New Constitution: The Promised Democracy Is Yet Another Defeat

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By Philippe Raffi Kalfayan

Recent news from Armenia is rather distressing. We witnessed the selection of a single candidate and his election as president of the Republic of Armenia by the sole will of the Prince. Choosing the prime minister will take place only after April 9, when the current president’s term will end, and Parliament will have eight days to propose candidates and elect one. Already, the Republican Party of Armenia (RPA) has announced that it supports the principle of an open and nominal ballot, which is a considerable means of pressure on the deputies. The votes of the Republican Party and those of its ally, the Dashnak Party, form a majority at the Parliament and that leaves little doubt about their candidate’s election. In the run-up to joining the coalition, the ARF insisted on the necessity to reform the constitution and strengthen democratic governance through transition from a semi-presidential regime to a parliamentary one. The present scenario comes to prove that democracy has once more been defeated. In addition, it perpetuates the contempt against the citizens, weakens the image of Armenia on the international arena, and weakens its leaders, including the new president, domestically and abroad.

A president with a considerably affected legitimacy

The Minister of Justice, who led all the legislative drafting efforts to comply with the new constitution, says Armenia considers credible the statement of President-elect Armen Sarkissian that he renounced his British citizenship in 2011 and adds that no further confirmation would be needed, in any case, from another country because Armenia is a sovereign state. This statement is not only an affront to the good sense of the whole Armenian nation, it is also characteristic of the opacity of political life in Armenia, and it is, above all, a thinly-veiled admission that the elected president does not satisfy one of the requirements of the new Constitution: to have been a citizen only of the Republic of Armenia for the last six years. A quick analysis supports that assertion: (1) in 2011, it is unlikely that Armen Sarkissian could foresee that the new Constitution would be adopted in 2015 and that it would be chosen by President Serzh Sargsyan in 2017; (2) who can believe for a moment that he renounced his British citizenship in 2011 and convinced Prince Charles to visit Armenia in 2013, a chain of events that would have been shocking to say the least for the British Crown? (3) Having lived in Britain for the last 30 years (with the exception of the period when he was Prime Minister), he is likely to return to live in the UK sooner or later.

A coalition of NGO’s also reacted on March 5 to the news about the failure of new president “to dispel the doubts about his citizenship” (Read Transparency statement).

Lawyer Vahé Grigoryan supports a more daring analysis, which relates to the process of electing the new president (see http://www.ilur.am/news/view/66500.html; http://www.ilur.am /news/view/66627.html; http://www.ilur.am/news/view/66818.html). He considers that the new Constitution is not yet in force, and that consequently the election of the President should have been in accordance with the terms of the 2005 Constitution, namely by the direct vote of the population, and not by not by Parliament, which would have exceeded its constitutional powers as defined in 2005.

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Whatever the angle of analysis, and whatever his personal qualifications and skills, which are not in question, the new president starts his mandate with a handicap: an illegitimate election. Moreover, Britain’s diplomatic silence on the status of his citizenship can become a weapon that can be used against him. Domestically it can reduce his ability to manoeuver compared to his predecessors while internationally, in terms of foreign policy, it poses an even bigger threat.

Sovereignty for the People, not the State

Despite the continuously alarming diagnosis that has been repeated throughout the last 25 years of the Third Republic of Armenia, the population hemorrhage continues and endangers the foundations of the state. In the wake of constitutional reforms adopted in December 2015, the distressing spectacle of the election of a single candidate for the presidency, under questionable eligibility conditions, by the Armenian Parliament, the concentration of all executive and legislative powers in the hands of the future prime minister, the hidden control of the judiciary. For example, is it conceivable in a lawful state for an attorney, a member of the Bar Council, to be a partner in a company with a High Magistrate of the Court of Cassation and a Bankruptcy Judge? Lawyers defending political prisoners are caught between multiple disciplinary measures instituted by their Chamber’s President and the new law that allows judges to directly sanction lawyers, making the performance of their duties all the more challenging economic and technical wise, with the aim of discouraging them. The overwhelmingly harsh treatment of the most radical political opponents, such as the members of the Founding Parliament, manifests the political sickness of Armenia. The propaganda of Armenian organizations and media in diaspora cannot change this cruel reality.

The disregard for the citizens is total: the economic and social conditions are such for the vast majority that everything is for sale, including the ballot papers, whether on national elections [see the Organization for Security and Cooperation in Europe (OSCE) reports for the last legislative elections and Public Forum Armenia (PFA) report for the constitutional referendum of December 2015 or on professional [the website of the Bar of Armenia mentions the financing by an Armenian sponsor of the diaspora of annual fees of hundreds of registered lawyers; this measure is unbecoming of a lawyer because it is an attack on his independence and on the very foundations of the profession. In countries where lawyers cannot fund their fees, the bar grants exemptions] or partisan elections. The clientelism in such a social environment is another form of contempt for human conscience.

The state of war with Azerbaijan and the aggressive and hateful behavior of the latter towards Armenia seems to be an effective argument to silence the diaspora on the domestic political life by brandishing its threat to national security, but it no longer interferes with the families’ willingness to leave the country and protect their children as they approach the age of conscription.

The famous French Declaration of the Rights of Man and of the Citizen of 1789 noted in its preamble that “ignorance, oblivion, or contempt for human rights are the only cause of public misfortune and of government corruption.” It was not until 1948 and the Universal Declaration of Human Rights that the community of states, through the United Nations, established conventions and international pacts. They have become essential legal and political instruments. They are the foundation of the rule of law. The state is recognized as the legally obliged subject and guarantor of their implementation, but the universal principles belong to the citizens and become weapons against the abuses of those who hold the powers.

It is worth remembering, as does the Constitution of the United States of America, that the people are sovereign and not the state: “We the People of the United States … do ordain and establish this Constitution for …”

The Universal Declaration went further and gave birth to the right to rebellion. The preamble “considers it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.

Virtuous Yet Flawed UN Discourse

The absence of democracy and respect for human rights refers to a certain form of structuring and formation of the state, which reflects the balance of forces and the assertion of arbitrariness.

The temptation of relativisation with Turkey and Azerbaijan in terms of human rights records is easy but not acceptable because the issue at stake is neither more nor less than the political survival of the country and its security. Some denounce human rights as a weapon used by Western states and international NGOs, and complain that there are double standards. There are many both in Armenia and in the Diaspora who regard human rights as superfluous and prefer a priority focus on economic development. The first statement contains some truth and is debatable, but is this the essential? The second statement shows an unawareness that economic, social and cultural rights are “inseparable, interdependent, and interrelated” with civil and political rights. The World Conference on Human Rights in 1993 enshrined this principle. Thoughtful observers know, as an example, that an Armenian entrepreneur, from Armenia or from the Diaspora, has no chance to defend his rights fairly if he is confronted with an adversarial dispute with one of the oligarchic clans that reign over the economy.

As a result of a total mistrust in the institutions and indifference to political life, citizens developed a survival reflex that is deeply individualistic and materialistic. These injustices and disparities generate individual and collective violence. The small size of the country adds to the political, economic and social pressures as well as fears of violence, especially in the provinces. The individual prefers to negotiate rather than confront. Human life has a price in prosecutors’ offices, even if this subject is taboo in Armenia. This observation is certainly dark but it is reality. And finally, there is the issue of emigration.

International aid does not solve corruption, but on the contrary, in its current form, feeds it. Tens of millions of dollars and euros are being invested unabated in justice reforms, human rights training and the establishment of the rule of law, by USAID and EUROPAID, did not help reversing the trend but just enrich Armenian civil servants and some offshore consulting companies under the tolerant eye of these international institutions.

Create National Cohesion to Better Deal with External Threats

The recent speeches of the Armenian Foreign Minister and President before the UN and European Assemblies promoting human rights principles are noteworthy and laudable, but what about their effective application in Armenia itself?

There is no alternative to the establishment of the rule of law in Armenia and the restoration of the sovereignty of the people. It is a small state, without energy resources, heavily indebted, without prospects for economic development at the current rate of emigration. Armenia is under the influence of the great powers; the question of Nagorno-Karabakh and its latent conflict is weighing on its diplomatic relations and on foreign investments. It is the vital interest of the Republic of Armenia to mobilize and hold together its citizens and the Diaspora around a democratic, just and sovereign society project. Domestic peace, based on values to which the whole nation adheres, is the unique remedy to economic welfare and effective ability to counter external threats.

Successive country leaders failed in this mission for different reasons and circumstances. Today it is no longer possible to ignore it. The organizations of the diaspora as well as some personalities selected as interfaces by the Armenian government turn a blind eye, hiding behind the principle of non-interference in the domestic politics of Armenia. We also witness indifference, complacency and even complicity, not to mention the personal interests of some.

The good will of associations and individuals in the diaspora, who engage selflessly, without waiting for any reward of their actions, is not questioned, but those people must face the obvious: bright projects and good intentions are not enough to stem the emigration of the population.

The actions of the commando group Sasna Tzrer and its deadly results are in itself regrettable [the circumstances of the deaths of the three police officers are still unclear], it is nonetheless understandable. It was an expression of rebellion, although one may question if the undefined criteria of tyranny and oppression were met or not. Armenians of the diaspora who have allowed themselves to judge these men, many of whom are veterans or heroes of the Karabakh war, had absolutely no right to do so; only the people living in Armenia can express themselves on this subject and they did it either by expressing their sympathy or by keeping quiet for the majority. The repression of the government was all the more strong and arbitrary against the political leaders of this movement and its supporters.

Remarkably, the murderers of March 1, 2008 demonstrators have still not been arrested and the commissioners of the attack on parliament on October 27, 1999 were never brought to justice. Meanwhile, the public prosecutor demands that Jirayr Sefilyan, Garo Yeghnukian, Gevorg Safarian, be prosecuted, seeking long prison sentences for their vehement criticism of the regime and their desire to put an end to it by organizing mass protests in 2015 or resisting the police (Safarian case).

Whichever scenario is to be played in April, this article is an appeal to the current and future leaders of Armenia and to all political forces to reconsider the mode of governance, to bring new political leadership from inside and outside Armenia, and to free, on the occasion of the implementation of the new constitution, all political prisoners.

(Philippe Raffi Kalfayan is a regular columnist for the Mirror-Spectator. He is an international legal expert, the former secretary general of the International Federation for Human Rights (FIDH), an associate researcher at the Paris Human Rights Center at the University of Paris 2 Pantheon Assas.)

 

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