4 November 1996 № J-43/96
The Constitutional Court of the Republic of Belarus comprising of the presiding officer - Chairman of the Constitutional Court V.G.Tikhinya, Deputy Chairman of the Court V.A.Fadeyev and judges M.F.Chudakow, R.I.Filipchik, K.I.Kenik, M.I.Pastukhov, V.V.Podgrusha, N.M.Sereda, S.I.Tishkevich, A.E.Vashkevich, G.A.Vassilevich
with the participation of: the representatives of the Supreme Council of the Republic of Belarus as a litigant who adopted the normative act: S.I.Kalyakin - member of the Presidium of the Supreme Council of the Republic of Belarus; T.A.Manukova - Secretary of the Permanent Commission of the Supreme Council of the Republic of Belarus on State Building and Local Self-government; A.V.Matusevich - Director of Belarusian Institute on State Building and Legislation; G.I.Yurkevich - Head of the Legal and Expert Department of the Management of the Secretariat of the Supreme Council of the Republic of Belarus;
experts: V.A.Borovtsov - Director of legal firm "Borovtsov and Salei"; Y.P.Brovko - Doctor of Legal Sciences, Professor of Chair on international law of the Belarusian State University; A.A.Golovko - Doctor of Legal Sciences, Professor of Chair on constitutional law of the Belarusian State University; S.E.Levshunov - Candidate of Legal Sciences, assistant professor, Chief Scientific Expert-Co-ordinator of the National Centre of Strategic Initiatives "East-West"; V.V.Sazhina - Candidate of Legal Sciences, assistant professor of Chair on theory and history of state and law of the Belarusian State University; N.V.Silchenko - Doctor of Legal Sciences, Professor, Head of Chair on theory and history of state and law of Grodno State University;
witnesses: A.M.Abramovich - Deputy Head of the Administration of the President of the Republic of Belarus; V.E.Lubovsky - Deputy Head of the Chief Department on the work with legislative and judicial bodies of the Administration of the President of the Republic of Belarus; A.V.Maryskin - Head of the Chief Department of legal support of the Administration of the President of the Republic of Belarus; A.L.Plaskovitsky - Deputy Head of the Chief Department of legal support of the Administration of the President of the Republic of Belarus
Has considered in open session the case "On the conformity of points 2.2, 2.5 and 3 of the Resolution of the Supreme Council of the Republic of Belarus of 6 September 1996 "On holding a republican referendum in the Republic of Belarus and on measures for securing it" to the Constitution and the laws of the Republic of Belarus."
The Court session was participated by: V.N.Novikov - Deputy Chairman of the Supreme Council of the Republic of Belarus; I.A.Mironichenko - Deputy Chairman of the Supreme Court of the Republic of Belarus; V.S.Kamenkov - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; I.F.Sashcheko - Deputy Prosecutor General of the Republic of Belarus; V.O.Sukalo - Minister of Justice of the Republic of Belarus.
The case was brought by the
The ground for considering the case was a constitutional motion filed by the Chairman of the Supreme Council of the
The subject to examination were points 2.2, 2.5 and 3 of the Resolution of the Supreme Council of the Republic of Belarus of 6 September 1996 "On holding a republican referendum in the Republic of Belarus and on measures for securing it" (Vedamasty Vyarkhounaga Saveta Respubliki Belarus, 1996, No.26, Art.492).
In accordance with Articles 74 and 83 of the Constitution of the
"To adopt the Constitution of the
"To adopt the Constitution of the
By point 3 of the act under verification the Supreme Council had enacted that in accordance with Articles 1, 14 and 39 of the Law of the Republic of Belarus "On referendum (plebiscite) in of the Republic of Belarus" the issues specified by the points of the Resolution shall be put to the obligatory referendum. The decisions of referendum are final and legally binding in the entire territory of the
Having heard the sides, witnesses, experts, having studied the materials of the case, having analysed the provisions of the Constitution and the laws of the
Article 73 of the Constitution of the
In accordance with Article 74 of the Constitution national referenda may be called by the President of the
Under Article 83 of the Constitution of the Supreme Council shall have the right to call national referenda and fix its date.
Article 149 of the Constitution determines the possibility of making amendments and alterations in the Constitution by a referendum.
As it was stated in the court session the President of the
According to Belarusian experts and foreign scholars in the field of constitutional law, the proposed amendments and alternations in the Constitution are de facto drafts of a new Constitution.
However the effective Constitution does not contain any criteria concerning the estimation of the scope and the nature of the amendments and alterations made in it. In this connection the Court considers that the Supreme Council had the right to submit the proposed draft decisions to the referendum.
The Constitution and the Law "On referendum (plebiscite) in the
The practice of constitutional structuring in many foreign states shows that the approval and adoption of such draft Constitutions shall precede their submission to a referendum. A referendum may also precede the adoption of the final decisions on Constitution by the Parliament.
When calling the referendum on 24 November 1996 the Supreme Council as the highest representative and the unique legislative body of state authority of the
Taking into account the requirements of Article 11 of the Law "On the Constitutional Court of the
The Court considers that subsequent amendments and alterations made by the initiators in the original drafts rule out the holding of the referendum according to the draft decisions adopted on 6 September 1996. Therefore the Supreme Council should reconsider its resolutions concerning the submission of the texts of amendments and alterations in the Constitution to the referendum.
The formulations of the questions, contained in the points 2.2 and 2.5 of the Supreme Council Resolution under verification, do not meet the requirements of Article 3 of the Law on referendum as well as the meaning of the draft decisions submitted to the referendum. Under the Law the ballot paper shall be formulated as a question and not in the form of a statement.
In addition it is impossible to recognize the wording of the question on the adoption of the Constitution of 1994 on the whole as legally faultless inasmuch as to the referendum shall be submitted amendments and alterations in the Constitution.
On the basis of the above-said and binding by Articles 127, 128 and 129 of the Constitution, Articles 5, 36, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To recognize as inconsistent with the Constitution and laws of the Republic of Belarus point 3 of the enactment of the Supreme Council of the Republic of Belarus of 6 September 1996 "On holding a republican referendum in the Republic of Belarus and on measures for securing it" concerning submission of amendments and alterations in the Constitution to the obligatory referendum.
The said norm shall become null and void from date of its adoption.
2. To advise the Supreme Council of the
3. To publish the present Judgment in ten days time from the date of its passing in "Vedamasty Vyarkhovnaga Saveta Respubliki Belarus", "Narodnaya Gazeta", "Zvyazda" as well as in those publications where the Resolution under verification was published.
4. The present Judgment shall come into legal force from the date of its proclamation, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the