The following is a direct translation of a document published by the Armenian government on the constitutional referendum --> /featuresarticle/2005/11/E9ACC5BD-4FC9-470A-BCA5-53DDDDBB1E72.html that is to take place on 27 November.
In Place Of A Forward
Why have constitutional reforms become necessary at this particular time, and how will these reforms impact on relations with the diaspora and on our country's authority within the international community?
The Constitution of the Republic of Armenia that was adopted in 1995 has fulfilled its primary purpose. On the foundation of that constitution were laid the economic, social, and political structures of the independent Republic of Armenia. The constitution allowed us to avoid numerous political upheavals and to overcome a crisis of power. But there are no constitutions set in stone. Civic life is developing, and the need to perfect the mechanisms of the constitutional system has arisen so that those mechanisms can remain the moving force of development.
The constitutional amendments are called upon to create a balance between the legislative, executive, and judicial branches of power, to secure their independence, and to review the dominant role in regard to them of the president of the republic. This will strengthen the democratic foundations for the development of the country and strengthen the real guarantees of the individual and the citizen. No one will be able to place himself above the law.
It is extremely important to abolish the ban on dual citizenship. This most important question must be resolved in accordance with the law, a process that will allow [us] to implement a more flexible policy in this area and to involve our co-nationals from the diaspora in the life of the country.
All this will give Armenia the possibility of taking its place before the international community as a democratic state, and will help to integrate Armenia into various international structures. As a result, political, economic, and legal reforms will be implemented, the importance of which for both the present and for future generations is difficult to overestimate.
It is likewise of note that the draft law on amending the constitution was approved by the [Council of Europe's] Venice Commission. Consequently, adopting that draft by means of a referendum will be an important step on the road toward the integration of our country into the civilized world, and it will contribute toward raising its international authority.
The aim of this brochure is to inform [voters] in an accessible and simple way about the basic provisions envisioned by the draft law on amending and amplifying the constitution.
1. What new possibilities do the proposed constitutional changes create for the development of the individual?
The draft law on amending and amplifying the constitution envisages incorporating into the constitution a series of new human and civil rights, expanding those rights and freedoms enshrined in the existing constitution, and adding to it new obligations on the part of the state aimed at respecting and guaranteeing human rights and freedoms. All these changes serve one purpose: to strengthen the real position of persons and of citizens of the Republic of Armenia and in doing so to promote the free development of the individual.
So, it is planned to augment the package of human and civil rights by including in addition the right of each person to address statements or proposals -- with the aim of defending his personal or society's interests -- to the competent state organs, organs of local government, and to specific officials; and to receive an appropriate response within a reasonable time period (Article 27.1); the right to defend the interests of the consumer (Article 33.2); and the right to live in a healthy environment (Article 33.2). No less important is the provision according to which forced labor is banned in the Republic of Armenia and children under the age of 16 may not be permanently employed (Article 32).
It is proposed to redesignate as human rights a series of rights that are qualified as civil rights in the existing constitution. This affects the following rights: the right to freedom of movement (Article 25); to conduct peaceful, unarmed assemblies, meetings, marches, and demonstrations (Article 25); to the free choice of work (Article 32); to a satisfactory standard of living for one's family (Article 34); to social security in old age or in the event of disability, illness, or other circumstances (Article 37); and the right to education (Article 39).
Of exceptionally important significance are the changes it is proposed to introduce to Articles 14 and 42 of the constitution. The amendments to Article 14 oblige the state to respect and defend human dignity as part of the indivisible basis of human rights and freedoms. According to the proposed amendment to Article 42, restrictions on human and civil rights and freedoms may not exceed the limitations imposed by the international obligations of the Republic of Armenia.
2. In democratic states, particular importance is attached to the existence of effective legal mechanisms for defending human rights and freedoms. What will change in this regard if the constitutional amendments are adopted?
There are numerous known cases in which the human rights and freedoms enshrined in the constitution were a mere formality and "existed only on paper" insofar as effective legal mechanisms were not prescribed to defend them. Cogent proof of this is the human and civil rights and freedoms enshrined in the Soviet-era constitutions. It should be noted that the legal mechanisms for defending human and civil rights and freedoms that are written into the existing constitution are to be augmented by three new provisions, the effectiveness of which has been demonstrated by the experience of foreign countries.
a) In line with the proposed change to Article 18, in order to defend his rights and freedoms everyone is entitled, in accordance with the legally established procedure, to receive the assistance of a human-rights ombudsman. International experience shows that this institution [of human-rights ombudsman] is an effective means of defending human rights and freedoms. It was therefore appropriate that after World War II it was introduced in the constitutions of numerous countries.
b) Another amendment to the same article of the constitution envisages the right of every person, in accordance with international agreements to which the Republic of Armenia is a signatory, to appeal to international organs for the defense of his rights and freedoms. The use of that possibility will doubtless contribute to bringing our existing legal mechanisms for defending human rights and freedoms into compliance with international -- in the first instance European -- values, principles, and norms.
c) Under the amendment to Article 101, any person may appeal to the Constitutional Court in connection with a specific case in which there is a final legal ruling, when all other means of legal defense have been exhausted, and when the constitutionality of the provision of the law applied by that legal ruling is questioned. The need for this change is dictated by the fact that, in specific cases, the human rights and freedoms enshrined in the constitution are circumscribed or infringed upon by the law currently in force. If this amendment is adopted, every citizen will be able to challenge in the Constitutional Court the constitutionality of such laws or of their individual provisions.
3. What is the essence of the restrictions imposed on the presidential powers and what is the rationale for them?
In a semi-presidential system, the president is in a position to seek to maintain a balance and to safeguard the normal functioning of the legislative, executive, and judicial branches only if he has the constitutionally guaranteed possibility of exerting influence on the activities of all three branches of power. At the same time, it is clear that the president may not deprive the branches of power of the possibility of acting independently, and from this angle the amendments are intended to substantially limit the powers of the president of the republic in his relations with the legislative, executive, and judicial branches.
In the relations between the president and the parliament, it is envisaged to abolish the exclusive right of the president of the republic to dissolve the National Assembly. In addition, it is the position of the parliament, not that of the president, that is decisive when it comes to forming the government.
It is envisaged to transfer to the National Assembly other aspects of the powers of the president of the republic. Thus, under the present constitution it is the president who appoints and dismisses the prosecutor-general at the proposal of the prime minister, whereas the constitutional amendments envisage that the National Assembly will appoint the prosecutor-general at the proposal of the president of the republic (Article 103). One more example: under the existing constitution, the president can convene an emergency session of the National Assembly, while after the amendments have been passed that right will devolve on the chairman of the National Assembly (Article 70). In line with the constitutional amendments the president will not establish the structure of the government or monitor the decisions of the government, and he will no longer head the Council of Justice.
4. How will the changes affect the interaction between the president and the government?
Significant limitations will be imposed on the powers of the president with regard to the formation and activities of the government. If according to the existing constitution the president of the republic can appoint and dismiss the prime minister at his discretion, the amendments envisage that on the basis of the distribution of deputies' mandates and consultations with parliamentary factions the president appoints as prime minister a person who enjoys the trust of the majority of deputies (Article 55.4). In other words, it is the opinion of the National Assembly, not that of the president, that is crucial in appointing the prime minister. It is planned to abolish the president's right to dismiss the prime minister.
It should be noted that under the existing constitution, the president of the republic is not only the head of state but in fact also heads the government. At the prime minister's suggestion, the president of the republic determines the structure and priorities of the government, convenes and chairs its sessions (the prime minister may convene and chair a government session only at the behest of the president), and he monitors the decisions of the government.
In line with the amendments the structure of the government will be determined by law (Article 85). From now on government sessions will be convened and chaired by the prime minister. The decisions of the government will have legal force without being signed by the president of the republic. The president may only suspend implementation of government decisions for one month and ask the Constitutional Court to rule on whether they comply with the constitution (Article 86).
These amendments have one single purpose -- to form an independently functioning government that is answerable to the National Assembly, not to the president of the republic.
5. How will the role of the parliament be strengthened after these changes?
If under the existing constitution the dominant role in the system of political and legal institutions belonged to the president, then in line with these amendments it is the parliament that will receive the dominant role in that interaction. Thus, if the opinions of the president and the parliament majority on the question of forming the government and appointing the prime minister do not coincide, then it is the opinion of the parliament that proves decisive, because Point 4 of Article 55 stipulates clearly that the president is obliged to appoint that candidate who enjoys the trust of the parliamentary majority.
The president will no longer have the exclusive right to dissolve the National Assembly. The parliament will appoint the prosecutor-general, the chairman of the Audit Chamber, and the chairman of the Central Bank, and it will select the human rights ombudsman.
If according to the existing constitution the government is answerable to the president of the republic, in accordance with the changes the government will be answerable solely to the parliament.
In contrast to the current procedure for requiring members of the government to respond to parliament's questions, parliament will receive the right to adopt decisions on the basis of those responses, including a vote of no confidence in the government.
One could cite numerous other examples, but these are sufficient for it to become clear that in accordance with the constitutional amendments Armenia will move from the model of strong presidential power toward a parliamentary republic.
6. Why are the provisions on presidential immunity written into the constitution, and what will the legal consequences of those provisions be?
We are not talking about total immunity for the president but for immunity for those actions that result from his formal status. The powers of the president of the republic are exhaustively defined by the constitution. It is these powers that limit the immunity of the president , because after expiry of his term the president can be brought to justice for actions that are not connected with his formal status (Article 56.1, Part 2). In addition, the president of the republic can be removed from office for treason and other grave crimes regardless of whether his criminal actions are connected with his official position. He can also be brought to trial after his removal from office.
There are similar provisions with regard to presidential immunity in the constitutions of other states, including Romania (Article 95), Bulgaria (Article 102), Lithuania (Article 86), Poland (Article 145), and others. The purpose of this is to protect the president of the republic from politically motivated criminal prosecution.
7. Society has always been harshly critical of the legal system. What amendments are to be made to the constitution with regard to the courts in order to improve people's trust in the legal system?
Improving the work of the courts is a complex problem that requires the implementation of economic, social, organizational, and educational measures. In present conditions particular attention is paid to ensuring the independence of courts and judges. This is the basic aim of the proposed constitutional amendments. Under the existing constitution the president of the republic is chairman of the Council of Justice and the justice minister and the prosecutor-general serve as deputy chairmen. Essentially, by means of the Council of Justice the president oversees the appointment of judges and assigns specific questions to them. If the constitutional amendments are adopted, it is the chairman of the Appeals Court who will chair sessions of the Council of Justice, although he will not have voting rights. This will significantly reduce the possibilities for the president of the republic and representatives of the executive to influence decisions made by the Council of Justice, which will in fact become something like an organ of self-government for judges.
The role of the Appeals Court in the legal system will change drastically. According to the proposed amendment to Article 92, the Appeals Court is called upon to ensure the uniform application of the law. The aim of the proposed amendment is to limit the scope for judges to interpret the law arbitrarily and hand down arbitrary judgments, to exclude the possibility of judges handing down diverging rulings and verdicts in identical cases.
The proposed amendment to Article 18 of the constitution will also serve to improve the work of the courts. In accordance with the international obligations of the Republic of Armenia, that amendment gives everyone the right to appeal to international organs to defend his human rights and freedoms. We have already touched on that. We will add only that the practical implementation of that provision will provide for the real influence of international legal organs on the functioning of the Armenian legal system and will help to ensure that the work of our courts corresponds to international criteria and norms.
8. What changes are to be introduced into the procedure of forming and the activities of other institutions of state power?
There are quite a large number of such changes. The human-rights defender (ombudsman) acquires constitutional status (Article 82.1) as does the National Commission for Television and Radio (Article 83.2). Those institutions were created, and they currently function, on the basis of the law. But international practice shows that the work of those institutions is more productive when the procedure for their formation and functioning and the guarantees of their independence are written into the constitution. Also envisaged is a partial shifting of powers from the president to the National Assembly in connection with the formation of those institutions. Thus, if under the existing law it is the president of the republic who appoints the human-rights ombudsman, the constitutional amendments envision that in future it is the parliament that will do so. At present the president of the republic appoints all the members of the National Commission for Television and Radio. If the constitutional amendments are approved, he will appoint half the members of that commission and the National Assembly will appoint the other half.
The constitutional amendments also envisage the creation of a Control Chamber whose chairman the National Assembly will appoint. This will be an independent institution that will not answer either to the president of the republic or to the National Assembly or to the government. It will be called upon to monitor the use of budget funds, and also of state and public property.
9. Some changes are also envisaged in the relations between the national government and local governments. What is the nature of and the rationale for those changes?
Fundamental changes are envisaged in this sphere. Their basic goal is to strengthen local self-government and to increase significantly the independence of local organs of government. Changes are envisaged to a number of different aspects of the work of those institutions.
One set of changes is aimed at strengthening the economic foundations of local government. The following provisions are intended to serve that purpose: a) land that is part of the administrative territory of a community -- except for land that is essential to state needs and land that is the property of individuals or legal entities -- belongs to the community (Article 105.1); b) the community's sources of finance should be sufficient to enable it to exercise its powers (Article 106); c) the powers delegated by the state to the community must be financed from the state budget (Article 196). These new provisions are intended to guarantee the financial independence of organs of local self-government from the organs of state power.
The terms for which local governments are elected is increased from three years to four. It is envisaged that community heads should participate directly in local government and try to resolve questions by means of a local referendum. The process by which the government may remove a local community head is made more complicated. In contrast to the existing constitution, the amendments envisage that in circumstances laid down by law the government may remove a local community head from office only on the basis of a ruling by the Constitutional Court (Article 109). The existing constitutional restriction that sets at 15 the maximum number of members of a council of elders has been abolished , which means the number of members of such councils can be increased.
10. What status will Yerevan have after the adoption of the constitutional amendments?
Under the existing constitution Yerevan has the status of a province. The internal contradiction here is clear. If the amendments are adopted Yerevan will acquire the natural status, that of a community (Article 108). This means that the capital will have its own budget and will be able to draw on its own funds to solve problems that affect the whole city. The city will have an elected mayor who will answer in the first instance to the population. This will make the mayor of the capital independent of the organs of state power to a certain degree.
The city will have a representative body that will endorse the draft city budget and monitor budget spending and the activities of the mayor.
Respected fellow countrymen and women!
We hope that this brochure will help to give you a more precise understanding of the constitutional changes. The time for you to choose is approaching. Make up your mind, take part in the 27 November national referendum and make the correct choice.
(Translation by Liz Fuller)