YEREVAN—Armenians will be heading back to the polls on April 5 to vote on a proposed amendment to Article 213 of the Armenian Constitution. If successful, the referendum would pave the way for the dismissal of seven of the nine judges currently serving in the Constitutional Court.
The motion calling for a referendum was passed by the National Assembly on February 6, with 88 votes in favor and 16 against. The vote largely fell along party lines, with the notable exception of independent MP Arman Babajanyan, previously of the Bright Armenia party, caucusing with the government. While the 16 nays were cast by opposition MPs, 27 legislators—all from the Prosperous Armenia Party—chose to abstain.
The vote was preceded by a heated debate on the Assembly floor, where Bright Armenia leader Edmon Marukyan addressed what he called potentially serious, if not “unconstitutional,” procedural violations. He also argued that the amendment may conflict with other articles of the Constitution, suggesting instead that it should be sent to the Constitutional Court for approval.
However, as Justice Vahe Grigoryan pointed out, handing Constitutional Court Justices the sole authority to rule on the legitimacy of its own members’ appointments presents an extraordinary conflict of interest. Grigoryan concluded that referenda would be the only legitimate mechanism to challenge the Constitutional Court’s unchecked power. Existing judicial review mechanisms mean little to the current Justices who recently shot down a previous legal challenge to the limits of their constitutional powers as “unconstitutional.”
The new administration launched a campaign to restore the judicial system’s independence almost immediately following the December 2018 election. Pashinyan and his allies have repeatedly framed their push to oust Sargsyan-appointed judges, perceived as one of the country’s most corrupt government institutions, as the final act of the Velvet Revolution. However, judges have so far resisted pressure from the government to resign. They have refused an offer of generous retirement benefits, ignored criminal proceedings against them and balked at public corruption allegations. The motion to dismiss the Justices is the latest addition to a planned constitutional overhaul package, which includes amendments to the electoral code and judiciary undertaken by the Expert Commission on Constitutional Reform as of October 2019.
Critics of the Constitutional Court accuse the current Chief Justice Hrayr Tovmasyan, a holdover from Republican Party rule, of abusing the power of his office to shield figures linked to the previous regime from prosecution—most notably former presidents Robert Kocharyan and Serzh Sargsyan—in addition to repeatedly obstructing key reform packages passed by Parliament.
As Minister of Justice under Republican Party administration, Tovmasyan played an instrumental role in drafting the 2015 Constitutional amendment which has long been suspected (and later substantiated) of being a ploy to extend President Sargsyan’s hold on power beyond constitutional limits. He is also responsible for the wording included in Article 213 capping terms of office for future Justices, which came into force only 37 days after his own appointment to head Armenia’s highest judicial body on March 21, 2018, thus securing his hold on the Office until at least 2035.
Addressing Parliament on February 6, Prime Minister Pashinyan suggested that Justice Tovmasyan’s appointment to the Constitutional Court may have violated the law. According to him, then Chief Justice Gagik Harutyunyan, whose term was scheduled to end on March 25, 2018, was persuaded to resign 20 days early on March 5, 2018. This would allow the National Assembly Speaker to appoint Tovmasyan to the judicial body by March 20 to coincide with the final session of Parliament before the amendment stripping the speaker of the right to nominate justices would go into effect. Pashinyan cited an investigation revealing that Justice Harutyunyan’s March 5th resignation was fraudulently backdated to March 2nd in official documents. “I do not want to break anyone’s presumption of innocence,” Pashinyan declared, “but the Republicans seem to have breached not only logic and morality on this path, but also the Criminal Code.”
Following the vote, the Bright Armenia Party held a press conference where leader Edmon Marukyan repeated his concerns over the referendum motion’s procedural irregularities, but announced his party’s decision to abstain from exercising their right to challenge it in court. The party will refrain from campaigning for the “no” vote in the upcoming referendum as well. “The government’s rhetoric relies on their political opponents’ public support for the ‘no’ camp in order to frame them as supporters of the old Sargsyan regime,” Marukyan explained. “Let the people decide whether or not to vote ‘yes’.”
Prosperous Armenia’s senior representative Naira Zohrabyan remained coy about her party’s stance on the matter, telling reporters only that her party “has not yet discussed the issue.” None of Prosperous Armenia’s MPs participated in the February 6 vote.
The opposition’s concern over rushed procedures was picked up by international organizations as well. The European People’s Party, the largest grouping of center-right parties in the European Union issued a tweet urging Armenian lawmakers to “request and consider the opinion of the Venice Commission as soon as possible.” Co-rapporteurs of the Parliamentary Assembly of the Council of Europe for the monitoring of Armenia, Andrej Šircelj and Kimmo Kiljunen also voiced their calls for Armenia to submit the amendment for the Venice Commission’s review in a joint statement. This sentiment was echoed by opposition leaders in Yerevan.
The EPP is concerned by the rushed procedure to initiate changes to the Armenian Constitution. We call on the authorities of #Armenia to request and consider the opinion of the Venice Commission as soon as possible.
— EPP (@EPP) February 11, 2020
The resolution was approved over the weekend by President Armen Sarkissian whose decree also set the referendum date for April 5, 2020. In anticipation of accusations that Sarkissian sided with the Prime Minister, the President’s Office supplemented the decree with a written statement arguing that the Armenian Constitution doesn’t endow the President with the authority to block a referendum. The communiqué further clarified that the decree should not be interpreted as an indication of the President’s position on the matter.
The constitutional amendment would require the support of a simple majority (50-percent plus one) in the April 5 referendum, assuming a minimum turnout of no less than 25 percent of 2.57 million eligible voters. Armenian voter lists are notorious for not being accurately updated. Voters remain on registries unless proof of relinquished citizenship or official death certificates are produced by police, a difficult feat for the hundreds of thousands of Armenian nationals living and dying abroad. While the lack of opinion surveys on the amendment makes gauging public sentiment difficult, a December 2019 poll by the International Republican Institute found that 82-percent of respondents considered judicial reform a priority. The official campaign is scheduled to begin on February 15. The April vote will mark the fifth constitutional referendum in Armenia’s independent history.
Raffi Elliott
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This is a great summary! However, it’s not just a minimum turnout of 25% that is required. A minimum of 25% of all eligible voters need to vote “Yes”.
Overall good summary but I’ll add a few precisions and my personal (100% subjective) thoughts (we’re in the comments section after all).
“… shield figures linked to the previous regime from prosecution – most notably former presidents Robert Kocharyan and Serzh Sargsyan”.
The constitutional court (CC) gave its opinion on the R. Kocharyan (RK) case last September. It wasn’t in line with the official stance/wish of the government and the latter immediately blamed the CC of being an RK (and/or SS) lackey and serving the interests of the previous regime. Basically, the CC’s independent stance opposing the mainstream mood in the country is interpreted as selling-off to the previous regime. The result is the lowering of the level of political debate in the country to the cushy/populist level (for the current gov.) of Us vs. Them, Good vs. Bad, New vs. Old (not to mention the Black vs. White … which – in the absence of an African-Armenian community – is luckily not a sensitive topic in Armenia ). Note that this is not done by ordinary voters but by the legislative and executive branches, both full of people supposed to have the political maturity to run a country.
“… Tovmasyan played an instrumental role in drafting the 2015 Constitutional amendment which has long been suspected (and later substantiated) of being a ploy to extend President Sargsyan’s hold on power beyond constitutional limits”.
The suspicion was confirmed as SS decided to remain head of the executive with the new constitution despite his promise to the contrary. Moreover, even if SS had not remained Premier, the RPA could have perpetuated its rule by presenting other candidates from within. The constitution did therefore allow the continuance of power by a political party … but only if the latter derived its authority from democratic processes (i.e. was victorious in elections). It is thus not fair to blame the constitution (or its author HT) for the political machinations of RPA (SS becoming PM using the constitution as excuse) or the political immaturity of the average Armenian voter (giving RPA a majority in 2017). Moreover, whether we agree or not with the spirit/tenets of this constitution (ex. 2 rounds of voting in order to obtain a parliament dominated with a solid 70% majority of any party is in my view a good thing for a country at war), let’s not forget it was pre-validated buy the Venice Commission (VC), the independent European advisory body specialized on all matters pertaining to constitutions.
I could go on but let’s (start to) conclude. In my view, the fact that the current executive and legislative are spending huge political capital and resources and have made an utmost priority to replace the CC with one that has no common past with the previous regime cannot be explained by solely altruistic and patriotic motives i.e. “fight against corruption” or “fight against the previous thieves” (how the CC or HT constitute an obstacle in the path to fighting corruption is beyond me). Moreover, the fact this is being done in a rush (not waiting for next regular elections, skipping the opinion of the CC and that of the VC) and at any cost (calling 2.5 million people to vote on a highly specialized legal matter whereas most Armenian citizens are unaware of the existence of the CC), is pointing to something bigger. Here are examples of situations when the stance/opinion of the CC is required: (1) if the country must undergo territorial or population changes/adjustments (think Artsakh, Meghri or Lachin corridor, resettlement of refugees, etc), (2) if the country is ceding (or taking back) part of its sovereignty to/from a pan-national body (think Eurasian Union, European Union, presence of foreign troops/peacekeepers, etc), (3) if there is a need to evaluate the legitimacy/constitutionality of a vote/referendum to be conducted on a key national issue (think foreign policy, self-determination, Armenian citizens giving their opinion on an Artsakh peace plan, etc).
It is no secret that the previous and present governments don’t have the same approach to the Artsakh issue, with different red lines on key issues related to settlement stages, the acceptability and scope of concessions, etc. Prime minister NP has managed to remain elusive on this most crucial of matters for almost 2 years by mostly throwing generalities like (1) Artsakh must participate in negotiations, (2) Artsakh is Armenia, (3) or the solution must be acceptable to the 3 people. Although he has remained vague on the topic, we know from his previous work as newspaper editor and as a solid LTP ally in 2008 that he does not share the RK/SS perspective on Artsakh. I have the impression that there is deep caution/evasiveness on the matter of Artsakh from the current executive in order to avoid triggering political turmoil within the country on this extremely sensitive issue (going so far as to create permanent turmoil on endless mundane issues to mask this one) which had previously led to the resignation of a president openly backing an unpopular peace initiative.
HT, as a former RPA member – and therefore ideologically in line with the approach of RK and SS on the Artsakh issue – could become a wild card in the hands of factions opposed to an eventual peace plan on Artsakh presented by the government of NP and which would require a green light from the CC at some point during the process. To sum it up, the current government doesn’t want to take chances and wants the CC to fully have its back before serious and non-standard moves are made on the foreign policy front. The same can be said about the new president of Artsakh, to be elected in about a month and widely expected/hoped to share Yerevan’s (to be announced) stance on the Artsakh issue.
One might get the impression that I’m critical/dismissive/blaming NP’s team for this approach as some do, calling them traitors/backstabbers … not at all and quite the contrary. I hope their plan is on those lines … instead of the populistically announced “fight against corruption” or the promises to bring back “Sashik’s 50%” and “Rob’s 4 Billion”. I trust NP and Zohrab Mnatsakanyan with patriotic, well-calculated, and intelligent initiatives aiming to remove this 30 year old Damocles sword from Armenia’s neck. Even if most Armenians end-up disagreeing with the eventual peace plan presented by NP, at least we’ll be reassured to have a government whose imagination/intellect goes beyond pledges to return “Sashik’s 50%”.
My only worry concerns the lack of existing consensus/unity and the level of political polarization in Armenia today, it’s the only element where I find NP to be at fault and responsible.
@Wild Card
Many of the points you bring up are contingent on the glaring paradox at the heart of this issue: If the person heading the Constitutional body with the sole authority to rule on the constitutionality of own its appointments — also happens to have personally authored the constitutional amendment that led to his own appointment at the head of said constitutional body — just how legitimate can this court be?
And I think the answer at the moment is: nobody really knows.
I can certainly understand how the government may outwardly look to be motivated by intolerance for the CC’s independence but it’s not so cut and dry. If I’m not mistaken, 6 out of the 9 CC judges owe their current positions Kocharyan of Sargsyan. Justice Tovmasyan’s close ties to Serzh Sargsyan are well known: having served under him as Minister of Justice, and a long-time senior RPA member. But Tovmasyan also happens to be the the godfather of Kocharyan’s chief attorney Aram Orbelyan – a fact that Tovmasyan never disclosed before. Even stranger is that he never even considered abstaining himself from ruling on the case of his godson’s client…
So is any of this proof that Tovmasyan & co are abusing the powers of the Constitutional Court to protect their allies? — I can’t say — but there is certainly an ABSURD conflict of interest at play here which makes it difficult to believe that this is just a straightforward case of the court judgement differing from the government’s hopes…
So why is so much political capital being expended on this one issue? — because the successful implementation of literally every future policy reform are contingent on the outcome of Judicial reform.
At least some of the hysteria surrounding the referendum seems to stem from the (inaccurate) perception that the amendments “came out of the blue” before being rushed to a vote. In reality, the Gov had announced the planned reforms as soon as it took office. An expert committee (which includes opposition lawmakers) was been drafting the judicial reform package since last year with full cooperation with the Council of Europe.
https://www.coe.int/en/web/yerevan/support-to-the-judicial-reform-enhancing-the-independence-and-professionalism-of-the-judiciary-in-armenia
https://www.venice.coe.int/webforms/documents/default.aspx?pdf=CDL-AD(2019)024-e&lang=en
One more thing to consider: too many people seem concerned that the proposed reform would somehow compromise the CC’s position as an independent body…So let’s be clear: Armenia’s CC has NEVER acted as an independent body. The CC has always acted to rubber stamp decisions by previous governments, and approved self-serving constitutional amendments on 4 previous occasions.
So: the need for this reform isn’t actually in question – The best case scenario that we should hope for is that the amendment succeeds in creating a truly independent judiciary. The worst case scenario? – more of the same.
Thanks Raffi for a true and honest report on this very important issue.
This is an ill-conceived referendum and extremely divisive.
There will be no winners. Lose-Lose on both sides.
A “yes” vote will put an end to the independence of the Judiciary.
A “no” vote will further endanger the possibility of any unity or common purpose; the divide will widen to the detriment of the country.
A very sad and unhealthy situation.
Vart Adjemian
I’m not sure I understand why so many people are worried about the judicial system “losing its independence”. You can’t lose what you never had. Armenia’s CC has historically been notorious for always rubber-stamping the government’s decisions (Which also happened to appoint its members – how fun is that).
Here is what the 2016 Business Anti-Corruption Report says about Armenia’s court system under the RPA:
“The judiciary presents businesses with a high risk of corruption. Bribes and irregular payments are often exchanged to obtain favorable court decisions. The system is not independent: it is subordinate to elites, undermined by corruption, and a lack of training has resulted in a general incompetence of staff. In effect, manipulation of judges by the executive and widespread bribery and inefficiency are major concerns. More than two-thirds of citizens perceive the judiciary to be corrupt”
As I wrote in a previous comment: There is no question that the need for judicial reform is urgent. The question is implementation. So best case scenario: the amendment package serves as the catalyst to finally build a truly independent and robust judiciary branch with the power to tackle corruption. Worst case scenario? — what we’re already living with right now.
Overall, a good read. However, there is a little misinformation.
The author writes, “Following the vote, the Bright Armenia Party held a press conference where leader Edmon Marukyan….. announced his party’s decision to abstain from exercising their right to challenge it in court. ”
This is not true. In fact, Edmon Marukyan reiterated his readiness to challenge the decision in court, provided they got the necessary support of 10 MPs, as mandated by law. A total of 27 MPs was required to challenge the decision in court, Bright Armenia faction has only 17, so 10 more were needed. The reason why Bright Armenia did not challenge was because of the fact that the minimum requirement was not met, unlike what the author describes as “..party’s decision to abstain from their right to challenge it in court.”
An objective summary of a development that is bound to be a watershed moment of the third republic. Well done Raffi and Armenian Weekly keeping the readers informed with such a truly a good reporting.