Message by Miroslav Kobasa, President of the Lev Sapieha Foundation, Belarus
On the state of local self-government in Belarus
Belarus has essentially retained the soviet system governing the organisation and activity of local authorities. Local councils of deputies are the representative bodies which are integrated in the overall system of state authorities at republic (ie nationwide) and local levels, thus implementing a concept of state local self-government. The councils are guided in their activities by general state interests and they are also under obligation to implement the decisions of higher state authorities (article 120 of the Constitution of the Republic of Belarus). The legal status of local councils of deputies does not allow them to fulfil the role of autonomous and independent bodies of public authority representing the interests of the local community.
Local councils of deputies have no executive organs of their own. The executive organs of local councils of deputies were separated out from the system of local self-government in 1994 into a completely distinct system of local administration. That system of local administration is formed independently of the will of citizens and local councils of deputies by higher administrative authorities at republic and local levels. In essence, a local executive committee is a state administration at local level. Local councils of deputies have no real influence over their activity and serve as machinery for legalising decisions taken by executive authorities.
In the Republic of Belarus, under article 13 of the Constitution, there exist two forms of ownership - state and private. Municipal ownership is a variant of state ownership. This enables the State to use administrative procedures to reassign specific managed assets from the category of municipal ownership to the category of republic ownership. Land and other natural resources are placed exclusively in state ownership, and in reality local authorities dispose of them with state permission entitling them to economically manage and administratively run those assets.
The deputies of local councils are elected for four years on a majority basis in accordance with the electoral code of the Republic of Belarus adopted in 2000. In the view of Belarusian and foreign experts, in line with the official conclusions of the OSCE, the main problems of current electoral legislation, which crucially influence election results, are:
•the lack of transparency of the procedure for setting up the central commissions, which takes place under the supervision of the executive authority and does not guarantee equal representation of the political and social movements in electoral commissions;
• the lack of transparency of the procedure for registering candidates for the office of deputy, which prevents the registration of a substantial number of opposition candidates put forward by citizens, political parties and worker collectives, owing to their unequal and prejudicial treatment by electoral commissions;
•the procedure for early voting, which takes place during a five-day period of frenetic campaigning directly preceding voting day. The executive authority uses early voting to exert unlawful pressure on substantial groups of voters who are socially vulnerable and dependent on it, forcing them to vote early. In the absence of the necessary public supervision of the keeping of ballot boxes, votes cast early can be and are falsified on the electoral commission side;
•the lack of necessary legal guarantees for observers from political parties, public associations and worker collectives and citizens in post-ballot vote-counting, which prevents them engaging in a proper observation procedure to check that counting is correctly carried out by the electoral commissions and official documents showing voting results are properly drawn up.
Accordingly, the elections for local councils of deputies held in 1999, 2003 and 2007 were not declared free and democratic at international level.
In the Republic of Belarus there is still a strict centralised system of administration at both republic level and local level. The Belarusian system of local councils of deputies and local executive committees follows a three-tier pattern:
• oblast, or province, level - comprising 7 units (oblast and Minsk municipal councils and executive committees)
•basic level - comprising 130 units (councils and executive committees of rayony [districts] and towns subordinate to oblasty);
• primary level - comprising about 1,380 units (councils and executive committees subordinate to rural and urban rayony [districts].
There is a system of hierarchy between these tiers. A higher council and executive committee can annul a decision of a lower-level council and executive committee. Where there is a conflict of legal acts of authorities it is the act of the higher level authority that is applicable. The higher-level councils and executive committees wield decisive influence over framework policy at the lower level. The law does not provide for any judicial protection of local authorities from influence over their activity by a higher-level authority.
Officially, the local council of deputies is a legal person. Yet local councils do not have their own bank accounts or property. Budget funds and extra-budgetary funds are to be found on the account of the executive committee, and municipal assets are on the executive committee's balance-sheet.
One of the principles governing local self-government activity is openness but it is problematic for citizens to exercise their option to attend a session of the council of deputies or to obtain information on the council's activities. Shortcomings in the Law "On local administration and self-government" and also the rules of procedure of local councils have the effect of shutting citizens out of the process of preparing and adopting local-level decisions.
The competence of local councils of deputies is very limited. Of the eighteen matters assigned by the Law to the exclusive competence of the councils, only four (referred to directly in article 121 of the Constitution of the Republic of Belarus) are actually of significance for all citizens, namely:
•ratification of the programme of socio-economic development of the territory and local budgets, as well as reports on their implementation;
•determining of the procedure for administering and disposing of municipal assets;
•establishing of local taxes and dues;
•calling local referendums.
The other matters assigned to the exclusive competence of the councils of deputies relate to the internal organisational workings of the council and are of no interest to citizens.
Matters assigned by the Law to the general competence of councils of deputies are mostly mentioned in non-specific terms, along the lines of general functional orientations of the council's activity. The powers of higher tiers of authority encompass and swallow up the powers of the lower tiers following a "matryoshka" principle, like a nested doll. This means that councils of different levels duplicate one another's work and therefore do not make rational use of material and financial resources, and also that conflicts of interest arise.
Fundamental matters affecting citizens' prime interests lie within the competence of the executive committees. And it is to those committees that the councils of deputies delegate or entrust most of the matters within their own competence since they do not have their own executive bodies of local self-government. In this process the councils of deputies are accountable to citizens but the executive committees are not, even though they are the bodies which decide on virtually all matters of citizens' everyday life. The executive committees answer not to the citizens but to higher executive authorities, as well as to the Council of Ministers and the President.
As a result, decisions taken by executive committees often run counter to the interests of citizens. There are many examples of this:
•in the city of Minsk a decision of the municipal executive committee to improve the aesthetics of streets with public transport stops did away with kiosks selling confectionery, perfumes, fancy goods, stationery and other such items. This infringed the property rights of traders and caused inconvenience to the majority of the town's inhabitants, who used the services of those kiosks;
• in the city of Grodno the municipal executive committee took a decision to go ahead with the rebuilding and development of the old town taking no account of the architectural and historical significance of the existing sites and disregarding the views of both the inhabitants and specialists in the area of history, archaeology and architecture;
• in the municipality of Svisloch, by decision of the executive authority, work is being carried out to build a chemical plant without taking account of the opinions of residents who have doubts over the environmental safety of the plant for both people and the surrounding environment;
• in the municipality of Ostrovets the executive authority chose a site for building a nuclear power station and is preventing broad public discussion of any information relating to the site, which presents a heightened environmental risk, despite mass demonstrations by the local community and a whole host of other examples.
The legislation of Belarus enshrines certain forms of direct democracy: local referendums, assemblies of citizens, the right to legislative initiative etc. But the procedure for applying them is so bureaucratic that in reality they do not work - there is no precedent for the holding of a local referendum or the exercise of legislative initiative. Local authorities do not show the interest they should do in preparing and holding assemblies of citizens to discuss the most important questions of state and local importance.
Legislation makes no prescriptive provision whatsoever for modern forms of direct democracy which are widespread in many countries (at least in the former soviet States) such as public hearings and opinion polls.
Local councils do not have a legally enshrined right to create unions and associations of local self-government bodies. In this connection, Belarus still has no association of local authorities. However, initial contact between representatives of the Belarusian parliament and the Congress of Local and Regional Authorities of the Council of Europe has already resulted in positive movement in this direction. On 10 March 2009 the President of the Republic of Belarus adopted a decision in principle to set up an association of local authorities in Belarus. That said, this decision still has to be properly followed up…
There is virtually no regular dialogue at local level between NGO structures and local authorities. The chief responsibility for this lies with representatives of the central authorities. The negative (but undoubtedly subjective) assessments of the activities of non-governmental organisations which feature regularly in the statements of statesmen and in the state-owned media are taken in towns and regions as an unequivocal signal from above - no cooperation whatsoever with NGOs.
Concerning cooperation with the Congress of Local and Regional Authorities of the Council of Europe
1. Creation of an association of local authorities
1.1 Methodological, legal and financial assistance to draw up legislation and undertake a series of initiatives to inform local council deputies of the role, aims, tasks, methods and funding sources of associations of local authorities in Council of Europe member States.
1.2 Educative activities explaining the essence of local self-government and the principles and standards of the European Charter of local self-government, and exchanges of experience of good governance gained in Council of Europe member States.
1.3 The official invitation of Council of Europe experts to visit the Republic of Belarus to analyse current legislation in the area of local self-government and its practical implementation, and the preparation by the Council of Europe experts of a report on the state of local self-government in the light of the principles and standards of the European Charter.
1.4 The undertaking in the Republic of Belarus of joint initiatives with the Congress of Local and Regional Authorities of the Council of Europe within the framework of European local democracy week.
2. Cooperation in the framework of the "Eastern partnership" programme
2.1 Priming of constructive dialogue between NGOs and local authorities on matters of local life.
2.2 Participation of local authorities in NGO-run programmes and projects relating to questions of local self-government.
2.3 Free access to information on the activities of local authorities.
2.4 Real implementation of forms of direct democracy: putting a stop to bureaucratic procedures in the activity of local authorities and their officials, involving citizens and their associations in the preparation of decisions concerning local life, heightening the legal and communication culture of local authority deputies and officials and also of representatives of non-governmental associations and worker and territorial collectives of citizens.
2.5 Introduction of the principle of applications to register international projects and other foreign unpaid assistance to help resolve local problems and develop civil society and local self-government as a whole.
2.6 The holding of free and fair local council elections in accordance with Belarusian legislation and internationally recognised democratic principles.
On addition, we also think it necessary to point out that, in the centralised system of authority existing in the Republic of Belarus, decisions affecting the activities of local authorities and the development of local self-government are taken at the highest levels of state authority and in many cases directly by the President of the Republic of Belarus. Unfortunately, little depends on the local authorities themselves.
On that basis, were the representatives of the highest echelons of authority to gear their decisions to the aims of:
•creating a climate of mutual understanding between different groups and layers of Belarusian society,
•promoting the sustainable development of society and the State,
• and improving the well-being and living standards of citizens,
then the most reliable and effective means of achieving those aims is to create and develop local self-government in the Republic of Belarus.
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