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Mikhail Pastukhou: Lukashenka’s Decree On Retirement Age Illegal

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Mikhail Pastukhou: Lukashenka’s Decree On Retirement Age Illegal
MIKHAIL PASTUKHOU
PHOTO: SVABODA.ORG

The decree of the dictator violates a number of Belarusian laws and the Constitution of the country.

It is written in Belaruskaya Prauda by a former judge of the Constitutional Court Mikhail Pastukhou.

As is known, under Lukashenka’s Decree №137 as of April 11 it is determined that since January 1, 2017 the retirement age for workers and employees is to be increased on a phased basis. However, let us reflect on the issue: on what grounds such a decision had been passed? And whether the head of the state had a right to deprive hundreds thousands of citizens of a right to a pension earned by them? And what the people who have been trampled down by the decree should do now?

What are the legal grounds?

It is written in the abovementioned decree, that the retirement age is increased “in order to develop the pension system in the changing social and demographic conditions.”

Logic suggests that “development” means improvement of the situation, not making it worse. And what is happening? People of the pre-retirement age are simply deprived of the right to pension, and obliged to continue working. And their legal rights are violated by this.

Touching upon this question, in his address to the Belarusian nation and the “parliament” Lukashenka noted: “… you should not moan, weep, treat it as some problem…” And then, explaining the necessity to raise the retirement age, he said: “… let’s admit, we are lagging behind the events. It should have been decided long ago.”

Yes, the reference to the experience of European countries, where the pension age starts from the age of 60-65 is rational. But let us not forget that Germans, French, Italians, Swiss live 15-20 years longer, than poverty stricken Belarusians, affected by radiation, and also the fact that their salaries and pensions are higher than in Belarus by several fold. That is why most youngish Belarusians approaching pensionable age would have to suffer and weep because of their hard lot. As experts have estimated, many of them would not live to see their pension.

At the same time, the reason for the “retirement age” raise remains more than clear: the ruling government lacks money to pay the pensions. The “common cash fund” (the superannuation fund) got leaky due to the unprofitability of enterprises, and the authorities remain reluctant to fill it up from the budget or any other sources.

Can the “age” be raised by a decree?

According to Article 11 of the Law “On Pension Protection” dated April 17, 1992 (with amendments and addendum) men have a right to pension coverage when they reach 60, women – when they reach 55.

By his decree, Lukashenka prescribed to raise the commonly set age annually for 6 months, up to 63 years old for men and 58 years old for women. By this, he broke the Law, as well as violated the citizens’ constitutional right to social coverage in senility (Article 47 of the Constitution).

It is also worth mentioning that the Republic of Belarus has always been declared as a social state (Article 1), that the state is responsible for setting up the conditions for free and decent development of a person (Article 2), and that ensuring the rights and freedoms of citizens remains the supreme goal of the State (Article 21 of the Constitution).

It is also important to point out the regulation of Article 23 of the Constitution, according to which limitation of rights and freedoms of the citizens is only accepted by the law in the cases of strong necessity. The Constitution (Article 58) guarantees to the citizens, that no one can be forced to refuse from one’s rights, including the right to retire upon reaching the pensionable age. We also shouldn’t forget that the President, when he entered the position, made a vow “to respect and protect the rights and freedoms of a person and a citizen, to obey and protect the Constitution of the Republic of Belarus” (Article 83).

It should also to be taken into account that in case of discrepancies between a law, a decree or a resolution, and the Constitution, the Constitution should be applied (Part 2 Article 137 of the Constitution).

Basing on the above, let us make the following conclusions: 1) a law cannot be abolished by a decree; 2) the retirement age raise violates the citizens’ rights; 3) the citizens should not give up their rights for the benefit of the state; 4) economical and other difficulties should not be the reason for the citizens’ rights limitation.

Therefore, the Decree No. 137 dated April 11 is illegal, non-constitutional and anti-social.

How to protect one’s rights?

Several legal means are provided for protection of constitutional rights and freedoms of the citizens of Belarus: the President as a guarantor of the Constitution, rights and freedoms of the citizens (Article 79); the courts (Article 60); the Constitutional Court (Article 116).

Lukashenka, as we mentioned before, had already said his word so it is hardly possible to rely on his protection.

The courts, according to the current legislation, are obliged to protect the citizens’ rights and freedoms, guaranteed by the Constitution and other legal acts (Article 6 of the Code on Judicial System and the Status of Judges). This means, one can appeal to the courts in case of breaking the right to the pension coverage and seek redress of one’s rights and compensation of damage. However, it is unlikely that the courts will fulfill their obligations. No judge would be willing to conflict with the head of the state to protect the rights of some ordinary workers.

The Constitutional Court plays a special role in the protection of the citizens’ rights – it is obliged to conduct control over constitutionality of normative acts in the state. The authorized subjects – the President, the houses of parliament and the Supreme Court – must inform it about adoption of acts, ambiguous from the Constitution’s point of view. Ordinary citizens and any organizations also can signal about ambiguous acts.

Therefore, it should be alarmed throughout the country that they are preparing a total infringement of the pension rights of the citizens. The appliance of the normative act which is ambiguous from the Constitution’s point of view should be prevented. If the citizens keep silence in the face of the upcoming threat, their pension right may be limited by half-a-year, a year, 2, 3 years. This may also be just a start for taking away their legal pensions.

Someone may say: can’t they raise the “age” by a law? They can, but they must provide a corresponding compensation and allowances.

In my view, this issue is important enough to be considered at a referendum. In particular, the following questions should be set to vote by the citizens: 1) Do you stand for the raise of the retirement age for all categories of citizens for 3 (5) years on condition of raising pensions twice (thrice)? 2) Do you stand for introduction of allowances for the pensioners for medical services, public transport fees? 3) Do you think it is possible to set the minimum and maximum size of pensions? 4) Do you stand for elaboration of common approaches to calculating pensions for all workers, including state officials?

Other suggestions can also be made in this sphere. Still, one thing is obvious: the question of raising the retirement age should be solved in the context of the pension reform. It should include a set of measures aimed at improving the living standards of pensioners and the return of their deserved allowances.

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