democracy and the implementation of international treaty commitments in the field of civil and political rights.

The ‘brake’ will never contribute to the improvement of Belarus’ international reputation, nor will it help Belarus gain necessary weight in its international affairs under current complicated economic circumstances or give a chance to leave behind ‘the claws of post-Soviet totalitarianism’ and achieve a new legal, political and socio-economic level, high international standards and adequate European quality of life.

27.05.2009

Aliaksei Lapitski,
Zhodzina

Bibliography:
1. The Constitution of the Republic of Belarus;
2. The International Covenant on Civil and Political Rights:
3. General Comments by the UN Human Rights Committee;
4. The Freedom of Speech in the International and Belarusian Legal Context by Aliaksei Lapitski

Tags: , , ,

Leave a Reply

Your email address will not be published. Required fields are marked *


*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>