A Constitutional Meltdown
The end of the cold war brought the promise of constitutionalism to the countries of the former Soviet Empire. Constitutionalism struck root in different forms and different measures in different countries. In some it has flourished. In some it has remained shaky. In Belarus it suffered severe blows last week.
On Nov. 24, radical "amendments" to the Belarus Constitution, proposed by President Alexander Lukashenko, were accepted in a referendum marred by irregularities and by violations of both Belarus and international law. The countries of Western Europe have reason to be dismayed. The interests of the United States in stable democratic institutions in Belarus and in Eastern Europe generally are seriously threatened.
Constitutionalism as an idea was recognized even by many communist countries - if only nominally and hypocritically. The elements of constitutionalism are not disputed. They include limited government and important checks and balances, if not separation of powers. Constitutionalism implies respect for human rights. It includes an independent judiciary and an independent constitutional court, supreme in the interpretation and application of the constitution. These safeguard the legitimacy of political institutions and ensure respect for rights.
The Belarus Constitution, ordained in 1994 after a vote by the people, is not a perfect example of constitutionalist ideas. But it was a good and promising start: It promised respect for individual rights; it separated legislative from executive power; it established a respectable Constitutional Court.
The independence and integrity of both the legislature and the judiciary are threatened by President Lukashenko's amendments. For instance, the amendments establish a second house of parliament, many of whose members are to be appointed by the president rather than elected by the people. Under the amended Constitution, members of parliament could be punished for "insulting the president" or affronting his honor and dignity. The president's term is extended beyond present constitutional limits. And the president is given authority to pack the Constitutional Court.
Even changes that may seem innocuous in theory are ominous insofar as they give an unscrupulous president power to disregard parliament, to emasculate the courts, and to undermine constitutional safeguards for human rights. This same president has violated freedom of expression and assembly and repeatedly flouted judgments of Belarus's Constitutional Court. And the amendments he champions have been denied legitimacy by the Constitutional Court and by a number of international organizations.
Constitutions made during uncertain times may need adjustment and calibration. But constitutional stability is an important value. Amendments, when needed, should bolster constitutionalism, not threaten it. The United States did not make basic structural changes for nearly 100 years - and then only in the wake of the Civil War. We changed our federalism but not the structure of the federal government. We did not threaten the Supreme Court or judicial independence.
Lukashenko's amendments are a serious mistake. They not only threaten constitutionalism in Belarus but set an example - a sinister example - for anticonstitutional sentiments and forces in nearby countries, and wherever constitutionalism struggles to survive and flourish. It does not bode well for the future of a Belarus that might have hoped for integration into a wider Europe - a constitutionalist, democratic Europe.
*Louis Henkin, University Professor Emeritus, Columbia University, is a board member of the Lawyers Committee for Human Rights.