Constitution Is The Guarantee of Protection of HR and Freedoms

Thursday, 13 December 2012 09:46
Interview of NKR Minister of Justice Ararat DANIYELIAN
to Azat Artsakh newspaper

– Mr. Daniyelian, in due time, you were a member of the state
commission on elaborating the draft Constitution of the NKR. Today,
six years after the adoption of the Constitution, how would you assess
its significance for the process of state-building in the Republic?
– Constitution as the Basic Law of a state is adopted in crucial
periods of its history. Adopting its Constitution, a state wants to
legally endorse the achievements at a certain stage of development,
particularly when it concerns democratic reforms.
The adoption of our Constitution in 2006 was the logical culmination
of the process of laying the foundations of our statehood, which
started after the proclamation of the Nagorno-Karabakh Republic in
1991. A new page in the history of our Republic was opened, that is,
our constitutional history started. Like any Constitution, the Basic
Law of our country is a reference point in determining the direction
of sustainable development and consolidation of the statehood.
It should be noted that not all the constitutional provisions are in
demand immediately. A certain part of them comes into force easily and
is often used, while other provisions are realized with the passage of
time. Life itself dictates the need to apply to certain constitutional
provisions. Thus, in accordance with paragraph 5 of Article 7 of the
Constitution, international treaties are part of the NKR legal system.
However, only recently, we have started the process of unilateral
adherence to international treaties and conventions and their
ratification. First, this confirms our commitment to the values
assumed by us, and secondly, it will contribute to the international
recognition of our Republic. Importantly, it will allow our citizens
to fully protect their rights and freedoms within the state, which
assumes the corresponding commitments. In other words, thanks to this,
the legal basis for protecting human rights and freedoms is expanding
and strengthening. The shortest way to the recognition of our Republic
by the progressive international community, which does not need great
expenses, is the increase of the level of human rights protection.
The Constitution is a factor ensuring the stability in the society and
in the state in general. Because the adoption of the Constitution,
first of all, limits the powers of the authorities, or, in fact, the
power and officials may perform only those actions, for which they are
authorized by the Constitution. Given this fact, the Basic Law is
unacceptable to subject to frequent changes – this will not lead to
anything good.
The Constitution, as the basis for the legislation, regulates the
current public relations; however, in terms of the prospects, it is a
document of the future, since the implementation of some of its
provisions and rules takes time. To establish a firm deadline for
bringing the acting legislation in correspondence with the
Constitution is not quite right, because life itself dictates and
introduces its adjustments.
– The legislation of any state, including the Constitution itself, is
not something given once and for all and is not dogmatic. Along with
life it develops, undergoing certain changes. How is the lawmaking
process going on in the Republic, and is the entire legislative basis
brought in correspondence with the requirements of the NKR Basic Law?
– As is known, before the constitutional referendum in 2006, the
Parliament of our country adopted over 600 laws. Article 141 of the
NKR Constitution provides for bringing the legislation into conformity
with the Basic Law. For the years passed, much has been done to
accomplish this task. In particular, the list of laws to be brought
into conformity with the Constitution’s provisions was determined.
But, this is a long process, as it depends on how actively the
provisions of the Constitution are applied. Or, life itself confirms
the validity of any law provisions. Simple comparison of laws with the
Constitution cannot fully determine the constitutionality of any legal
act. The implementation of any constitutional provisions should be
dictated by life, or the theoretical provisions should be reflected in
the law enforcement practice.
– The NKR Constitution declares the fundamental human rights and
freedoms as inalienable and supreme values. As for its applied nature,
can we state that the Basic Law of our Republic actually guarantees
the citizens’ exercise of their rights and advocates their interests?
– Chapter 2 of the NKR Constitution is devoted to the fundamental
rights, freedoms and duties of the citizens. The reflection of these
rights and freedoms in the Constitution is in itself a constitutional
guarantee of the declared rights and freedoms. However, their mere
provision by the Constitution is not enough, and a mechanism of
enforcing these rights is needed. The most important factor in the
restoration of the citizens’ violated rights and freedoms are judicial
In the protection of the rights and freedoms, of great importance is
the constitutional culture, which involves a set of social values
and institutions, a certain level of social and legal consciousness.
The citizens’ knowledge of their constitutional rights increases the
effectiveness of their protection. From this point of view, the
institute of individual consideration of a constitutional claim is an
efficient means. Thus, paragraph 2.6 of Article 114 of the
Constitution provides for the appeal of each person to the
Constitutional Chamber of the Supreme Court with an individual claim
on a concrete case, when a final act of the court is available, all
the means of court protection are exhausted, and the constitutionality
of the provisions of the normative act, which is applied to it by the
act of the court, is challenged.
But, in practice, this constitutional provision is not acting for the
simple reason that none of the citizens has enjoyed this right so far.
Meanwhile, this institute contributes to raising the level of legal
awareness and constitutionalization of public relations. In the
process of state-building, we must seek the establishment of
constitutional democracy in the Republic, which supposes real
separation of the power branches, with the active role of
constitutional juridical proceedings. Constitutionalism requires such
public relations, in which the power and officials are authorized to
do only what is defined by law, and the citizens can do anything not
prohibited by law.
Defining human rights and freedoms as the highest values, the
Constitution thus takes as the basis the natural and legal doctrine.
It limits the claims of the state to determine on its own the scope of
rights and freedoms of an individual, ignoring the set of rights,
which are needed for his normal life and are objectively inherent to
him from his birth.

Interviewed by