Waving with a Constitution on the Barricades: Latest Developments of Constitution-making in Belarus.
Autor: Alexander Shlyk
1. Does the proposed Little Constitution display continuity of the constitution-making process and make an attempt for correction of the situation resulting from earlier constitutions?
2. What is the role of “the past” in this attempt of constitution-making? In other words, does the Little Constitution appeal to “the past as future” (Habermas 1994) and, if so, which lessons does it learn from the past?
Answering these two questions will allow me to take a closer look at this document in its double capacity of both a political manifesto and a proposed interim Supreme Law.
After providing a brief description of the early years of independence, I will proceed by comparing preambles and corresponding clauses of two constitutional acts of 1990 and 1994 so that to look for the similarities, differences, contradictions and signs of (dis)continuity among two constitutional texts. I will address the issues of the core values and the cleavages within the legislature (constituting body in the Belarusian case) and, separately, of the balance of powers, which is the most visible problem of the current state of affairs. As the result I will formulate one broad twofold criterion, against which to later consider proposed Little Constitution. I will then approach the proposed Little Constitution in light of the dynamics of the constitution-making in 1990-1994. Additionally, I will take a brief look at the role of the political struggle within the opposition forces in Belarus, whose positions are far from uniform, in relation to the Little Constitution. I will conclude by summarizing the answers to the two general questions listed above.
Constitution-making in the Early Years of Independence (1990 – 1994).
Initial stage of the Belarusian constitution-making process has several significant characteristics. First of all, few exceptionally sharp controversies arose during the adoption of the laws of the newly proclaimed republic. Secondly, adoption of the constitutional laws of Belarus was happening within the Parliament (Supreme Soviet of the Republic of Belarus) with few significant attempts for or actual consultations with citizenry. Lastly, constitution-making process has been taking place for almost 4 years marked by persisting conflict between the legislature and the executive.
The initial step on the way of constitution-making has been a Declaration of Sovereignty adopted on July 27th of 1990. This Declaration was given a status of a constitutional law immediately after the failure of a coup in Moscow on August 25th of 1991 and superseded the 1978 Constitution of the Belarusian Soviet Socialist Republic. It is only after the Declaration has become a constitutional law that it makes sense to analyze its clauses as those of a de jure and not just de facto Constitution. (Lukashuk 1993b, 17) A pathway of three and a half years brought Belarus to adoption of the Constitution of 1994 (adopted on March 15th, 1994). Instituting a transition from a parliamentary to a presidential republic, this Constitution vocalizes several important principles in a way that distinguishes it from the Declaration of 1990.
Ideological and Economic Cleavages within the Supreme Soviet.
Even though the Constitution of 1994 claims to originate from the People of the Republic of Belarus, little is different from how the Declaration of 1990 was adopted and proclaimed a constitutional law in 1991, when it was the Parliament who expressed “the will of the people of the Republic of Belarus.” (Declaration 1990, Preamble) Neither Constitution of 1994, nor the Declaration of 1990 were put forward for the national referenda, though some consultation with population and academicians happened at the very early stages of drafting. (Lukashuk 1993b, 17) Needless to say, when turning to independence in 1990, Belarus found itself in an environment characterized by a duality of ideals. On the one hand, USSR was still a reality. At the same time, a sovereign state of Belarus needed to position itself within a community of independent nations. In this regard, equal respect was due to the “sovereign rights of all the peoples of the Union of Soviet Socialist Republics and of the world.” (Declaration 1990, Preamble) Mentioning of the Universal Declaration of the Human Rights can be regarded as both an acquisition of the universal guiding values and as another claim to reaffirm a place among the world nations (Current Belarusian authorities also never forgo a chance to remind about Belarus being one of the constituting members of the UN). In 1994 Belarusian parliament referred instead to “values common to all mankind“ (Constitution 1994, Preamble) without further specifying their origins.
Even more importantly than the duality of the position of the republic in the world, the domestic environment was characterized by an upsurge of national ideas. It is visible in the preamble of the Declaration as it voices the worries of the constituting Supreme Soviet about “the destiny of the Belarusian nation.” (Declaration 1990, Preamble) The deputies went forward to treat the notion of sovereignty in an explicitly nationalist form and Paragraph 1 of Article 1 says:
The Republic of Belarus is a sovereign state established on the basis of the realization by the Belarusian nation of its inalienable right to self-determination, state-language status of the Belarusian language, and the supremacy of the people in the determination of its destiny.
(Declaration 1990, Article 1)
Constitution of 1994 exhibits its nationalistic character in a less straight-forward way. Thus, the issue of the language is only addressed in Article 17 (on Language):
(1) The official language of the Republic of Belarus shall be Belarusian.
(2) The Republic of Belarus shall safeguard the right to use the Russian language freely as a language of inter-ethnic communication
(Constitution 1994, Article 17)
while appeals to an “inalienable right to self-determination” and “centuries-long history of development of Belarusian statehood” are mentioned in the Preamble. The nationalist pathos of the Article 1 of the Declaration is replaced by a pragmatic, though allowing for several interpretations, description of the nature of state of Belarus in the Article 1 of the Constitution of 1994: “(1) The Republic of Belarus shall be a unitary, democratic, social state based on the rule of law…”
A nostalgic reflection on the Soviet times did suffice for proclaiming Belarus a social state (though not a socialist one) and similar values are as visible in many articles of the Constitution as they were in its drafts. (Lukashuk 1993c, 3) A general trend of the new democracies in Central and Eastern Europe to overcome the communist past did not result in Belarus in a break of continuity as was the case for Romania or Russia. A case of Belarus is easier comparable to Poland or Hungary since the changes were adopted to modify communist constitution of 1978 without cancelling it altogether (for an overview of these cases see Arato (1993)). The soft transition has been largely dictated by a large share of the communist deputies in the Supreme Soviet. Necessity of a tradeoff between communist-oriented majority in the Supreme Soviet and a vocal but comparatively weak opposition resulted not only in compromises on many issues and a delay in adopting a Constitution but also in an often paralyzing lack of quorum. Moreover, a severe clash between leaders of executive and legislative branches on issues of economy and national identity contributed to the stalemate within the Supreme Soviet. A similar conflict within the parliament and between the branches of power is to be expected if opposition manages to overthrow Lukashenko, who is himself a product of a communist “legacy of antiparliamentarism” (Lukashuk 1995, 85) and of a sharp division in the Supreme Soviet of the early 1990s.
Balance of Powers: debates on the parliamentary vs. presidential system.
Until 1994 Belarus has been “the only state in Central and Eastern Europe without a president.” (Lukashuk 1993a, 58) The post of President has been introduced only in the Constitution adopted on March 15th, 1994 after the debates on changing a purely parliamentary republic into the presidential one had lasted for almost three years. Part of these debates was happening at the time of an acute clash between the president and parliament of Russia, the closest ally of Belarus. The strong president introduced in 1994 lacked just one power – to disband the parliament. (Lukashuk 1994, 3) A claim can be made that introduction of the presidency was the result of the effort of an ambitious executive (Prime-minister Kebich) backed up by a strong communist majority in the parliament. Interests of these parliamentarians lied with strengthening the executive branch, which they have already been involved in. A reason for the introducing the post of an executive was often portrayed as a solution to the lack of cooperation between the parliament and the cabinet. Frye (1997), for instance, in his analysis of Eastern Europe aligns with Shugart who claimed that “granting strong presidential powers minimizes the risk of unstable cabinets.” (Shugart 1993, 32)
While unstable cabinets originate from lack of cooperation between legislature and executive, Belarus was characterized not only this but also by the loss of credibility by both of these branches. For the case of the executive branch a widespread corruption has been the major undermining factor, while the legislature suffered primarily from a paralyzing cleavage between the fractions within it. Opposing both the legislature and the executive, “Lukashenka came to power as the opponent of all four aspects of the post-Soviet transformation process [democratization, marketisation, nation and state building].” (Eke and Kuzio 2000, 542)
Advocates of all possible combinations of the abovementioned aspects were running for presidency in 1994, and even communists were promising greater democratization than what Belarus obtained with Lukashenko. Profiles of the strong candidates were as diverse as the paths for Belarus that they have called for. A historian Paznyak took an anti-Russian nationalist platform. Kebich was backed by communists and advocated for closer economic ties with Russia. A professor of physics Shushkevich represented a moderately nationalistic intelligencia and urged for a careful cooperation with Russia. Novikau ran as a leader of a communist party. And Lukashenko was a former director of a state farm and later a parliamentarian and a chairman of the commission on corruption. Results of the elections could have earned a fortune to the ones betting on Lukashenko – his strong performance in the first round (45.1%) and victory by a landslide (80.1% against Kebich, the front-runner according to the polls held before the first round) in the second one was expected less than anyone else’s. Holmes’s conclusion for a broad range of post-communist countries that “presidency tailored specifically for one man … usually ends up being occupied by another…”(Holmes 1993, 37) could not have been more true.
Two Dimensions of One Criterion to Assess Little Constitution of 2007.
A deep cleavage between the oppositional members of the parliament (led by the speaker Shushkevich) and a substantive communist fraction (controlled by the head of the Government Kebich) had ideological and economic grounds. It is extremely hard to assign relative weighs to these two causes but what did have a significant impact was a highly nationalistic pathos of the initial moves of the Supreme Soviet in 1990 and 1991. As I have highlighted above, the Declaration with nationalist clauses was adopted as early as in 1990 while the economic basis of independence were finally secured by the law in August of 1991. Thereafter, the nationalist clause of securing the future of the nation by economic means fell short of acquiring adequate instruments for actually doing so. Another aspect is that such nationalist agendas remained populist claims also due to the high dependency on the Russian markets, raw resources and suppliers. While communist majority took a pragmatic stance towards Russia and decided to forgo controversial rhetoric, the nationalistic minority was left with mere populism and little means to give their claims tangible form. As the result, a parliament composed of these two forces remained inefficient and lacked popular trust. In this regard, a twofold criterion, against which the proposed Little Constitution of 2007 needs to be judged, is its ability to deal with inevitable ideological and economic conflicts between (a) supporters and opponents of the Lukashenko regime and (b) fractions within the democratic opposition. Naturally, these two dimensions are interlinked since the cleavages within the opposition are predicated upon popular support of various values. Some fractions of the democratic opposition can embrace supporters of Lukashenko more easily than other. This is why these two facets serve as two dimensions within the same single criterion.
The role of specific personal features of Lukashenko is important but his arousal was to a certain extent predicated upon the intra-parliamentary cleavages during the constitution-making process described above that weakened the credibility of the oppositional forces (particularly Shushkevich and a nationalist candidate Paznyak). One of the dividing issues has been a question of the presidency itself. Proponents of a strong, weak or no presidency were at odds with each other, formed ties with different branches of government, and each of the camps had popular support and reasons to be in support of their cause. In this light, the first dimension of the criterion should look at whether opposition is able to use the proposed Little Constitution to overcome a cleavage between supporters and opponents of Lukashenko that exists within the Belarusian society. The second dimension of the criterion should aim to assess Little Constitution of 2007 in is its ability to overcome cleavages within the opposition itself so that to prevent confrontation between the governmental bodies that can result in the breakdown of the system as a whole. The second dimension will be used to evaluate whether Little Constitution of 2007 can serve as a self-sustaining Supreme Law as opposed to a political manifesto that is naturally more concerned with negating the past than securing the future. The question asked in regard to the second dimension is whether Little Constitution targets the symptoms of the problem or its causes.
Little Constitution of 2007: Assessment along Two Dimensions of One Criterion.
Belarusian opposition has been in a permanent crisis after referendum of 1996, “which ended in complete victory for one side and the complete paralysis of the other.” (Eke and Kuzio 2000, 542) Neither boycott of the Parliamentary elections of 2000, nor participation in the Presidential elections of 2001 and 2006 has led to any significant achievements. Permanent struggle for leadership within the opposition weakens democratic forces even further, and leaders of several parties, movements and blocks strive to present themselves as leaders of the whole democratic alliance. One of the ways they choose to gain legitimacy as leaders of the opposition as a whole is making sweeping statements that are at times vague enough to cross the lines of the political ideology of their parties. Members of the Party of Communists of Belarus (PCB) are no longer orthodox Marxists and have drifted steadily towards Social-Democratic ideals during the last 10 years, while a separate Social Democratic Party “Gramada” (SDPG) already occupies the left-wing democratic field. At the same time, a divisive line between liberal United Civic Party of Belarus (UCPB) and conservative Belarusian Popular Front (BPF) can only be found in the importance of the nationalist ideology while their economic programs are virtually the same. All of these parties belong to a coordinating council of the democratic forces that has recently developed and presented a draft of the Little Constitution for Belarus. Apart from all the party structures, former presidential candidate Milinkevich has formed a centrist coalition of NGO’s, minor parties, CSO’s and members of large parties with few concrete propositions and is trying to define this new structure as a counter-Lukashenko force of a new type. Both party structures and Milinkevich’s coalition account together for 20-25% of the public support in the current conditions. (Note “current condition” in the assessment of the cumulative rating of the opposition forces. There are grounds to expect rapid growth of the popularity of democratic opposition as the result of at least some) (IISEPS 2007)
Presented in Vilnius in February of 2007, a draft of the Little Constitution is supposed to be adopted at the Congress of all of the abovementioned democratic forces, which has been shifted from March to April and then postponed for an indefinite time. Two former judges of the Constitutional court, chairman of the Belarusian Helsinki Committee and two lawyers representing UCPB are among the drafters of the document. The draft has been endorsed by the council of the democratic forces. At the same time with this document, Mises Center for Economic Research (a neo-liberal research center drafting economic propositions of UCPB) has produced an Economic Constitution for Belarus that is comprised of general principles and an outline for the economic reforms to be pursued once democratic opposition comes to power. Interestingly, both of these two documents use the title of “Constitution” with little grounds for that. Little Constitution is no more than the project of the Constitutional Law “On the System and Competencies of the State and Local Authorities,” and the Economic Constitution – even though it has a preamble and is separated into articles – is no more than an economic program of liberal market reforms. Though some references to the general clauses of the proposed Economic Constitution might be of help, in this paper I will limit my analysis to the Little Constitution and will take it together with those clauses of the Constitution of 1994 that it leaves intact. I will now proceed to apply two dimensions that I have proposed to assess the potential of the Little Constitution to serve its double purpose.
First Dimension: Bridging Fractions within the Society.
As I have highlighted above, the Proposed Little Constitution is targeting only the issues of the separation of powers and leaves core values and principles declared by the Constitution of 1994 in force as long as those are not in contradiction with the proposed Little Constitution. (Art. 99 of Little Constitution) What should be noted in regard to this is that there are sharp divisions within the opposition in respect to the core principles proclaimed in the Constitution of 1994. While Social-Democrats, Communists and a part of Milinkevich’s block can align with the principle that declares Belarus a “social state” (Constitution 1994, Art. 1), UCPB and BPF repeatedly align themselves with a liberal perspective. Thus, for instance, the Economic Constitution proposes to treat “private property, entrepreneurship and freedom of economic exchange as core principles of the statehood of Belarus.” (Economic Constitution 2006, Preamble) This extreme position would not draw support of a significant portion of the Belarusian population and including such claim into the proposed Little Constitution could have divided democratic opposition in fractions and alienated it even further from the population. Omitting the core principles of statehood is a safe way to secure the unity of the opposition forces prior to them obtaining power. Given a significant support of the social model advocated by the current administration, even the most pro-market forces of the Belarusian opposition are careful enough not to deny the virtues of the social state. The same applies to the issue of the national symbols and language policy. It would be self-destructive for a nationalist force (BPF) to openly advocate for a single Belarusian official language in a country where at least 70% of population and a significant part of opposition use Russian as a language of everyday communication.
There is still one issue that can provoke division within opposition – electoral system. Interestingly, it has not been discussed at length in the beginning of the 1990s, and until now the Belarusian parliament is elected through the plurality voting system with single-member districts. The Little Constitution proposes to change it into a mixed system with a half of the 260-member Rada (the name of the parliament is offered to be changed for a historical one) elected through party-lists on the proportional basis with no specified threshold, and the other half – through the plurality voting system with single-member districts. While not mentioning a threshold for the proportional representation is odd all by itself, it gives at least some opportunities to the smaller parties that would be underrepresented otherwise. Given a lasting tradition of nominating locally well-known people to run for the parliament (especially in the rural areas), smaller parties risk being underrepresented if the threshold is introduced (as it most likely will be) and is above an absolutely minimal level. This controversy can cause division within current opposition after the change of the regime unless Milinkevich’s bloc, currently comprised mostly of the smaller parties, transforms into a separate party. The crucial element is that only few of the larger parties can embrace proponents of current regime. Ideology of Communists and Social-Democracts is closest to what Lukashenko stands for. However, these two parties were not involved into drafting the Little Constitution and, consequently, issues potentially conductive to sharp divisions are not addressed enough.
The first conclusion is that almost all issues that aroused the sharpest ideological discussions in the 1990 – 1994 are omitted from the Little Constitution. At the same time, potentially controversial issues have to do with the post-Lukashenko time and new state authorities that will need to be formed. This can be explained by the intention to use the proposed document as a manifesto and preclude it from dividing opposition and alienating it from the population on which it needs to rely. The details of the new system in what has to do with ideological and political principles do not seem to be as important for the drafters of the Little Constitution at the current stage.
Second Dimension: Overcoming the Past or Securing the Future?
As Hannah Arendt has remarked, “the difference between a constitution that is the act of government and the constitution by which people constitute a government is obvious enough.” (Arendt 1965, 146) It is obvious that the proposed Little Constitution belongs to the second category. Its chief aim is to constitute new institutions that will overcome the legacies of Lukashenko’s regime. It would be enlightening to look at the proposed Little Constitution in its capacity of an interim Supreme Law that needs to be satisfy two characteristics of the constitution as law: it needs to be a positive law (to originate from a legitimate lawgiver) and to separate morality from legality. (Preuss 1996, 13 – 14) There are conflicting views on the sources of legitimacy, and I share Rosenfeld’s skepticism on the purely procedural way of legitimization of law. (Rosenfeld 2001, 1317; Habermas 1998) An appeal to the past can support the legitimacy of a lawgiver and justify the new law. What Habermas calls “the past as a future” for the case of German reunification is a concept that will need to be applied in case of post-Lukashenko Belarus. The proposed Little Constitution makes this initial step and attempts to serve as a roadmap for a transition from the authoritarian regime to a better future.
Surprisingly at the first glance, the proposed Little Constitution does not fully denounce what is often posed as the ultimate evil of the Belarusian regime – an institute of presidency. According to the proposed Little Constitution, the President of Belarus is to be elected directly by the people to serve as a facilitator of the cooperation between the branches of power. The capacities of the President to rule by decrees, dismiss the Parliament and appoint officials are significantly lower than what Lukashenko has put into the Constitution of 1994 through the amendments of 1996 and 2004. The strong Presidency of today is proposed to be replaced by a very strong Parliament. The capacities of the parliament include adopting and changing the constitution with a simple majority (no requirement for a qualified majority is mentioned), appointing court justices, prime minister and the cabinet and other officials. The Parliament can also impeach the President with a majority of two thirds on the basis of accusations formulated by the Constitutional Tribunal, which is also formed by the Parliament.
The core problem that I see with a strong parliament, proposed by the Little Constitution, is a potential for a deadlock within it. The latest events in the Ukraine can serve as an illustration for where this Little Constitution can lead. As I have mentioned above, a potential of the proposed electoral system to exclude minor parties from the Parliament can lead to formation of two major factions in the legislature (along the left-right political cleavage that is already visible within the opposition), which can find themselves in the deadlock over many issues. This can result in the loss of credibility of the legislative branch in a way similar to 1993 – 1994 in Belarus and 2005 – 2007 in the Ukraine. The proposed Little Constitution resembles the draft of the Constitution of 1993 that has been proposed by the Democratic party that later mutated into the UCPB. It is hardly surprising if one realizes that the current leaders of the UCPB have served as legislators in 1990 – 1995. The proposed Little Constitution is, therefore, an attempt to return back in time and choose a way alternative to the strong presidency of Lukashenko. What the drafters do not account for is that it is as much the loss of credibility on the part of the Parliament as a personality of Lukashenko that made strong presidency into what it turned out to be. The loss of trust to the Parliament had its own origins, which I have discussed above, and these are hardly accounted for in the proposed Little Constitution. An attempt to put the country back on track at the point preceding the critical turn lacks assurance that it will not take the same turn again under the pressure of the recurring problems of a similar kind. The conclusion regarding the second criterion is that overcoming the past is better fulfilled by the proposed Little Constitution than securing the future. Prospects of a stable democracy with much power possessed by the Parliament will be threatened by the already existing cleavages within opposition that can become even deeper once democratic opposition comes to power.
A challenging duality of the proposed Little Constitution is hardly avoidable. What else can be expected from a constitutional law proposed by the forces that still need to come to power? The broad question that I tried to answer in this paper is how successful are the drafters of the Little Constitution in dealing with such duality. Certain continuity of the Little Constitution is to be expected in relation to the constitution-making process of the 1990-1994. At the same time, consequences of the constitution-making process of 1990-1994 are to be overcome and dealt with, a development of a strong presidency to an authoritarian regime being chief among those. A complicating factor in 2007 is that the cleavages characteristic of the Soviet in the beginning of the 1990s are still in place. They divide opposition into factions and alienate certain groups within democratic opposition from a significant part of population. These cleavages were and are of ideological and economic kinds.
The proposed Little Constitution deals with this problem of cleavages by omitting the discussion of these. By aligning with those provisions of the Constitution of 1994 (even with amendments of 1996 and 2001) that are not directly related to the formation of state authorities, Little Constitution significantly limits its scope and focuses on the purely procedural issues. Ideological and economic controversies will undoubtedly resurface in the post-Lukashenko times but the system the Little Constitution proposes to institutionalize is not particularly fit to deal with them. The major contradiction we can expect is between the democratic parties of various sizes, the larger ones drawing support of the current opponents of Lukashenko and some of the smaller ones being more capable of embracing proponents of the current regime. By proposing a mixture of the proportional and single-member district representation in the Parliament, the drafters come closer to excluding smaller political parties and civil organizations that constitute a significant portion of the democratic opposition.
The Little Constitution offers a weak presidential system to be introduced. The drafters suggest granting the Parliament great powers that would range as far as accepting and changing the new Constitution. Elements of popular sovereignty can be traced in allowing people to address Constitutional Tribunal and launch referenda. By making these suggestions, the drafters revert back to the drafts of Constitution of the middle to late 1993, and try to overcome the problem of deteriorating to the authoritarian state by giving the country another chance. However, the problems that made authoritarianism possible are not sufficiently accounted for. Thus, for instance, empowering the Parliament in the conditions of polarized political views can lead to the stalemate and a recent case of the Ukraine is a very vivid example.
The Little Constitution gets its inspiration from the past. Its dual capacity of a manifesto and a proposed Supreme Law required the drafters to be careful in dealing with sensitive issues of the ideology, language and sovereignty. These issues caused sharp divisions within the legislature in the beginning of the 1990s and will do it again. By leaving important issues unaddressed the proposed Little Constitution limits its ability to serve as a continuation of the constitution-making process. The lessons learned from the past have to do mostly with negating undesirable outcomes while the sources of these outcomes are insufficiently accounted for. The drafters of the Little Constitution prefer to neglect the deep cleavages that exist in the Belarusian society and, consequently and simultaneously, within democratic opposition. By this they place themselves and a proposed Little Constitution in the realm of abstraction and get detached from the real political confrontations of both today and tomorrow. However, the struggle for political power does not happen in the abstract world. If the democratic opposition wants to come to power and secure it by enacting the Little Constitution as a Supreme Law it needs to take existing and potential cleavages into consideration. Its propositions risk remaining political manifestos of little practical value if it fails to do so.
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