Valery Fadzeeu: “The Constitutional Court has not been considering acts of the President for 11 years”
A former judge of the Constitutional Court of Belarus Valery Fadzeeu told ERB if it was possible to interpret laws according to the social, economic and political situation as the President said to the new head of the CC and whether our life would change if everyone stuck to the current Constitution. ERB: “How do you think, do a judge of the Constitutional Court and an employee of the Office of Public Prosecutor have so much in common in their work that they can easily influence each other?”
Valery Fadzeeu: "I cannot say that the tasks and functions coincide. The Constitutional Court’s sphere is more limited. The Constitutional Court controls constitutionality of legal acts and the Office of the Public Prosecutor is responsible for general observation of their validity in the state. Speaking about the reshuffle of the staff I must admit that Ryhor Vasilevich is a Doctor of Law, he worked in the Supreme Council and in the Constitutional Court. Maybe he will see to the problems existing in the Office of the Public Prosecutor. However, it would be better if the post was occupied by a person who has worked in all departments of the Office of Public Prosecutor”.
-- What do you think the President’s phrase “The Constitutional Court should not only criticize laws but it should also make its suggestions” means? It seems the function of the CC is not criticizing but deciding whether adopted laws correspond to the Constitution, isn’t it?
-- I do not know what the President meant talking about criticism. If the Constitutional Court announces a law to be unconstitutional it cannot be considered criticism. It is a decision which is obligatory for everyone. Of course, the Constitutional Court may add some recommendations when taking a decision. But its main task is to answer whether an act is constitutional or not. I personally think that the Constitutional Court should not suggest any drafts. The Legal Code and the code of the status of judges forbid the Constitutional Court to control and review acts the constitutionality of which it is considering.
-- Shouldn’t laws be studied by the Constitutional Court before they are adopted?
-- It would be necessary to change the Constitution to give such a right to judges.
-- Why do you think there are so many “holes” in laws nowadays? They adopt a law and then it suddenly turns out that it contradicts a number of others…
-- The general rule is the so-called “package principle”. When a new legal act is adopted, especially a legal act regulating some relations in a new way, it should be checked whether it correspond to existing acts; acts canceling previous acts should be adopted immediately. This is the right way but there are time and personal issues. So it happens like in the case of the law on benefits cancellation. The law is adopted and the Decree appears right on the day of the cancellation. They did not stick to the “package principle” in that case. I think the Constitutional Court had to make its presence felt at that moment.
-- Does the sense of laws always correspond to the way they are interpreted in practice? For example, the law on restriction of trips abroad: they wanted to improve the situation but now many people get added on the list of citizens forbidden to leave the country!
-- The reason for it may be some inaccuracy of norms. If a norm’s description is vague it may be interpreted in any way.
-- The Constitutional Court finally managed to cancel residence permits and the stamp allowing to leave the country last year. But now people say that it should not have been done…
-- I think the acts adopted were very formal. Looking at the procedure of registration one can say that it does not differ from the procedure of getting a residence permit much. Speaking about the abolition of the stamp allowing to leave the country I should say that it is the problem of law enforcement. However, some norms of the Decree that can be applied to some categories of people arouse some doubt in me.
-- Has the Constitutional Court taken any decisions you think are worth mentioning lately?
-- The Constitutional Court has not been considering acts of the President for 10 or 11 years. And there are problems with it. The problem of addressing. They used to address us whenever they needed decisions about any acts: acts of the President, of the Supreme Court, and now…. Only 6 subjects can present suggestions about the Constitution to the Constitutional Court. And the question “Whether the Constitutional Court will have anything to work on” is arising rather often.
-- Lukashenka also noted that the Constitutional Court should not look at the West and should use only Belarusian laws. And take decisions taking into account the social, economic and political situation in the country. Do you think it is possible to work like that?
-- First of all, there are international acts Belarus joined and generally recognized principles of the international legislation. What is the point of the discussion? We have to stick to these international acts. Second. What if I disagree with some state organ? If I have a right for a social benefit according to the law they should give it to me. If they say that the situation is difficult and the city or district budget lacks money that this is not the way the Office of Public Prosecutor and the Constitutional Court should work.
-- Soviet human rights defenders had a motto: “Let’s live according to the Constitution!”. Would our country change a lot if we lived sticking to the current constitution?
-- I think the country would change if we stuck to the constitutional norms and lived according to the constitution; it concerns both the government and the people. And I think the change would be dramatic. Unfortunately, legal nihilism still exists. Let’s live according to the constitution! It is created to provide conditions for the existence of the state and people in it so that, sorry for the tautology, there would be normal living conditions.
Valery Fadzeeu: "I cannot say that the tasks and functions coincide. The Constitutional Court’s sphere is more limited. The Constitutional Court controls constitutionality of legal acts and the Office of the Public Prosecutor is responsible for general observation of their validity in the state. Speaking about the reshuffle of the staff I must admit that Ryhor Vasilevich is a Doctor of Law, he worked in the Supreme Council and in the Constitutional Court. Maybe he will see to the problems existing in the Office of the Public Prosecutor. However, it would be better if the post was occupied by a person who has worked in all departments of the Office of Public Prosecutor”.
-- What do you think the President’s phrase “The Constitutional Court should not only criticize laws but it should also make its suggestions” means? It seems the function of the CC is not criticizing but deciding whether adopted laws correspond to the Constitution, isn’t it?
-- I do not know what the President meant talking about criticism. If the Constitutional Court announces a law to be unconstitutional it cannot be considered criticism. It is a decision which is obligatory for everyone. Of course, the Constitutional Court may add some recommendations when taking a decision. But its main task is to answer whether an act is constitutional or not. I personally think that the Constitutional Court should not suggest any drafts. The Legal Code and the code of the status of judges forbid the Constitutional Court to control and review acts the constitutionality of which it is considering.
-- Shouldn’t laws be studied by the Constitutional Court before they are adopted?
-- It would be necessary to change the Constitution to give such a right to judges.
-- Why do you think there are so many “holes” in laws nowadays? They adopt a law and then it suddenly turns out that it contradicts a number of others…
-- The general rule is the so-called “package principle”. When a new legal act is adopted, especially a legal act regulating some relations in a new way, it should be checked whether it correspond to existing acts; acts canceling previous acts should be adopted immediately. This is the right way but there are time and personal issues. So it happens like in the case of the law on benefits cancellation. The law is adopted and the Decree appears right on the day of the cancellation. They did not stick to the “package principle” in that case. I think the Constitutional Court had to make its presence felt at that moment.
-- Does the sense of laws always correspond to the way they are interpreted in practice? For example, the law on restriction of trips abroad: they wanted to improve the situation but now many people get added on the list of citizens forbidden to leave the country!
-- The reason for it may be some inaccuracy of norms. If a norm’s description is vague it may be interpreted in any way.
-- The Constitutional Court finally managed to cancel residence permits and the stamp allowing to leave the country last year. But now people say that it should not have been done…
-- I think the acts adopted were very formal. Looking at the procedure of registration one can say that it does not differ from the procedure of getting a residence permit much. Speaking about the abolition of the stamp allowing to leave the country I should say that it is the problem of law enforcement. However, some norms of the Decree that can be applied to some categories of people arouse some doubt in me.
-- Has the Constitutional Court taken any decisions you think are worth mentioning lately?
-- The Constitutional Court has not been considering acts of the President for 10 or 11 years. And there are problems with it. The problem of addressing. They used to address us whenever they needed decisions about any acts: acts of the President, of the Supreme Court, and now…. Only 6 subjects can present suggestions about the Constitution to the Constitutional Court. And the question “Whether the Constitutional Court will have anything to work on” is arising rather often.
-- Lukashenka also noted that the Constitutional Court should not look at the West and should use only Belarusian laws. And take decisions taking into account the social, economic and political situation in the country. Do you think it is possible to work like that?
-- First of all, there are international acts Belarus joined and generally recognized principles of the international legislation. What is the point of the discussion? We have to stick to these international acts. Second. What if I disagree with some state organ? If I have a right for a social benefit according to the law they should give it to me. If they say that the situation is difficult and the city or district budget lacks money that this is not the way the Office of Public Prosecutor and the Constitutional Court should work.
-- Soviet human rights defenders had a motto: “Let’s live according to the Constitution!”. Would our country change a lot if we lived sticking to the current constitution?
-- I think the country would change if we stuck to the constitutional norms and lived according to the constitution; it concerns both the government and the people. And I think the change would be dramatic. Unfortunately, legal nihilism still exists. Let’s live according to the constitution! It is created to provide conditions for the existence of the state and people in it so that, sorry for the tautology, there would be normal living conditions.
