Constitutional Court Crisis

The facts-checking platform founded by the NGO "Irative Citizens' Union" has released a statement: "Vahe Grigoryan took the oath of office as a judge of the Constitutional Court in the National Assembly on June 20. In his speech, he declared that by taking this oath today, he becomes the second judge of the Constitutional Court. However, Grigoryan added that he would also assume the position of the President of the Constitutional Court. He stated that according to Articles 166 and 170 of the Constitution, the Constitutional Court is composed exclusively of judges, and decisions are made solely by judges, but in the last year, there has been a problematic practice of decision-making by members of the Constitutional Court that has continued due to inertia. "When the Constitutional Court faces problems, particularly concerning the majority of the composition, this is not just a challenge, but a crisis. However, that does not mean that crises do not have solutions. When I enter the Constitutional Court as the only judge, since the other judge is currently absent, I will carry out the duties and responsibilities of the President of the Constitutional Court and, after discussing the issues with the members of the Constitutional Court, I will inform the public and the relevant constitutional bodies about it in an acceptable format, with their agreement or in the absence of consensus..." Grigoryan announced.

Difference Between a Member of the Constitutional Court and a Judge

The issue is that the 1995 Constitution (with amendments in 2005) and the law on the "Constitutional Court" from 2006 established the position of "member of the Constitutional Court." However, both the aforementioned constitutional provisions and the law only operated until April 9, 2018, which is the day the newly elected president assumed office. On April 9, 2018, the 7th chapter (On Judicial Authority) of the 2015 Constitution and the new constitutional law on the "Constitutional Court" came into force, according to which, the position of "member of the Constitutional Court" no longer exists. Instead, these provisions establish the position of "judge of the Constitutional Court." The transitional and final provisions of the new 2015 Constitution (specifically, Article 213) state that "until the 7th chapter of the Constitution comes into effect, the President and members of the Constitutional Court appointed before that will continue to serve until the expiration of their terms set by the Constitution with the amendments of 2005." In other words, under the current Constitution, although it is stipulated that the members of the Constitutional Court will continue to serve, neither the Constitution nor any other functioning legal acts recognize such a position.

Although there is an extremely technical interpretation of the law here, if we accept that the judge of the Constitutional Court and a member of the Constitutional Court are not the same thing, it indeed turns out that currently, there are only two judges of the Constitutional Court in Armenia (Vahe Grigoryan and Arman Dilyan, who were elected after April 9, 2018). Continuing with the same logic raises the question of the validity of decisions made by the Constitutional Court in the last 14 months, since Article 62 of the constitutional law on the Constitutional Court really implies that the decisions of the Constitutional Court are made by the majority of votes of the judges (and not the members). Furthermore, it raises questions regarding the remuneration of members of the Constitutional Court, since the law on the remuneration of persons holding state positions expressly provides salaries for judges of the Constitutional Court (and not for members).

While the terms judge and member of the Constitutional Court clearly sound different, their essence is the same, and it is also justified to approach the issue that Article 213 of the current Constitution essentially implies that following the enforcement of those provisions of the Constitution (from April 9, 2018), members continue to serve as judges of the Constitutional Court.

The Issue of the President of the Constitutional Court

Unlike judges of the Constitutional Court, where there are various interpretations of the terms judge and member, everything is clearer regarding the position of the President of the Constitutional Court, as this position has been referred to in the same way in both the previous and current legislation. Regarding the current President of the Constitutional Court, Hrayr Tovmasyan, he was elected as a member of the Constitutional Court on March 2, 2018, and as President on March 21. This means that Tovmasyan is covered by the transitional Article 213 of the current Constitution, which indicates that the President of the Constitutional Court continues to serve until the expiration of his term specified by the Constitution with the amendments of 2005 (the completion of Tovmasyan's 65 years of age). Thus, even if we accept that the terms member and judge of the Constitutional Court denote different positions, the term judge of the Constitutional Court remains unambiguous, and the amendment to the Constitution is not a basis to question Hrayr Tovmasyan's legitimacy as the President of the Constitutional Court.