Challenges to Armenia’s Judicial Reforms

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One of the major factors which precipitated the Velvet Revolution in Armenia was the deep-rooted lawlessness which benefitted the oligarchic system.

People were sick and tired of the uneven application of the law, which often resulted in the loss of investment opportunities.

No investor, even with the best intentions, can have confidence in a country where his or her interests are not protected by the law.

Injustices forced many citizens to leave the country even when they had the work and income to support their families.

The Velvet Revolution came to reverse this state of affairs. Nikol Pashinyan won a tremendous mandate by the voters to bring about reforms and to place society on a course toward true democracy.

Although there is a long way to go, the rewards have already started to emerge. Donald Tusk, the head of the European Council, during his recent visit to Armenia, praised the strides of the country toward establishing democratic norms and assured the prime minister that the “EU welcomes the focus on creating independent, efficient and accountable judicial system. A solid judiciary is an essential element of a mature democracy  and for economic and social development. Also, here the EU will continue to support with expertise and mobilize further resources.”

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In addition, Federica Mogherini, vice president of the European Commission and its foreign affairs leader, has pledged $28 million in additional aid in the current year to build up infrastructures in Armenia.

Therefore, judicial reforms not only will enhance living conditions for the citizens but they will also attract resources from Europe.

The executive and legislative branches of the government have undergone dramatic changes, but efforts to reform the judicial system has been hampered by the remnants of the former regime.

Prime Minister Pashinyan believed that he could break the stalemate through methods which he employed to come to power, namely mob action. Therefore, he ordered his supporters to block the entrances to the courts and to keep the judges from exercising their duties. But, he soon realized that resorting to such mob mentality was not a cure all and therefore stopped.

Today, there is a stand-off with the Constitutional Court, particularly with its president, Hrayr Tovmasyan.

In western democracies, when there is a change in an administration, that does not necessarily mean that the top judges in the land have to step down before the end of their terms. For example, in the US Supreme Court, the justices are appointed for life.

The Pashinyan administration has no legal means of unseating Tovmasyan and therefore it has resorted to the tactic of political pressure. Pashinyan’s government and loyal press have been arguing that there is a constitutional crisis in the country and it has to be resolved through political action. Mr. Tovmasyan insists there is no such crisis.

The pro-government news outlets have been mobilized to convince the public that Hrayr Tovmasyan is a left-over relic from the previous regime and he has to go. They forward the argument that Tovmasyan was elected by the previous parliament, a double-edged sword that cuts both ways; if Tovmasyan’s election by the previous parliament is no longer legal, then that shakes the foundations of the legality of the prime minister himself, who was elected by that same body.

Pashinyan has his work cut out for him; he had assured the people that the Velvet Revolution would not lead to vendettas and today he has a hard time keeping his promises because the hatred and rage among the public are so intense against the representatives of the old regime.

At this point, no one is thinking about a truth and reconciliation commission to reduce polarization in the country. South Africa was able to spare further bloodshed and dissension through that action.

If you listen to Pashinyan’s partisans, there is no chance for a compromise. The only solution they see is the resignation of Mr. Tovmasyan.

In a statement to the Azatutyun channel, the prime minster declared that the members of the Supreme Court “have acceded to their current positions through legal manipulations. The Armenia of 2019 deserves a Constitutional Court consistent with the pre-requisites of 2019. This issue is a political one and has to be resolved. I am referring to the seven members of the Constitutional Court, including its president, Hrayr Tovmasyan.”

Answering the prime minister, a former member of the Supreme Court, Kim Balayan, said, “Mr. Pashinyan is not a lawyer and therefore he cannot use legal reasoning. He is a politician and has been making political statements. Before making political statements, we have to take care of the legal aspects of the issue, I think that we are at a dead end.”

While the public is raging, Mr. Tovmasyan has taken further initiatives to complicate the situation and to extend the crisis to the European judicial institutions. He has referred the case of former President Robert Kocharyan to the European Court of Human Rights and the Venice Commission of the Council of Europe, seeking their legal verdict.

Mr. Kocharyan has been accused of “overthrowing the constitutional order” under Armenia’s criminal code.

There is no question that Armenia direly needs judicial reforms. But after the takeover of the executive and legislative branches of government by Pashinyan’s Social Contract party, fears have been arising that the control of the third branch of the government, namely the judiciary, may pave the way toward authoritarian rule. Some actions by the government further exacerbate those fears, such as the arrest warrant issued for a judge recently. Indeed, the Supreme Judicial Council of Armenia, satisfying a motion filed by the Prosecutor General’s office, has opened a criminal case against David Grigoryan, a judge at Yerevan’s First Instance Court, who had released Kocharyan from pre-trial detention.

Despite the fact that Pashinyan still enjoys unprecedented popularity, seven political parties have taken the risk of airing their fears in a joint statement, which begins: “It is an absolute necessity to preserve the independence and freedom of legislative, executive and judicial branches to forestall the concentration of power in the hands of one party. That is a prelude toward authoritarian rule. Pressure exerted by political authorities on the courts and judges is inadmissible.”

The statement must have jolted the ruling party, which has resorted to massive retaliation, through friendly media outlets. All the commentators reading from the same text are insisting that the parties are insignificant groups.

The public may ask why then such an overwhelming reaction was offered if those parties and their statements are so insignificant. After all, the Velvet Revolution took place to protect the rights of every citizen and political group to speak out without fear of reprisal.

Armenia needs and deserves judicial reform, which is one of the fundamental prerequisites of a democracy. But in today’s polarized atmosphere, it may take longer to carry out those reforms which could be brought in a deliberate atmosphere where fear and political animosity have dissipated or toned down.

 

 

 

 

 

 

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