YEREVAN—Armenians will be heading back to the polls on April 5 to vote on a proposed amendment to Article 213 of the Armenian Constitution. If successful, the referendum would pave the way for the dismissal of seven of the nine judges currently serving in the Constitutional Court.
The motion calling for a referendum was passed by the National Assembly on February 6, with 88 votes in favor and 16 against. The vote largely fell along party lines, with the notable exception of independent MP Arman Babajanyan, previously of the Bright Armenia party, caucusing with the government. While the 16 nays were cast by opposition MPs, 27 legislators—all from the Prosperous Armenia Party—chose to abstain.
The vote was preceded by a heated debate on the Assembly floor, where Bright Armenia leader Edmon Marukyan addressed what he called potentially serious, if not “unconstitutional,” procedural violations. He also argued that the amendment may conflict with other articles of the Constitution, suggesting instead that it should be sent to the Constitutional Court for approval.
However, as Justice Vahe Grigoryan pointed out, handing Constitutional Court Justices the sole authority to rule on the legitimacy of its own members’ appointments presents an extraordinary conflict of interest. Grigoryan concluded that referenda would be the only legitimate mechanism to challenge the Constitutional Court’s unchecked power. Existing judicial review mechanisms mean little to the current Justices who recently shot down a previous legal challenge to the limits of their constitutional powers as “unconstitutional.”
The new administration launched a campaign to restore the judicial system’s independence almost immediately following the December 2018 election. Pashinyan and his allies have repeatedly framed their push to oust Sargsyan-appointed judges, perceived as one of the country’s most corrupt government institutions, as the final act of the Velvet Revolution. However, judges have so far resisted pressure from the government to resign. They have refused an offer of generous retirement benefits, ignored criminal proceedings against them and balked at public corruption allegations. The motion to dismiss the Justices is the latest addition to a planned constitutional overhaul package, which includes amendments to the electoral code and judiciary undertaken by the Expert Commission on Constitutional Reform as of October 2019.
Critics of the Constitutional Court accuse the current Chief Justice Hrayr Tovmasyan, a holdover from Republican Party rule, of abusing the power of his office to shield figures linked to the previous regime from prosecution—most notably former presidents Robert Kocharyan and Serzh Sargsyan—in addition to repeatedly obstructing key reform packages passed by Parliament.
As Minister of Justice under Republican Party administration, Tovmasyan played an instrumental role in drafting the 2015 Constitutional amendment which has long been suspected (and later substantiated) of being a ploy to extend President Sargsyan’s hold on power beyond constitutional limits. He is also responsible for the wording included in Article 213 capping terms of office for future Justices, which came into force only 37 days after his own appointment to head Armenia’s highest judicial body on March 21, 2018, thus securing his hold on the Office until at least 2035.
Addressing Parliament urging MPs on February 6, Prime Minister Pashinyan suggested that Justice Tovmasyan’s appointment to the Constitutional Court may have violated the law. According to him, then Chief Justice Gagik Harutyunyan, whose term was scheduled to end on March 25, 2018, was persuaded to resign 20 days early on March 5, 2018. This would allow the National Assembly Speaker to appoint Tovmasyan to the judicial body by March 20 to coincide with the final session of Parliament before the amendment stripping the speaker of the right to nominate justices would go into effect. Pashinyan cited an investigation revealing that Justice Harutyunyan’s March 5th resignation was fraudulently backdated to March 2nd in official documents. “I do not want to break anyone’s presumption of innocence,” Pashinyan declared, “but the Republicans seem to have breached not only logic and morality on this path, but also the Criminal Code.”
Following the vote, the Bright Armenia Party held a press conference where leader Edmon Marukyan repeated his concerns over the referendum motion’s procedural irregularities, but announced his party’s decision to abstain from exercising their right to challenge it in court. The party will refrain from campaigning for the “no” vote in the upcoming referendum as well. “The government’s rhetoric relies on their political opponents’ public support for the ‘no’ camp in order to frame them as supporters of the old Sargsyan regime,” Marukyan explained. “Let the people decide whether or not to vote ‘yes’.”
Prosperous Armenia’s senior representative Naira Zohrabyan remained coy about her party’s stance on the matter, telling reporters only that her party “has not yet discussed the issue.” None of Prosperous Armenia’s MPs participated in the February 6 vote.
The opposition’s concern over rushed procedures was picked up by international organizations as well. The European People’s Party, the largest grouping of center-right parties in the European Union issued a tweet urging Armenian lawmakers to “request and consider the opinion of the Venice Commission as soon as possible.” Co-rapporteurs of the Parliamentary Assembly of the Council of Europe for the monitoring of Armenia, Andrej Šircelj and Kimmo Kiljunen also voiced their calls for Armenia to submit the amendment for the Venice Commission’s review in a joint statement. This sentiment was echoed by opposition leaders in Yerevan.
The resolution was approved over the weekend by President Armen Sarkissian whose decree also set the referendum date for April 5, 2020. In anticipation of accusations that Sarkissian sided with the Prime Minister, the President’s Office supplemented the decree with a written statement arguing that the Armenian Constitution doesn’t endow the President with the authority to block a referendum. The communiqué further clarified that the decree should not be interpreted as an indication of the President’s position on the matter.
The constitutional amendment would require the support of a simple majority (50-percent plus one) in the April 5 referendum, assuming a minimum turnout of no less than 25 percent of 2.57 million eligible voters. Armenian voter lists are notorious for not being accurately updated. Voters remain on registries unless proof of relinquished citizenship or official death certificates are produced by police, a difficult feat for the hundreds of thousands of Armenian nationals living and dying abroad. While the lack of opinion surveys on the amendment makes gauging public sentiment difficult, a December 2019 poll by the International Republican Institute found that 82-percent of respondents considered judicial reform a priority. The official campaign is scheduled to begin on February 15. The April vote will mark the fifth constitutional referendum in Armenia’s independent history.