IN THE NAME OF THE REPUBLIC OF BELARUS

JUDGMENT
OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
of 4 November 1996, Minsk No. J-43/96

On the conformity of points 2.2, 2.5 and 3 of the Resolution of the Supreme Council of the Republic of Belarus of 6 September 1996 "On holding a republican referendum in the Republic of Belarus and on measures for securing it" to the Constitution and the laws of the Republic of Belarus

     The Constitutional Court of the Republic of Belarus comprising of the presiding officer - Chairman of the Constitutional Court V.G.Tikhinya, Deputy Chairman of the Court V.A.Fadeyev and judges M.F.Chudakow, R.I.Filipchik, K.I.Kenik, M.I.Pastukhov, V.V.Podgrusha, N.M.Sereda, S.I.Tishkevich, A.E.Vashkevich, G.A.Vassilevich

     with the participation of: the representatives of the Supreme Council of the Republic of Belarus as a litigant who adopted the normative act: S.I.Kalyakin - member of the Presidium of the Supreme Council of the Republic of Belarus; T.A.Manukova - Secretary of the Permanent Commission of the Supreme Council of the Republic of Belarus on State Building and Local Self - government; A.V.Matusevich - Director of Belarusian Institute on State Building and Legislation; G.I.Yurkevich - Head of the Legal and Expert Department of the Management of the Secretariat of the Supreme Council of the Republic of Belarus;

     experts: V.A.Borovtsov - Director of legal firm "Borovtsov and Salei"; Y.P.Brovko - Doctor of Legal Sciences, Professor of Chair on international law of the Belarusian State University; A.A.Golovko - Doctor of Legal Sciences, Professor of Chair on constitutional law of the Belarusian State University; S.E.Levshunov - Candidate of Legal Sciences, assistant professor, Chief Scientific Expert-Co-ordinator of the National Centre of Strategic Initiatives "East-West"; V.V.Sazhina - Candidate of Legal Sciences, assistant professor of Chair on theory and history of state and law of the Belarusian State University; N.V.Silchenko - Doctor of Legal Sciences, Professor, Head of Chair on theory and history of state and law of Grodno State University;

     witnesses: A.M.Abramovich - Deputy Head of the Administration of the President of the Republic of Belarus; V.E.Lubovsky - Deputy Head of the Chief Department on the work with legislative and judicial bodies of the Administration of the President of the Republic of Belarus; A.V.Maryskin - Head of the Chief Department of legal support of the Administration of the President of the Republic of Belarus; A.L.Plaskovitsky - Deputy Head of the Chief Department of legal support of the Administration of the President of the Republic of Belarus

     Has considered in open session the case "On the conformity of points 2.2, 2.5 and 3 of the Resolution of the Supreme Council of the Republic of Belarus of 6 September 1996 "On holding a republican referendum in the Republic of Belarus and on measures for securing it" to the Constitution and the laws of the Republic of Belarus."

     The Court session was participated by: V.N.Novikov - Deputy Chairman of the Supreme Council of the Republic of Belarus; I.A.Mironichenko - Deputy Chairman of the Supreme Court of the Republic of Belarus; V.S.Kamenkov - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; I.F.Sashcheko - Deputy Prosecutor General of the Republic of Belarus; V.O.Sukalo - Minister of Justice of the Republic of Belarus.

     The case was brought by the Constitutional Court at its own discretion of 20 September 1996 on the basis of part 2 of Article 127 of the Constitution and part 2 of Article 5 of the Law "On the Constitutional Court of the Republic of Belarus".

     The ground for considering the case was a constitutional motion filed by the Chairman of the Supreme Council of the Republic of Belarus S.G.Sharetsky.

     The subject to examination were points 2.2,2.5 and 3 of the Resolution of the Supreme Council of the Republic of Belarus of 6 September 1996 "On holding a republican referendum in the Republic of Belarus and on measures for securing it" (Vedamasty Vyarkhounaga Saveta Respubliki Belarus, 1996, No.26, Art.492).

     In accordance with Articles 74 and 83 of the Constitution of the Republic of Belarus the Supreme Council of the Republic of Belarus had enacted to hold a republican referendum in the Republic of Belarus on 24 November 1996 and included on the secret ballot paper the Following issues:

     "To adopt the Constitution of the Republic of Belarus of 1994 with amendments and alterations (new redaction of the Constitution of the Republic of Belarus), proposed by the President of the Republic of Belarus A.G.Lukashenko" (point 2.2).

     "To adopt the Constitution of the Republic of Belarus with amendments and alterations, proposed by two groups of deputies - communist and agrarian" (part 2.5).

     By point 3 of the act under verification the Supreme Council had enacted that in accordance with Articles 1, 14 and 39 of the Law of the Republic of Belarus "On referendum (plebiscite) in of the Republic of Belarus" the issues specified by the points of the Resolution shall be put to the obligatory referendum. The decisions of referendum are final and legally binding in the entire territory of the Republic of Belarus.

     Having heard the sides, witnesses, experts, having studied the materials of the case, having analysed the provisions of the Constitution and the laws of the Republic of Belarus, other enforceable enactments, international treaties, having studied the practical experience of constitutional structuring in foreign states the Constitutional Court came to the following conclusions.

     Article 73 of the Constitution of the Republic of Belarus determines that national and local referenda may be held to resolve the most important problems of the State and society.

     In accordance with Article 74 of the Constitution national referenda may be called by the President of the Republic of Belarus, no fewer than 70 deputies of the Supreme Council as well as no fewer than 450,000 citizens of the Republic of Belarus.

     Under Article 83 of the Constitution of the Supreme Council shall have the right to call national referenda and fix its date.

     Article 149 of the Constitution determines the possibility of making amendments and alterations in the Constitution by a referendum.

     As it was stated in the court session the President of the Republic of Belarus and the group of deputies of the Supreme Council have submitted to the Supreme Council draft amendments and alterations in the Constitution of the Republic of Belarus.

     According to Belarusian experts and foreign scholars in the field of constitutional law, the proposed amendments and alternations in the Constitution are de facto drafts of a new Constitution.

     However the effective Constitution does not contain any criteria concerning the estimation of the scope and the nature of the amendments and alterations made in it. In this connection the Court considers that the Supreme Council had the right to submit the proposed draft decisions to the referendum.

     The Constitution and the Law "On referendum (plebiscite) in the Republic of Belarus" do not determine the procedure of making amendments and alterations in the Constitution by a referendum. The Court considers that the mechanism of adoption of such amendments and alterations should be regulated by law as regards, for example, the adoption of amendments and alterations in the Constitution by the Supreme Council. Setting and observance of the special procedure of holding constitutional referenda is a guarantee of stability of the Constitution - the Organic Law of the State.

     The practice of constitutional structuring in many foreign states shows that the approval and adoption of such draft Constitutions shall precede their submission to a referendum. A referendum may also precede the adoption of the final decisions on Constitution by the Parliament.

     When calling the referendum on 24 November 1996 the Supreme Council as the highest representative and the unique legislative body of state authority of the Republic of Belarus practically turned out to be foreclosed from the constitutional process.

     Taking into account the requirements of Article 11 of the Law "On the Constitutional Court of the Republic of Belarus" which determines that when verifying the act, the Constitutional Court of the Republic of Belarus shall take into consideration both its literal meaning and the meaning attributed to it by its application practice.

     The Court considers that subsequent amendments and alterations made by the initiators in the original drafts rule out the holding of the referendum according to the draft decisions adopted on 6 September 1996. Therefore the Supreme Council should reconsider its resolutions concerning the submission of the texts of amendments and alterations in the Constitution to the referendum.

     The formulations of the questions, contained in the points 2.2 and 2.5 of the Supreme Council Resolution under verification, do not meet the requirements of Article 3 of the Law on referendum as well as the meaning of the draft decisions submitted to the referendum. Under the Law the ballot paper shall be formulated as a question and not in the form of a statement.

     In addition it is impossible to recognize the wording of the question on the adoption of the Constitution of 1994 on the whole as legally faultless inasmuch as to the referendum shall be submitted amendments and alterations in the Constitution.

     On the basis of the above-said and binding by Articles 127, 128 and 129 of the Constitution, Articles 5, 36, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To recognize as inconsistent with the Constitution and laws of the Republic of Belarus point 3 of the enactment of the Supreme Council of the Republic of Belarus of 6 September 1996 "On holding a republican referendum in the Republic of Belarus and on measures for securing it" concerning submission of amendments and alterations in the Constitution to the obligatory referendum.

The said norm shall become null and void from date of its adoption.

2. To advise the Supreme Council of the Republic of Belarus to bring the Resolution of 6 September 1996 "On holding a republican referendum in the Republic of Belarus and on measures for securing it" into line with the present Judgment.

3. To publish the present Judgment in ten days time from the date of its passing in "Vedamasty Vyarkhovnaga Saveta Respubliki Belarus", "Narodnaya Gazeta", "Zvyazda" as well as in those publications where the Resolution under verification was published.

4. The present Judgment shall come into force from the date of its passing, shall be final and subject to no appeal or protest.

Presiding Officer —
Chairman of the Constitutional Court
of the Republic of Belarus V.G Tikhinya