Armenia's constitutional reform

A briefing by Anna Abrahamyan, for Inside Europe, Brussels, 22/11/2005

On November 27, Armenian voters are set to vote on draft amendments to the country’s Constitution. The draft represents the government’s commitment to carry out the reforms agreed with the Council of Europe at the time of Armenia’s accession: reform the judicial system, local self-government and the Constitutional Court.

An earlier attempt at constitutional reform, in 2003, failed to mobilize enough voters, who feared the prospect of increased presidential discretionary powers and followed the opposition’s call for a boycott. This time around, the draft has been finalized amid a bitter argument between the parties in government and in opposition. This led the Council of Europe’s Parliamentary Assembly to issue a call for both sides to cooperate.

The ruling coalition eventually accepted to include changes proposed by the opposition concerning the provisions on separation and balance of powers, an independent judiciary and local self-government, and the opposition resumed its participation in Parliament. Two weeks before the referendum, however, the argument was as heated as ever.

I. The changes proposed

Fundamental rights. The draft amendments include far reaching changes in all the chapters of the country’s constitution. The document first addresses changes in the part of the Constitution establishing the Foundations of the Constitutional Order. The protection of human rights has thus been made to conform to international standards, establishing human dignity as of primary and ultimate value vis-à-vis the exercise of powers by public and state institutions. A certain equality between citizens and non-citizens is also established in that their rights and freedoms must be equally respected. The State, furthermore, is responsible under the constitution for the implementation of both national laws and international agreements relating to human rights. Pursuant to these fundamental principles, the draft further contains provisions institutionalizing the (already existing) Human Rights Ombusman, and obliging all public authorities to assist her in her work. The proposed constitutional amendments further enshrine the principle of political pluralism.

Dual citizenship. The most debated change concerns dual citizenship, prohibited under the current Constitution- a significant issue considering that an estimated 70% of Armenians live in the Diaspora. Those in favor of dual citizenship argue that the current ban is a loss to the country; but some local NGOs and opposition parties have been arguing that introducing dual citizenship would deepen the divide between rich and poor within the country and would open the door to undue interference in Armenia by the Diaspora. The draft amendments however merely propose to end the prohibition of dual citizenship; making it effective would require specific legislation.

The President’s powers. The amendments further bring in drastic changes to the relationship between the President, the National Assembly and the judiciary. If adopted, they would reduce the President’s powers by separating him from the three main branches of the state, and reducing him to some extent to the role of guarantor of the institutions and to a figurehead. The President would thus no longer appoint and dismiss Prime Ministers, who would be appointed by the National Assembly. His powers to dismiss the Assembly, furthermore, would be considerably limited and would involve other branches of power.

Empowered to appoint the government, the National Assembly’s ability to scrutinize and control its actions should be considerably enhanced. Similarly, the Parliament would acquire new powers in such areas as media freedom, the appointment of the Head of Central Bank and the appointment of the Head of the independent Control Body.

The internal workings of the government would be similarly altered. Government sessions would be summoned and chaired by the Prime Minister rather than by the President- except on matters of foreign affairs and national security- and government decisions would no longer be ratified by the President.

The most significant changes concern the Judiciary. The Judicial Council that appoints judges will become independent from the President and from the Minister of Justice. The status of the Constitutional Court, for its part, would also undergo major changes, bringing it to a more functional role and assigning it a power to review, inter alia, the constitutionality of acts adopted by local authorities. Significantly, the right to request a review by the Constitutional Court will be widened considerably. The President’s authority to appoint a Prosecutor General would become a shared competence with the National Assembly.

Local authorities. The operation of local authorities, finally, would be modified as well: the draft amendments would affirm the ownership by local authorities of their own financial resources, and require the state to provide budgets to carry out those duties which the central government assigns them.

II. Political implications in Armenia

The initial dissatisfaction of opposition parties regarding the reform package brought about summer-long debates, at times moderated by the Venice Commission reports on the process, putting pressure on the government coalition parties and those of the opposition to hold more open discussions and eventually to come to a compromise. The draft has undergone numerous changes as a result. While in early September the “no” camp still essentially argued against the constitutional amendments on their merits, the opposition now seems to have shifted to a political “no”.

Justice fraction secretary Victor Dallakyan thus claimed that “Robert Kocharyan wishes to appear as a reformer before the international community. If [his amendments] were adopted, he would have an opportunity to legitimize his illegal power, obtain immunity and possibly be re-elected”. It is hardly conceivable that Kocharyan would be eligible to run for a third term, as the Constitution would in any case continue to limit him to two terms. However, the tendency to blacken the picture is particularly marked in rural areas, where there is little information on the proposed changes.

Several other leaders are seeking to transform the referendum into a test of the President’s legitimacy. The leader of the National Democratic Union, Vazgen Manukyan, for his part, simply stated that “if the draft Constitution is adopted, the present situation in the country will be preserved for another 10 years” and called for the President to resign, should his amendments be rejected. Republican Party leader Aram Sargsyan declared that a simple “no” to the Constitution would be a “no” to the authorities. “Yes [Sargsyan declared] it is very important who produces the law. Imagine if Al Capone, rather than Thomas Jefferson, had written the US Constitution. […] If we dismiss these authorities by the will of people, real constitutional reforms will be adopted after fair elections are held”.

National Democratic Party Leader Shavarsh Kocharian has taken a more moderate and cautious stand. He considers the draft insufficient, claiming more could be done, but won’t call for a “no” vote. In his opinion, nothing irreparable will happen if the reform fails, but he warned that if there is fraud, “the threat Armenia is facing (Azerbaijan’s growing military power) will become a reality. In Armenia, an economic breakthrough is possible only under a democratic system”.

Raffi Hovannisian, leader of the Heritage Party, holds a similar view. He agrees that “the official version of constitutional amendments, by virtue of several provisions and standards set forth therein, represents a relative step forward in comparison with the existing Constitution”. But he also expresses fears that that the current draft amendments, are in effect a collection of half-measures borne of unhealthy circumstances, and considers that the government does not have the legitimacy to push through this kind of constitutional change.

Indeed, the argument concerning the government’s legitimacy may well be heard, and voters tempted to follow the opposition’s calls. The recent “revolutions” in Ukraine and Georgia, that caused rapid changes in the political leadership, are still fresh in Armenian officials’ memories, and the elites realize that their best chance of staying in power is to secure, under their leadership, a smooth transition from an oligarchic to a democratic form of governance. Opposition parties are clearly aware of what is at stake, and oppose the changes for the same reason.

III. The international context

The final draft of the amendments has been praised by the Council of Europe, the EU and the US.

The government seems to have learned some lessons from its failure to change the Constitution in 2003: the amendments are now better than those of 2003 from the Council of Europe’s point of view, the public debate in Armenia is more open and vigorous, and the public apparently better informed. Even Armenian citizens living abroad have seen better campaigns and awareness programs at the Armenian Embassies the world over, so that a higher turnout can be expected.

The U.S. and the EU are more reserved on this subject. The perceived momentum for a political settlement in Nagorno Karabagh has led their leaders to favour “evolution, not revolution” in both Azerbaijan and Armenia. Yet the EU and Council of Europe in particular have pushed vigorously for the reforms.

Another external factor influencing the dynamic of the debate on constitutional reform is the driving force of the Diaspora. The “yes” camp has consistently compared Armenia’s relations with its Diaspora with those of Israel and Ireland. Investments from the Diaspora into the country could be more than doubled if better rules for dual citizenship and entrepreneurial activities were in place. An approval of the Constitutional draft would test not only the rulers’ readiness to head for an open and truly liberated market economy that would eventually lead to rapid political change, but also wider society’s readiness to capitalize on the Diaspora. These issues form the most hotly debated topic in the pre-referendum campaign.


Links:
Additional articles:
"Armenian parties gear up for referendum": www.armenialiberty.org/armeniareport/report/en/2005/11/72FF4E29-017D-4638-A638-BB1C15D9FBB9.ASP
"Armenian opposition outlines plans for referendum day": www.rferl.org/newsline/2-tca.asp
"Most important thing: to hold referendum with European standards": home.a1plus.am/eng/