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.