Amid strong opposition objections, the Armenian parliament approved on Monday constitutional changes calling for the immediate dismissal of three of the nine members of the country’s Constitutional Court.
The amendments drafted by the ruling My Step bloc would also require the court to elect a new chairman. Hrayr Tovmasian, the current chairman who has been at loggerheads with the Armenian government for the past year, would not have to resign from the court altogether.
Tovmasian and six other judges have been under strong government pressure to step down, with Prime Minister Nikol Pashinian accusing them of maintaining close ties to the country’s former government and impeding judicial reforms. Tovmasian and opposition figures have dismissed these claims, saying that Pashinian is simply seeking to gain control over the Constitutional Court.
With all seven judges refusing to quit, the ruling political team decided in February to hold a referendum on its bid to oust them. The referendum slated for April 5 was subsequently postponed and then cancelled altogether because of the coronavirus pandemic.
In May, Pashinian’s administration opted for a less radical solution to the “constitutional crisis” which would bar all high court judges from serving for more than 12 years.
Such term limits were already set by amendments to the Armenian constitution which took effect in April 2018. However, the country’s former leadership made sure that they do not apply to those judges who were installed prior to that. A clause in the amended constitution allowed them to retain their positions until reaching retirement age.
The changes approved by the government-controlled parliament would eliminate this clause. This would lead to the immediate resignation of three judges who had taken the bench in the mid-1990s. Two other Constitutional Court members would have to resign in 2022. Tovmasian would have to quit as court chairman but would remain one of the nine justices.
Also in May, the government asked the Venice Commission for an advisory opinion on this solution.
In its opinion publicized on Monday, the Venice Commission largely backed the proposed formula. Still, it also called for a “transitional period which would allow for a gradual change in the composition of the Court in order to avoid any abrupt and immediate change endangering the independence of this institution.”
The commission said the Armenian authorities should also not rush to have Tovmasian replaced by another court chairman.
The draft constitutional amendments unveiled by Pashinian’s bloc on Friday do not envisage any transitional periods. The Venice Commission said it “regrets” this fact and believes that it is “not in line with the recommendations in this Opinion.”
Justice Minister Rustam Badasian and senior pro-government lawmakers downplayed the commission’s objections as the National Assembly swiftly passed the amendments in both the first and second readings.
They said that the Strasbourg-based body agreed with the main thrust of the constitutional changes planned by the Armenian authorities. One of those lawmakers, Vahagn Hovakimian, insisted that the changes will eventually result in a Constitutional Court “enjoying the public’s trust.”
The amendments were backed by 89 members of the 132-seat National Assembly. Virtually all of those deputies are affiliated with My Step.
The Venice Commission also noted that under Armenian law the court has to review and validate constitutional changes before they are passed in the second and final reading.
Backed by the government, the parliament’s pro-government majority decided not to seek such judgment. “I think there is a conflict of interest,” Badasian said, referring to the Constitutional Court judges affected by the amendments.
Hovakimian likewise claimed that the court cannot objectively determine the amendments’ conformity with other articles of the constitution for that reason.
The two opposition parties represented in the parliament boycotted the votes and short debates that preceded them. One of them, the Prosperous Armenia Party (BHK), condemned the amendments as unconstitutional. It said that the parliamentary majority’s decision to bypass the Constitutional Court is also illegal.
Accordingly, the BHK said it will try to challenge the amendments in the Constitutional Court before they can take effect. It urged the other parliamentary opposition party, Bright Armenia (LHK), to join it in appealing to the court and thus “preventing the overthrow of the constitutional order.”
The BHK needs the LHK’s backing in order to be able to lodge such an appeal. The LHK did not immediately respond to the initiative.