New requirements for RA PM to be submitted from 2018 only: Constitutionalist Vardan Poghosyan

PM Karen Karapetyan’s participation in the forthcoming parliamentary elections has become an issue of wide discussions. Pursuant RA Constitution, a person, who has lived in Armenia for 4 years, may become an MP.

If as a result of corresponding legal procedure it turns out that Karen Karapetyan hasn’t lived in Armenia in the period of last 4 years, he can’t be included in the RPA list either. De jure new Constitution will come into force in April 2018 and the PM will become country’s first figure.

“168 Hours” interviewed Vardan Poghosyan, Member of the Specialized Commission on Constitutional Reforms, co-author of new Constitution, constitutionalist, on provisions of Constitution and Election Code, which have become an issue of discussions.

What do requirements for the PM’s candidate suppose in 2018? Would you detail the requirement of 731 days and not of 4 years of permanent residence? How will it be regulated?

As compared to edited Constitution of 2005, which defined only a requirement of Armenian citizenship for the Prime Minister and MPs, with 2015 edition the Constitution extends the same requirements for the PM and other Parliament members, as on a member of parliament (Article 148). This Constitutional provision will come into force from 2018, i.e. from the moment the president-elect assumes his position. Requirement for the MP are defined by Article 48 of the Constitution, which supposes a census of permanent residency in the Republic of Armenia in the last four years.

It’s defined by Article 80 that it isn’t necessary to have permanent residence of 4 years in the Republic of Armenia, but half of 4 years, plus one day is enough. If any candidate complies with those requirements, of course, on account of other parts of Article 48, it means he/she has the right to be nominated as a candidate for MP, i.e. any political party or alliance of parties may be included in the electoral list.

Is that claim of Constitution for the PM an invariable requirement or amendments may be made to it without a referendum, on account of the fact that pursuant new Constitution the National Assembly is also entitled to make amendments as well?

Requirements for the MP can’t be changed through the Parliament, as provision of Article 48 of the Constitution is involved in Constitution’s second—“Fundamental rights and freedoms” Chapter, and pursuant Article 209 of RA Constitution, Chapters 1-3, as well as several other chapters and articles may be amended only through referendum. As for Article 148 of RA Constitution, it isn’t included among articles amended through referendum, and legally that provision may undergo changes by the National Assembly (Part 2, Article 202, RA Constitution).

How is the requirement of 731 days calculated?

The Election Code doesn’t detail it, however, as it refers to days, it means that both workdays and holidays are calculated. Start of calculation is submission of application to the authorized body. The candidate for the MP should apply to the authorized body, i.e. respective Police department, and a calculation is made from the day of submission of the application whether that person was physically in the territory of the Republic of Armenia for 731 days in the period of 1461 days. The days, when absence from the Republic was conditioned by the circumstances of business trips or studying in a university abroad, are also added to this. In all other cases the requirement for 731 days is necessary. If the candidate complies with that requirement, the Police is obliged to allot a document, that the candidate permanently lived in Armenia in the period of last 4 years.

Currently particularly the issue of PM Karen Karapetyan is being touched upon, whether he can head the RPA list or be involved in the list. By which format he may take part and can he stay in the position of the PM after parliamentary elections, as during different meetings President Sargsyan stated in his speech that the candidate for the PM of the Republican Party of Armenia will remain Karen Karapetyan?

Naturally, I don’t have data how many days Karen Karapetyan was in or out of the Republic throughout the last 4 years. I introduced legal requirements, defined by the Constitution and Election Code, and if he complies with those requirements, then, naturally, he may be involved in the RPA list or head it, or be somewhere else.

As for the issue of his stay in the Cabinet, if correlation of respective political powers, as well a political decision by RPA is existent, then he may stay after 2017. However, that term is defined by the Constitution—until April 2018, i.e. when liabilities of incumbent president are suspended. After that Article 212 of Constitution requires that the Government should submit its resignation.  After that a calculation should be made to see whether the requirement of 4-years permanent residence is implemented in case of Karen Karapetyan or not.

If he complies with those requirements, can he stay in the position of the Prime Minister after April 2018?

Yes, if he satisfies, there is no any legal prevention for further officiating.

Why this number of days was defined and does it pursue a legitimate purpose to restrict the right of our numerous compatriots of being elected, who are aware of the country’s issues and have active participation in social life, however, they are frequently absent from the country, for instance, Raffi Hovhannisyan, Ruben Vardanyan?

The requirement of 731 days is defined not by the Constitution, but by the Election Code. The Constitution, from the moment it’s adopted, has submitted the requirement of 5 years of permanent residence, which was substituted by 4 years in 2015. Purpose of such requirement both for the Constitution and Election Code is very simple: the respective person shouldn’t lose his regular communication with the Republic of Armenia, was aware of the country’s issues. It’s necessary, so that he/she was able to properly implement his/her functions both as an MP and Government member. Of course, the Election Code could have proposed other solutions as well, however, the Code was guided by the simplest logic: if a person is in Armenia for more than half of 4 years, that actual connection with the Republic of Armenia is existent.

Can reduction of the requirement of 731 days of the Election Code generate an issue of constitutionality?

I think yes, as when it refers to the Constitutional requirement of permanent residence for the last 4 years, any law, even the Election Code, as a constitutional law, would hardly bring convincing arguments in favor of the fact, that less than half of 4 years may be considered a fact of residence through the last 4 years regarding legal fiction.

Can’t Election Code be amended throughout this period?

The Election Code is a constitutional law, and they are adopted and changed with 3/5 majority of NA MPs. Election Code may be amended, however, I don’t consider, that the minimal threshold enshrined in Part 2 of Article 80, was possible to more lower in harmony with the Constitution.

By Satik Seyranyan