Who And How Should Defend Homeland

In Belarus, they continue to discuss “Raukou’s amendments”.

I will turn attention to the reasons for amending laws relating to military conscription, as well as to the contents of certain amendments.

“Do you really want to be part of Russia?...”

In his speech at a solemn meeting on July 3, A. Lukashenka, responding to the critics of the amendments to the law on conscription, said: “Fatherland must be protected by all. By everyone, especially men. We became so impudent to shift this problem on women, too. ”

According to the head of state, there are three options for resolving the situation. The first is to ask for help from NATO, the second is to ask Russia, the third is to defend the country by ourselves. It is clear that A. Lukashenka stands for the third option. Thus, he supported the amendments.

Why did they suddenly need to change the previously existing laws, including the law “On conscription and military service”? Will they really be able to ensure “the effective functioning of the military organization of society” overnight? What is special about these amendments?

If you read the justification of the bill, it turns out that due to any postponement there is a shortage of personnel of the Armed Forces. Thus, according to the results of the recruiting campaign in the spring of 2018, the need of the Armed Forces for the fresh replenishment was satisfied only by 62.5%. 30,111 postponements were granted, of which over 24,000 were due to continuing education. The results of the conscription in the autumn of 2018 turned out to be even more depressing, since 44.7% of recruits had postponements from the fulfillment of conscription.

According to the authors of the amendments, this state of affairs undermines the foundations of the combat and mobilization readiness of the Armed Forces. Hence the proposal: to establish the right only to one postponement - for education.

What else does the Defense Ministry offer?

The above bill contains 13 articles. Many of them are voluminous, but the saddest thing is that they do not always comply with the provisions of the Constitution. As part of the newspaper material, I will focus only on some innovations.

First, a person who fails to be drafted for the conscript military service, as well as the service in the reserve before reaching the age of 27, or equally fails to perform military registration duties, will receive the status of “not having completed military service on conscription without legal grounds for this”. The same consequences can occur for citizens enrolled in the reserve with the assignment of the military rank of an officer.

What's bad about it? From a legal point of view, the recognition of such status will entail the initiation of a criminal case under one of the articles of the Criminal Code (Article 435, “Evasion of military enlistment activities”; Article 436, “Evasion of a reservist or liable for attendance”; Article 437 "Evasion of a draftee or military officer from military registration"). The penalties in them are relatively small: fine, arrest, correctional work, restriction of freedom. But they leave a criminal record, the presence of which strikes a citizen in many rights.

Secondly, they suggest not to take the persons who “have not completed military service by conscription without legal grounds for this” to the public service, service in the internal affairs bodies, the Ministry of Emergency Situations, the Investigatory Committee and other bodies. From the standpoint of the Constitution, this is discrimination, infringement of labor and other rights (Articles 22, 39, 41).

Third: in relation to these persons, a ban on leaving the Republic of Belarus will be imposed. This restriction contradicts Articles 21, 22, 23 and 30 of the Constitution of the Republic of Belarus.

It should be noted that depriving conscripts of the right to a repeated postponement to continue their studies will not only infringe upon their constitutional rights (Article 49 of the Constitution), but also entail giving retroactive force to the law, which is prohibited by the Constitution (Part 6 of Article 104), and also by the law “On regulatory legal acts of the Republic of Belarus” (Part 2 of Article 66).

It is quite obvious that the proposed amendments are dictated by purely departmental interests. This approach does not meet the principles of rule-making, enshrined in Article 6 of the law on normative legal acts, namely: constitutionality, protection of the rights, freedoms and legitimate interests of citizens, scientific character, socio-economic conditionality, stability of legal regulation of public relations.

What is the way out?

It can be assumed that the “amendments” of Raukou will soon come into effect, and thousands of guys will be forced to abandon their plans to continue their education in universities, graduate schools, postgraduate studies. For some time, the shortage in the Armed Forces will be eliminated.

However, the problem of the lack of recruits still remains. The reasons are the same: the demographic decline, the deterioration of the health of recruits, the unwillingness of many to serve, various forms of draft dodging, including an early departure from the country.

In my opinion, the time has come to make cardinal decisions, namely, to move to contractual service. For this there are not only factual, but also legal grounds.

According to Article 57 of the Constitution, the duty to protect the Republic of Belarus should be exercised only during the period of the attack on the country when it is in danger. As for peacetime, the relevant structures should carry out military training of the population and support mobilization readiness. But this does not mean that all young men should be dressed in uniforms and turned into bonded bio-robots. In addition, many recruits simply physically can not cope with the loads that are imposed on them by the statutes and commanders.

As Natallia Shcharbina points out correctly in her article, “the work of soldiers-conscripts in the eyes of the state is not worthy of even being included in the insurance experience.”

I believe that, following the example of other countries, we need to create a small professional army, which can be built on a contract basis. The rest of the men can be called up for drills, or serve in the reserve.

For a legal solution of the problem, Part 1 of Article 57 of the Constitution is proposed to be replenished with the words: “... provided that martial law is declared in the country”. Accordingly, Part 2 of this article shall be stated in the wording: “The procedure for military service is determined by law.”

From the editors. On July 11, the Constitutional Court recognized the “amendments of Raukou” as consistent with the Constitution. Now the last word belongs to the head of state.

Mikhail Pastukhou, Doctor of Law, Professor, Svobodnye Novosti