PACE Resolution about the RA Draft Constitution

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| 16:00:30 | 22-06-2005 | Politics | PACE SUMMER SESSION 2005 |

PACE RESOLUTION ABOUT THE RA DRAFT CONSTITUTION

Report

Committee on the Honouring of Obligations and Commitments by Member States
of the Council of Europe (Monitoring Committee) Co-rapporteurs: Mr Georges
Colombier, France, Group of the European People’s Party and Mr Jerzy
Jaskiernia, Poland, Socialist Group

Summary

The revision of the Constitution is a pre-condition for the fulfilment of
some of the most important commitments that Armenia undertook upon its
accession to the Council of Europe. These include the reform of the judicial
system, local self-government reform, the introduction of an independent
ombudsman, the establishment of independent regulatory authorities for
broadcasting and the modification of the powers of and access to the
Constitutional Court.

The delay in agreeing and adopting the constitutional amendments is holding
back Armenia’s progress towards European democratic norms and standards in
key areas of political life.

Armenia cannot afford another failure of the constitutional referendum. The
expert advice of the Venice Commission is a clear indication of the
direction to follow. If it is backed by political will and democratic
maturity, the necessary ingredients for a successful constitutional reform
would be in place.

I. Draft resolution

1. The Parliamentary Assembly recalls that the revision of the Constitution
is a pre-condition for the fulfilment of some of the most important
commitments that Armenia undertook upon its accession to the Council of
Europe. These include the reform of the judicial system, local
self-government reform, the introduction of an independent ombudsman, the
establishment of independent regulatory authorities for broadcasting and the
modification of the powers of and access to the Constitutional Court. The
deadlines for the completion of these commitments, stipulated in the
Assembly’s Opinion No. 221 (2000) on Armenia’s application for membership of
the Council of Europe, have now long expired.

2. The Assembly therefore is deeply concerned that the delay in agreeing and
adopting the constitutional amendments is holding back Armenia’s progress
towards European democratic norms and standards in key areas of political
life.

3. The present Constitution, adopted in 1995, has played an essential role
in the development of democracy and its irreversibility and has allowed
Armenia to become a member of the Council of Europe. However, its practical
day-to-day implementation has increasingly revealed serious conceptual
shortcomings which have become an obstacle for the further democratic
development of the country. In the first place, the Constitution endows the
President with excessive prerogatives and does not provide for clear
separation and balance of powers within the state structures. Equally
serious is the lack of constitutional guarantees for basic human rights, of
independence of the judiciary and of local self-government in conformity
with European standards.

4. The Assembly recalls the failure of the first referendum on
constitutional amendments of 25 May 2003 and the fact that the authorities
at the time had not committed themselves to a campaign in support of the
reform as parliamentary elections were held in parallel. The subsequent
deadline fixed by the Assembly in Resolutions 1361 and 1405 (2004) for the
holding of a new constitutional referendum – not later than June 2005 – has
been missed.

5. The Assembly recalls that in 2001, the Armenian authorities and the
European Commission for Democracy through Law (Venice Commission) had
arrived at a mutually acceptable draft Constitution in line with European
standards. This draft, however, underwent significant changes during its
examination and adoption by Parliament and the text submitted to referendum
in May 2003 represented an important step back. The Assembly therefore
insists that such a scenario must not be repeated with the new draft.

6. The Assembly notes with approval the renewed active and intensive
co-operation between the Armenian authorities and the Venice Commission
since 2004. It regrets, however, that after several expertises of different
subsequent drafts and after the first reading in Parliament on 11 May 2005,
the draft still needs substantial revision, according to the Venice
Commission. In its second interim opinion of 13 June 2005, the Venice
Commission expressed deep disappointment with the lack of satisfactory
results, deploring the fact that the recommendations, notably concerning the
balance of powers between the President and the Parliament, the independence
of the judiciary and the election of the Mayor of Yerevan (instead of
his/her appointment by the President), had not been taken into account.

7. The Assembly welcomes the memorandum on further co-operation signed
between the Venice Commission working group and the Armenian authorities on
2 June 2005. It commends the Armenian authorities on presenting an improved
version of the text within the deadlines agreed in the memorandum. However,
the Assembly insists that the final proposed amendments do comply with all
the recommendations of the Venice Commission and are finally voted as such
by the National Assembly.

8. The Assembly underlines that the new constitutional referendum can only
succeed on the basis of a very broad public consensus. In addition to the
political significance of such an act, the consensus is also needed for
technical reasons – the constitutional amendments must be approved by more
than 50% of the votes but not less than one third of all registered voters.
It is therefore important that the voters’ lists are updated so that the
necessary quorum can be achieved.

9. The Assembly deplores the breakdown of dialogue between the ruling
coalition and the opposition. It regrets that the ruling coalition has not
yet been able to agree on the three key requests of the opposition which
coincide with the recommendations of the Venice Commission: separation and
balance of powers, independent judiciary and a real local self-government.
It equally regrets the fact that the opposition resorted to a boycott of
parliamentary sittings. The Assembly therefore strongly hopes that an
agreement on the three points will lead to the opposition returning to
Parliament.

10. The Assembly points out that a proper awareness-raising campaign in
favour of the constitutional reform can only start after agreement has been
reached on the remaining problematic areas. If the latest deadline for
holding the referendum – November 2005 – is respected, any further delay in
reaching a political consensus can jeopardise the chances of the draft being
accepted by the population.

11. The Assembly reiterates its previous concerns with regard to media
pluralism and balanced political coverage in the electronic media. The
media, and television in particular, should play a major role in allowing
the public to make a well-informed choice in the referendum. One of the main
reasons for the present unsatisfactory situation resides in the shortcomings
of the Constitution with regard to the appointment of members of the
broadcasting regulatory bodies.

12. The Assembly strongly believes that, for the sake of its own people and
for the sake of its further European integration, Armenia cannot afford
another failure of the constitutional referendum. It supports the expert
advice of the Venice Commission as a clear indication of the direction to
follow and believes that if it is backed by political will and democratic
maturity, the necessary ingredients for a successful constitutional reform
would be in place.

13. The Assembly therefore calls on the Armenian authorities and the
parliamentary majority to:

i. fully implement the recommendations of the Venice Commission;

ii. undertake clear and meaningful steps in order to resume an immediate
dialogue with the opposition;

iii. adopt the text at second reading without altering the agreement reached
with the Venice Commission on the above-mentioned points and no later than
August 2005;

iv. provide live broadcasting of the parliamentary sittings where the
constitutional amendments will be discussed and voted;

v. start a well-prepared and professional awareness-raising campaign
immediately after the adoption of the text at the second reading;

vi. implement without delay the Assembly recommendations with regard to
media pluralism in order to guarantee the broadest possible public debate;

vii. urgently update voters’ lists;

viii. hold the referendum no later than November 2005.

14. The Assembly calls on the opposition to stop its parliamentary boycott
and do everything possible to promote the recommendations of the Council of
Europe with regard to the constitutional reform.

15. The Assembly expresses its support for the adoption of a draft
Constitution fully complying with the Council of Europe standards and calls
on all political forces and civil society to assure the success of the
constitutional reform.

16. The Assembly resolves to observe the constitutional referendum and, in
the meantime, declares its readiness to provide any assistance that might be
needed for its preparation.

II. Explanatory memorandum by Mr Colombier and Mr Jaskiernia

1. Introduction

1. The constitutional reform per se was not a specific commitment that
Armenia was asked to honour upon its accession on 25 January 2001.
Nevertheless, most of the specific commitments that the country undertook
required relevant amendments to the Constitution in order to be implemented
properly. These included, inter alia, the abolition of the death penalty,
the reform of the judicial system, the local self-government reform, the
introduction of an independent ombudsman, the establishment of independent
regulatory authorities for broadcasting, the modification of the powers of
and access to the Constitutional Court, etc.

2. The rejection of the constitutional reform in the referendum held in May
2003 and the subsequent delay in bringing the new drafts in line with
European standards have jeopardised the implementation of these fundamental
reforms. The deadlines for their completion, stipulated in the Assembly’s
Opinion No. 221 (2000) on Armenia’s application for membership of the
Council of Europe, have now long expired.

3. In its Resolutions 1361 and 1405 (2004), the Assembly asked the Armenian
authorities to organise a new referendum not later than June 2005.

4. By April 2005 it was clear that this deadline would not be met. At the
meeting of the Monitoring Committee on 25 April 2005 the Chairman of the
Armenian delegation to the Parliamentary Assembly Mr Tigran Torosyan, who
also chairs the ad hoc committee on Armenia’s integration with the European
institutions, justified the delay with the need to take into consideration
all the recommendations of the Venice Commission.

5. However, at the April 2005 Assembly part-session, we advised against the
holding of an urgent procedure debate. We were going on a fact-finding
mission to Armenia two weeks later, from 9 to 14 May. As the referendum
stood no chance of being organised before the June part-session, we believed
that the decision on a possible Assembly debate would be more credible if it
took into consideration the findings of our mission and the results of the
first reading of the draft text in the Armenian Parliament.

6. During our visit in Yerevan on 9-14 May we had extensive discussions with
the President, the Prime Minister, the key state authorities, all
parliamentary factions, NGOs and the media (see Appendix 1 for the full
programme). We did not witness any consensus amongst the main political
actors regarding any of the outstanding issues involved in the reform. The
situation is further complicated by the fact that the opposition is
boycotting the parliament. The electronic media are biased, public awareness
is low and, in so far as it exists, public opinion on the issues involved is
deeply divided. Finally, even purely technical matters such as updating
voters’ lists could put the constitutional reform at risk.

7. This is a situation that can no longer be tolerated. Armenia simply
cannot afford another failure of the constitutional referendum. The
preservation of the status quo and the present Constitution (as we explain
in detail in Chapter 3) might serve certain narrow political interests, but
would have devastating consequences for the democratic development of the
country. This is why we believe that this report is timely and necessary.
Our Armenian friends, with whom cooperation has always been excellent,
should take it as a sign of support for the so-much needed and so badly
overdue democratic reforms.

2. Chronology of events

8. The present Armenian Constitution was adopted on 5 July 1995by a popular
referendum. It is based on the French Constitution but confers powers on the
President of the Republic which are judged as too extensive. It is directly
applicable and establishes “a sovereign, democratic state, based on social
justice and the rule of law”. It affirms the principles of the separation of
the legislative, executive and judicial powers and the supremacy of law, and
recognises the multi-party system. On the same day, Armenia held its first
general elections ever. Its President, Levon Ter Petrossian, was re-elected
on 22 September 1996.

9. Already at the time, the Constitution was generating wide-spread
criticism because of its inability to guarantee proper checks and balances
between the different authorities and institutions. The rapporteur on
Armenia’s application for membership of the Council of Europe pointed out in
his explanatory memorandum that it was “extremely important” to ensure
separation of powers and independence of the legislature and judiciary.
(Doc. 8747). The report of the eminent lawyers on the conformity of the
Armenian legal system with the standards of the Council of Europe, despite a
favourable overall assessment of the Constitution, also pointed out that the
presidential powers could sometimes be “at the expense of a proper balance
between the different authorities and institutions” and went on to say that
“Under these circumstances it is difficult to claim that the State
authorities are independent and that the State is governed by the rule of
law” [1].

10. Current President Robert Kocharyan had therefore made constitutional
reform one of the cornerstones of his election campaign in 1998.

11. After Mr Kocharyan’s election, a Working Group on the Revision of the
Constitution was set up between the Venice Commission and the Armenian
authorities. It held several meetings as from February 2000 and in July 2001
the Venice Commission adopted a “report on the revised Constitution of the
Republic of Armenia”[2]. Despite certain shortcomings, this was considered
to be a mutually agreed text. The Presidency of the Republic then tabled it
in Parliament, where its adoption, due by spring 2002, fell considerably
behind schedule. The National Assembly was simultaneously examining an
alternative draft text proposed by the opposition. It was the fruit of a
compromise between certain parliamentary factions and independent members
and aimed at establishing a parliamentary system, but it was withdrawn by
its authors on 3 April 2002.

12. Assembly Resolution 1304 (2002) on the honouring of obligations and
commitments by Armenia took note “of the authorities’ determination to adopt
the draft text of the new constitution by next spring and to submit it to
the nation for approval by referendum” and called on increasing the
parliamentary supervision role of the National Assembly.

13. The Venice Commission had not been involved in the parliamentary work on
the draft and, when finally the Armenian National Assembly adopted the text
on 2 April 2003, it became clear that several key provisions no longer
corresponded to the text agreed with the Council of Europe experts. Worse,
the text had reintroduced some of the previously criticised provisions. It
was criticised by the Armenian parliamentary opposition who appealed to
voters to reject it.

14. This draft Constitutional Act was put to the citizens in a popular
referendum held on the same day as the parliamentary elections, on 25 May
2003. With only 46 percent of the 1.2 million voters having participated, it
did not attain the percentage necessary to be validated[3].

15. According to international observers, public opinion had not been
properly prepared for the vote. In their view, the authorities deliberately
had not committed themselves to a campaign in support of the constitutional
draft. As the co-rapporteurs noted in their report on honouring of
obligations and commitments by Armenia (Doc. 10027), there had been no
awareness-raising campaign or public presentation of the draft and its
content to the electorate. President Kocharian told the co-rapporteurs
during their visit in August 2003 that if he had fully involved himself in
the referendum campaign, his political opponents would certainly have
denounced it as a plebiscite.

16. Since the Constitution does not permit the organisation of referenda at
less than a one-year interval, at the time of the co-rapporteurs’ visit in
2003 the authorities contemplated organising another referendum in the late
spring of 2004. They said that the draft would probably not be the same as
the one submitted to referendum in May 2003. Rather than drafting a new
Constitution embodying fundamental changes, it would incorporate into the
present Constitution those changes strictly essential to the fulfilment of
Armenia’s undertakings viz.: abolition of capital punishment; guarantees in
the event of arrest and detention; respect for individual rights and
freedoms, and the machinery for safeguarding human rights; the status of the
ombudsman; local self-government and the status of Yerevan.

17. An ad hoc committee on Armenia’s integration with the European
institutions, chaired by Mr Torossyan, was set up in Parliament. The process
of constitutional reform was resumed at a conference by the Committee on
questions of European Integration of the National Assembly in co-operation
with the Venice Commission in January 2004.

18. However, the opposition has been boycotting the sittings of the National
Assembly since the Parliament refused in February 2004 to discuss the
opposition bill on amending the Law on Referendum. The proposed bill
intended to introduce a so-called “referendum of confidence” in the
President. This had been proposed by the Constitutional Court in its
decision of 16 April 2003. The ruling of the Constitutional Court at the
time had attempted to solve the political crisis following the presidential
elections in March 2003 and the parliamentary elections (coupled with the
constitutional referendum) in May 2003, both severely criticised by the
Assembly and other international observers. Later the Constitutional Court
reversed its position, but the opposition kept insisting on holding such a
referendum. It organised a series of protests in March-April 2004 in which a
number of people, including members of parliament and the Assembly, as well
as journalists, were arrested and mistreated. Hence dialogue between the
authorities and the opposition has broken down , including on the issue of
constitutional amendments.

19. 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; the second set, prepared by Mr Arshak Sadoyan, leader
of the National Democratic Alliance of Armenia, part of the opposition
“Justice” faction but submitted in his personal capacity; and the third set
prepared, inter alia, by Mr Gurgen Arsenyan, of the “United Labour Party”
faction.

20. All three drafts were sent to the Venice Commission for expertise. It
provided an assessment of each one of them in December 2004 (CDL-AD (2004)
44). The conclusions were presented on the web site of the parliament.

21. According to the experts, the first and the third sets of proposals
represented a step forward with respect to the Constitution currently in
force, but important shortcomings, namely with respect to the key issue of
the balance of powers between the state organs, remained. The second set of
proposals failed to address a number of fundamental issues, such as the
protection of human rights and freedoms, or the independence of the
judiciary, and included a number of provisions that cannot be realistically
implemented in practice.

22. The Commission therefore considered that the 2001 draft constitution
should still be taken as a basis for the reform, with some further
discussion and refinement of the amendments before their adoption. This can
be interpreted as an implicit acknowledgement that the current drafts
represent a step back compared to the 2001 draft.

23. The Committee on European Integration discussed those recommendations
between February and April 2005. The Council of Europe received assurances
that the considerations of the Venice Commission would be taken into
account. The first reading was held on 11 May, at the same time as the
co-rapporteurs were visiting the Parliament in Yerevan. The first draft was
chosen.

24. After examining the text, the Venice Commission in its Second interim
opinion (CDL(2005)043) expressed its deep disappointment with the lack of
progress in the co-operation with the Armenian authorities. Most of the
Commission’s comments had not been taken into consideration, notably those
concerning 1) the balance of powers among the State organs, 2) the
independence of the judiciary and 3) the manner of appointment of the Mayor
of Yerevan. In a press statement issued on 27 May 2005 the members of the
Venice Commission called for drastic changes before the second reading,
failing which “the whole constitutional reform process would fail to bring
Armenia closer to European values and attain the aim of further European
integration”.

25. The Monitoring Committee discussed the co-rapporteurs’ latest visit and
the Venice commission reaction at its meeting on 1 June in Paris. The
Committee was assured that most recommendations had been taken into account
and that the few remaining outstanding issues would be clarified during a
visit of the Venice Commission in Yerevan on 2 June.

26. At the meeting on 2 June, the Armenian authorities committed themselves
to improving the draft and bringing it in line with the Venice Commission’s
recommendations in the above-mentioned three areas. A new draft was
presented to the Venice Commission working group on 17 June 2005, as agreed.
A working meeting would then be held between representatives of the Armenian
National Assembly and the Venice Commission Working Group in Strasbourg on
23 June 2005. The draft amendments would then be finalised and presented to
the Venice Commission for expertise before the second reading.

27. The second reading is now unlikely to take place before August 2005 and
the Constitutional Referendum should be held in October or November 2005.

3. Main problems in the constitutional revision

28. When joint work on the revision of the Constitution started in 2000, the
Venice Commission identified the following main areas where important
changes were needed[4]:

3.1. Human rights

29. In the presentConstitution human rights are not an ultimate value;
besides, human dignity is stipulated not as an object of constitutional law
but as an object of criminal and civil law, an approach characteristic of
the former Soviet legal system. There is no clear distinction between the
right and the law; moreover, there is a danger of subordination of the right
to the law. The implementation of fundamental human rights and freedoms
depends on the State and its branches of power, rather than being clearly
enshrined in the Constitution.

30. Most of these deficiencies have been remedied by the amendments adopted
on 10 May 2005. Human rights have been made directly applicable and are
placed at the very top of the hierarchy of norms in the Armenian legal
order. The death penalty is explicitly abolished. The text now provides an
exhaustive list of situations where a person can be deprived of his or her
freedom, conforming to Article 5 of ECHR. The right to an effective remedy
for alleged violations of guaranteed rights and freedoms is clearly
established, the right to peaceful assembly has been granted to “everyone”
and the distinction between different categories of assemblies has been
removed. Provisions which would contribute to guaranteeing pluralism of the
media and independence and transparency of the regulatory bodies have also
been introduced (see par. …)

31. However, concern is still raised over the provision allowing for a
person to be sentenced twice for one and the same act “when thus prescribed
by the law”, The Venice Commission has also considered that this chapter
should include an explicit definition of the Human Rights Defender’s
(Ombudsman) powers.

3.2. Separation of powers

32. According to the Venice Commission, in the current Constitution the
implementation of the principle of separation of powers is inconsistent;
there is a deficiency of separated, mutually checking and balancing
legislative, executive and judicial powers. In particular, the place of the
RA President in the system of state power is not clear, neither is the
President’s responsibility in the sphere of executive power. Also, there is
a need to specify the place and role of the institution of the Prime
Minister in the system of executive power.

33. Although, in Article 5, the Constitution provides for the existence of
three powers, legislative, executive and judicial, it does not specify that
the President is part of them (namely the executive, since by definition he
cannot be part of the other two). The chapter devoted to the presidential
powers is separate and precedes those devoted to the three powers, thus
creating the impression that he constitutes a sort of fourth power within
the state. Furthermore, Article 56, giving the President the right to issue
orders and decrees, entitles him to priority norm-setting. This is
incompatible with the principle of supremacy of the law, whereby
sub-legislative normative acts should not only conform to law but also be
rooted in law. These serious problems have not been remedied in the text
adopted at first reading.

34. In addition to that, the list of presidential prerogatives is
impressive. According to Art. 55 of the current Constitution, the President,
inter alia: –

– may dissolve the National Assembly and call special elections after
consultations with the President of the National Assembly and the Prime
Minister; –

– appoints and removes the Prime Minister and the members of the Government
upon the recommendation of the Prime Minister; the parliament does not play
any role in the procedure of appointment and dismissal; –

– makes appointments to civilian positions in cases prescribed by law; –

– appoints and removes the Prosecutor General upon the recommendation of the
Prime Minister; –

– appoints members and the President of the Constitutional Court; –

– appoints the president and judges of the Court of Cassation and its
chambers, the courts of appeal, the courts of first instance and other
courts, the deputy prosecutors general and prosecutors heading the
organizational subdivisions of the office of the Prosecutor General; –

– in addition, he or she may remove from office any of his or her appointees
to the Constitutional Court or any judge, sanction their arrest and through
the judicial process, authorise the initiation of administrative or criminal
proceedings against a member of the Constitutional Court or a judge and
remove the prosecutors that he or she has appointed.

35. Although taken separately, some of these prerogatives are not totally
unusual in a democratic presidential system, their combination creates
serious disproportion, especially as there is no counterbalancing power,
whether parliamentary or judicial. The co-rapporteurs pointed out in their
2004 monitoring report (Doc. 10027) that “the functioning of institutions
could generate side-slips and lead to the exercise of power by an oligarchy.
Such failures would not be compatible with the respect of the principles of
the rule of law if connected with a backdrop of nepotism and corruption in
the state and society”.

36. The efficiency of law-making and the actual supervisory role of the
National Assembly are not guaranteed either.

37. The right of the president to make appointments to civilian positions
deserves a special mention. Since the competences of the President are not
exhaustively laid down in the Constitution, the law can give him/her the
right to make appointments to the regulatory bodies. There are six such
bodies at present and the President appoints all their members[5]. The
consequences, for instance with regard to media pluralism, have been rather
serious, as has been repeatedly pointed out in previous Assembly
resolutions. The President appoints all the members of the Council of the
Public Television and Radio and the National Television and Radio
Commission, responsible, respectively for regulating public and private
broadcasting. The Council of Europe experts have been trying for years to
suggest more diverse methods of appointment, but all their efforts have
consistently been rebuked with the argument that no changes are possible
until the Constitution is changed. For the same reason, the Human Rights’
Defender (Ombudsman) is appointed by the President.

38. With the first reading, some modest improvements have been made in this
section: for example, the President has to consult the factions of the
National Assembly before appointing and dismissing the Prime Minister and
the members of the Government; the National Assembly plays a more
significant role in the procedure for declaring martial law and the state of
emergency; the Deputies and groups of Deputies have been given the right to
address written and oral questions to the Government. The presidential right
of legislative initiative and the right of the Prime Minister to put forward
a motion of no confidence with respect to the adoption of a draft law
proposed by a Deputy have been removed.

39. Other positive points are that Article 27 now explicitly guarantees the
existence of “an independent and all-national radio and television public
service” and introduces the provision that “the activities of the broadcast
media shall be regulated by an independent body established by the law, the
members of which shall be appointed in a democratic and transparent manner
and the decisions of which shall be subject to judicial review”. As regards
the Ombudsman, he/she will be appointed by the National Assembly.

40. However, these improvements are not sufficient in order to redress the
disproportionate powers of the President. The main points of criticism have
not been taken into account: they are related to the power of the President
to nominate and dismiss the Prime Minister and the members of the
Government; the right of the President to convene and chair a sitting of the
Government; a general clause on presidential immunity as well as the power
of the President to dissolve the National Assembly, which has been
strengthened even further. Actually, the list of issues which fall within
the exclusive legislative competence of the National Assembly is shorter
than the one in the draft revised constitution of 2001 prepared in
co-operation with the Venice Commission. In general, with respect to the
relations between the main constitutional organs, the text adopted at first
reading expresses a shift in favour of the President when compared to the
2001 draft.

41. The Venice Commission concluded therefore in its second interim opinion
that the new draft “does not provide guarantees either for an effective
independence of the Government vis-à-vis the President, or for a strong
National Assembly”. Certain provisions still conflict with European
standards and, in general, the text fails to provide guarantees for the
indispensable balance in the relations between the main constitutional
organs in Armenia.

3.3. Independence of the judiciary

42. The present Constitution does not provide sufficient guarantees for the
independence of the judicial power. In addition to the above-mentioned
powers in judicial matters (Art. 55 of the present Constitution), articles
94, 95, 101 and 103 of the present Constitution are also highly problematic.

43. Under Article 94, the President is the guarantor of the independence of
the judicial bodies (rather than this independence being guaranteed by the
Constitution and the laws), presides over the Judicial Council and appoints
its fourteen members, including two legal scholars, nine judges and three
prosecutors. Under Article 95, the Judicial Council drafts and submits for
the approval of the President of the Republic the annual list of judges
(upon the recommendation of the Minister of Justice) and the annual list of
prosecutors (upon the recommendation of the Prosecutor General).

44. The most significant change in this respect concerns the composition of
the Judicial Council. Nine judges out of 13 members would be elected by
their peers (the General Assembly of Judges of the Republic of Armenia) and
two out of the four remaining non-judge members would be appointed by the
National Assembly. The Judicial Council would no longer be chaired by the
President and would have a role in the dismissal of judges.

45. The current draft has also remedied a major shortcoming in Article 101
of the present Constitution, by introducing the right of individual
complaint before the Constitutional Court.

46. However, it is still the President who appoints and dismisses the
Prosecutor General and his deputies, appoints the Chairman of the Judicial
Council, the chairmen of courts and the judges. There is still a lack of
clarity as to how independent the Prosecutor is from the executive.

3.4. Local self-government

47. Under the current Constitution, the administrative territorial units are
the provinces and the districts. Local self-government is realised in the
districts. The State government appoints and removes the Governors of the
provinces. The districts have self-governing local bodies elected for a
three-year period: a Council of Elders, composed of five to fifteen members,
and a District Administrator: a City Mayor or Village Mayor.

48. Despite him being elected, the Administrator can be removed by the State
government upon the recommendation of the Governor of the Province. In the
Venice Commission’s initial opinion, this might lead to situations which are
incompatible with the very essence of democracy. The first reading in May
2005 has at least specified that this could only be done on the basis of a
“court judgment”. The Venice Commission still insists that this should be a
Constitutional Court judgment.

49. The City of Yerevan is considered to be a province. Its Mayor is
appointed by the President of the Republic, upon the recommendation of the
Prime Minister (also appointed by the President). Local self-government in
Yerevan is instituted not directly, but through neighbourhood districts.

50. At the beginning of the joint work on the constitutional revision in
2000, the Venice Commission had estimated that such a system left local
self-government as a subordinate link of governance derived from state
governance, rather than an independent democratic sub-system of society.

51. According to the latest version of the draft Constitution, local
self-government is exercised in the communities. The bodies of local
self-government are the Council of Aldermen and the Head of Community, who
shall be elected for a 4-year term of office. The city of Yerevan is a
community and therefore its Mayor exercises the powers of a head of
community in the city of Yerevan. However, in contradiction with the newly
introduced provisions for a direct election of the heads of communities, the
Mayor of Yerevan is still appointed and removed by the President.

52. In our lengthy and numerous discussions on this issue, most
interlocutors came up with a similar explanation: more than one third of the
entire population of the country and more than 60% of the economic potential
is concentrated in the capital city. If the Mayor was elected directly, they
claim, this would create a new, mighty centre of power which could
potentially destabilise a small country such as Armenia.

53. While one can see some logic in this kind of reasoning, nothing in a
democratic country can justify having one third of the entire population
automatically governed by the same party as the ruling President, as it is
now. It is incomprehensible why the Parliament did not follow the solution
which was advanced by most of our interlocutors and which is compatible with
democratic standards – to have a directly elected city council which, in
turn, appoints the Mayor of Yerevan.

4. Political background

54. For the constitutional referendum to succeed, two major ingredients are
needed: broad consensus and political will.

55. The first ingredient is clearly missing.

56. The ruling coalition consists of three parties with quite different
ideologies and political behaviour. The President is often referred to as
the “fourth party” of the coalition. Personalities within parliament and
government also differ enormously – from old, Soviet-style apparatchiks to
young and dynamic reformists. Their views on the main contentious issues of
the constitutional reform vary from full support for the recommendations of
the Venice Commission to support for the status quo (for instance, the Mayor
of Yerevan was in favour of the appointment to his position remaining a
Presidential prerogative).

57. The parliamentary opposition consists of 24 members of the National
Assembly (total membership: 131) belonging to two parliamentary groups, the
“Justice” and “National Unity” groups. It is not boycotting all committee
meetings; it participates in events where its views and positions can be
conveyed, such as TV transmissions from the Parliament, press conferences,
question-time to Government etc., as well as visits by foreign delegations
and visits to other countries by delegations from the Armenian National
Assembly.

58. The opposition’s conditions for dialogue with the ruling coalition and
for resuming normal parliamentary work are in fact the key issues of the
constitutional reform: separation and balance of powers, independent
judiciary and a real local self-government. On 31 May 2005 the two
opposition factions signed a statement that if these conditions were
fulfilled, they were ready to co-operate in the whole process of
constitutional reforms. However, as things stand for the moment, the
opposition would appeal to their supporters to reject the constitutional
amendments in the referendum.

59. The ruling coalition maintains that NGOs have been widely consulted all
through the process of elaboration of the draft constitution. The NGOs that
we met do not share this point of view and, in any case, maintain that, even
if they have participated in discussions, their views (supporting the
recommendations of the Venice Commission) have not been taken into account.

60. Furthermore, the population seems to be totally unprepared to make a
well-informed choice. During our visit, it was expected that the second
reading would take place before the summer recess, which would have allowed
enough time for an awareness-raising campaign until the holding of the
referendum in the autumn. Now it seems that the second reading will take
place in September, which would only leave about a month to prepare public
opinion. Any awareness-raising campaign starting before the three major
issues are resolved would only confuse voters and might jeopardise the whole
exercise.

61. The success of the referendum will very much depend on the involvement
of the media and, in the first place, of television – by far the most
popular and influential means of communication and information. At present,
it is difficult to imagine that a pluralistic and balanced public debate[6]
could take place.

62. The second ingredient – political will – also has to be questioned.

63. This is unfortunate, as co-operation with the Armenian parliamentary
delegation has always been excellent and we have never doubted our
colleagues’ good intentions and their determination to improve democracy in
Armenia. The political reality in the country, however, is rather
complicated.

64. The current constitution gives the President two consecutive terms. In
our conversation the President, who is now in his second term, ruled out the
possibility that he might try to change the Constitution in order to allow a
third mandate; the representatives of the ruling coalition also declared
that they would not allow such a change. Even if the next presidential
elections are not due before 2008, the political run-up has already started.
In October this year there will be local elections, which will be important
for setting the ground on which different political parties and alliances
will develop. It seems unlikely that major changes would be introduced in
the Constitution just before then.

65. Several politicians, including from the ruling majority, also
acknowledged that it would be difficult for many people in key positions to
relinquish their comfortable status as presidential appointees and submit
themselves to the hazards of democratic elections. Some even hinted at
divergences with the President himself as to the need for the Presidential
institution to lose some of its powers.

66. As to the President, he maintains that the presidential regime is the
best for the country, since it has now been firmly established and the
entire legal system and human mentality has been built around it. He refuses
any dialogue with those parts of the opposition who still contest his
legitimacy following the 2003 Presidential elections.

67. Bare facts hardly speak in favour of the existence of any political
will: the saga with the Venice Commission (Chapter 2 of the present report)
is a good example. Furthermore, the authorities tend to present the
compliance with the Venice Commission recommendations in quantitative,
rather than qualitative terms. They claim that at least 90% of the
recommendations have been followed: “only” three issues remain. But it so
happens that the remaining three are probably the most important for the
democratic functioning of the country: the separation and balance of powers,
the independence of the judiciary and the possibility of one third of the
country’s population to have a say in the way it is governed.

68. If the revision of the constitution was simply a matter of statistics,
there should be no problem incorporating the remaining three recommendations
in the text.

69. As times passes, the systematic consultation of the Venice Commission on
every new version of the draft appears to be nothing other than dilatory
tactics in order to delay the adoption of a constitutional reform in
accordance with European standards. This ping pong game has to stop. The
Venice Commission has made its recommendations perfectly clear – and by
European standards they are non negotiable.

70. In the clear absence of at least one of the two major ingredients, the
success of the referendum is far from certain.

71. Even if the final draft fully complies with the Venice Commission
recommendations, the referendum might still fail because of the inaccuracy
of voters’ lists. As the co-rapporteurs found out during their visit in
August 2003 (Doc. 10027), those lists, despite promises that they would be
revised in accordance with the 2002 census, still contained a very high
proportion of double registrations, of deceased persons or of citizens
resident abroad. The difficulties in adopting a modern Electoral Code have
delayed the setting up of a National Voters Register.

72. Since the constitutional amendments can be approved with no less than
one third of all registered voters, it is far from certain that even a high
turnout would make up for all the “missing souls”.

5. Conclusions

73. Firstly, it has to be made clear from the outset that the constitutional
system of government – be it presidential, semi-presidential or
parliamentarian – is a matter of a sovereign choice of the people of every
country. The Council of Europe has no right – and intention – to interfere
with this choice. Each one of these systems can be and is, in the variety of
Council of Europe members States – a democratic success provided that proper
checks and balances are put in place.

74. If the present report concentrates on the too extensive presidential
powers, this is by no means because we defend a change of regime (for
instance, part of the opposition is in favour of a parliamentary system) but
in order to insist on making the political system fully compliant with
European norms. Democracy is probably the biggest capital that the country
needs: being small, with limited natural resources and suffering badly from
an armed conflict in Nagorno Karabakh and boycott by some of its neighbours.

75. The constitutional reform is not a necessity for its own sake. As we
have been pointing out since the very beginning, the delay in the
constitutional reform process will significantly slow down the necessary
legislative reforms, as well as legal and political processes. This will not
only prevent completion of the monitoring procedure but will also seriously
hinder the further integration of the country into other European
structures. Most importantly, the people of Armenia do not deserve such grim
prospects.

76. After the failure of the 2003 constitutional referendum, Armenia simply
cannot afford to fail at yet another constitutional referendum. Such a
failure may have serious consequences.

77. This is why the authorities have to be urged to comply fully with the
Venice Commission recommendations on the three remaining points. They also
have to be warned against any attempts to repeat the 2003 scenario whereby
the text submitted to the referendum had made several important steps back
with regard to the version that had been agreed with the Venice Commission
in 2001. The civil society and the general public should be involved in the
preparation as much as possible; special provisions should be made to open
up television to the broadest possible range of opinions and, in the first
place, to the opposition.

78. The authorities, but also the opposition, should not spare any effort to
establish democratic dialogue.

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