On 18 January 2017 the Constitutional Court of the Republic of Belarus adopted the Message to the President of the Republic of Belarus and the Houses of the National Assembly of the Republic of Belarus “On Constitutional Legality in the Republic of Belarus in 2016”
The rule of law brings together the prime values of the enlightened human, acts as the fundamental principle of both international law and national constitutions and governs modern democracies.
The rule of law means that the State shall be bound by law, fundamental rights and freedoms of an individual and a citizen. As the principle of the constitutional order of the Republic of Belarus the rule of law binds the State and all its bodies and officials to operate within the confines of the Constitution and acts of legislation adopted in accordance therewith.
In September 2016 in accordance with the rule of law principle and provisions of applicable electoral legislation based on the Constitution elections to the National Assembly of the Republic of Belarus took place. Thus, the people as the sole source of state power authorised the new composition of the Parliament to perform the constitutional function – adopt laws as normative legal acts regulating the most important public relations aimed to achieve the constitutional goals.
In the system of legal values laws are an effective constitutional and legal form to manifest, organise and protect rights and freedoms. At the same time the rule of law principle implies that laws with legal content be adopted, that is, legal laws establishing the balance of freedom, power, constitutional values upon terms of equality and justice.
The rule of law requires legal protection of the Constitution and availability of constitutional review ensuring consistency of legislative process and law-enforcement with constitutional provisions. In the exercise of its powers the Constitutional Court of the Republic of Belarus establishes the supremacy of the Constitution, constitutional legality, protects rights and freedoms of an individual and a citizen through constitutional justice.
1. In 2016 in the exercise of obligatory preliminary review the Constitutional Court examined the constitutionality of fifty-three laws, the Court being guided by the constitutional principle of the rule of law and in view of the required coherent and effective implementation of constitutional values, protection of rights and freedoms of an individual and a citizen. At the same time the Court took into account the commitments of the Republic of Belarus to respect international legal instruments including the Eurasian Economic Union law.
When reviewing the constitutionality of legal rules the Constitutional Court has revealed several conflicts and legal uncertainties in certain provisions of laws and has accordingly stated and addressed to the legislator its legal positions aiming to remove deficiency in legal regulation with a view to ensure the rule of law, implement constitutional provisions in law-making.
The Constitutional Court has also developed certain legal positions addressed to law-enforcement authorities who are oriented towards implementing laws in view of the revealed constitutional and legal meaning. The Court pointed to inadmissibility of some constitutional values to be substituted in practice for others or to be derogated.
2. The Constitutional Court being applied by individuals and organisations, provided there were issues of constitutional and legal meaning, took decisions aimed at improving legal regulation of protection of individual rights and legitimate interests of organisations.
Thus, in the decision of 26 April 2016 the Court noticed that the legislation does not grant to non-taxpayers whose rights and legitimate interests may be affected by the decisions of tax authorities the right to appeal against them and thereby limits their right to judicial protection. The Constitutional Court recognised it necessary to eliminate the gap in constitutional and legal regulation by providing in the Tax Code everyone’s right to appeal against decisions of tax authorities if, in their opinion such decisions affect their rights and legitimate interests.
In its decision of 25 May 2016 in order to comply with the constitutional principles of the rule of law, everyone’s equality before the law the Constitutional Court recognised that the legislator needs to eliminate legal uncertainty in constitutional and legal regulation of suspension of activities of legal entities and individual entrepreneurs by making appropriate alterations to the Code of Administrative Offences and the Code of Execution Procedure of Administrative Offences.
3. In 2016 nine decisions of the Constitutional Court, containing legal positions, aimed at eliminating the gaps, excluding conflicts and legal uncertainty in normative legal acts, were executed.
The legal positions of the Constitutional Court have been executed through alterations to the Penal Code, the laws “On Health Care”, “On the Legal Status of Foreign Nationals and Stateless Persons in the Republic of Belarus”, “On Employment of the Population in the Republic of Belarus”, other legislative acts.
4. In the Message there are the following conclusions and recommendations.
First, the rule of law is a concept that acts as the principle of governance. According to the rule of law all the individuals, institutions and entities, either public or private, including the State itself are bound by the laws that are publicly adopted, equally enforced, independently implemented by the judiciary and that comply with international rules and standards of human rights.
In order to establish the rule of law the measures to ensure the respect for the principles of the supremacy of law, equality and accountability before the law, separation of powers, procedural and legal transparency, prevention of arbitrariness is required.
Secondly, the most important indicator showing the rule of law is ensured is the stability and consistency of legislation. For this purpose the legislative acts should provide for adjusting to circumstances changed and a new situation in the social and economic development emerged. They also should meet the legitimate expectations of individuals, other subjects in a legal relationship, and should comply with the principle of foreseeability.
The adoption of legislative decisions should proceed from the principles of openness, transparency, availability for discussion, from comprehensive analysis of regulatory impact assessment and consequence assessment of law prescriptions.
An effective mechanism to examine and assess regulatory impact of legislative acts on achieving goals of social and economic development as well as public and political extension of the country requires to be elaborated at the state level.
Third, with a view to establish the rule of law the systemic and comprehensive legal regulation of relations in various areas of life of society and the state should be ensured. Moreover excessive legal regulation, lots of details in certain provisions, undue and repeated terminological adjustments at the level of laws should be avoided.
In the modern context in order to further improve efficiency of legislation new approaches to the codification should be developed and criteria of legal regulation should be drawn for laws and delegated legislation.
Fourth, the rule of law implies that the activities of public authorities aim at the protection of human dignity that is innate, inherent and inalienable human ability. Dignity is the most important social and cultural characteristic of human nature, constitutional and legal as well as moral and ethical category. It is also one of the crucial factors of the democratic social state ruled by law.
To ensure the protection of the individual, his rights and freedoms and guarantees to secure them as the supreme value and goal of the society and the State, the Constitutional Court considers it necessary to further improve legal regulation of access to constitutional justice by means of the preliminary request of ordinary courts on constitutionality of the normative legal acts applicable to a concrete case.
Fifth, based on the essence of the rule of law, it should be stated that the integration process, developing within the framework of the Eurasian Economic Union as an interstate formation, has a complex and ambiguous political and legal nature. On the one hand, in view of the international legal principle of “pacta sunt servanda” member States have delegated the powers to decide to supranational authorities whose decisions are binding on all subjects of interstate association. On the other hand, member States have the opportunity to expand their sphere of political influence in order to promote their national interests, including economic objectives which are possible to be achieved only by joint efforts.
In this context in order to ensure the supremacy of the Constitution in the conditions of emerging supranational law the real mechanism to secure the subsidiarity principle in relationship with supranational authorities should be developed. For the purposes of harmony and balance of supranational and national interests the concept of harmonisation of legislation within the framework of the Eurasian Economic Union should be elaborated at the state level.
Sixth, the rule of law as a basic principle of modern civilisation, international law and universal humanist value underlies the Belarusian constitutional and legal doctrine, practical activities of public authorities to strengthen constitutional legality.
The adherence and implementation of the rule of law ensure democratic development, exercise of human rights and freedoms, establishment of the Republic of Belarus as a democratic and constitutional state.
Seventh, according to the independent international organisations research, the Republic of Belarus is estimated to consistently take its rightful place in the Rule of Law Index by World Justice Project, providing rankings around such factors as constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice and criminal justice. Within that Index Belarus is ahead of all the countries of the Commonwealth of Independent States.
The full text of the Message to the President of the Republic of Belarus and the Houses of the National Assembly of the Republic of Belarus “On Constitutional Legality in the Republic of Belarus in 2016” is available in Russian.For Print