This week, a long-awaited amendment to Article 213 of the Armenian Constitution—replacing at least three of the nine Armenian Supreme Court Justices—has come into effect. “Three new Constitutional Court judges will be elected soon,” Prime Minister Nikol Pashinyan announced on Facebook.
A fourth member of the Supreme Court, now-former Chief Justice Hrayr Tovmasyan—the architect of the 2015 constitutional reform package that grandfathered him a near-lifetime appointment to the court—must now resign his leadership, but remains a member. Neither he nor his three colleagues, former Justices Alvina Gyulumyan, Felix Tokhyan and Hrant Nazaryan, went down without a fight.
Publicly ridiculing the move by Parliament as “constitutionally null and void,” they announced their decision to challenge it at the European Court of Human Rights (ECHR), demanding immediate reinstatement as well as a request that the European Court indicate to the Armenian government that they freeze enforcement of the constitutional amendments. They were not pleased with the result.
In a press release issued two weeks ago, ECHR announced its intention not to apply an interim measure requested in the case Gyulumyan and Others v. Armenia concerning recent amendments to the Constitution of Armenia. In its decision, the ECHR explained its reasoning for rejecting the petition as “outside the scope of application of Rule 39 (interim measures) of the Rules of Court, since it did not involve a risk of serious and irreparable harm of a core right under the European Convention on Human Rights.”
Justice Vahe Grigoryan, a member of Armenia’s Constitutional Court, called the ECHR’s move “highly predictable.” In an interview, Justice Grigoryan added that while the applicants had every right to appeal to the ECHR under Article 34 of the European Convention on Human Rights, “the process of reform of the Constitutional Court cannot be anyhow suspended.”
Indeed, the Armenian Parliament had mostly followed both its own constitutional procedures and even requested external consultation from the Venice Commission—which largely supported the move in a published opinion last month. That said, the ECHR doesn’t examine the legitimacy of constitutional amendments like the one that just went into force in Armenia. According to Grigoryan, its mandate is limited to examining whether the individual rights of the defendants were violated in the process—they were not.
The effective removal of Tovmasyan and the other Justices appointed during the Sargsyan and Kocharyan eras also removed the last real obstacle to meaningful judicial reform in Armenia. In many ways, Armenia in 2020 draws many parallels with Armenia in 1990: a fresh popularly-elected government headed by a young charismatic reformer is now tasked with rebuilding a country’s tattered and corrupt judicial institutions. Indeed, Pashinyan is a living ‘George Washington moment.’ To those who have been left with a bitter taste in their mouths following the spectacular failure of that first attempt in the 90s, the question remains: what are the constitutional processes by which Pashinyan’s reforms would produce the sort of legitimate and inclusive state institutions which would endure long beyond his government’s mandate—rather than perpetuate his government’s hold on power beyond its mandate?
Political blogger Jon Schwarz describes the ‘Iron law of institutions’ as the desire of people in control of institutions preferring to see their institutions lose power rather than to personally lose power within their own institutions. This explains the phenomenon among countless former-Eastern Bloc states seeing their democratic institutions erode—often at the behest of authoritarian leaders who originally championed them. So how does a government unrestrained from constitutional checks and balances…initiate checks and balances?
With respect to the Constitutional Court at least, the process was ironically started by the previous regime, which legitimately contained the building blocks for a future independent and transparent judiciary branch—except, of course—for the clause which allowed all the previous judges to remain indefinitely. But that’s the clause that was removed this week. Other than that, the substance of the 2015 constitutional amendment remains unchanged.
So, is the Pashinyan government—as its critics insist—simply using the constitutional amendment as a cynical ploy to replace the previous regime’s justices with its own loyalists? Is it a ‘meet the new boss, same as the new boss’ situation? Grigoryan points to the fact that the 12-year term limit creates a sense of equality among Justices and allows them to make judgments free of the pressure of loyalty to passing political administrations. While insisting that any comments on the political decision-making remains outside his official capacity, Grigoryan points to the fact that the composition of the reformed court includes four Justices appointed between 2010 and 2018, two Justices to be elected by those former four Sargsyan-era Justices, two more appointed by the President upon advice from Parliament and only one Justice proposed by the Pashinyan administration. “Thus, at least six out of nine Justices will be either the appointments by the former authorities or among the judges who were appointed by third President Serzh Sargsyan. And the other two will be those who were proposed by the President elected by former authorities, and only one judge will be the proposed and elected judge by this government and Parliament,” Grigoryan says.
But then, what is the process by which future Justices will be selected to ensure institutional independence and strong difference to rule of law? According to Justice Grigoryan, “The moral and professional qualities of the new Justices are of the utmost importance to be carefully scrutinized.” This requires vetting through newly-established legal procedures. Another guarantee for the balanced composition of the Court is that the political majority in the Parliament cannot have the majority within the Court appointed by them after the Constitutional amendment is fully implemented. Finally, by these Constitutional amendments, the election of the President of the Court is referred to the Court.
With constitutional reforms being completed, Justice Grigoryan says the next step should be a fundamental reform of the Act on the Constitutional Court, followed by adopting by the Constitutional Court of new Codes on Procedure and Evidence, formulating rules that increase the efficiency of the Court. Grigoryan attaches high importance also to recruiting new and motivated lawyers in the Registry of the Court. “Jumping a bit ahead,” he says, “I may say that hopefully, the Court will be among those state institutions, if not the first, where involvement of high professionals from Diaspora will be done by probable quotas.”
One unique feature of Justice Grigoryan’s vision for an effective Armenian Constitutional Court is where some of its members should hail from. “By Constitutional tradition, nominations should be offered to one Justice from Artsakh and one Justice from Spyurk [Diaspora]…being the first state institution in Armenia that implements the idea of national unity in legal and political life and on the highest possible state level. I very much hope that by the end of my term I will see this in effect.”