Venice Commission: Armenia won’t be able to ratify Rome Statute following referendum

Project of the constitutional reforms that were put to a referendum won’t enable Armenia to ratify the Rome Statute – key document of the International Criminal Court, Venice Commission believes. According to the Venice Commission, basically all its substantive recommendations have been accepted in the project of the constitutional reforms. However, Article 53 has not been changed to enable Armenia to ratify the Rome Statute. Besides, amendments to Article 41 don’t correspond to the provisions of the European Convention on Human Rights, the Venice Commission says in response to the questions of the ‘Caucasian Knot’. 

Armenian President Serzh Sargsyan approved the project of constitutional reform on March 13, 2015. In September 2013, the Commission on constitutional reform was formed. Armenian parliament endorsed the project of constitutional reform on October 5.

‘Caucasian Knot’ (CK): In October, the Venice Commission adopted a preliminary opinion on the chapters 1-7 and 10 of the Constitution of the Republic of Armenia, as well as the second preliminary opinion on Chapters 8, 9 and 11-16 of the Constitutional reforms of Armenia. What recommendations were taken by the leadership of the Republic completely? What was not taken into account?

Venice Commission (VC): In general, the co-operation with the Constitutional Commission has been very fruitful. Basically all the substantive recommendations made by the Venice Commission have been accepted and reflected into the text of the draft amendments. In our view, the draft amendments are of a very high quality. For more details, you may already find in the second opinion indications of what recommendations formulated in the first opinion were followed by the Constitutional Commission in relation to Chapters 1-7 and 10.

We had made four key recommendations. The first related in particular to the lifting of the limitations to the right to be a candidate:  in the final version, the residence requirement has been lowered from five to four years, which is an improvement. However, the exclusion of double nationals from being candidates for the National Assembly has not been lifted. The second recommendation related to the provision of a second round of elections in case no stable majority results from the first round. The Venice Commission considered that it has to be left to the electoral code to decide this matter. Now, Article 89 does not say anymore that a second round “shall” be held, but that it “may” be held. In addition, Article 89 is no more in the list of provisions for whose amendment a referendum is necessary.

These changes meet the Commission’s concern not to cement the electoral system in the constitution. The third recommendation related to the prohibition to form new factions during the whole term of legislature. This prohibition has been lifted, which is positive. It must be said however that the possibility to create new factions remains limited. Finally and importantly, the role of the National Assembly in appointing chairpersons of the chambers of the court of cassation has been removed and the majority for electing the judges of the Court of Cassation has been increased to three fifths. These are important amendments towards the independence of the judiciary. 

As concerns the second opinion, most of the recommendations were, once again, followed. Several other amendments were made upon the final vote in the parliament, which we have not assessed. Regrettably, Article 53 has not been changed to enable Armenia to ratify the Rome Statute. Also, State security has been added in Article 41 as a legitimate aim to restrict freedom of religion, which does not correspond to Article 9 of the European Convention on Human Rights. 

CK: What has been the most problematic areas, and why? What provisions of the old (current) the Constitution of Armenia were not to the liking of the European Commission "For Democracy through Law"? Which provisions did not meet international standards of democracy?

VC: The Venice Commission assisted Armenia in the constitutional reform of 2004-2005, when, while the political regime remained a semi-presidential one, the separation of powers was improved. Certain concerns were expressed in relation to the President’s powers in respect of the judiciary.

CK:  According to the draft, the foundation of the pyramid of power should become the parliamentary majority, which will appoint the members of the government and the Prime Minister. According to the draft, a second round is foreseen in the parliamentary elections, if none of the political forces gets a majority in the first round. In fact, an artificially formed two-party political system will be born in Armenia; the concept of coalition will be abandoned, small parties (currently, there are six parties in the parliament), the political forces, undesirable for the authorities, will be pushed to the side lines. In how far is this democratic?

VC: The electoral system which is being discussed in Armenia is not contrary to European standards.  In the latest version of the draft amendments, the possibility to form coalitions in order to reach a stable majority has been added.

CK: How do you comment on the statement of September 1 by the head of  Vanadzor office of the Helsinki Citizens' Assembly Artur Sakunts that the draft does not meet the standards of democracy?

VC: We do not comment on statements made by individuals. The Venice Commission’s conclusions are clearly stated in our opinions.

CK: The basis of the text of the draft constitution - "the citizen and his interests." How does the presidential form of government hinders the implementation of the interests of the individual citizen and society as a whole?

VC: If there are sufficient checks and balances, a presidential regime may be in line with democratic standards. This regime does carry the risk, however, of excessive of concentration of powers in the hands of one person, as the experience in post-soviet countries shows.

CK: The head of the Yerevan Geopolitical Club Boshyan Arman said to the agency EADaily, that the constitutional reforms imposed by the West and Yerevan, in fact, as it were this is an attempt of a coup d’état. According to this expert, it is not even the wish of the authorities of the country to permanent self-reproduction, and this is a danger of "establishing direct external control." ¹

VC: We do not wish to comment on a specific statement. In its first opinion, the Venice Commission has underlined that regime changes should be introduced to remedy problems in the balance of democracy and governability, but they should not aim to advance the positions of incumbent or future power holders; they should meet broad social and political consensus.

CK: Please comment on the amendments to the text of the Constitution concerning the change in the strategy of the military administration of the country? Does it not threaten the national security of Armenia?

VC: The Venice Commission did not object to the new emphasis on the role of the Prime Minister as opposed to the President of the Republic. This is not against any European standards, even though the Prime Minister, unlike the President, does not represent the nation but a political majority.

CK: According to the approved project, "the president - the head of state, embodies national unity ...". In the history of modern Armenia there have been cases where absolutely "stable and lasting" majority in Parliament disappeared in a matter of hours (the resignation of Levon Ter-Petrosyan (1998), a terrorist attack in the National Assembly (1999). Since that time, the Republican Party is unchallenged majority in the parliament, but recent history shows, it is not a constant phenomenon. Is it right to trust the majority in parliament with the formation of power in the country?

VC: The smooth and democratic functioning of a parliamentary regime depends to a large extent on the maturity of the political class and on the legal and political culture of the country. But this is true for any regime.

CK: The Draft prescribed the so-called "transitional provisions", according to which the "Electoral Code" will be brought into line with the new text of the Constitution before the June 1, 2016. Experts expect that at this stage in the Code will be completed with a possible mechanism for the political transition of the current president Serzh Sargsyan into the parliament. Is such a scenario possible? After all, the logic of the new Constitution makes the Speaker the most important person in Armenia?

VC: The Venice Commission hopes to be consulted in the harmonisation of the new Electoral Code with the constitutional amendments, if they are adopted. The Venice Commission’s involvement should help ensure that the standards are respected.

CK: There is a tendency to expand the role of the Venice Commission, as a tool of the joint search for solutions to common problems of the modern world. Which amongst the post-Soviet republics in the future may get instructions to change their laws in order to establish democracy?

VC: The Venice Commission does not give instructions to anyone. Our opinions are only advisory, and they are normally requested by the State itself. Our opinions are normally followed because they have proved over the years to contain not only precise indications of what is allowed under the European standards on human rights, democracy and the rule of law, but also precious advice on how to make viable choices.

CK: In your opinion, for the post-Soviet republics a parliamentary form of government is the right one?

VC: A presidential regime, as we have already said, carries the risk of becoming authoritarian. However, as we have said many times, each state must find its own formula of political regime. Sometimes it takes years and more than one constitutional reform before an appropriate formula may be found.

CK: Did Georgian or Azerbaijani parliamentarians asked the Venice Commission to analyse constitutional amendments in order to move their countries to a parliamentary system of governance?

VC: The Venice Commission assisted Georgia in the constitutional reform in 2010 at the request of the constitutional commission. Azerbaijan has not yet moved to a parliamentary system of governance.

The interview with the Venice Commission members was held by the "Caucasian Knot" correspondent Galina Gotua.

The Russian versions of the interview was posted on December 4, 2015.

1. What logic dictates the change of the Constitution of Armenia, or why "personal responsibility" is replaced by a "collective  irresponsibility"? // Noah's Ark, №18-19 (270-271) of October 2015) - How would you comment this statement?