Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
26 March 2009 № D-318/2009
26 March 2009 № D-318/2009
On the Rules of Procedure of the Council of the Republic of the National Assembly of the Republic of Belarus
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer - Chairman of the Constitutional Court of the Republic of Belarus P.P.Miklashevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov, V.Z. Shuklin
according to the eighth part of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges in the exercise of the right to forward proposals to the President of the Republic of Belarus, the chambers of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, other state bodies within their competence on the need to make alterations and (or) addenda to the acts of legislation considered in court session the Rules of Procedure of the Council of the Republic of the National Assembly of the Republic of Belarus.
Having analysed the Constitution of the Republic of Belarus, the Code of the Republic of Belarus on Judicial System and Status of Judges (hereinafter – the Code), the Law of the Republic of Belarus «On the National Assembly of the Republic of Belarus», the Rules of Procedure of the Council of the Republic of the National Assembly of the Republic of Belarus the Constitutional Court found the following:
1. Pursuant to part one of Article 6 of the Code the Constitutional Court is qualified to provide the supremacy of the Constitution and its direct action in the territory of the Republic of Belarus, the compatibility of state bodies normative legal acts with the Basic law, legal consolidation in norm-making and law-enforcement.
Based on the results of obligatory preliminary control which is exercised in pursuance of Decree of the President of the Republic of Belarus of June 26, 2008 No 14 «On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus» (hereinafter – Decree No 14), in order to provide the supremacy of the Constitution the Constitutional Court in a number of its decisions stated the legal positions that aimed at revealing the constitutional legal meaning of norms of the considered laws and preventing from unconstitutional law-enforcement practice in the future. Some of them including those ones concerning program laws adoption procedures are stated in the Message on the Constitutional Legality in the Republic of Belarus, 2008.
Ones of the basic normative legal acts regulating legislative process and operating procedures of a legislative body are its Rules of procedure. The Rules of Procedure of the Council of the Republic of the National Assembly of the Republic of Belarus (hereinafter – the Rules of Procedure) were adopted by the Resolution of the Council of the Republic of December 19, 2008 pursuant to Article 105 of the Constitution. The Rules of Procedure establish operating procedures of the Council of the Republic of the National Assembly of the Republic of Belarus
(hereinafter – the Council of the Republic) its bodies and members of the Council of Republic. The considerable part of the Rules of Procedure articles regulates the legislative process, which in many respects determines the quality of laws.
(hereinafter – the Council of the Republic) its bodies and members of the Council of Republic. The considerable part of the Rules of Procedure articles regulates the legislative process, which in many respects determines the quality of laws.
2. Pursuant to part four of Article 116 of the Constitution and part two of Article 22 of the Code the Council of the Republic shall have the right to forward motions to the Constitutional Court on producing rulings on constitutionality of the normative legal acts.
Pursuant to Article 304 of the Rules of Procedure «The Council of the Republic shall have the right to move a motion to the Constitutional Court on producing a ruling» on constitutionality of normative legal acts. Article 305 of the Rules of Procedure provides that «a proposal to consider in the Council of the Republic the issue on moving a motion to the Constitutional Court of the Republic of Belarus can be submitted to the Council of the Republic by the Presidium of the Council of the Republic, the standing Committees and members of the Council of the Republic».
At the same time pursuant to part two of Article 59 of the Constitution the state bodies, officials and other persons, who are entrusted to execute state functions, are obliged within their competences to take necessary measures for realisation and protection of personal rights and freedoms. Part three of Article 22 of the Code provides state bodies, public associations, organisations and citizens with the right to appeal with the initiative to examine constitutionality of a normative legal act to the Council of the Republic and other subjects entitled to forward motions to the Constitutional Court specified in part four of Article 116 of the Constitution and part two of Article 22 of the Code.
However Article 69 of the Rules of Procedure stipulates the general competence of the Standing Committees concerning consideration of petitions of citizens and organisations and specifies that they shall consider merely written petitions of citizens and organisations containing proposals on improvement of legislation of the Republic of Belarus. That power is exercised by Standing Committees pursuant to Article 40 of the Constitution and the Law of the Republic of Belarus «On the Citizens Appeal». Article 1 of that Law states that «an appeal is an individual or collective proposal, application, complaint of a citizen (citizens) filed to a state body, another organisation (official) orally or in writing».
Part one of Article 3 of the Constitution prescribes that the sole source of state power and the repository of sovereignty in the Republic of Belarus shall be the people who exercise their power directly and through representative and other bodies. The indirect way of exercising the people’s power is in particular through a representative body – the Parliament consisting of two chambers – the House of Representatives and the Council of the Republic obliged to represent interests of citizens according to their legal nature (Article 90 of the Constitution). According to the Constitutional Court the right to appeal with the initiative to examine normative legal act constitutionality is based not only on part one of Article 3 of the Constitution but also belongs to every citizen being based on his constitutional right to participate (directly or indirectly) in the solution of state matters (Article 37of the Constitution), being one of the major forms of power exercise by the people. Every citizen is given the right to realise the initiative to examine the constitutionality of a normative legal act in the Constitutional Court through the Council of the Republic, that means in an indirect way. However this granted right of citizens to initiate the examination of constitutionality of a normative legal act in the Constitutional Court, having an appropriate constitutional ground, had not been reflected in the Rules of Procedure.
Thus, the Constitutional Court comes to the conclusion that the provision of part three of Article 22 of the Code and its realisation mechanism are to be stipulated in relevant articles of the Rules of Procedure. Legal regulation of the mechanism of consideration and further destiny of the initiative to examine the normative legal act constitutionality through the Council of the Republic as a representative state body and one of the subjects entitled to initiate constitutional legal proceedings under conditions of absence of the citizens direct right to submit a constitutional complaint to the Constitutional Court shall be specified in the Rules of Procedure with regards to its full volume and special procedure adjusted to its importance for a legal state development.
3. In the decision of December 27, 2008 «On compatibility of the Law of the Republic of Belarus «On Making Alterations and Addenda to Some Laws of the Republic of Belarus on the State and Mobilisation Material Reserves» with the Constitution of the Republic of Belarus» the Constitutional Court by virtue of part four of Article 104 of the Constitution had formulated the legal position concerning the necessity to establish a special procedure for making alterations and addenda to program laws. That procedure assumes that laws on making alterations and addenda to program laws shall be adopted in form of separate laws by the majority of minimum two thirds of both parliament chambers voices.
The Rules of Procedure determine only the special procedure for program laws approval. This is adoption by the majority of minimum two thirds of voices of the Council of the Republic full composition (Article 152, 197). The Rules of Procedure stipulate the right of the Council of the Republic to receive information about their realisation (Article 310). At the same time the Rules of Procedure do not provide for the adoption procedure of laws on making alterations and addenda to program laws. Confirming the above-stated legal position the Constitutional Court believes the Rules of Procedure should contain legal norms stipulating the special procedure to make alterations and addenda to program laws.
Therefore, in view of the foregoing pursuant to part one of Article 116 of the Constitution of the Republic of Belarus, part eight of Article 22, part two of Article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, the Constitutional Court of the Republic of Belarus
RULED:
1. In order to provide the constitutional principle of the right supremacy, the appropriate realisation of citizens and organisations rights and legitimate interests to recognise as necessary to determine in the Rules of Procedure of the Council of the Republic of the National Assembly of the Republic of Belarus the procedures:
for consideration of petitions of citizens and organisations with the initiative to examine a normative legal act constitutionality;
for adoption of laws on making alterations ad addenda to program laws.
2. To propose to the Council of the Republic of the National Assembly of the Republic of Belarus to make respective alterations and addenda to the Rules of Procedure of the Council of the Republic of the National Assembly of the Republic of Belarus.
3. The present decision shall come into force from the date of adoption.
4. To publish the present decision in the Bulletin of the Constitutional Court of the Republic of Belarus.
Presiding Officer–
Chairman of the Constitutional Court of
the Republic of Belarus
P.P.Miklashevich