On 18 September we held an online debate with a dozen constitutional experts from Belarus and beyond to discuss the country’s constitution. The discussion was held under the Chatham House Rule.
Participants agreed that Belarus’s current constitutional set-up is illegal. This is because President Lukashenko forced constitutional amendments through in 1996 in a way that was closer to a coup d’état than a legal reform process. He organised a referendum that gave him excessive powers and extended his term in office, despite an explicit verdict by the Constitutional Court that stated that this process was unconstitutional.
The chairman of the election commission, who was critical of the process, was illegally dismissed before he was abducted and disappeared three years later. It is widely assumed that the regime murdered him and other opponents during this time.
The 1996 constitutional amendments created the legal framework of an authoritarian regime: there is no separation or balance of powers, which is largely concentrated in the hands of the President.
The provisions of this authoritarian constitution are not even taken seriously by the government. They are violated whenever they are found to be inconvenient. Many citizens have been tortured despite a constitutional ban on torture, without these acts being investigated. In short: Belarus is not governed by laws and Belarusians live in a state of injustice and illegality.
For these reasons, Lukashenko’s recent proposal to amend the constitution in the face of massive protests was considered by participants to be no more than a political ploy to gain time by a leader who has lost the elections, despite the fact that they were heavily skewed in his favour.
The experts discussed whether, in case there is a political opening, the 1994 constitution in its original form could provide a legal basis for a political transition. The legal case could easily be made in view of the manifest unconstitutionality of the 1996 amendments, confirmed then by the country’s Constitutional Court.
Some experts were cautious about this idea. Some Belarusians may associate the original constitution with the economically difficult period of the early 1990s. Some experts fear that a return to 1994 could be interpreted as a measure against the Russian language because changes introduced in 1995 put the Russian language officially on a par with Belarusian. Such a controversy would not be helpful to the country’s democratic aspirations. Other experts felt that the main point of concern is not the role of the Russian language, but rather the possibility to use Belarusian.
Finally, participants agreed that the 1994 constitution had problems of its own. However, it would still provide a much better basis for a political transition than the current version of the constitution.