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Battle of the Fundamental Laws

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We compare the foundations of the judicial system according to the draft Constitution of New Belarus, the current version and the Constitution of 1994

Only a truly independent judiciary is able to ensure the observance of the Constitution and laws, the triumph of justice and the eradication of corruption. Today, the employer of all judges in our country, directly or indirectly, is the president, which automatically means that they are biased.

Let’s compare the Constitutions of 1994 and 2004, as well as the draft Constitution of New Belarus, in order to understand what problems of the judicial system in our state have been dragging on since 1994. And look at what the future people’s draft of the Basic Law proposes to change in order to achieve a real separation of powers.

Formation of common courts

C'2004*: All judges are appointed and dismissed by the President. As for the Supreme Court: The President appoints judges and the chairman from among them with the consent of the Council of the Republic, and dismisses them with his notification.

C'1994**: The President proposes to Parliament the candidacy of the Chief Justice of the Supreme Court, independently appoints and dismisses judges of non-higher courts. The Supreme Court is elected by the Parliament (Supreme Council).

CNB***: Judges of general courts are appointed by a new body of Belarus — the National Council of Justice. The Chief Justice of the Supreme Court and his deputies are elected to office by the judges of that court.

Now the judiciary is completely dependent on the president — the head of the executive branch, which fundamentally contradicts the principle of separation of powers and destroys the system of checks and balances. In New Belarus, the president’s influence on the judicial system will be minimized.

* - The current version of the Constitution of 2004
** - Constitution of 1994
*** - Draft Constitution of New Belarus

Terms of general courts judge’s office

C'2004: Judges are appointed for a term of five years and can be appointed for a new term or indefinitely. *

C'1994: Supreme Court justices are elected for an unlimited period. The rest of the judges are appointed for the first time for a term of five years, and then — indefinitely. *

CNB: Judges are appointed indefinitely.

The indefinite term of office of a judge is one of the important guarantees of his or her independence. In this case, the judge does not need to take into account the prospect of not being appointed to the position in his activities and try to please the one who will reapprove him or her. Forced resignation, however, is best made possible only for cases of misconduct provided for by law.

* - These norms are provided not by the Constitutions themselves, but by laws.

Jurors (people's) assessors

C'2004: A panel of judges and two lay judges hears cases of crimes for which the criminal law provides for punishment of more than ten years in prison or the death penalty, as well as crimes committed by minors. *

C'1994: Criminal cases involving capital punishment are tried by one judge and a panel of seven jurors (in cases where the defendants plead not guilty and require the appointment of a jury). *

CNB: Jurors in cases and composition established by law participate in the judicial review of crimes.

The institution of jurors is not indisputable, but it provides more of an adversarial and independent process. Likewise, it is more difficult for a lawyer and a prosecutor to enter into an agreement with the collegial judicial composition.
 — These norms are provided not by the Constitutions themselves, but by laws.

Formation of the Constitutional Court

C'2004: Six judges of the Constitutional Court (CC) are appointed by the President, and six more are elected by the Council of the Republic. The Chairman is appointed by the President with the consent of the Council of the Republic.

C'1994: The Constitutional Court is elected by the Supreme Council from among qualified specialists in the field of law in the number of eleven judges.

CNB: 15 judges of the Constitutional Court are appointed by the Supreme Council: 5 among the candidates nominated by the President, the Chairman of the Supreme Council and the Chairman of the Supreme Court. The number of candidates submitted must be at least two for each vacancy of the Constitutional Court judge. The decision to appoint a judge of the Constitutional Court is taken by a majority vote of the constitutional composition of the Supreme Council through secret ballot.

The Constitutional Court is called upon to be the true guarantor of the Constitution and its principles. Therefore, the norms of the Basic Law should create a maximum of prerequisites for its independence from both the Parliament and the President.

Powers of the Constitutional Court

C'2004: The Constitutional Court (CC) gives opinions on the compliance of laws, decrees, presidential decrees, international treaty and other obligations of Belarus with the Constitution at the suggestion of the President, any of the chambers of the Parliament, the Supreme Court or the Council of Ministers. The Constitutional Court does not consider appeals of citizens about violation of the Constitution (constitutional complaints).

C'1994: The Constitutional Court has the right not only at the suggestion of the president, chairman / standing commissions / at least 70 deputies of the Supreme Council, the Supreme Court, the Supreme Economic Court or the General Prosecutor, but also, at its discretion, check the compliance of the normative acts of any state body or public association with the Constitution, laws and international legal acts ratified by Belarus. Citizens are not provided for the possibility of submitting a constitutional complaint.

CNB: On the basis of a constitutional complaint of a citizen, the Constitutional Court, in accordance with the law, considers the issue of infringement of his constitutional rights and freedoms. Also, the CC gives opinions on the constitutionality of regulatory legal acts and considers disputes regarding the powers of the President, the Supreme Council, the Council of Ministers, the National Council of Justice, the Board of the National Bank, the CEC, the Ombudsman, the Control Chamber, the Committee for Supervision of the Intelligence and Security Services, local government.

Only the possibility of a citizen’s direct appeal with a constitutional complaint truly ensures the direct effect of the Constitution.

Terms of judge’s office of the Constitutional Court

C'2004: Members of the Constitutional Court (CC) are appointed or elected for eleven years and may be appointed or elected for a new term.

C'1994: The term of office of the members of the CC is eleven years; they can be re-elected.

CNB: Members of the CC are appointed for a term of nine years. Reappointment to the position of a judge of the Constitutional Court is not allowed.

he office of a judge of the Constitutional Court is an honorable duty and the highest degree of professional recognition, and not a "warm place" that provides a quiet and peaceful old age for loyal servants of the regime. In this respect, the norms of the draft Constitution of New Belarus look the most viable.

Participation of Courts in removing the President from Office

C'2004: The President may be removed from office due to high treason or other serious crime. In the event that the president is removed due to a crime committed by him, the case on the merits of the charge is considered by the Supreme Court.

C'1994: The president can be removed from office in case of violation of the Constitution or committing a crime. The conclusion on the violation of the Constitution by the President is made by the Constitutional Court, and on the commission of a crime — by a special commission of the Supreme Council. In the event of the removal of the president in connection with the commission of a crime, the case on the merits of the charge is considered by the Supreme Court.

CNB: The president can be removed from office if he violates the Constitution. The conclusion on the fact of violation of the Constitution by the President is given by the Constitutional Court.

In general, all the versions of the Constitutions under consideration imply the responsibility of the president for committing crimes. It remains only to ensure the implementation of these norms (yes, you understood everything correctly).

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