By Mark Dovich
Campaigning for Armenia’s constitutional court referendum, slated for April 5, officially kicked off on February 17. The campaign for the referendum, which was called as a result of a bill passed by the country’s National Assembly on February 6, is set to dominate Armenia’s political agenda in the coming months.
The “yes” campaign will be headed by Minister of Territorial Administration and Infrastructure Suren Papikyan and is being supported by the ruling My Step alliance. Prime Minister Nikol Pashinyan has also confirmed his personal participation in the “yes” campaign. Additionally, the campaign will also be supported by the Armenian National Congress, which is led by former President Levon Ter-Petrossian but currently has no formal representation in the legislature.
In contrast, the “no” campaign will not be supported by any political parties, but rather by a group of more than 60 lawyers and civil society actors led by former Deputy Minister of Justice Ruben Melikyan. Though the opposition parties Bright Armenia and Prosperous Armenia have criticized the referendum, both parties have chosen not to participate in the “no” campaign, instead encouraging citizens to boycott the vote entirely.
Two other parties, the Republican Party and the Armenian Revolutionary Federation (Dashnaktsutyun), neither of which has formal representation in the legislature, have adopted the same strategy, deciding not to support the “no” campaign and urging voters to boycott the referendum instead.
The referendum proposes to eliminate a grandfather clause in Armenia’s constitution allowing Constitutional Court judges appointed before April 2018, when a 12-year term limit was implemented, to serve beyond that limit. If approved, the referendum would result in the removal of seven of the Court’s nine judges, including court chairman Hrayr Tovmasyan.
For several months now, Tovmasyan has been engaged in a bitter feud with the current administration, led by Nikol Pashinyan. The feud centers around widespread perceptions that Tovmasyan is politically biased in favor of the authorities who dominated the country prior to the 2018 Velvet Revolution. The National Assembly’s decision to call the referendum represents a significant escalation in tensions between the current government and the court head.
The legislature’s vote to approve the referendum fell largely along party lines. The ruling My Step faction, along with independent lawmaker Arman Babajanyan, voted in favor of the bill, while nearly all representatives from the opposition parties Bright Armenia and Prosperous Armenia voted against it or abstained from voting. Though the bill passed and was signed by President Armen Sarkissian just days later, it has encountered criticism from opposition politicians and international bodies.
Opposition to the referendum centers primarily on two arguments. One line of thinking argues that holding a constitutional referendum on the issue represents an unnecessary waste of money and warns against the referendum’s potential to sow divisiveness in society. Indeed, according to the procedures for amendment enshrined in Armenia’s constitution, the National Assembly could have passed the amendment on its own, without having to hold a referendum.
Bright Armenia in particular has repeated this argument, with the party’s head, Edmond Marukyan, pointedly asking the administration, “why are you putting the country through election processes and tribulations?” Gevorg Gorgisyan, another senior Bright Armenia lawmaker, echoed Marukyan’s thoughts, arguing that the money required to conduct the referendum would be better put toward other pressing issues.
A second criticism of the referendum employed by opposition lawmakers and international bodies rests on the fact that the National Assembly failed to consult with the Venice Commission when drafting the referendum bill. The Venice Commission is an advisory body of the Council of Europe that provides guidance to member states on issues of constitutional law.
Opposition politicians, representatives of the Council of Europe, and lawmakers from the European Union have all issued statements to this effect. Nonetheless, as the My Step alliance has pointed out, the Armenian government is under no legal obligation to request the Commission’s opinion on this matter.
To this end, former Deputy Minister of Justice Ruben Melikyan, Helsinki Committee of Armenia Director Avetik Ishkanyan, and former Human Rights Defender Larissa Alaverdyan published a joint statement on Facebook criticizing the referendum on the grounds that it “undermines the foundations of the rule of law [and] will also create a dangerous precedent for violating constitutional law”.
However, Vahe Grigoryan, one of the Constitutional Court’s two judges who would not be removed if the referendum passes, has hit back against those claims, arguing that presenting the Constitutional Court with an amendment on constitutional court reform for review would present judges with an extraordinary conflict of interest.
In accordance with amendment procedures in Armenia, the referendum will pass only if the total number of votes in favor represents more than both 25 percent of the country’s eligible voters and 50 percent of the voters who choose to participate in the referendum. This figure is roughly 650,000 people. Though no opinion surveys on the referendum have been conducted so far, a December 2019 poll found that more than 80 percent of respondents considered judicial reform a priority in the country.