Philippe Raffi Kalfayan

The Last Bastion of Rule of Law Under Siege

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By Philippe Raffi Kalfayan

Special to the Mirror-Spectator

On the eve of 2020, Armenia is facing political chaos: the executive power is eliminating all institutional components of an effective system of checks and balances; the fight against corruption is selective and retroactive while new corruption schemes and actors are not all yet apparent. One political group, once supportive of current prime minister, is declaring it will start a radical opposition next year. The diplomatic situation over Nagorno-Karabakh is deadlocked while regional powers are restructuring their alliances in a direction which may force Armenia to make substantial concessions over Artsakh’s independence and controlled territories. The diaspora is totally left out of the management of Armenia’s affairs and just invited to make more donations, while the fundraising in the diaspora is obviously decreasing.

It must be noted meanwhile that the economy is experiencing a dynamic shift in sectors like agro-food, tourism, mining and IT, thanks to the strategy and measures decided and implemented by former Serzh Sargsyan’s team. Indeed, the visible outcome today is the result of past initiatives and cannot be rooted in the measures adopted in the last 18 months, since such achievements rely upon longer cycles.

Therefore, one must wonder why there is such obstinacy by the current leadership to consecrate a one-party rule over all institutions, without safeguards to check their activities; we have witnessed already some forced resignations of young “post-revolution” officials because of their temptation to make advantage of their functions to generate quick and illegitimate revenues.

Reasons of State and National Interests

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More perilous for the country’s security is the insistence of some people to reopen the judicial case of the assault on the Armenian Parliament in 1999. People familiar with state management, in whatever country, including the most liberal and free ones, know perfectly the doctrine of the “raison d’etat” (reasons of state). It must be used judiciously and very rarely and for that reason it has some safeguards in place such as the principles of proportionality, strict necessity, non-discrimination and the protection of fundamental rights. In other words, to reopen the case of October 1999, the pros and cons of such a move must be weighed very thoroughly and the key question must be whether the consequences may be more serious than the concealment of the truth. I personally don’t know the truth, but such are the rules for a sensitive case, and a real statesman must be aware of them.

National interests are thus rarely reasons of state. In the context of the incredible pressure put on the judges of the Constitutional Court (CC) to accept the early retirement scheme adopted by the Parliament on December 11, 2019, President Armen Sarkissian, who has the authority to apply to the Constitutional Court for an assessment of the constitutionality of the law proposing such a scheme, made a very ambiguous statement to justify his decision to not take that action. He declared that he made his decision to protect “national interest.” What does it mean? Does it mean that he knows about the constitutional weaknesses of the law but prefers to avoid conflict with the executive branch or does it mean that he is not totally free and independent to make his decision?

Law as Political Coup

The circumstances and the clearly-stated objectives of the draft law by both the government and the Parliament make this law an exclusively politically-grounded one. It aims at the surrender of the last bastion of resistance to a monolithic political power. Indeed, 7 out of 9 judges are presumed opponents to the current executive, due to their appointment by former rulers and parliaments. But, there is no serious shred of evidence to sustain the allegations that their performance has been compromised. The executive and the parliament political majority base their presumption on the alleged perception of CC judges by the public. When talking with the Council of Europe Venice Commission, the executive, short of argument, justifies the law by the necessity to achieve institutional revolution in the context of 2018 post-revolution.

The presumption of guilt is against the general principles of law, which impose on the contrary a presumption of innocence. In the present case, it amounts to a crime of opinion, which is a strictly prohibited. Freedom of opinion is a universal fundamental right.

Basing a presumption on “public perception” is nonsense. It is quite difficult, even somewhat impossible, to seriously measure public opinion. Indeed, public opinion considers all officials in general as suspects, especially if hired or appointed by former rulers. Then, should all of them be forced to retire early?

There is confusion between the anti-corruption policy and the necessity to control all levers of power, while they are autonomous processes, and the assaults against the rule of law are prohibited by the Constitution.

The anti-corruption policy is the best guarantee for the normal functioning of the judiciary, including that of the CC. There is no necessity to remove the judges, especially because there is no guarantee that the new ones, surely less experienced and chosen by the current parliament, will be independent.

Controlling all segments of power is a violation of the fundamentals of a democratic country. Rule of law necessitates the separation of powers. Now, we are back to sovietisation.

In Armenia, as well as in all post-Soviet countries, the system of checks and balances has to be real and operating for the sake of democracy and freedoms.

In a healthy democracy, political space has to be given to the opposition, and the Constitution is made for that purpose: to secure political alteration without restructuring the whole and without removing the members of the CC each time there is a new occupant leading the executive branch. The most extreme example is that of the US Supreme Court, where judges are appointed for life. If a Democrat president was to be elected in 4 or 8 years from now, he/she might face a conservative Supreme Court. In France, similarly, the nominations of members of the Constitutional Council don’t reflect the political party in power.

Promulgating this law, while there are similar attempts in Poland, where everyone may witness the negative reaction of European Union, means more problems with EU institutions as far as Armenia’s standing and future aid programs, although, I must admit, the European Commission has never understood the realities of post-Soviet countries. They actually prefer to spend their budgets than understand those realities.

The CC turbulence is happening because of the ambition of one person. Although elected to the CC, Vahe Grigoryan is not participating in the CC sessions and instead orchestrates maneuvres outside the court in order to topple the seven judges and become, if successful, the president of the court.

The law was unnecessary and a constitutional amendment was preferable.

The law passed by the RA Parliament respects one aspect of the opinion provided by the Venice Commission, which says that voluntary early retirement must be clearly true.

In fact, considering the law adopted and the publicly admitted political objectives by the Parliament and the Executive (Ministry of Justice), as well as all the judicial and political harassments made on CC Chair Hrayr Tovmasyan and his family, the law and its aims are manifestly contravening the criteria imposed by the Venice Commission. They exclude: any undue (political or personal) pressure on the judges concerned by the offer and any on-purpose design of the law to influence the outcome of pending cases (i.e. Robert Kocharyan’s case). Moreover, they warn about the potential risks of simultaneous retirement of several judges and even as many as seven out of nine justices that might hamper the effective functioning of the Court.

As a conclusion to this question, considering the threat over the separation and independence of powers, ignoring the recommendations of the Venice Commission, this law is an assault on the rule of law. It would have been preferable to suggest the modification of the Constitution through a public referendum.

Foreign observers, including those on the Venice Commission, as well as many domestic analysts and journalists, explained the obvious: we cannot change the judges of the CC each time there is a new political leadership in the country. The Venice Commission says: “Immovability is designed to shield the constitutional court judges from influence from the political majority of the day. It would be unacceptable if each new government could replace sitting judges with newly elected ones of their choice” (para 58 of their opinion). It is common sense!

Does it mean that the current political majority exclude any idea of political alternation in the future?

Law Is Unconstitutional

A review of the Constitution and the Law on Constitutional Court shows quite clearly that this law violates the Constitution and its law on the Constitutional Court.

The separation of powers is secured in the Constitution: there is no provision for special circumstances or context to violate the balance of powers.

We may consider also the violation of the constitutional article which provides that: “any influence on a judge of the CC with respect to her/his functions shall be impermissible and shall be prosecuted by law.” Due to the clear objective of the Executive and Legislative, which is to get rid of the judges who may presumably oppose them, the law violates this article.

Popular comments talk about “bribing”: we are not far from reality. We shifted from the reign of hidden bribing to transparent bribing. We may indeed consider this advantageous retirement scheme as a “gift” in violation of the constitution. The scheme may be considered a favor or a benefit.

More clearly, this law is a violation of the principle of equality of citizens before the law. What other public officials are offered by law the same benefit for early retiring? None, not even judges from other courts. It may be counter-argued that they are the only Armenian officials to benefit from a life tenure. But this is not true anymore in the New Constitution. Even, if this argument were valid, the Constitution must specify this exception and the remedy against it in the transitional provisions. This is not the case.

In respect to the claim by the Executive and Legislative branches that judges on the Constitutional Court hold opinions in opposition to the current political leadership, we may also consider that this is a violation of article 29 of the Constitution, which prohibits any discrimination against citizens based on political views. Judges of the CC are citizens like others. They should enjoy the same rights and freedoms. They are only bound to respect strict rules of confidentiality and not express publicly personal opinions on subjects and topics which are related to cases reviewed by them.

Conflict of Interest

The CC is supposed to verify the constitutionality of any single law, without any restriction as to the content of the law submitted to it. There is nothing in the Constitution which may have prevented the CC judges to analyze and to deliberate on this law, which concerns themselves. It means that nothing in the Constitution or in the Law on the CC prevents them from being consulted on that law.

The matter is then not legal, but is more of a perception by the public. This is probably what the promoters of this law are betting on. This was a trap not only for the CC judges but also for the president of the republic, if he were to apply to the CC.

One way for the CC to establish credibility regarding their decision could have been to submit their opinion, once formed, to the Venice Commission before releasing it in Armenia.

This did not happen as the president decided to not apply to the CC for an opinion about constitutionality.

President Sarkissian revealed himself to be a wise moderator in the political landscape and a good representative in the promotion of Armenia to attract foreign investors. He has been doing a very good job since his coming into power. However, his hands are tied as it relates to domestic politics stakes.

I had anticipated in March 2018 (https://mirrorspectator.com/2018/03/15/new-constitution-the-promised-democracy-is-yet-another-defeat/) that the doubts over the compliance of Armen Sarkissian’s eligibility for the post of president, precisely regarding the citizenship conditions, may hamper his ability to maneuvre.

Prime Minister Nikol Pashinyan, former Minister of Justice Artak Zeynalyan and his shadow advisor Vahe Grigoryan, have since gotten proof that his citizenship conditions, as required by the Constitution for being a candidate for president, were not fully compliant.

Did this fact influence the president’s decision? It is difficult to say, but he was eventually backed into a trap. If he were to apply to the CC, he would have been in open conflict with the Prime Minister. If he decided, like he did, to not apply, he would benefit from the good will of future CC members, if Vahe Grigoryan succeeds in getting the post of court president. In both options, there is no margin to maneuvre when someone is at the mercy of others’ good will or blackmail. The “national interests” in this case, may have a personal element.

Therefore, the seven judges of the CC targeted by all those shameful and dirty maneurvres are left alone in their defense of the last bastion of the rule of law in the Republic of Armenia. They must be supported by the political forces and society in order to reject the offer and prevent this Machiavellian scenario from succeeding.

[Philippe Raffi Kalfayan, based in Paris, is a Lawyer, Lecturer in International Law and a former Secretary General of FIDH (International Federation of Human Rights). He is a regular columnist for the Mirror-Spectator.]

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