SOCIAL CONTRACT: CIVIL SERVANTS
2. CIVIL SERVANTS IN BELARUS 1. Legal framework of civil servant status
The legal status of civil servants in the Republic of Belarus is determined by the Law «On Civil Service in the Republic of Belarus»1 and a number of other regulatory acts (the Constitution, Civil Code, etc.). The current law replaced the previous law («On the Basic Principles of Service in the State Apparatus»). The very name of the law expresses and presupposes the attitude of the state to its servants and expectations from them (in many countries laws of this kind are named «On the Legal Status of Civil Servants», etc.). The law emphasizes the word «service», that is, state servants are supposed to serve the state, by analogy with military service.
A civil servant is a citizen of the Republic of Belarus who holds public office in accordance with procedures established under current legislation, has relevant authority and performs official duties for remuneration in money paid from the republican or local budgets or other sources of financing under current legislation.
When studying the essence and efficiency of civil service, it is important to note that the Belarusian law on civil service does not have a clear definition of
«state interests», which civil servants are supposed to protect. Article 6 has it that
1 Law of the Republic of Belarus #204%З dated June 14, 2003 with amendments.
Tatiana Lisovskaya, Elena Rakova
civil service is based on the following principles: supremacy of the Constitution of the Republic of Belarus; service to the people of the Republic of Belarus; law and order; priority and guarantee of human and civil rights and freedoms; humanity and social justice; unity of the system of civil service and its differentiation based on the separation of powers (legislative, executive, and judicial); publicity;
professionalism and competence of civil servants; controllability and accountability of civil servants, personal liability for non performance or substandard performance of duties; voluntariness of performance of civil service; equal access to any opportunities in civil service and possibility of promotion in accordance with abilities and professional training; stability of civil service with a view to ensuring continuity of the authorities; economic, social, and legal protection of civil servants.
These principles are fair in their essence, but their can be interpreted in various ways.
Besides the principles of performance of civil service, the law contains a wide range of rights and obligations of civil servants, which theoretically ensures that they perform their functions properly.
Advanced training
The state emphasizes the importance of advanced training of its employees.
Under presidential ordinance2 and other regulatory acts3, training, additional training and advanced training of executive staff are based on the principles of consistency, obligation, differentiated approach, and usefulness in the long run. To ensure a continuous improvement in professional skills of executive staff assigned to new positions, all senior and top executives of government agencies (organizations) are supposed to take advanced training on a compulsory basis.
At the same time, there are serious obstacles for officials who want to take a study course abroad, even if the host country is ready to foot the bill. According to article 38 that the procedure of authorizing official business trips abroad, identifying sources of financing, guarantees and compensation for civil servants during business trips abroad are determined by the president of the Republic of Belarus or an authorized agency. A foreign business trip of a Belarusian official that is financed by government agencies of foreign countries, international or foreign organizations,
2 Ordinance of the President of the Republic of Belarus № 354 «On Work with Executive Staff in the System of State Authorities and Other State Organizations» dated July 26, 2004.
3 Besides the law indicated above, separate legal regulations pertaining to professional training of administrative personnel are included in Ordinance of the President of the Republic of Belarus
№ 354 «On Work with Executive Staff in the System of State Authorities and Other State Organizations» dated July 26, 2004 (the version approved by Ordinance of the President of the Republic of Belarus № 122 dated March 14, 2005), Ordinance of the President of the Republic of Belarus № 489 «On the Adoption of the Provision on Certification of Civil Servants» dated October 21, 2004, Resolution of the Council of Ministers of Belarus № 1321
«On the Adoption of the Provision on the Commission for Ranks of Officials Service in Republican State Administration Bodies», Resolution of the Ministry of Labor and Social Protection № 32 «On the Adoption of the Structure and General Provisions of the Directory of Ranks and Titles of Civil Servants» dated March 30, 2004, etc.
Social contract: civil servants
individuals and legal entities (except for government agencies of the Republic of Belarus), is authorized only when such a business trip is arranged in pursuance of international agreements of the Republic of Belarus, or by agreement between the state authorities of the Republic of Belarus and state authorities of foreign countries, international or foreign organizations, unless the president of the Republic of Belarus decides otherwise.
Restrictions on civil service
Being employed as a civil servant entails certain limitations. A civil servant of the Republic of Belarus is not entitled to:
– be involved in entrepreneurial activities personally or via authorized agents, assist close relatives in entrepreneurial activities using the official position, or represent a third party in any matter connected with the activity of the state agency where he works, or that is subordinate or accountable to him;
– take part personally or via authorized agents in the management of a commercial organization, except for the cases stipulated in legislation;
– take part in strikes;
– do any other gainful work (activity) during standard working hours, except for teaching, scientific, cultural and creative activities by agreement with the head of the state agency, in which the civil servant is employed, or an authorized person;
– hold more than two offices, except for work in state organizations in accordance with procedures and on conditions stipulated in labor legislation;
– use the official position in the interests of political parties, religious organizations, other legal entities, and citizens if this runs counter to the interests of civil service;
– accept property (gifts) or gain other benefits in the form of services in connection with the performance of official duties, except for souvenirs presented during official protocol or other events. The gifts received during protocol and other events are transferred to the state by the decision of the commission created by the head of the state agency, in which the civil servant is employed, if the value of gifts exceeds five base units;
– use material and technical facilities, finance or information technologies, other property belonging to the state agency for purposes other than official duties, and disclose official secrets;
– have accounts in foreign banks, except for performing official duties in foreign countries and other cases as required by the law;
– accept decorations of foreign states, unless authorized by the president of the Republic of Belarus.
Political affiliation and job rotation
One should note that the qualitative and quantitative composition of Belarusian officialdom is determined by the peculiarities of the Belarusian political system.
Tatiana Lisovskaya, Elena Rakova
The political system of Belarus has a traditional structure for post%Soviet countries:
the executive branch led by the president and devoted executive (government and ministries) and territorial (region and district executive committees) offices; the legislative branch led by the bicameral parliament; and a few political parties performing what seems to be a marginal role in the political system of the state.
Under the Constitution, senior state officials do not belong to any political party, whereas under the Law On Civil Service, state authorities do not represent interests of any political parties.
Declaration of incomes
Under the Law On Civil Service, a declaration of income must be submitted to a relevant state agency (or official) by:
– a citizen of the Republic of Belarus – when he or she starts civil service;
– a civil servant – when he or she is transferred to another position;
– a civil servant, his or her spouse and adult close relatives (parents, children, adoptive parents, adoptees, siblings, grandparents, grandchildren) that reside in and maintain the same household – annually;
– a civil servant, his or her spouse and adult close relatives that reside in and maintain the same household – in other cases stipulated in legal acts on combating corruption.
Declaration of income and property follows the procedure stipulated in the Law of the Republic of Belarus.4 The persons appointed to top executive positions in the Republic of Belarus and other public positions included in the personnel register of the president of the Republic of Belarus, their spouses and adult close relatives that reside in and maintain the same household are obliged to produce annual income and property statements to the head of the Presidential Administration of the Republic of Belarus, who determines which declarations will be checked in the current year. The head of the Presidential Administration reports to the president on the results of the check annually prior to December 31.
Despite the fact that civil servants and their relatives are supposed to submit annual income statements, the procedure of inspection of declarations is still based on a subjective approach: the head of the Presidential Administration independently decides whose income statements (among top officials and the persons included in the personnel register of the head of state) should be checked in the current year. All other civil servants – MPs, judges, members of election commissions and other civil servants – also have to submit their income declarations to their superiors, that is, not directly to tax agencies and other controlling organizations, like it is normally done elsewhere in the world, but to senior officers, who may check the authenticity of information and divulge it, or may not check it at all.
4 Law of the Republic of Belarus «On Declaration of Incomes, Property and Sources of Income by Natural Persons» dated January 4, 2003.
Social contract: civil servants
The issues of inspecting income declarations of civil servants are also regulated in other standard acts of the president and the government.5 The most important thing is that the information about income and property of state officials is an official secret and is not subject to disclosure. Consequently, besides the frequently formal and subjective approach to checking declarations, their results are never made public, which renders the relevant norms of the Law On Civil Service inefficient and creates attractive preconditions for corruption and manipulating the law.
Termination of office
Civil service is terminated in the following cases:
– reaching the age fixed as maximum for civil servants (65 years);
– expiration of the tenure, early termination of office;
– failure to remain within limitations stipulated by civil service regulations;
– disclosure of information that constitutes official secrets;
– refusal to take the oath;
– violation of legislative requirements when being accepted for civil service;
– resignation;
– gross violation of official duties; transgression that is incompatible with civil service;
– termination of citizenship of the Republic of Belarus as a result of withdrawal from citizenship or loss of citizenship;
– unsatisfactory results of preliminary tests;
– coming into effect of the court verdict of guilty.
2.2. State policy on compensations, incentives
The law provides for considerable room for material incentives to civil servants by way of increments, extra pays, bonuses, regular and additional leaves, pension compensations, etc. A standard compensation package includes the position salary, additional pays for the rank, seniority, bonuses and other payments in accordance with legislation. The size of increments for the rank and conditions of payment are determined by the president of the Republic of Belarus. The position salary and additional pays for the rank form the calculated official salary.
Civil servants are entitled to monthly seniority pays depending on the public service period:
– 6 months to 3 years – 10% of the calculated official salary;
– 3 to 8 years – 15% of the calculated official salary;
– 8 to 15 years – 20% of the calculated official salary;
– 15 to 20 years – 25% of the calculated official salary;
– over 20 years – 30% of the calculated official salary, unless decided otherwise by the president of the Republic of Belarus.
5 Ordinance of the President #577 «On Some Aspects of Personnel Management in the System of State Authorities» dated November 2, 2000; Resolution of the Council of Ministers #952
«On Some Aspects of Declaration of Incomes and Property by Civil Servants and Other Categories of Citizens» dated June 29, 2007.
Tatiana Lisovskaya, Elena Rakova
Civil servants that have academic degrees enjoy monthly bonuses:
– 5% of the calculated official salary for the degree of Master of Science;
– 10% of the calculated official salary for the degree of Doctor of Science.
Civil servants may be awarded for successful and conscientious performance of official duties, continuous irreproachable state service and performance of important and complicated tasks:
– commendation;
– one%time monetary reward;
– valuable gift;
– early assignment of the next rank of the civil servant.
A civil servant is provided a regular 28%day leave with a single lump%sum allowance for recreation in accordance with the current legislation. After five years in civil service, an additional two%day leave is provided, and after ten years in service, an additional four%day leave.
A severance benefit to civil servants is paid in case of:
– early termination of contract because of non%performance or substandard performance through the fault of the employer – amounting to three average monthly salaries. Severance benefits are not paid to civil servants who have reached retirement age (60 years for males and 55 years for females) and are entitled to full pensions, and civil servants who have not reached the indicated retirement age, but receive pensions (except for disability pensions, survivors benefits and social pensions);
– retirement – three average monthly salaries;
– liquidation of the state agency, staff reduction, with seniority up to five years – three average monthly salaries; from five to ten years – four average monthly salaries; from ten to 15 years – five average monthly salaries; over 15 years – six average monthly salaries. The dismissed civil servants are paid up to three average monthly salaries in a single payment, and the remaining part is paid in three months’ time only to the persons that apply for assistance in employment to the state employment service, but fail to find jobs. When dismissing civil servants that reach retirement age the state pays them severance benefits in full.
Civil servants are entitled to have length%of%service pensions as soon as they reach 60 years of age (males) or 55 years (females) and have at least 20 years of service (with at least two years of work in a public position after March 1, 1994). A length%of%service pension amounts to 40% of the salary over the period of any five years in a row in the 15 years preceding the retirement year. Pensions are increased by 2% for each year in excess of 20 years in service; however, a pension cannot exceed 50% of the average salary.
Some peculiarities of social assistance to selected categories of civil servants, especially the monthly financial allowance, are noteworthy. Such allowances are determined by the president of the Republic of Belarus (article 55), that is, they are absolutely subjective. Under Ordinance № 666 dated November 13, 2006 «On Preferential Calculation of Service Record for Admission to Pension», a special procedure is used to calculate the length of service for some civil servants. Under
Social contract: civil servants
Ordinance № 705 dated November 30, 2006 «On Monthly Financial Allowance for Some Categories of Civil Servants», some officials enjoy a special monthly allowance when they retire, and the size of this allowance is much higher than current pensions. The list of the people that enjoy special allowances does not include former heads of state (S. Shushkevich or S. Sharetsky), or Supreme Council members, however, it contains the name of the chairwoman of the Central Election Commission L. Yermoshina and senator V. Malofeyev, etc. Other types of incentives for selected state officials (like additional leaves, etc.6 are regulated by special legislative acts of the president.