YEREVAN—The opposition Bright Armenia Party (LHK) announced on Wednesday that it would not join the Prosperous Armenia Party’s (PAP) challenge to the government’s proposed constitutional amendment, thus removing the last obstacle to a planned overhaul of the country’s judicial system. The amendment to Article 213 of the Armenian Constitution would do away with exemptions for Sargysan-appointed justices to the constitutional court from the 12-year term limits.
The last amendment to Article 213, which had been accepted into law through a highly controversial 2015 referendum, was largely authored by then-Minister of Justice Hrayr Tovmasyan in anticipation of his appointment as Chair of the Constitutional Court—a position he has currently been holding since April 2018. Chief Justice Tovmasyan has been a target of the new administration ever since the Velvet Revolution; he has been accused of abusing the power of his office to shield personalities linked to the former-ruling Republican Party from corruption investigations, as well as sabotaging key economic and judicial reform packages passed by Parliament.
However, Tovmasyan has remained undaunted by repeated calls from Parliament for his resignation, as well as three other justices, which have included various parliamentary motions and generous offers of compensation packages for his early retirement. Parliament ultimately decided to circumvent Tovmasyan by calling a constitutional referendum on the matter. The referendum, which was expected to take place on April 5, was postponed indefinitely due to the ongoing pandemic and then scrapped altogether.
Tovmasyan and the two other justices in question have deemed this move unconstitutional as well and threatened legal action. They, in turn, have accused the Prime Minister of attempting to stack the bench with his own loyalists and undermine the Court’s independence. In contrast to these allegations, the Expert Commission on Constitutional Reform, which will likely select replacement judges, includes members of all three parliamentary parties, as well as Armenia’s human rights ombudsman, six legal scholars and legal experts from two civil society organizations to ensure impartiality. Political analyst Richard Giragosian said of Tovmasyan’s allegations that “an indignant court isn’t an independent court.” He went on to explain that for the government, Armenia’s Velvet Revolution of 2018 remains unfinished and incomplete, as corruption cases proceed, other reforms accelerate, and former leaders still face criminal investigations on suspicion of past crimes and abuses of power.
The LHK has repeatedly voiced its opposition to the proposed amendment to Article 213 as well as the scheduled referendum, citing concerns over the constitutionality of the proposal on procedural grounds. In an about-face, the party also criticized the decision to cancel the very referendum which they had originally opposed.
Still, despite deeming the constitutional amendment “unconstitutional” and boycotting the first reading on Monday, the LHK’s decision not to back the BHK’s formal constitutional challenge has deprived it of the 27 necessary votes to formally appeal to the Constitutional Court. The BHK holds only 25 parliamentary seats. LHK leader Edmon Marukyan has explained the decision as resulting from an Armenian legal provision prohibiting Parliament from requesting clarification on laws from the Constitutional Court. Yet he later contracted that explanation, framing it as a strategic decision meant to avoid the appearance of attempting to derail the ongoing trial against former President Robert Kocharyan. The Constitutional Court is expected to hold the first hearings on Kocharyan’s coup-attempt charges on July 7—referring to his actions during the 2008 post-electoral violence that led to the deaths of 10 people.
The government’s proposed constitutional amendment has received crucial endorsement from the Venice Commission—the Council of Europe’s advisory body on issues of constitutional law to which Armenia formally applied for assistance in May. The consultative body’s stated opinion acknowledged the inherent conflict of interest of the Constitutional Court ruling on the legality of an amendment which would replace its own members. However, the final report did include an addendum expressing regret that Armenia ignored its recommendation to keep the current Justices in a transitional role to preserve the Court’s judicial independence.
With President Armen Sarkisian signing off on the decree, this amendment could come into force as early as Friday—or one day after being formally promulgated by Parliament Speaker Ararat Mirzoyan. Two of the Justices are expected to be removed, while Chief Justice Tovmasyan is expected to stay on after resigning the chairmanship.