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BIWEEKLY BRIEFING         Wednesday/September 26, 2001

 

THE ARMENIAN CONSTITUTIONAL REFORM IN PROGRESS
Alexander Markarov

The constitutional reform process launched in Armenia in 1998 is now getting to the stage of parliamentary debates. While it is more or less apparent what amendments are intended within the fields of human rights protection, ensuring the independent function of the judicial branch and local self-government and what will be presented later for the national referendum within those fields, the problematic issue remains the relations between the president and the legislative branch, especially in connection to the vagueness in the discrete authorities of those two institutions. This issue could jeopardize the whole process of constitutional reform.

BACKGROUND: Being among the front-runners in terms of democratization among former Soviet republics during 1990–1994, Armenia made a big step backward in the mid 1990s. The main steps in that downturn arguably occurred in 1995-1996, when the current Constitution was adopted by popular referendum on July 5, 1995, a referendum that the opposition claimed was falsified. Moreover, the parliamentary and presidential elections in those years were fundamentally flawed. After the resignation of the first elected president Levon Ter-Petrosyan on February 4, 1998, his successor Robert Kocharyan – then prime-minister of the Republic – put the issue of Constitutional reform and amendments as one of the cornerstones of his electoral platform. The major points in the reform process became the human rights issue, the interrelations between the branches of government (especially making the legislature and judicial more independent), issues of dual citizenship and of local self-government.
After being elected president, Kocharyan signed a decree forming the Constitutional Reform Preparation Committee under the President of the Republic of Armenia. The Committee worked closely with the Venice Committee of the Council of Europe. The most crucial issues covered are the reform of relations between the president and other branches of government, chiefly the executive-legislative relationship. Although the Constitution proclaims the principle of separation of powers, in reality it does not provide a real system of checks and balances that can guarantee the independent functioning of the branches of government. The reformed system must allow for horizontal accountability and allow especially the judiciary branch to act independently and become institutionalized as a distinct branch and not as an appendix to or a continuation of presidential authorities.
Some alternative constitutional drafts have been proposed, including the one by Shavarsh Kocharyan, who presented it on behalf of the National Democratic Party (NDP). This proposa advocated a parliamentary type of government with a strong parliament and executive but with a presidential institution that would have only ceremonial functions. In addition, the backers of the proposed NDPs draft argue that it as well as other drafts must be put on the nationwide referendum together with the version proposed by the Constitutional Committee. That would allow citizens of Armenia not just to have a choice to reject the proposed changes or stay with the existing constitution, but to offer a real alternative to the existing system of government.

IMPLICATIONS: The package of proposed constitutional amendments elaborated by the Constitutional Committee was presented to the National Assembly in July 2001 and it is expected that parliamentary debates will start during the fall session, and discussion will last at least until Spring 2002. The basis for potential disagreements are the articles that are still under consideration and concern the discrete authorities of the National Assembly. In addition, another crucial issue is the appointment of prime-minister and the government, which is related to the sphere of presidential authorities in general and the process of decision-making by the head of state.
The proposed changes are not chiefly aimed to decreasing presidential authorities, although there are some provisions with that effect. The President will need Parliament’s consent to appoint the Prime Minister and ministers and he will no longer be able to veto all decisions of the government; he will also lose the right to dismiss the majority of judges. The proposed amendments mostly aim to strengthen the branches of government, introducing more balances and checks into the system, clarifying the role of the president as Head of State, as well as clarifying some controversial or unclear points within the existing constitution. Among the latter, a major issue is Article 55, which currently allows the president to dissolve parliament ‘after consultations with the Chairman of National Assembly and the Prime Minister’. Although there provisions not allowing the President to dissolve parliament in the first year after its election and within the last six months of the president’s term in office, there are no specific reasons limiting the president if he intends to dissolve the parliament and call for the new parliamentary elections at other times, something that puts parliamentarians under permanent risk of blackmail from the president. The currently existing norms seriously undermine the principle of balance of powers, do not provide parliament with adequate powers, and weakens parliamentary authorities.

Though the proposed amendments lack those two provisions that put limits on the president, they try to clarify the process to the largest extent possible. The Constitutional Committee tried to solve the problem, listing the concrete cases when the President will have an authority to dismiss the parliament. According to the preliminary draft, the President after consultation with the chairman of parliament and Prime Minister can dissolve parliament and call for new elections only in cases mentioned in the Constitution and in a way prescribed by the Constitution.

CONCLUSION: The process of constitutional reform will be lengthy and a crucial issue will be how the major political forces in the parliament will react to the draft proposed by the Committee. Those opposing president Kocharyan would like to expand parliamentary authorities but they do not have enough strength in parliament to pursue it in practice. On the other hand, if amendments adopted by the National Assembly will decrease presidential authorities significantly – which is quite unlikely – and hence will not satisfy the President, there is no perspective that a strong opposition able to override the presidential veto would emerge in the current parliament. What could happen is that the changes would be evasive, not satisfying supporters of wide-range institutional reform that would lead to the creation of an independent parliament. However at this point, with the proposed amendments, there is a hope that at least the judiciary could become more independent from the President, that the human rights issue would receive more attention, and that consecutive constitutional guarantees and mechanisms, including the Ombudsman institute, will be created. But the issue of presidential-legislative relations is still unclear, and could jeopardize the whole reform process if viewed from the perspective of remodeling institutional arrangements and making them promotive for the democratic development of Armenia.

AUTHOR BIO: Alexander Markarov is an Assistant Professor in the Department of Political Science, Yerevan State University, Armenia. During this academic year, he is a JFDP Scholar at the University of Iowa.

Copyright 2001 The Analyst. All Rights Reserved.