The entire process of Constitutional amendments relating to the termination of the powers of the Constitutional court justices

1. As it is well known, questions were referred to the Venice Commission of the Council of Europe (hereinafter also VC) by the Armenian Government with respect to the rollout of the new model of the Constitutional Court (hereinafter also CC).

2. On 22 June the VC published the opinion issued based on the mentioned questions (CDL-AD(2020)016), where it formulated a few reservations, in particular with respect to the need for a gradual termination of the powers of the CC justices and for an application to the CC for this matter.

3. On the very day of publication of the said opinion, the National Assembly of Armenia tabled a draft law, whereby it is provided to terminate the powers of three justices of the Court (those having held their office for more than 12 years), as well as those of the President Hrayr Tovmasyan (elected in 2018) at once. The VC reacted to the draft law, saying particularly that “it regrets that amendments which do not provide for a transitional period were tabled in the National Assembly on the day of the adoption of the Opinion”.

4. On 22 June 2020, the mentioned draft law was included in the agenda of the NA sitting and was adopted on the same day.

5. The draft law was not sent to the CC for a preliminary constitutionality review, which is however a requirement of the RA Constitution.

6. Both opposition factions of the NA abstained from taking part in the process, arguing that it is anti-constitutional.

7. The draft law was then voted by the ruling majority faction only, and the President of the Republic signed immediately, at about 1:00 in the morning of the following day, another draft law cancelling the requirement to send constitutional amendments for the signature of the President. (According to the expert community, that was a constitutional power of which the President could not renounce). As a result, the mentioned constitutional amendments were signed by the President of the National Assembly.
8. The opposition faction”Prosperous Armenia” filed an application challenging the constitutionality of the adopted law on 25 June 2020. The second opposition faction “Bright Armenia”, although agreeing that the process was totally anti-constitutional, abstained from affixing its signatures to the application filed to the CC and said they would do so at a later stage.

9. In reply to the statement by the Minister of Justice Badasyan regarding the termination of powers of the three justices and the President of the CC, the concerned justices of the CC issued a statement on 24 June 2020, saying that their powers cannot be terminated, as the law “on the Constitutional Court” of the RA contains a provision which clearly indicates that they continue to exercise their functions. Prior to that statement, justice Alvina Gyulumyan had publicly contested that the constitutional amendments applied to her, as she had not completed her term of 12 years following her second election as justice, and that her previous mandate did not fit in the formulation “has held office for a total of…”.

10. On 25 June 2020, PM Pashinyan posted a status on his FB page saying that the Constitutional amendments would become effective in a few hours, that the acting President of the CC would soon be stripped of his powers and those of justices Felix Tokhyan, Alvina Gyulumyan and Hrant Nazaryan would be terminated. Past the midnight, the PM updated his FB status again, saying that the Constitutional amendments have become effective for the part concerning the mentioned justices and that all the State institutions undertaked to take note of the reality and be guided thereby. Similar statements were posted by the President of the National Assembly and the Minister of Justice on their respective FB pages as well.

11. The following day, NA President Ararat Mirzoyan met with the senior justice of the CC (senior in age) Ashot Khachatryan, then published photos and a bilaterally signed statement, where it was indicated that Mr. Ararat Mirzoyan informs of the termination of the powers of the mentioned justices and justice Khachatryan’s assuming the powers of the President ad interim as from 25 June, extending congratulations to him. A few minutes later PM Pashinyan shared the same post and repeated the congratulations, wishing Mr. Khachatryan success and wisdom in his responsible status. He added that the Government of Armenia would do whatever in its powers to help the CC avoid any obstacles in the period of transition. It is worthy of note that the mentioned words of congratulation and of readiness to help were extended to a justice who, unlike Hrayr Tovmasyan, has taken part in the Court’s past rulings on electoral disputes, which was the main reason of the authorities attacks against the CC.

12. On the same day, justice Khachatryan gave an interview to an online media outlet where he said in particular having explained to the President of the National Assembly that there were some legal obstacles and issues which needed to be solved or overcome for him to be able to assume the office of the President a.i. It was necessary to undertake some legislative initiatives in the National Assembly, including making some amendments in the RA law “on the Constitutional Court”. One of the mandatory things was to adopt separate legal acts for the termination of the powers of each CC justice. Mr. Mirzoyan assured that on the following Monday or Tuesday those issues would be addressed. Mr. Khachatryan also said he was surely not the President of the CC ad interim, because it was necessary to address or overcome the indicated issues before.

13. The impression is that with those congratulations and the dissemination of the bilaterally signed statement (which, regardless of its being bilaterally signed, is nothing more than a statement), with all the Facebook posts announcing the termination of the powers of the justices the attempt was made to address the contradiction with another provision of law and to prevent the examination of the application filed by the opposition faction containing a motion to suspend the main provision, and, why not, to prevent the Constitutional Court’s hearing some cases pending before it.

The above described process was accompanied with media publications (including by the outlet owned by the PM’s family) containing threats of criminal prosecution of those justices if they would dare to keep exercising their powers prior to the making of the necessary additional changes in the law. The process was also accompanied with not only a violation of law, but also the human dignity (for ex. the Vice-President of the National Assembly said to the media that instead of giving interviews they had better pack and clean their offices; in the Wikipedia article on Hrayr Tovmasyan his biography was updated accordingly immediately after the entry into force of the said amendments, photos were posted from the sitting of the National Assembly with specific facial expressions and with glasses of brandy, including a photo of the CC building taken from a window in the National Assembly; they dug into the life and families of the outgoing CC justices yet again, in an attempt to make some revelations for the public).

14. On 30 June 2020, and although there were numerous confirmed Covid-19 cases among the MPs, as well as some others having been in contact with them (it is believed that some were aware of their being infected on the very day the constitutional amendments were voted, but had showed up nevertheless, conscious of the importance of each single vote), an extraordinary session was held, and the law “on the Constitutional Court” was amended accordingly, trying to also address the contradictions with the Constitution.

15. The President of the Republic declared he would not sign that law. Although, according to he Constitution, in case the President fails to sign a law within a 21-day period, the President of the National Assembly is entitled to sign it only past the period of 21 days, MPs from the ruling faction are attempting to portray the President’s statement as a ground for the President of the NA to sign it instead of the President of the Republic prior to the completion of the 21-day period provided for by law, which, however, is not in compliance with the Constitution.

16. Although the legal packaging of the draft which portrays the amendment process to be for the sake of the rollout of the new model of the CC and for having a better CC, the reality proves the opposite. For example, as per the amendments, the turn of General Assembly of judges for nominating candidates to the CC comes in last, which is not what the Constitution provides for. The mass media is circulating such names of possible candidates for the vacant positions of CC justices who are known for their sharp political views. One of such candidates, Mr. Gagik Jhangiryan, a former Prosecutor General in early 2000s, is a supporter of the first President Levon Ter-Petrosyan, and someone who was dubbed “Godfather of electoral fraud” by reason of his allegedly controversial activity during elections (he is believed to have once forced the President of the Central Electoral Commission at gunpoint to announce the results of the elections in favor of the same Levon Ter-Petrosyan), he is also believed to have covered up lots of crimes when acting as Prosecutor General. In addition to all this, the fact that no transitional period was provided for the change of the CC justices, despite the recommendation of the Venice Commission, that the powers of justice Alvina Gyulumyan were also terminated despite her not having completed 12 years of her second mandate, loudly speak of the authorities’ rush to have a majority of own candidates in the composition of the Constitutional Court.

These and the preceding illegal processes were accompanied by the silent support of EU structures, that being a violation of the values they peach, which begs the question what is expected in exchange of that silence.

ROBERT HAYRAPETYAN
Master of Laws