EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE
COMMISSION)
INTERIM Opinion
on CONSTITUTIONAL
REFORMS
in the republic of armenia
Adopted by the Venice Commission
at its 61st Plenary Session,
Venice, (3-4 December 2004)
On the basis of comments by:
Mr Aivars ENDZIŅŠ (Member, Latvia)
Mr Kaarlo TUORI (Member, Finland)
Mr Owen MASTERS (Expert, United Kingdom)
Mr Bruno NASCIMBENE (Expert,
Italy)
Introduction
1. By a letter of 26 August 2004, Mr. Tigran
Torossyan, Vice-Speaker of the Armenian National Assembly, requested the Venice
Commission to carry out an expert assessment of three draft proposals of
amendments to the Constitution of Armenia (CDL (2004) 100, CDL (2004) 101, and
CDL (2004)107).
2. Messrs. Aivars Endzins, Kaarlo Tuori, Owen
Masters and Bruno Nascimbene were appointed to act as rapporteurs.
3. The present opinion, which was prepared on
the basis of their comments, was discussed within the Sub-Commission on
Constitutional Reforms on 2 December 2004, and was subsequently adopted by the
Commission at its 61st
Plenary Session (Venice, 3-4 December 2004). It’s an interim opinion to
the extent that the Commission will also assess the next steps of the process
of constitutional reform in Armenia.
I.
Background
4. The Constitution that is currently in force
in Armenia was adopted by popular referendum on 5 July 1995. It established a presidential regime.
5. After the resignation of the first elected
president Levon Ter-Petrosyan in 1998, his successor Robert Kocharyan (then
Prime Minister of the Republic) made the issue of constitutional reform one of
the cornerstones of his electoral platform. The major points in the reform were
human rights, the interrelation between the president and other branches of
government, the independence of the
judiciary, and local self-government. Upon his election as president, the
Constitutional Reform Preparation Committee was established to prepare draft
constitutional amendments. The Venice Commission was actively engaged during
the whole process of drafting constitutional amendments, and adopted its report
on the proposed draft text in July 2001 (CDL-INF (2001) 017).
6.
The draft constitutional amendments
(which did not entirely correspond to the text prepared in co-operation with
the Commission) were submitted to popular referendum on 25 May
2003.
7. The May referendum failed. Only 46 percent of
the 1.2 million voters who participated in the referendum approved the proposed
changes
8. In January 2004, the process of
constitutional reform was resumed. A conference launching this process was
organised by the Committee on Questions of European Integration of the National
Assembly in co-operation with the Venice Commission. It was held in Yerevan on 20-21 January 2004. In summer/autumn 2004,
three draft proposals of amendments were submitted to Parliament: the first set
of proposals, prepared and adopted by the ruling coalition (a three-party
pro-government coalition) ; the second set of proposals, prepared by Mr Arshak
Sadoyan, leader of the National Democratic Alliance of Armenia, and submitted
in his personal capacity; and the third set of proposals, prepared, inter alia, by Mr Gurgen Arsenyan, of
the United Labour Party.
9. Since its accession to the Council of Europe
in 2001, the Armenian authorities have repeatedly expressed their willingness
and determination to fulfil the commitments accepted, and
meet European standards and criteria that underpin true democracy. The present opinion will examine whether the
proposed amendments to the 1995 Constitution represent a step forward in this
direction.
II.
The First Set of Proposals for Constitutional
Amendments (CDL (2004) 100)
A. General
Remarks
10. In the following comments, the main point of
reference will be, in addition to the Constitution in force (CDL(1995)62), the
revised Constitution of 2001 (in the Appendix toCDL-INF(2001)17, hereinafter
“the 2001 draft Constitution”), prepared in co-operation with the Venice
Commission. The amendments proposed by the first set of proposals for
constitutional amendments (hereinafter: “1st set of proposals”)
correspond, in many respects, to those contained in the 2001 draft
Constitution. To the extent that the amendments proposed in the 1st set of
proposals correspond to the latter, the comments included in the reportCDL-INF(2001)17 will not, as a rule, be repeated. Thus, the following comments should
be read in conjunction with those included in the reportCDL-INF(2001)17. In
the preparation of this opinion, the Commission has only examined the proposals
for changes, and has not addressed other parts of the Constitution which have
not been the object of proposed amendment.
B. Analysis
of the Proposed Amendments
a. Protection
of Human Rights and Freedoms
11. The new formulation of Article 4
making human rights directly applicable and placing them at the very top of the
hierarchy of norms in Armenian legal order is to be welcomed. The same holds
true for the new Article 6.4 which
removes any ambiguity as to the place of international treaties, including the European
Convention on Human Rights (hereinafter: “the ECHR”) in the hierarchy of norms.
12. With regard to the exercise of the
constitutionally guaranteed rights and freedoms, the Commission recalls the
importance of a clear provision on domestic remedies for an effective
implementation. In this respect, the Commission regrets that a proposal has
been made to remove the second sentence of the current Article 18 § 1, which
guarantees persons claiming to be victims of violations of their
constitutionally guaranteed rights, the right to an effective remedy before
State authorities. The Commission strongly recommends that the said sentence be
reinserted in the final text.
Death Penalty
13. The Commission notes with regret that the
proposed Article 15 of the Constitution would not contain an explicit
prohibition of the death penalty. This is to be considered a fallback in
relation to the draft proposal of 2001.
14. The Commission recalls that on 29
September 2003, Armenia ratified Protocol No 6 to the ECHR. Although
Article 15, taken together with Articles 6.4 and 14 of the 1st set of
proposals, as well as Protocol No 6 to the ECHR can be interpreted as including
the prohibition of the death penalty, the Commission would favour including an
explicit provision in the revised Constitution.
Right to Liberty and
Security
15. The proposed new wording of Article 16 of
the Constitution, while including the need to respect the principle of
legality, does not provide for an exhaustive list of situations where a person
can be deprived of her or his freedom. In this respect, the Commission assumes
that the provisions of Article 5.1 a) to f) of the ECHR shall become legally
relevant through the proposed Article 42 § 5 of the Constitution.
Right to request pardon or mitigation of the
punishment
16. Article 19 of the 1st set of proposals
currently provides for a right of every convicted person to pardon or
mitigation of the sentence. It should rather provide for the right to request such pardon or mitigation of the
sentence.
Freedom of Movement
17.
Under the proposed Article 24, freedom of movement and residence guaranteed by
Article 25 of the current Constitution would no longer be granted only to
citizens, but also to “anyone legally in Armenia”. This is a positive change and merits
welcome.
Freedom, Independence
and Plurality of the Media
18.
Freedom and plurality of the media are
pre-conditions of democracy. The
possibility to freely express ideas and opinions enhances public dialogue and
therefore stimulates the development of the democratic process. Equally
important are the existence of a wide range of independent and autonomous media
and the establishment of independent and powerful regulatory authorities for
the broadcasting sector. Freedom of expression is also intrinsically linked to
the citizens’ right to access to information, which is a prerequisite for
making well-informed decisions.
19. In this respect, the current situation in Armenia still gives cause for concern.
20.
The Commission thus welcomes that Article 26 of the 1st set
of proposals suggests that “the freedom of the press and other mass-media” be
explicitly guaranteed.
21.
However, the same provision further reads “the activities and
liabilities for mass media shall be defined by law”. In the Commission’s view,
this provision may be problematic. While introducing a clause of legality, it
may in fact open the door to not clearly defined restrictions on the freedom of
the media. The essence of freedom of
the media is that media enterprises and media professionals decide themselves
what they do within the framework of the general law.
22. Thus, although the Commission is aware that
constitutional limits to such restrictions are set out in Article 45 of the 1st
set of proposals (Article 42 § 5 of the proposed Constitution would in fact
read: “Any restrictions to human and citizens’ rights and freedoms shall not
exceed the scope set by the international commitments of the Republic of
Armenia”), it would nevertheless support removing the last sentence of
paragraph 3 of Article 27 of the proposed Constitution.
23. As underlined above, the Commission
understands that the freedom of the media comprises a requirement for
independence of the media and in particular that media in the public sector be
set up and operated in such a way as to be independent of the Government and of
any public service as well as to guarantee opportunities for the expression of
different lines of opinion.
24. In this respect, the Commission notes that
the 1st set of proposals fails to provide guarantees of pluralism of
the media and of independence and transparency of the regulatory authorities.
25. The Commission would therefore suggest that
Article 27 § 3 of the proposed Constitution be phrased as follows:
“The freedom of the media and other means of information is guaranteed.
The State shall ensure the existence and
operation of an independent, nationwide public service of radio and television
offering a diversity of programmes in the field of information, education,
culture and entertainment.
To further the goals of freedom, independence
and plurality of the media, the broadcasting media shall be regulated by an
independent authority, established by law, whose members shall
be appointed in a democratic and transparent manner and whose decisions are
subject to judicial review”.
26. Such modification would also respond to the
concerns expressed by the Parliamentary Assembly of the Council of Europe,
which recently requested that “the composition of the National Broadcasting
Commission be renewed as soon as possible and that fair conditions for awarding
broadcasting licenses to televisions /…/
be created”.
Freedom of Assembly
27. Freedom of assembly is a fundamental right in
a democracy. It covers all types of gatherings including assemblies and
meetings, demonstrations, marches and processions, whether public or private,
provided they are “peaceful”.
28. The Commission takes note, with approval, of
the proposal to grant the right to peaceful assembly to “everyone” (Article 29
of the proposed Constitution). The
Commission notes however that the same proposed provision maintains the
distinction between three categories of assemblies : “assembly, rallies and
demonstrations”. This categorisation seems unnecessary and at any rate
incomplete, thus dangerous as it may lead to the conclusion that those types of
assemblies which do not clearly belong to one of the three (pickets or sit-ins,
for example) are not guaranteed under the Constitution. The Commission suggests
deleting the three categories and leaving only the general term “assembly”.
29. In respect of the second paragraph of the
proposed Article 29 of the Constitution, the Commission notes that it contains
a limitation on the possibility for “the military and public servants” to
restrict the exercise of the right of freedom of peaceful assembly only in a
manner “prescribed by the law”.
30. The Commission points out that, as it stands
(unless the English translation of the Armenian text is inaccurate), this
provision allows for unlawful restrictions to be imposed by, for example, the
President of the Government, who do not fall within the two categories
mentioned, which would be contrary to Article 11 of the European Convention.
The Commission recalls that Article 11 § 2 of the European Convention allows
for special restriction on the possibility for “members of the armed forces,
the police or of the administration of the State” to exercise the right to
freedom of assembly. If this is what was meant by the authors of the 1st set of
proposals, the provision should then be modified accordingly.
31. The Commission recalls that Article 11 § 2 of
the European Convention contains an extremely important proportionality clause,
as it provides that “No restriction shall be placed on the exercise of [the
right to freedom of assembly”] other than such as are prescribed by law and are
necessary in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others”.
The requirement of proportionality should therefore be added in the proposed
Article 29 of the Constitution in the same terms as in Article 11 § 2 of the
European Convention. This would be useful even in the presence of the general
clause of the proposed Article 42 § 5 of
the Constitution.
32. The Commission further recalls and refers to
its recently adopted opinion on the law “on
the procedure of conducting gatherings, meetings, rallies and demonstrations in
the Republic of Armenia”,
in which it has recalled the essence of the right to freedom of assembly and
the limits within which the authorities may legitimately regulate and restrict
the exercise of this right.
Citizens’ Rights
33. In a number of provisions, the term
“citizens’ rights” is used, while the Commission suggests the use of the term
“civil rights”. Furthermore, limiting rights to citizens only (in the proposed
Articles 23 § 3 and 34 of the Constitution) does not seem justified.
b. The
Powers and Immunity of the President
Martial law and state of emergency
34.
The Commission notes at the outset that the proposed provisions on the
procedure for declaring martial law and the state of emergency depart in some
crucial aspects from those of the revised constitution prepared in co-operation
with the Venice Commission.
35. Paragraphs 13 and 14 of the proposed Article
55 of the Constitution seem to imply that the concepts of martial law and state
of emergency are used as synonyms. Those
paragraphs do not allow to clearly distinguish between a) martial law, b) a
state of emergency and c) the measures taken in the event of an imminent danger
to the constitutional order. On the one hand, paragraph 13 seems to imply that
the concepts of martial law and state of emergency are used as synonyms. On the
other hand, a number of other Constitutional provisions where both martial law
and a state of emergency are mentioned presuppose a distinction between the two
(e.g. Article 44 or Article 60 § 1 of the proposed Constitution). If a
distinction between “martial law” and “state of emergency” is indeed intended
by the authors, the relevant provision should be revised to make this
distinction clear. In addition, paragraph 13 should lay down that the legal
regime of a state of emergency should also be defined through a law.
36. According to the proposed Article 55 § 14 of
the Constitution, “the appropriate measures” that the President may take in the
event of an imminent danger to the constitutional order are not preceded by a
declaration of a state of emergency, nor is the scope of the measures defined
anywhere in the proposed new Constitution. The proposed Article 44 of the
Constitution on restrictions to fundamental rights and freedoms refers only to
martial law and a state of emergency. Both the ECHR and the UN Covenant on
Civil and Political Rights instead require that a state of emergency, allowing
for derogations from human rights, be expressly declared and that a
notification be sent to the respective Secretary General. The 2001 draft
constitution (Article 55 § 15) indeed
required the declaration of an “extraordinary situation”, before the President
could use the armed forces or declare martial law.
37. The active involvement of the National
Assembly in the determination of the reasons and proportionality of the
emergency measures as well as the persistence of the danger requiring the use
of emergency powers is necessary. According to the 2001 draft Constitution, a
special session of the National Assembly was to be convened immediately after
the declaration of both martial law and an “extraordinary situation”, in order
to examine the “correspondence of the measures undertaken with the situation”.
In the present draft amendments, this provision is included in neither para. 13
nor para. 14 of Art. 55. The only provision on parliamentary control of the
exceptional measures is in the proposed Art. 81 § 2 of the Constitution: “The
National Assembly can stop the progress of measures prescribed by Paragraph 13
of Article 55 of the Constitution.” This provision however does not cover
measures undertaken under paragraph 14, nor does it include the requirement of
convening the National Assembly immediately after the President has started
exercising his/her powers. The proposed paragraph 14 of Article 55 of the
Constitution merely requires the President to consult with the Chairman of the
National Assembly and the Prime Minister prior to taking appropriate measures.
38. In conclusion, the proposed amendments
concerning martial law, state of emergency and measures referred to in para 14
of the proposed Art. 55 of the Constitution represent a fallback in relation to
the 2001 draft Constitution; in its proposed form, this provision creates legal
and constitutional uncertainty. The Commission therefore strongly recommends that
the provisions on the procedure for declaring martial law and the state of
emergency be changed back into the form they had in the 2001 draft
Constitution.
Signature and Promulgation of Laws
39. The Commission underlines that the 2001 draft
Constitution provided, in Article 55 § 2, that in case the National Assembly
once again adopts a law which the President of the Republic has sent back to
it, the President has the possibility to apply to the Constitutional Court to seek a decision on the compliance of the
law in question with the Constitution.
The Commission would favour the introduction of this possibility in the
proposed Constitution.
Presidential Immunity
40. The proposed new Article 56 § 1 of the
Constitution stipulates that “The President of the Republic shall be immune”.
Such a general clause on immunity does not conform to European standards. It
should be clearly specified that the immunity only covers the acts of the
President which are the expression of his or her functions. The clarification
of this clause is also relevant for a correct interpretation of article 57 of
the present Constitution (which would be maintained), which provides for the
removal of the President from his office in case of “State treason or other
high crimes”.
c. The
Relations between the President, the Cabinet and the National Assembly
General Remarks
41.
With respect to the relations between the main constitutional organs, the 1st
set of proposals, when compared to the 2001 draft Constitution, expresses a
shift in favour of the President. Thus, the President would retain the power to
appoint and dismiss the Prime Minister and, on the latter’s recommendation, the
members of the Government. The main provisions of the Action
Plan of the
Government would, however, require the approval of the National Assembly. If
the Assembly adopts for the third time a vote of no confidence when
deliberating the Action Plan of a newly-appointed Government, the
President shall
dissolve the Assembly (proposed Art. 55 § 4, Art. 74 § 1 and Art. 85 § 1 of the
Constitution). Even the other situations where the President would be entitled
to dissolve the National Assembly would be explicitly regulated in the
Constitution (Art. 74.1(2)).
42. The Venice Commission has repeatedly
emphasised that the fundamental choice between a presidential, a
semi-presidential and a parliamentary regime is a political choice to be made
by the country in question and that all these regimes can be brought into
harmony with democratic standards. In any case, however, the Parliament should
have sufficient controlling powers with regard to the executive branch. In Armenia where the President, directly elected, is the
real “engine” of the political system, it would be rather dangerous for the
democratic life of the state to further increase his powers while at the same
time not providing for the necessary strengthening of the role of the National
Assembly.
Appointment of the Prime Minister
43. The Commission notes with regret that the
National Assembly does not have any role
in the procedure of nomination and dismissal of the Prime Minister.
44. According to the proposed Article 85 § 2 of
the Constitution, the Government “brings to life” domestic and foreign policy. The precise legal significance of
this provision seems unclear. It
seems to imply that the government only implements the domestic and foreign
policy adopted by another organ, possibly the President. Such limitation of the
governmental powers does not conform to European standards.
45. The Commission also notes that although the
right of the President to chair the meetings of the Government has been removed
from the text, he or she has the right to convene and chair a sitting of the
Government (proposed Article 86 § 3 of the Constitution). In the light of these
considerations as well as of a number of other provisions (see infra), the Chapter on the executive
power does not seem to guarantee the effective independence of the Government
vis-à-vis the President.
Vote of Confidence in the Government in respect
of Draft laws proposed by Individual Deputies
46. Under the proposed § 4 of Article 75 of the
Constitution, the Government may put forward a motion on confidence not only
with regard to a draft law proposed by the Government itself, but also with
regard to a draft law proposed by a Deputy. This provision weakens the power of
the National Assembly and particularly the legislative initiative of the
opposition : it should accordingly be removed.
Dissolution of the National Assembly
47. The President has the power to dissolve the
Parliament only in the cases expressly provided for by the Constitution
(proposed Article 74 § 1), which are:
-
when
Parliament refuses - three times - to give a vote of confidence to the main
provisions of the Action Plan of the Government formed by the President;
-
when
Parliament fails within two working months to decide on a draft law deemed
urgent by decision of the Government;
-
if, in the
course of a regular session, no sittings of the Assembly are convened for more
than two months;
-
if, in the
course of a regular session, the Assembly fails for more than two months to
adopt decision on issues under debate.
48. While the National Assembly has no word in
the formation of the executive, the main provisions of the Action Plan of the
Government do require its approval. However, in practice, the Assembly is
subordinated to the President as the latter is empowered, in case of conflict
with the parliament, to call new elections and ask the people to choose between
his own political line and the policy supported by the Parliament or its
majority.
49. A period of two months may be objectively too
short for the Parliament, possibly in three readings, to examine complex and/or
voluminous draft laws.
Parliamentary Control of the Government
50. The Commission regrets that the right of
Deputies to address written questions to the Government or administrative
bodies has been removed from the draft. The possibility for groups of Deputies
to submit written queries has also been removed.
d. Attributions
of the National Assembly
51. The Commission notes that the list of the
issues which fall within the exclusive legislative competence of the National
Assembly is shorter than the one included in the draft revised constitution of
2001, prepared in co-operation with the Venice Commission (Article 83.3).
Nevertheless, the explicit definition of the National Assembly’s exclusive
competence is to be considered a progress with respect to the present
constitutional situation.
52.
The Commission also notes that the number of deputies has been reduced.
It recalls that the number of members of parliament is a matter for each
Constitution to determine with regard to specific national factors such as the
size of the population and the structure of parliament. The concern of ensuring
parliament’s effectiveness may also legitimately prompt a change in the number
of MPs, in accordance with the applicable procedures of constitutional revision.
In the present case, no explanation is given for this amendment.
e. The
Control Chamber and the Central Bank
53. Under the 1st set of proposals
(proposed new Article 83. 2 of the Constitution), the National Assembly’s
Oversight Office is to be replaced by an institution called the Control
Chamber, which is defined as an independent body even though the power of
appointing the Chairperson and other officials of the Chamber seems to fall to
the President (or the Government). There are no objections to the establishment
of such an independent body charged with overseeing the implementation of the
budget and the use of state property. However, even the National Assembly
should have financial controlling powers. It is to be regretted that the
present amendments do not include any compensation for the replacement of the
National Assembly’s Oversight Office by the Control Chamber. The possibility
for the Control Chamber to oversee the budget and use of property of the Local
Self-Government units might be addressed.
54. The Commission welcomes the proposed new
Article 83 § 1 of the Constitution, which aims at strengthening the
independence of the Central Bank. However, the main aim of this Bank should be
to ensure the stability of the national currency rather than of prices.
f.
The Human Rights Defender
55. The Commission warmly welcomes the proposed
paragraph 4 of Article 83 of the Constitution, empowering the National Assembly
to appoint the Human Rights Defender, which is an important step forward in
terms of the independence of this institution from the executive that it is
mandated to control. The
Commission further welcomes the need for the grounds for termination of the
Defender’s mandate and the status of the Defender to be regulated by law
(proposed Article 83 § 4 and proposed new Article 83.3, point 14 of the
Constitution respectively) and the possibility for the Human Rights Defender to
apply to the Constitutional Court (proposed Article 101 § 1 point 8 of the
Constitution).
g. The
Judiciary
56. The stipulation of constitutional guarantees
for the establishment and functioning of an independent and impartial judicial
power has been identified as one of the fundamental issues of the
constitutional reform in Armenia.
57. The Commission welcomes the proposal
(proposed new Article 94.1 of the Constitution) to have the Judicial Council
composed of nine judges out of twelve members,
elected by their peers (the General Assembly of Judges of the Republic
of Armenia). It considers however that
the non-judge members should rather be elected by Parliament than by the
President of the Republic.
58. In addition, the Commission considers that
sub-section 3 of the proposed new Article 94.1, providing that the President chairs the Council of Justice,
could prove rather problematic. Having the President as the Chair is not
necessarily the best solution (although provided for in a
number of European
Constitutions) and his or her role as the Chair should be purely formal. In
this regard, the Commission wishes to recall the European Charter on the
Statute for Judges, which stresses the importance of the absolute independence
of this body from both the executive and the legislative powers.
59.
The Council of Justice should be the final authority for all aspects of
the professional life of judges in particular matters pertaining to their
selection, appointment, career (including promotion and transfer), training,
dismissal and discipline, and should be responsible for overseeing the training
of judges.
60. In this respect, the power of the President
to appoint the chairmen of all courts without any involvement of the Council of
Justice (Article 55.11) appears to be problematic.
61. As regards the power to appoint almost half
of the members of the Constitutional Court, the Commission does not find it, in itself,
problematic. The Commission recalls nevertheless the need for appropriate
checks and balances: the additional powers of the President under this set of
proposals, coupled with his already existing power to appoint some members of
the Constitutional Court,
shift the balance of powers too much in the President’s favour. If the
necessary balance is reached on another basis, the President’s power to appoint
a certain number of members of the Constitutional Court may well be acceptable.
h. Local
Self-Government
62. The Commission considers that, generally
speaking, the 1st set of proposals strives to conform to the European Charter
of Local Self-Government. Yet, a number of amendments proposed strongly deviate
from the spirit and the objectives of the Charter and raise concerns.
63.
The last sentence of paragraph 3 of the proposed Article 30 of the
Constitution, providing that “the law may prescribe other restrictions to the right
to vote in the elections for the bodies of
local self-government” is vague and should be deleted.
64. With regard to the appointment and dismissal
of the Mayor of Yerevan (proposed Article 88.1, § 2), the Commission recalls its
report of 2001, stating that the power
of the President to appoint and dismiss the Mayor of Yerevan is not only in
breach of essential principles of local democracy and the European Charter of
Local Self-Government, but
also contradicts with Article 3 of the Armenian Constitution currently in
force, which provides for direct suffrage for the election of local
self-administration structures. The strong recommendation, expressed in the
report, to delete this provision is therefore to be repeated.
65. The Commission further suggest to delete the
part of the proposed paragraph 3 of Article 88.1 of the Constitution which
reads that the Mayor of Yerevan “shall pursue the territorial policy of the
Government”. The Mayor of Yerevan should undertake only those responsibilities
which are attributed to him/her in accordance with a new Law on the City of Yerevan. He or she must therefore not be responsible
for the territorial policy of the Government, unless some functions are
delegated to the City of Yerevan in accordance with a law on the City of Yerevan.
Nothing should be incorporated in the amendments to the Constitution
which would diminish the independence of local self-government.
66. The proposed Article 109.1 of the
Constitution gives the Government the power to dismiss, in cases prescribed by
law, the Head of Community and to dissolve the Council of Aldermen. The
Commission underlines that the use of this power may endanger the principle of
local self-government, especially as the provision no longer requires the
Government to consult the Constitutional Court before taking the decision.
67. In respect of the power of the Government to
discharge the Head of community (proposed Article 109 of the Constitution), the
Commission considers that in addition to the cases provided for by law, this
should be possible “on the basis of a conclusion of the Constitutional Court”.
68. The 2001 draft Constitution (Article 110)
provided that “changes in the territorial organisation require a consultative
referendum in the communities concerned.” This requirement does not appear in
the 1st set of proposals. The Commission strongly recommends, in the
interests of the local self-government, to include in the proposed Article 110
of the Constitution, the explicit requirement of local referenda and
consultation in conformity with Article 5 of the European Charter of Local
Self-Government.
i.
Constitutional Amendments
69. According to the Constitution currently in
force, constitutional amendments
introduced by the qualified
majority of National Assembly shall be submitted to a popular referendum
(Article 111 § 4, emphasis added). The proposed new paragraph of Article 111 of
the Constitution allows for constitutional amendments to be adopted by the majority of the National
Assembly, if the initiative originates from the President of the Republic. This
difference, which strengthens the role of the President with regard to the
National Assembly, does not seem to be justified.
70. According to the proposed new Article 111.1,
constitutional amendments may also be adopted through a qualified majority of
the National Assembly (on the initiative by the President or by one-third of
Deputies), without submitting them to a referendum. This proposal would make
constitutional amendments more flexible, while at the same time maintaining the
requirement of a referendum in issues of a fundamental nature, and is thus
supported by the Commission.
j.
The Transitional Provisions
71. The Commission notes that the 1st set of
proposals leaves the transitional provisions to be decided and formulated
“after the review of the package of reforms”. This does not seem acceptable.
Transitional provisions form part and parcel of the proposed reform of the
Constitution and may in fact address important and delicate issues which should
not be shielded from parliamentary debate.
III.
2nd Set of Proposals for
Constitutional Amendments in Armenia (CDL (2004) 101)
A. General
Comments
72. The 2nd set of proposals for
constitutional amendments (hereinafter: “2nd set of proposals”)
mainly focuses on the issue of formation and functioning of the Government, and
the election of deputies to the National Assembly. Thus, it lacks most of the
amendments to Chapter 2 (Fundamental Human and Civil Rights and Freedoms) and
to Chapter 6 (The Judicial Power) which the Venice Commission in its reportCDL-INF(2001)17 had
welcomed as strengthening the protection of human rights and the rule of law in
Armenia.
73.
In addition, the 2nd set of proposals does not include a provision
on the exclusive legislative competence of the National Assembly,
while the provisions on martial law and states of emergency (proposed Article
55 §§ 12 to 14 of the Constitution) do not meet the requirements of democracy
and the rule of law (see previous comments in respect of the 1st set of
amendments). This is an important drawback with respect to the 2001 draft
Constitution and should be remedied in the final text.
B. Analysis
of the Proposed Amendments
a. The
Role of Pre-Election Programmes in the Functioning of State Institutions
74. The 2nd set of proposals seems to
aim principally at binding the political parties, the Government and even
individual deputies to the pre-election programmes presented during the
electoral campaign.
75. The proposed Chapter 1 of the Constitution
(The Foundations of Constitutional Order) would thus include a general
provision according to which “selecting long-term state programs, goals and
objectives in the RA shall be set forth and modified through national referenda
as well as on the basis of the program provisions approved by the voters during
elections” (Article 2.1). According to the proposed Article 7 of the
Constitution, “the political parties and the pre-election unions thereof
running for election to the National Assembly shall impart their pre-election
programs and approaches to the voters, and these programs shall act as a basis
for developing state four-year and annual programs, and defining the course of
action of the executive power in the event that they, in compliance with the
Constitution, are granted the right to form the Government on the basis of the
election outcomes”. More detailed provisions on the content of the programmes
would be included in Chapter 4 on the National Assembly.
Responsibility of Political Parties
76. The proposed new Article 63.2 of the
Constitution would require inter alia that
“A pre-election four-year programme and approach include annual sub-programmes
for all the main sectors as well as the quantitative
and qualitative evaluation indicators, the extent of permitted deviations
and the description of insurmountable obstacles for the implementation of the
program” (emphasis added). Such programmes would imply not only a political but
also a legal responsibility on the political party concerned. Thus, “in the
event that the party denies the main programme provisions or has terminated its
activities in conformity with the procedure established by law, it shall, upon
the conclusion of the Constitutional Court and the resolution of the National
Assembly, be deprived of its parliamentary seats” (proposed Article 63.3, § 2).
77. The Commission considers that whilst there is
no objection to the principle that a political party or coalition elected to
Parliament respect and implement its pre-election programmes, it is not
appropriate to determine in detail, through the Constitution, the structure and
the manner in which the electoral programme should be prepared.
78. Furthermore, the evaluation of whether the
pre-election programmes have been respected and implemented would undoubtedly
be a very delicate and complex task. The requirement that the deprivation of a
political party/coalition’s parliamentary seats be decided by the Constitutional Court does not remove the problematic character of
the provision. The Constitutional Court should not be entrusted with the power of
adopting decisions of a political nature which imply the use of political
criteria of judgment.
Role and Responsibility of the National
Assembly
79. The National Assembly should “upon the
submission of the Government, adopt laws on the long-term, four-year, annual
and special programmes and the budget, make amendments and oversee the progress
thereof” (proposed Article 62 § 2 of the Constitution). It would be up to the
President of the State to oversee the National Assembly with regard to the
implementation of the four-year state programme. In case of the failure by the
National Assembly to annually implement the four-year state programme, “the
President of the Republic shall at the end of the first year of the National
Assembly term of office deliver a
warning address to both the National Assembly and the Government”. In the event
the failure to implement the programme continues, the President “may reduce the term of office of the
National Assembly at the end of the first half of either the second or the
third year of the National Assembly office and declare special elections to the
National Assembly” (proposed Article 55 § 3, emphasis added).
80. These provisions raise two main concerns.
First, the proposal that the Government’s programmes should be adopted by the
National Assembly in the form of laws is highly questionable. Such a situation
might lead to a confusion of political and legal obligations and
responsibilities. In addition, the exact legal significance of the laws
confirming the Government’s programmes is unclear.
81. Second, it does not seem advisable to grant
to the Head of State a discretionary power to decide whether or not to dissolve
the Assembly in case he or she considers that the National Assembly has failed
to implement the four-year programme. Giving such power to the President would
result in placing him or her above the National Assembly in the hierarchy of
constitutional organs, which is contrary to the principle of the separation of
powers as well as to the general strive of the draft law to strengthen the
position of the National Assembly and the Government. In addition, the
President of the Republic has also a role in ensuring progress in the
implementation of the programmes by the National Assembly (he must issue a
warning “in case of failure by the National Assembly to annually implement the
programmes” – proposed Article 55 § 3, first sentence of the Constitution).
Responsibilities of Individual Deputies
82. The 2nd set of proposals also
provides for a kind of imperative mandate, which is highly questionable in a
modern parliamentary democracy.
According to a new Article 63.4, “a deputy elected from the party list either
publicly denying the four-year pre-election program provisions, or expelled
from the party or resigning on his/her own accord shall be deprived of the
deputy’s mandate and the next person in the party list shall substitute him/her
in the National Assembly”. Candidates for deputies to be elected to the
National Assembly by single-mandate would, in turn, be obliged to present to
the voters of their respective electoral districts their action plans for the
electoral districts and the National Assembly. Such a deputy would be “recalled
from office by local constituents for the failure to meet his/her election
commitments through a process of local referendum”(Article 63.4).
Formation of the Government and Vote of
Confidence
83. The pre-electoral programmes would play an
important role even in the formation of the Government. According to the
proposed Article 74, “the party or the pre-election union having obtained most
of the seats at the National Assembly shall submit the main provisions of its
pre-election four-year programme, its approaches on the composition of the Government
and the main directions of its action plan and its candidate for the post of
the Prime Minister to the National Assembly”. The candidate for Prime Minister,
in turn, should “submit to the National Assembly the draft of the state
four-year programme based on the pre-election programme as well as the issue of
the Government composition, thus putting forward the motion on expressing
confidence in the Government”. If “no draft resolution on expressing
no-confidence in the Government is put forward or no such resolution is
adopted, the state four-year programme, the Government composition and the
candidate for the post of the Prime Minister shall be deemed approved”.
84. In case the Parliament adopts a resolution of
no-confidence, “recurrent elections shall be declared for the seats under the
proportional representation system in which only parties and pre-election unions having
received seats at the regular elections shall take part” (Article 74.1).
85. The Commission warmly supports the proposal
to strengthen the role of the National Assembly in the nomination of the Prime
Minister and the formation of the Government. A procedure for resolving
deadlocks in the formation of the Government and involving, as the ultimate
means, the dissolution of the Parliament is in itself wholly justifiable in a
constitutional democracy. The same holds true for a vote of confidence on the
basis of the programme, which can be considered as a mechanism for ensuring the
political presuppositions for a successful Government work.
86. On the other hand, the governmental programme
as well as the control of and consequences for failures of its implementation
should remain of a mainly political
nature. The procedure laid down in the proposed Article 74.1 including the
so-called “recurrent elections”, in which only those parties and “pre-election
unions” which have received seats at the previous, ordinary elections could
take part, is not appropriate.
87. The Commission is aware of the lack of
tradition of a multiparty system and of the difficulties which Armenia has experienced in the past in the formation
of workable political coalitions. Wishing to make the political parties and the
Government accountable is a legitimate objective. However, the proposed
amendment tends to an excessive juridification or constitutionalisation of the
political processes. Thus, the proposed Articles 63.2 to 63.5 of the
Constitution, obliging political parties and individual candidates to present
specific and detailed programmes to the electorate and setting out the legal
consequences of not respecting such programmes, concern issues which should be
left to political processes and political responsibility. Indeed, only the
citizens should be empowered to judge - at the following elections – what the
(political) consequences for not meeting electoral promises will be for a party
or an individual deputy. It would contradict the very idea of an election-based
parliamentary system if a political party could be deprived of its
parliamentary seats or an individual deputy of her/his mandate for reasons of a
mainly political nature through a procedure other than the following elections.
b. Role
and Powers of the President of the Republic
88. Under the proposed Article 49 of the
Constitution, the President of the Republic would be the guarantor of, besides
the independence, territorial integrity, security and continuity of state
power, also transparency and accuracy of
the official information and statistical data in the Republic of Armenia”. The Commission finds it unusual to mention
this particular area of responsibility of the President and put it on the same
level of importance as territorial integrity or security. At any rate, if it is
to be kept, all the other areas of responsibility should be mentioned, or the
sentence should be left open-ended.
89. The proposed Article 55 § 2 of the
Constitution would reduce – from the current twenty-one days to two weeks - the
time-limit within which the President must either sign and promulgate a law or
return it to the National Assembly. This proposed amendment does not seem
appropriate.
90. The Commission also considers that this
provision should introduce the possibility for the President of the Republic to
apply to the Constitutional Court should he or she think that the law which he
or she refuses to sign and promulgate is in conflict with the Constitution.
c. Election
of Deputies to the National Assembly
91. The 2nd set of proposals
introduces a mixed electoral system, where 100 deputies of the National
Assembly would be elected according to the system of proportional
representation and 31 deputies would be elected from single-mandate
constituencies (proposed Article 63 of the Constitution). The manner in which
these single-mandate constituencies would be formed is unclear. In certain
respects, these two groups of deputies would be subject to divergent
constitutional provisions (e.g. Article 63.5 and Article 74.1). Both electoral
systems have their own justifications. There are countries which have adopted a
combination of the two systems, but, as a rule, the experiences gathered cannot
be deemed very positive.
d. Local
Self-Government
92. The Commission welcomes the proposed
amendments to Articles 104 to 108 of the Constitution. It would recommend adding the following in
Article 107: “The population of the administrative territorial units may be
directly involved in the administration of local affairs by resolving the
problems through consultation and/or a referendum”.
93. The Commission also supports the proposal to
remove the current Article 109 (about the power of the Government to remove the
Administrator of a district) from the text of the Constitution.
IV.
3rd Set of Proposals for
Constitutional Amendments (CDL (2004)107)
- General
comments
94.
In the following comments, the main point of reference will be, in addition to
the Constitution in force (CDL(1995)62), the 2001 draft Constitution The
amendments set out in the third set of proposals for constitutional amendments
(hereinafter: “3rd set of proposals”) correspond, in many respects,
to those contained in the 2001 draft Constitution. To the extent that they do
correspond, the comments included in the reportCDL-INF(2001)17 will not, as
a rule, be repeated. Thus, the following comments should be read in conjunction
with those included in the reportCDL-INF(2001)17.
- Analysis of the Proposed Amendments
- Protection of Human Rights and
Freedoms
95.
Most of the proposed provisions in Chapter 1 (Foundations of the Constitutional
Order) and Chapter 2 (Fundamental Human and Civil Rights and Freedoms)
correspond to those included in the 2001 draft Constitution and are therefore
supported by the Commission.
96.
The Commission notes with satisfaction that the proposed amendments also
contain a number of provisions which can contribute even further to the
strengthening of the protection of human rights. This holds true, for example,
for the proposed provision in the proposed Article 17 § 3 of the Constitution,
according to which “children under the age of 16 shall not be subjected to
scientific, medical and other experiments”, as well as for the new provision on
consumers’ protection (proposed new Article 31.1 of the Constitution).
97.
The Commission also welcomes the explicit prohibition of the death
penalty in the proposed Article 15 of the Constitution.
98. It also supports the provision in the
proposed Article 16 of the Constitution of an exhaustive list of situations
where a person can be deprived of his or her freedom; these situations
correspond to those listed in Article 5.1 a) to f) of the ECHR.
99.
On the other hand, paragraph 6 of the proposed new Article 11.3,
granting the right to political asylum to “citizens persecuted for their
political convictions” (emphasis added) seems problematic :
as it presently stands, it may
lead to the a contrario conclusion that non-citizens do not have the
corresponding right. Yet, citizens do not need the right to political asylum,
as they have the right to return to the Republic of Armenia (proposed Article 25 § 3
of the Constitution) and may not be extradited to a foreign country (proposed
new Article 11.3 § 3).
100.
With regard to the right to freedom of assembly, the 3rd set
of proposals also provides for different categories of public events. The
comments previously made in relation to 1st set of proposals also
apply here (see paragraphs 27-32 above).
101. Pursuant to the proposed § 2 of Article 30 of
the Constitution, the Armenian citizens with double citizenship would have
neither active nor passive right to vote. Such difference in treatment of
Armenian citizens does not appear to have a legitimate justification and thus
appears, in the Commission’s opinion, to be discriminatory and in breach of
Article 14 of the European Convention in conjunction with Article 3 of Protocol
1. The Commission also wishes to recall the European Convention on Nationality,
which requires that nationals of a State with
double citizenship shall have, in the territory of that State in which they
reside, the same rights and duties as other nationals of that State.
102. The proposed Article 47 § 2 of the
Constitution provides for the right of
“every citizen of the Republic of Armenia to protect the
Constitution, the principles of the constitutional order stipulated therein and
the laws”. The legal significance of this provision remains unclear, unless
what is meant is that every citizen is entitled to receive the protection of
the Constitution etc.
- The
Relations between the President, the Government and the National Assembly
103.
The proposed principles governing the mutual relations between the
President, the National Assembly and the Government are similar to those
adopted in the draft 2001 Constitution, and are generally coherent with the
overall logic of the 3rd set of proposals aiming at ensuring a
better balance of powers by strengthening the Government and the National
Assembly’s position. The differences concern mainly procedural issues.
104.
The appointment of the Prime Minister, as a rule, falls within the prerogatives
of the National Assembly, and only in case the National Assembly fails to
appoint the Prime Minister or to approve the Government’s Concept of Action
shall the President appoint the Prime Minister and form the Government
(proposed new Article 85.3 § 3). The National Assembly is also empowered to
express no-confidence in the Prime Minister, at the request of at least
one-third of the total number of Deputies (proposed Art. 84 of the
Constitution).
105.
The Prime Minister is empowered to put forward a motion on confidence in
connection not only with the budget and the five-year plan of action (Article
90), but also with the adoption of a draft law proposed by the Government or by
a Deputy (Article 75.1, §§ 2 and 4).
Dissolution of the National
Assembly
106.
The President would have the power to dissolve the National Assembly
only in the cases enumerated in the proposed new Article 74.1. With regard to
the sub-sections a) and c), the Commission refers to its comments made with
regard to the same provision included in the 1st set of proposals
(see paras 47 to 49 above).
107.
The right of the President to dissolve the National Assembly in case of
refusal by the latter to confirm the dismissal of the Prime Minister
(sub-paragraph d of Article 74.1) seems questionable, as it would have the
effect of weakening the role of the National Assembly.
The conduct of the debate
108.
The Commission notes that, according to the proposed Article 75 § 4, the
President and the Government “may determine the sequence of the debate for
their proposed draft legislation and may demand that they be voted only with
amendments acceptable to them”. The legal significance of this provision
remains unclear. As it presently stands, it would imply that the President or
the Government could determine how the National Assembly exercises its
legislative competence. The Commission thus strongly recommends to remove it
from the final text.
- Attributions
of the National Assembly
109.
The Commission warmly supports the new provisions aimed at securing the
autonomy and independence of the National Assembly and its deputies (proposed
Articles 66 and 79.1 of the Constitution).
110.
As the Commission already pointed out in its Report of 2001, a provision
containing a list of issues which fall into the exclusive legislative power of
the National Assembly is very useful and is to be supported (proposed new
Article 83.1 of the Constitution). However, the provision in the last paragraph
of Article 83.1, according to which this list may be extended by law, cannot be
deemed appropriate: it should not be possible to change a constitutional division
of powers through a law.
- The
Judiciary
111.
Pursuant to Article 55 § 9 of the Constitution, the President would have
the duty to “uphold the state interests through a unified system of the
Prosecution Office”. This provision would seem to subject the prosecutors to
the President in a way whose legal significance remains unclear, and which may
endanger the independence of the prosecutors.
112. As it was previously underlined,
the Council of Justice is a body which has a particularly important role for
safeguarding judicial independence. According to the proposed new Article 94.1
of the Constitution, the Council of Justice would consist of “up to six judges
elected /…/ by the General Assembly of Judges of Armenia, two defence attorneys
and two scientists representing the legal profession, as well as ex officio the
Minister of Justice and the General Prosecutor”. These provisions need further
elaboration: it is not clear how and who would nominate the “two defence
attorneys and two scientists representing the legal profession”. As to the
membership of the Minister of Justice and the General Prosecutor, particularly
having in mind the proposed new Article 55.9, it does not seem necessary.
- Control
Chamber and Central Bank
113.
The Commission supports the inclusion of the new provisions on the Control Chamber (Chapter 6.2) and the
Central Bank (Chapter 6.3) aiming at strengthening the independence of these
bodies. However, it is important that the National Assembly also has certain
overseeing powers with regard to the management of public finances (see para.
53 above).
114.
Pursuant to paragraph 3 of the proposed new Article 103.1, the Control
Chamber should report to National Assembly at least once a year on the outcome
of its overseeing activities. The procedure to be followed after such a report
should be regulated by the rules of procedure of the National Assembly.
- Local
Self-Government
115.
The proposed Articles 88.1 § 3 and 108 of the Constitution would leave
the status of Yerevan and its mainorgans to be regulated through an ordinary law. It seems unclear to what extent
the legislator would be bound by the general provisions of local
self-governance included in Chapter 7.
116.
The proposed Article 109 of the Constitution, concerning the dismissal
of a Head of Community and the dissolution of the Council of Aldermen, should
contain a requirement of a conclusion of the Constitutional Court similar to that included in the proposed
Art. 109.1.
V.
Conclusions
117. Since the failure of the constitutional
referendum in the spring of 2003, Armenia has been confronted with an unconstructive
struggle between the majority and the opposition on the issue of an appropriate
model to follow in the constitutional reform. All three sets of proposals for constitutional amendments submitted to
the Venice Commission represent an attempt to find the best form of
political system for Armenia.
118. The first and the third sets of proposals
represent a step forward with respect to the Constitution currently in force
and could contribute to Armenia’s compliance with its commitments to the
Council of Europe. Nevertheless, more significant amendments, especially with
respect to the key issue of the balance of powers between the state organs, are
necessary.
119. The second set of proposals fails to address
a number of fundamental issues, such as the protection of human rights and
freedoms, or the judiciary, and includes a number of provisions that cannot be
realistically implemented in practice.
120. On the basis of the above considerations, and
bearing in mind that the first and third sets of proposals are in many respects
similar to the 2001 draft Constitution, the Commission considers that the
latter 2001 draft constitution should be taken as a basis for the reform, with
some further discussion and refinement of the amendments before their adoption.
121. The Commission wishes to draw the attention
of the Armenian authorities in particular to the following points:
-
provisions
guaranteeing the fundamental rights and freedoms should be drafted on the model
of the ECHR, without introducing unnecessary details opening the way for
unclearly-defined restrictions ;
-
principles
governing the mutual relations between the President, the National Assembly and
the Government should be fully consistent : no powers should be given to the
President which might weaken the Government and the Assembly (e.g. the right to
dissolve the Assembly in case of refusal by the latter to confirm the dismissal
of the Prime Minister or the right of legislative initiative);
-
the
attributions of the National Assembly should be determined exclusively by the
Constitution;
-
the Prime
Minister should not be allowed to put forward a motion on confidence in
connection with the adoption of a draft law proposed by a Deputy;
-
the
independence of the Prosecutor from the executive should be constitutionally
guaranteed;
-
the
composition and nomination of the members of the Council of Justice are
essential for ensuring its independence and should be clearly determined by the
Constitution;
-
provisions
on local self-government should also apply to the status of Yerevan and its main organs;
-
the
independence of the Central Bank and the Control Chamber is an important step
forward; the National Assembly should nevertheless keep certain supervising
powers with regard to the management of public finances; and
-
the
dismissal of elected heads of community and the dissolution of the Council of
Aldermen might lead to situations which could be incompatible with the very
essence of local self-governance; if this is kept in the final text, it should
contain the requirement of a prior conclusion by the Constitutional Court.
122. The Commission welcomes the willingness and
determination of the Armenian authorities to improve the state of democracy and
the rule of law in the country. It considers that the 2001 draft Constitution
with the additional amendments that are suggested in the present opinion would
significantly contribute to this goal.
123. The Commission wishes to underline the
importance for all Armenian political forces and civil society to be duly and
timely involved in the process of constitutional reform. In this respect, the
Commission considers that the 2001 draft Constitution, which set out a fairly
balanced distribution of powers, constitutes a good basis for reaching
consensus amongst political forces and thus for securing the success of the
constitutional referendum. The Commission hopes that the process of
constitutional reform will be conducted in accordance with the European
standards and that the electoral campaign will be conducted in a fair and free
manner.
124. The Commission remains at the disposal of the
Armenian authorities for any further activity, particularly in connection with
this constitutional reform.
