The CP limits by law the electoral right guaranteed by the Constitution

Finally, the “Civil Agreement” put into circulation in the National Assembly the drafts on making additions to the “Electoral Code of the Republic of Armenia” constitutional law and amending the “Referendum” constitutional law, with which CP members propose to establish a new condition for the realization of the right to participate in the elections and referendums of the National Assembly.

The motives for bringing such a project into the field are clear. As a priority, it was necessary to fix in some way during the campaign for the next parliamentary elections and after that the political talk of the CP members and, in particular, of Nikol Pashinyan, that people were forcibly brought to Armenia by some forces of the opposition to vote for them. The second is to have a more manageable and accountable electorate when holding a referendum based on one’s own political agenda, because the last elections showed to what extent the ruling power turns to the “support” of administrative resources.

Thus, only those citizens who have actually been in the Republic of Armenia for at least 183 days during the 365 days preceding the voting will have the right to vote and participate in the referendum. In the case of regular elections of the National Assembly, this circumstance will be calculated as of the 48th day preceding the election day, and in the case of extraordinary elections, as of the 28th day.

The drafts envisage only limited exceptions, only for cases where the citizen’s absence was due to public service or studying abroad at a higher educational institution. In other cases, the proposed regulation may deprive citizens permanently or temporarily living abroad, as well as those absent from Armenia for work, health, family, business or other personal reasons, from the right to vote. No regulation is intended for those cases, if, for example, an RA citizen is abroad for long-term treatment or participation in sports training and tournaments.

However, the proposed regulation contradicts the Constitution of the Republic of Armenia on several independent grounds.

Part 1 of Article 48 of the RA Constitution clearly states that RA citizens who have turned 18 on the day of the National Assembly election or referendum have the right to vote and participate in the referendum. This provision stipulates two and only two conditions for the exercise of the right to vote: the person must be a citizen of the Republic of Armenia and must have reached eighteen years of age on the day of the election or referendum.

In other words, this article does not contain any requirement of residence, registration, or actual presence in the Republic of Armenia. Therefore, the Constitution links the right to participate in National Assembly elections and referendums exclusively to citizenship and age.

Meanwhile, the drafts add a third to these two constitutional conditions, the requirement of actually staying in the Republic of Armenia for at least 183 days during the previous 365 days.

The proposed amendments actually define a new material precondition for the exercise of the right to vote, which is not provided for by the Constitution. If the framer of the constitution had the intention of linking the right to vote with a certain period of stay in the Republic of Armenia, he would have included such a requirement in the text of the Constitution itself, as he did in other parts of the same article.

The systematic interpretation of the Constitution also shows that such an additional condition cannot be established by law.

A logical question may arise here, why, for example, to be elected as a member of the National Assembly, a requirement of permanent residence in the Republic of Armenia for the last 4 years has been established, but not just to have the right to vote. This difference is not accidental.

The deliberate inclusion of the residence requirement in Article 48, Part 2, and its absence in Article 48, Part 1, prove that the constitution maker intended such a requirement only for passive, but not active, suffrage. Therefore, this deliberate choice of the constitution cannot be canceled by the ordinary legislator.

The legislator cannot change the electoral right defined by the Constitution

The structure of the Constitution also proves that in the case of national elections and referendums, the conditions of electoral rights are defined by the Constitution itself and are exhaustive. In contrast to the elections of local self-government bodies, where a significant scope of regulation is reserved for the legislator, in the case of the National Assembly elections, such authority is not provided. This means that the legislature has not been given any residual discretion to set additional material conditions for the right to vote or participate in the referendum.

The grounds for disenfranchisement are also exhaustive

Part 4 of Article 48 of the Constitution defines the exhaustive list of cases when a person cannot vote, be elected or participate in the referendum. Such are the persons declared incompetent by the court’s legally binding judgment and the persons convicted and serving a sentence for a serious crime committed with intent.

Not being in the Republic of Armenia or being absent from the country is not included in that list. Therefore, any additional restrictions on the right to vote can be established only when there is a direct constitutional basis for it.

The project goes beyond the framework defined by Articles 75 and 80 of the Constitution

Article 75 of the Constitution allows the laws to establish organizational structures and procedures necessary for the effective implementation of fundamental rights. At the same time, Article 80 of the Constitution stipulates that the essence of the provisions on fundamental rights and freedoms is inviolable. However, the proposed drafts do not establish new organizational or procedural mechanisms for the exercise of electoral rights.

They condition the constitutional right to vote and participate in the referendum with a new material precondition, which is not provided by the Constitution. As a result, the legislator interferes not with the procedure of exercising the right, but with its content, which is beyond the scope of the powers assigned to him by the Constitution.

The Venice Commission standards also adopt the same approach

International standards also do not support the proposed approach. The Venice Commission’s Code of Conduct in Electoral Matters stipulates that the requirement of residence or length of stay in the country to participate in elections can only be applied in the case of local or municipal elections. The same approach is also fixed in the revised code of the commission on referendums, according to which such requirements are not applicable in the case of national referendums, and the conditions for citizens living abroad cannot be stricter than in the case of elections.

It is obvious that the CP government is not confident in its public support, and instead of solving the electoral competition at the polling station, it does it by narrowing the circle of voters.

And when an attempt is made to limit the electoral right guaranteed by the Constitution by ordinary law, it is already an attempt to put political expediency above the constitutionality. The main right to vote, guaranteed to all adult citizens by the constitution, is openly restricted by the CP government, not having any constitutional authority for it.

—