8 October 1998 № J-72/98
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court - G.A. Vasilevich, Deputy Chairman - A.V. Maryskin, judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, G.B. Shishko, V.Z. Shuklin
with participation of representatives as litigants:
of the President of the Republic of Belarus who made a constitutional motion on the verification of the constitutionality of point 3 of the Law "On the main principles of the nation's power in the Republic of Belarus", I.S. Andreev - Director of the National Centre of draft law activities under the President of the Republic of Belarus;
of the House of Representatives of the National Assembly of the Republic of Belarus: N.I. Lozovik - Deputy Chairman of the Standing Commission of the House of Representatives of the National Assembly of the Republic of Belarus on state building, local self-government and rules of procedure; V.I. Zhishkevich - Head of the department of draft law work - Deputy Head of the Main expert and law management of the Secretariat of the House of Representatives of the National Assembly of the Republic of Belarus;
of the Council of the Republic of the National Assembly of the Republic of Belarus: L.Y. Senuta - main specialist of the department of state, criminal and administrative legislation of expert and law management of the Secretariat of the Council of the Republic of the National Assembly of the Republic of Belarus
has considered in open Court session the case "On the conformity between the Law "On the main principles of the nation's power in the Republic of Belarus" and the Constitution of the Republic of Belarus".
The Court session was attended by: E.M. Tsarenko - Deputy Chairman of the Supreme Court of the Republic of Belarus; I.N. Zhdanovich - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; A.V. Ivanovsky - Deputy Procurator-General of the Republic of Belarus; O.G. Sergeeva - Deputy Minister of Justice of the Republic of Belarus.
The proceeding was brought by the Constitutional Court of 19 May 1998 as a result of a constitutional motion filed by the President of Republic Belarus on the basis of Article 116 of the Constitution, Articles 5 and 6 of the Law "On the Constitutional Court of Republic Belarus " and Article 43 of the Rules of Procedure of the Constitutional Court.
The Law of the Republic of Belarus "On the main principles of the nation's power in the Republic of Belarus" (Vedamastsi Vyarkhovnaga Saveta Byelaruskai SSR, 1991, No. 12, art. 129; Vedamastsi Vyarkhovnaga Saveta Respubliki Belarus, 1991, No. 30, art. 494; No. 33, art. 603) was subject to examination.
The President of the Republic of Belarus in its motion challenged the constitutionality of the Law "On the main principles of the nation's power in the Republic of Belarus" and pointed out that certain provisions of the Law in question are at variance with the Constitution of the Republic of Belarus.
Having heard A.V. Maryskin, judge-speaker, representatives of the litigants, analyzed the relevant Articles of the Constitution and laws of the Republic of Belarus, studied the materials of the case the Constitutional Court held the following.
The Constitution of the Republic of Belarus of 1978 (Articles 2, 78, 80, 97 and others) has fixed the sovereignty and supremacy of the Supreme Council as the highest constantly acting body of state power. The exclusive right of the Supreme Council to act in the name of the whole people of the Republic of Belarus secured by part three of Article 1 of the Law "On the main principles of the nation's power in the Republic of Belarus" was based on the norms of the specified Constitution.
The Constitution of the Republic of Belarus of 15 March 1994 having secured the principles of the sovereignty of the people and separation of powers, specified other approaches towards organization and activities of state power, as well as essentially changed the competence of the Supreme Council and its place in the system of state bodies. Article 3 of the Constitution envisaged that the people shall be the single source of State power in the Republic of Belarus, the people shall exercise their power directly and through representative bodies in the forms and within the limits established by the Constitution. Article 3 of the Constitution of 1994 in the effective wording has also enshrined that the people shall be the sole source of state power and the repository of sovereignty in the Republic of Belarus, the people shall exercise their power directly through representative and other bodies in the forms and within the bounds specified by the Constitution. Under Article 6 of the Constitution of the Republic of Belarus State power in the Republic of Belarus is exercised on the principle of separation of powers between the legislature, executive and judiciary.
Based on the constitutional principles of the sovereignty of the people and separation of powers, the norms of the Constitution which secure the competence of the higher state bodies the Constitutional Court considers that the Constitution adopted of 15 March 1994 did not give the Supreme Council the exclusive right to act in the name of the whole people of the Republic of Belarus.
Parts one and two of Article 3 of the Law "On the main principles of the nation's power in the Republic of Belarus" envisage that state power is exercised on the grounds of the Constitution and laws of the Republic of Belarus. The supremacy of the Constitution and laws shall be established in the territory of the Republic of Belarus. Article 7 of the Constitution in the effective wording established the principle of the supremacy of law and secured that the State and all the bodies and officials thereof shall operate within the confines of the Constitution and the laws enacted in accordance therewith. Thus, there is a discrepancy between the norms of the Law under verification and the norms of the Constitution.
The Agreement on setting up of the Commonwealth of Independent States of 8 December 1991 ratified by the Supreme Council of 10 December 1991 established that the Union of SSR as a subject of international law shall end its existence. Under Article 14 of the Agreement the activities of the former Union of SSR in the territories of the member-states of the Commonwealth shall be terminated. Moreover, the Resolution of the Supreme Council of the Republic of Belarus of 16 January 1992 "On the reservation to the Agreement on setting up of the Commonwealth of Independent States" envisages, in particular, that in order to make necessary conditions for the implementation of Article 11 of the specified Agreement in the territory of the Republic of Belarus there shall be effective the rules on the application of the legislation of the Republic of Belarus and the former Union of SSR secured by Article 3 of the Law "On the main principles of nation's power in the Republic of Belarus".
Part two of Article 1 of the Constitution enshrines that the Republic of Belarus exercises supreme control and absolute authority over the whole of its territory, and shall implement an independent internal and foreign policy.
Articles 4, 5 and 6 of the Law "On the main principles of nation's power in the Republic of Belarus" determine that if the acts of the Congress of the people's deputies of the USSR, the Supreme Council of the USSR, the President of the USSR, the Cabinet of Ministers of the USSR, union and republican union ministries and departments restrict the sovereign rights of the Republic of Belarus, rights and lawful interests of its citizens, the Supreme Council of the Republic of Belarus, its Presidium, the Council of Ministers of the Republic of Belarus shall have the right to refer to the Congress of the people's deputies of the USSR, the Supreme Council of the USSR, the President of the USSR, the Cabinet of Ministers of the USSR on the revision of the acts in question by suspending of their effect. In case of leaving the application of the Supreme Council of the Republic of Belarus, its Presidium, the Council of Ministers of the Republic of Belarus without satisfaction they have the right to adopt the resolution on the full or partial non-extension of the effect of the acts of the USSR in the territory of the Republic of Belarus or to revoke its decision on the suspension of the effect of the specified acts.
In this connection the Constitutional Court has come to the conclusion on the non-conformity of Articles 4, 5 and 6 of the Law "On the main principles of nation's power in the Republic of Belarus" with the Constitution of the Republic of Belarus.
Part three of Article 7 of the Law "On the main principles of nation's power in the Republic of Belarus" determines that the Supreme Council of the Republic of Belarus had the right to adopt the resolution on the dissolution of a local Council of people's deputies and setting of new elections in case of failure to observe by a local Council of laws and resolutions adopted by the supreme body of state power of the Republic. Under the Constitution adopted of 15 March 1994 the Supreme Council of the Republic of Belarus had the right to dissolve a local Council of deputies in a case of systematic or obvious non-fulfilment by them of legislation, as well as on the other grounds determined by the law (point 17 of part one of Article 83, Article 123).
The Constitution in the effective wording shall give the Council of the Republic of the National Assembly of the Republic of Belarus the right to dissolve a local Council on the specified grounds (point 6 of Article 98, Article 123 of the Constitution). The President of the Republic of Belarus in this case shall call elections to a local Council (point 2 of Article 84 of the Constitution).
With the aforementioned taken into account the Constitutional Court found part three of Article 7 of the Law "On the main principles of nation's power in the Republic of Belarus" to be at variance with the Constitution adopted of 15 March 1994 in part of the grounds for dissolution of a local Council of deputies and with the Constitution of 1994 in the effective wording in part of determination of the subjects which enjoy the right to dissolve a local Council and in this case calling of new elections.
Part two of Article 12 of the Law "On the main principles of nation's power in the Republic of Belarus" envisages that participation and non-participation of a citizen in the activities of a public association may not be the ground for the restricton of his rights and freedoms, the condition for holding a post in a state organization included or the ground for default of duties determined by law.
Part two of Article 36 of the Constitution stipulates that judges, employees of the Procurator's Office, the staff of bodies of internal affairs, the State Supervisiory Committee (Supervision Authority - under the Constitution of 15 March 1994), security bodies, as well as servicemen may not be members of political parties or other public associations that pursue political goals.
The Constitutional Court considers that part two of Article 12 of the Law "On the main principles of nation's power in the Republic of Belarus" does not conform in full extent to part two of Article 36 of the Constitution of the Republic of Belarus because according to the meaning of the specified norm of the Law the persons listed in part two of Article 36 of the Constitution during the period of discharging of their duties may be the members of political parties and other public associations that pursue political goals.
Part one of Article 14 of the Law "On the main principles of nation's power in the Republic of Belarus" established that bodies of state security and safeguard of law and order in the territory of the Republic shall be subordinated to the Supreme Council of the Republic of Belarus, as well as to the state structures which it determines.
Under part two of Article 97 of the Constitution of 1978 the Supreme Council was competent to take to its consideration and decide any issue which was under the authority of the Republic of Belarus. Article 70 of the Constitution of 1978 determined that the issues concerning the establishment of the procedure of organization and activities of republican and local bodies of state power and management shall be under the authority of the Republic of Belarus, its supreme bodies of state power and management (point 3 of Article 70). On the basis of the specified Articles of the Constitution of 1978 the Supreme Council had the right to place under its authority and under the authority of state structures it determined of the bodies of state security and safeguard of law and order.
The analysis of Articles 6, 79, 83, 95, 100, 106 and 107 of the Constitution of 1994 adopted of 15 March in the effective wording which secure the powers of the bodies of state power signifies that they had not granted the Supreme Council and do not give the National Assembly of the Republic of Belarus the right to subordinate the bodies of state security and safeguard of law and order envisaged by part one of Article 14 of the Law "On the main principles of nation's power in the Republic of Belarus".
The Constitutional Court emphasizes also the necessity to bring the terminology of the Law "On the main principles of nation's power in the Republic of Belarus" into line with the Constitution of the Republic of Belarus.
Based on the aforesaid and guided by Article 116 of the Constitution, Articles 5, 6, 9, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of
RULED:
1. To find the following norms of the Law "On the main principles of nation's power in the Republic of Belarus" to be at variance with the Constitution of the Republic of Belarus and to be null and void:
part three of Article 1; parts one and two of Article 3; part three of Article 7 with respect to the grounds of dissolution of a local Council of deputies; part two of Article 12 to the extent that it allows the possibility for the persons listed in part two of Article 36 of the Constitution during carrying out of their duties to be members of political parties and other public associations that pursue political goals; part one of Article 14 - since 30 March 1994;
Articles 4, 5, 6 - since 10 December 1991;
part three of Article 7 in regard of the subjects which decide on the dissolution of a local Council and calling new elections to the Council in question, - since 27 November 1996.
2. For the National Assembly of the Republic of Belarus to bring the Law "On the main principles of nation's power in the Republic of Belarus" into line with the Constitution and the present Judgment.
3. To publish the present Judgment in ten days time from the date of its adoption in "Narodnaya gazeta" and "Zvyazda", as well as in "Vedamastsy Natsiyanalnaga skhodu Respubliki Belarus".
4. The present Judgment shall come into force from the day of its proclamation, shall be final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the