Constitutional reform process in Belarus: recent trends and developments

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Progress to date indicates that the languid process serves as a way to quell the protests, secure Lukashenka’s influence as a potential head of the All-Belarusian Assembly, and assuage Russia – a key Lukashenka ally and backer – to accelerate a promised loan.

The political opposition, which includes Sviatlana Tsikhanouksaya’s team and the National Anti-Crisis Administration headed by the former minister of culture Pavel Latushka, is undertaking its own constitutional reform process. This endeavour aims to restore democracy in Belarus through rebuilding a system of the separation of powers with effective checks and balances between the executive, legislature and an independent judiciary. It also calls for reducing the powers of the presidency. While there is disagreement within the opposition – which remains fragmented – on the best legal foundation for democratic constitutional change, there is a broad consensus that democratic forces need to provide an alternative to Lukashenka’s proposals, even if such alternatives could only be enacted after significant political change.

Lukashenka’s approach

By the end of July 2021, it became clear what the main changes to the constitution would be under Lukashenka. After nine meetings, organised since March 2021, the constitutional commission presented draft amendments to Lukashenka for comments, which should be presented for public debate at some point. As initially expected, the presented version confirms the initial criticism that the expected amendments would mainly focus on vague substantive concepts and cosmetic adjustments.

One of the main changes proposed by the constitutional commission affects the criteria for becoming the next president. As mentioned by a member of the commission, Yury Vaznesenski, Lukashenka does not plan to participate in the next election. Thus, strengthening the criteria is clearly aimed at limiting who can participate. The draft proposes to increase the candidate’s minimum age from 35 to 40. An uninterrupted, permanent residency in Belarus may be increased from ten to 20 years. Moreover, candidates must not have citizenship or residency in a foreign state. The maximum number of terms one can serve is proposed to be limited to two.

Another important amendment is to increase the parliament’s term from four to five years, while expanding the powers of the government and its independence in decision-making. The government is suggested to be more empowered with the right to submit proposals to the president on the appointment and recalling of Belarus’s diplomatic representatives abroad. Additionally, it is proposed to remove the president’s right to nullify governmental acts. The proposed changes are clearly aimed at weakening the position of the president, reversing amendments introduced by previous referenda, used by Lukashenka to secure his powers. Lukashenka believes that a new president might not be ready for the type of authority that he has wielded, even warning that a new president may request that foreign troops enter the country.

Lukashenka’s future

The promotion of an All-Belarusian People’s Congress (ABPC) as one of the political powers and granting it constitutional status can be viewed as an attempt to secure Lukashenka’s own personal authority through his leadership of the ABPC, while the powers of any potential future president will be limited. Vaznesenky indirectly confirmed that Lukashenka’s plan is to head the ABPC, though it seems that he would still remain in power until 2025 and stay on as head of the ABPC.

The ABPC is an assembly initiated in 1996 that meets every five years. It operates ostensibly as a means of representative public consultation on the direction of the country, but the attendees are mostly connected to the government and state-owned organisations. In February 2021, the ABPC met with 2,700 people (mostly regime loyalists) amid the COVID-19 pandemic to discuss Belarus’s social and economic development for the next five years, including constitutional matters. Many in the opposition opposed the ABPC’s reduced size and lack of inclusion.

To counteract excessive presidential powers, Lukashenka has proposed granting constitutional status to the ABPC and endowing it with some of the current presidential powers. In his post-presidency, Lukashenka would be able to head the ABPC where he could block decisions made by parliament, government and the future president. Lukashenka therefore seems to be following the model employed by the former president of Kazakhstan, Nursultan Nazarbayev, who, upon leaving office after 29 years, became head of the Assembly of Peoples of Kazakhstan.

The 2021 ABPC resolution included a call to confirm the body’s special legal status as per Lukashenka’s recommendations, to create a constitutional commission to forward proposals in 2021, to amend the constitution, and to submit proposals for public discussion and national referenda. Substantive recommendations include redistributing authorities between government bodies – including between local and self-government bodies, strengthening political parties and promoting patriotic education and traditional values. Lukashenka established the 36-member Constitutional Commission by decree in March 2021. All representatives, appointed by Lukashenka, are from the state machinery and pro-government parties. Representatives of the opposition and human rights organisations are excluded.

The constitutional commission has also proposed to create the position of a commissioner for human rights to extend the protection of human rights and freedoms and maintain effective communication between citizens and authorities. However, it is unlikely that this institution would be fully independent – taking into account the structure of Belarus’s state machinery and considering the recent raids on human rights defenders and unrecognition of the mandate of the UN special rapporteur on Human Rights. One unexpected amendment includes a proposal to explicitly define marriage as a union between a woman and a man in order to preserve traditional marriage and family.

The commission convened twice a month, with its first meeting held in late March. The commission’s draft proposal was submitted to the president on July 22nd 2021 in preparation for a referendum that is reportedly scheduled for early 2022 (allegedly, February). However, considering Lukashenka’s criticism on the length of the amendments, which is 170 pages, as unacceptable and thus needs to be reworked, one can once again identify oversimplification and avoidance of significant changes to the constitution by Lukashenka. Another aspect to consider is that the proposed amendments could still be reworked by Lukashenka, who might come with some unexpected suggestions. The final version of the constitution’s draft will be submitted for public discussion and subsequently, with possible amendments, put to a national referendum.

Opposition’s version of constitutional reform

The democratic opposition is comprised of several key actors and organisations. Sviatlana Tsikhanouskaya, Lukashenka’s opponent in the 2020 elections and currently in exile, leads a team comprised of long-time opposition politicians and democracy activists. Her group is headed by the former deputy of the supreme council and ex-chairman of the United Civic Party, Anatol Liabiedzka, and ex-speaker of the supreme council, Mechyslau Hryb. While Tsikhanouskaya’s camp is among the largest and most internationally connected of the opposition groups, other key leaders and organisations are actively involved in the democratic movement. Nevertheless, the opposition is not a cohesive group: it is a collective of activists, jurists and opposition politicians who reject Lukashenka’s undemocratic facsimile of constitutional reform, but who also hold differing visions of how best to pursue democratic transition.

The key difference among the groups is which document should be the foundation for constitutional reform: the original 1994 constitution, which was developed through a four-year process of pluralistic negotiations, or the current constitution, as amended by referenda in 1996 and 2004. Many argue that the 1996 amendments, and thus the current constitution, are illegitimate since the arguably manipulated referenda formalised Lukashenka’s already unconstitutional consolidation of power by eliminating core safeguards of democratic governance. As a matter of pragmatism, Tsikhanouskaya’s camp is developing a constitutional amendment proposal based on the current 1996 constitution and initiating a public consultation process.

Former constitutional court judge Mikhail Pastukhou, on the other hand, argues that since the 1996 constitution is illegal, it is essential to restore the 1994 one as the basis for further amendments and the revival of democracy. He suggests that ongoing attempts to create a new constitution would fail due to the lack of legitimate legal mechanisms to adopt the changes. Pastukhou has also criticised Tsikhanouskaya for ignoring the principle of constitutional succession. Debates around the optimal approach continue among the opposition.

In the meantime, Tsikhanouskaya’s side has developed a draft constitutional amendment proposal and on March 10th released it for public consultation and debate. The proposal would restore core democratic principles and institutions, including separation of powers and a system of checks and balances across the three branches of government. A key element of the Tsikhanouskaya draft is a transition from the current form of (hyper)presidentialism to a semi-presidential system with a directly elected but less powerful president and a prime minister. The proposal would shift appointment powers to the legislature, strengthen the independence of the judiciary and create a collaborative appointment mechanism, reduce executive law-making authorities, align electoral principles with international standards, revise referenda powers, mandate direct elections of local governance bodies and enhance decentralisation. The president would be limited to two terms of four years and his or her main focus would be foreign policy, security and various aspects of internal affairs. Suggested amendments also include the abolition of the death penalty, a crucial issue for Belarus’s future prospective membership in the Council of Europe. To support public discussion on the proposed amendments, Tsikhanouskaya’s team, in co-operation with the Anti-Crisis Administration, has developed an online platform to enable debate. Consultations are currently taking place and will be used to prepare a revised, full version in the autumn.

Is there any feasible result?

Considering that Lukashenka’s constitutional commission does not propose any significant governance reforms apart from ensuring Lukashenka’s continuing influence, the amendments are more declarative and decorative than substantive. More than that, following the 25-year tradition of undemocratic referenda since 1996, one should not expect a legitimate referendum nor anticipate transparent and inclusive discussions.

The major role of the opposition in the current situation is to find a way to ensure fair and transparent elections, or find a way to push Lukashenka into dialogue on meaningful change. The opposition should continue its work to prepare a comprehensive proposal for a new, democratic and people-driven constitutional text that could be used in case the opportunity for political change occurs – either through a negotiated agreement or other means. This will ensure the opposition is prepared for political transition and that a new constitution enjoys legitimacy. For that, consolidation within the opposition itself is needed, as well as a consensus on which legal basis the proposed new draft constitution should rest upon.

The preparation of the new constitution is important regardless of the political processes and Lukashenka’s willingness to engage in dialogue with the opposition (which is very unlikely). First, a draft of the new constitution and its implementation plan will provide the opposition with a strategy for change. Second, it will serve as an essential consolidation factor backed by inclusive and transparent deliberations involving all relevant political and civic actors in drafting the proposed revised constitution. Third, it will create greater transparency.

Lukashenka’s main goal in proposing constitutional reform is primarily based on his wish to exclude the opposition, suppress open dialogue and to secure political influence after he steps down as president. For the opposition, it is a tool for consolidation, legitimisation and a wider acceptance by civil society. It is also grounds for future reform after Lukashenka’s departure.

Hanna Vasilevich holds a Doctoral Degree in International Relations and European Studies. Her research interests include state ideology and propaganda, identity issues, inter-ethnic relations,  linguistic diversity as well as diaspora and kin-state relations.

Alyaksandr Lukashenka, belarus, Constitution, reform, Sviatlana Tsikhanouksaya