Vahe H. Apelian
In the latest online issue of Asbarez Daily I read that “Gianni Buquicchio, the president of the European Commission for Democracy through Law, known as the Venice Commission, expressed his “regret” in a letter addressed to Hrayr Tovmasyan, now the outgoing chairman of Armenia’s Constitutional Court”. The title of the article is “EU Body Chair Urges Armenia to ‘Respect Constitution’).
Naturally the report is concerning given that the Venice Commission is the third-party that was mentioned for amending the Constitution of Armenia in line with European Standards.
The Venice Commission adopted its recommendation on June 19, 2020 and published it on June 22, 2020. The headline of the Venice Commission’s opinion is attached. It reads:(Opinion No. 988/2020, regarding ARMENIA - OPINION: ON THREE LEGAL QUESTIONS IN THE CONTEXT OF DRAFT CONSTITUTIONAL AMENDEMENT CONCERNING THE MANDATE OF THE JUDGES OF THE CONSTITUTIONAL COURT). The full text may be read online.
The three legal questions the Opinion expanded about are the following:
1. In the current situation, which is the best way to fully bring to life the new model of the Constitutional Court, prescribed by the Constitution (amended in 2015)? .
2. In terms of Best European standards would it be deemed acceptable defining the scope and relatively short deadline for the Court’s ex-ante constitutional revew to the extent of compliance of the amendments and non-amendable articles of the Constitution.?
3. Shouldn’t the Parliament have the power to abandon the earlier appointed referendum which was suspended due to emergency situation caused by the pandemics?
The Venice Commission’s opinion is an 18 pages long document. I will refrain from quoting from the commission’s discussion in forming their opinion lest such quotes would be out of context and hence may appear biased. Nonetheless, it’s important that I quote the following passage from the Venice Commission’s Opinion: “It should also be observed that the purpose of the current majority is not to alter these high democratic standards by reversing and stepping back from the achievement of the 2015 reform….This is a legitimate aim. … therefore, good arguments in favor of the new approach proposed by the Armenian authorities”.
It’s worthwhile that I quote the chronology of the events in Armenia that brought amending the Constitution to the attention of the Venice Commission, to refresh our memories. I quote:
- “The events of the spring of 2018 which are referred to in Armenia as the “velvet revolution” led to a peaceful overturn of the previous government and the appointment of the former opposition leader Nikol Pashinyan as Prime Minister in May 2018. As a result of the legistlavite elections on 9 December 2018, “My Step” Alliance supporting Mr. Pashinyan obtained 88 out of 132 seats in the National Assembly (which is constitutional majority), while the former Republican Party did not receive seats”.
-“Before the “velvet revolution”, on 5 March 2018, the former Chairperson of the Constitutional Court, Mr. Gagi Harutnyan, resigned, three weeks before the entry into force of the 2015 constitutional amendments and shortly before reaching the retirement age of seventy.”
-“Mr. Hrayr Tovmassian was elected as the Chairperson by the Parliament on 21 March 2018 under the provisions of the 2005 Constitution, until the retirement age of sixty-five. Mr. Tovmayan, who was a minister of Justice between December 2010 and September 2013, was a member of the National Assembly from the Republican Party since April 2017, until shortly before his election as the Chairperson of the Constitutional Court”
- “Currently, among the nine judges of the Constitutional Court, two judges have been elected according to the 2015 provisions: Mr. Arman Dilanyan was elected on 13 September 2018; Mr. Vahe Grigoryan was elected on 18 June 2019, after the parliamentary elections of December 2018. The remaining seven judges were elected prior to 9 April 2018, according to the 1995 and 2005 provisions.”
- “In early February 2020, the ruling majority proposed constitutional amendments to transition Article 213 according to which the office of the Chairperson and judges of the Constitutional Court who were appointed prior to the entry into force of Chapter 7 of 2015 Constitution shall cease (seven judges including the Chairperson). An explanatory note attached to those initial draft amendments states in particular that “with the current composition of the Constitutional Court there is a substantial difference between the terms of office of judges appointed under provisions of Chapter 7 of the 2015 version of the Constitution and the terms of office of previously appointed judges. While the newly appointed judges serve for 12 years, the previously appointed members under the provisions of the 19915 version of the Constitution (2 judges) will serve until the age of 70, and those appointed under the provisions of the 2005 version of the Constitution (5 judges) until the age of 65.” According to the explanatory note the purpose of this amendment is to ensure the constitutionality of the composition of the Constitutional Court under Chapter 7 of 2015 Constitution and to remedy to the lack of confidence by both public and other branches of power in the current formation of the Constitutional Court”
- “The introduction of a limited term office for constitutional judges, as previously stated, is also perfectly in line with European standards and in that it achieves a greater balance in representation with the Court”
The Venice Commission opinion regarding the two main issues pertaining to the Armenian authorities’ quest for amending the provisions for Constitutional Court are the following:
1. Regarding the tenure of the judges on the Constitutional Court, Venice Commission recommended:
“ One of the possible options could be to enact the amended Constitution in regard to the Members of the Constitutional Court elected before the new Constitution. Particularly, those Members of the Court who have been served for 12 years before the moment of entry into force of the 7th Chapter (Courts and the Supreme Judicial Council) of the new Constitution (April 9, 2018) will end their term and those who have not expired the 12-years term will continue respectively until the end of their 12-years term. “
2. Regarding the Position of the Chair of the Constitutional Court. The Venice Commission recommended:
“As far as the position of the Chairperson of the Constitutional Court is concerned, the explanations in the request for the present opinion suggest that the mandate of the current Chairperson who was elected on 21 March 2018 under the provisions of the 2005 version of the Constitution and whose term of office as judge and as chair ends normally in 2035 should cease and the new Chairperson should be elected by his peers for a 6-years single term according to the procedure prescribed by the Constitution currently in force (Article 166(2)). “
Surely, the Armenian National Assembly’s ruling is in line with the Venice Commission recommendations on both accounts:
Regarding the tenure of the judges on the Constitutional Court, the Armenian National Assembly ruled:
. Three of those seven judges whose tenure was more 12 years were suspended from serving longer and the other four judges whose tenure did not extend beyond the 12 years mandate of the 2015, will continue to serve on the Constitutional Court.
Regarding the Position of the Chair of the Constitutional Court, the Armenian National Assembly ruled:
The tenure of the Constitutional Court Chair was changed to 6 years pursuant to the election by its peers and hence removed Hrayr Tovmassian from the post and replaced him him in interim with the eldest judge of the Constitutional Court, Alvina Gyulumyan.
The Constitutional Court, in compliance of the 2015 Constitution, will consist of 4 judges appointed during the presidential form of governance and 5 judges appointed during the current parliamentarian form of governance. All will serve for 12 years.
To put things in perspective, the debate for upholding the Constitution of the Armenia should not entail questioning whether the National Assembly of Armenia upheld Venice Commission’s recommendation or not. They were adopted. Nor should its aim be questioned, as noted by the Opinion paper of the Venice Commission. However, on June 22, the day, the day the Venice Commission published its Opinion, the Armenian National Assembly adopted the Venice Commission recommended changes instead of first amending the Constitution, which was what the Venice Commission naturally had in mind. The Opinion noted at the end that the “The Commission regrets that a proposal for constitutional amendments introduced in the Armenian Parliament on the day the adoption of the Venice Commission of this Opinion, which proposal is not in line with the recommendations of this Opinion”.
Hence comes the displeasure of Gianni Buquicchio, the president of the Venice Commission, which concluded its Opinion noting that it: “ remains at the disposal of the Armenian authorities for further assistance in the matter.”,
The source:
https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2020)016-e
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