Marukyan Reveals Violations That Could Have Prevented the President from Signing the Referendum Bill

Edmon Marukyan, the leader of the 'Enlightened Armenia' faction in the National Assembly, has presented the violations on his Facebook page that could have led the President of Armenia to refrain from signing the referendum bill. The announcement is as follows:

“Dear citizens, below we publish the violations based on which the President of the Republic of Armenia could have refrained from signing the draft referendum and, according to Articles 168 and 169 of the Constitution, could have approached the Constitutional Court.

PROCEDURAL VIOLATIONS

A violation has occurred in the procedure for discussing the draft amendments to the Constitution because the conclusion of the Legal Affairs Committee of the National Assembly is missing.

Article 86, paragraph 1 of the Constitutional law 'Rules of Procedure of the National Assembly' (hereinafter, Rules of Procedure) stipulates that the draft amendments to the Constitution are discussed in the National Assembly in two readings, according to the procedure established in Chapters 16-18 of the Rules of Procedure for draft laws. This general procedure implies that the decision of the principal committee is a necessary document.

There is one case defined by the Rules of Procedure (Article 41, paragraph 7) for convening an extraordinary session without the decision of the principal committee, the requirements of which have also been violated. In particular, the extraordinary session is usually held no earlier than the fifth working day after the official letter is presented to the President of the National Assembly. Until the specified deadline is met, an extraordinary session may be convened if the conclusions of the principal committee on the draft projects included in the agenda have been received, or the deadlines for presentation have expired, and in exceptional cases, without a conclusion, in the following order: (...) at the initiative of deputies or factions, with a well-founded request from the faction, by the decision of the Council. The presented package lacks the well-founded request of the faction regarding convening an extraordinary session without a decision of the principal committee.

The decision of the National Assembly to submit the draft of the constitutional amendment to the referendum has been adopted in violation of the law. Article 79, paragraph 7 of the Rules of Procedure states that if, as a result of voting, the decision of the National Assembly is accepted, then the draft is considered accepted at first reading, while in the case of a decision not being accepted, the draft is removed from circulation. In the discussed case, the amendments to the Constitution have not been accepted at first reading. As a result, the draft should have been removed from circulation.

Opponents cite Article 202, paragraph 3 of the Constitution, according to which if the draft constitutional amendments specified in paragraph 2 of this article is not accepted by the National Assembly, it may be put to a referendum by the decision adopted by at least three-fifths of the votes of the total number of deputies. However, the expression 'is not accepted' in this provision of the Constitution is specified in Article 86 of the Rules of Procedure, where this issue is explicitly regulated.

Before the draft constitutional amendments is submitted to the vote in the second reading and fully adopted, a draft decision on approaching the Constitutional Court regarding the constitutional amendment question is submitted to the National Assembly. If the decision is accepted, then the President of the National Assembly signs and sends this decision to the Constitutional Court within two working days of discussing the draft of the constitutional amendments, and the discussion of the matter is suspended until the Constitutional Court’s decision is obtained. If the Constitutional Court recognizes the draft amendments to the Constitution as contradictory to the Constitution, then the draft is removed from circulation. If the Constitutional Court recognizes the draft amendments to the Constitution as compliant with the Constitution, then after receiving its decision, the voting on the matter will be conducted in the upcoming regular sessions of the National Assembly according to the following procedure:

1) In the case specified in paragraph 3 of Article 84 of the Rules of Procedure, the draft decision of the National Assembly to submit the amendments to the Constitution to a referendum is put to the vote, which is accepted by at least two-thirds of the votes of the total number of deputies.

2) In the case specified in paragraph 4 of Article 84 of the Rules of Procedure, the draft amendments to the Constitution are put to the vote, which are accepted by at least two-thirds of the votes of the total number of deputies. If the draft constitutional amendments specified in point 2 of paragraph 4 of this article is not accepted, the main speaker may present a speech lasting up to 20 minutes, presenting the draft decision of the National Assembly to submit the amendments to the Constitution to a referendum. After the main speaker's speech, representatives of factions may speak for up to ten minutes, after which the draft decision is put to the vote. The decision is accepted by at least three-fifths of the votes of the total number of deputies. If the decision is not accepted, the draft is removed from circulation. This means that the cited article directly stipulates that Article 202, paragraph 3 of the Constitution is applicable when the constitutional amendments are not accepted during the second reading, and not the first. In the case of non-acceptance at first reading, Article 79, paragraph 7 of the Rules of Procedure applies, meaning the draft is removed from circulation.

Moreover, the mandatory nature of approaching the Constitutional Court and obtaining the relevant decision (not an alternative) is also visible from point 2 of paragraph 2 of Article 25 of the constitutional law 'On the Referendum', specifically, at the polling station there must be: (...) the decision of the Constitutional Court on the legal act draft put to referendum regarding conformity with the Constitution (...).

SUBSTANTIVE VIOLATIONS

1. The change of the applied transitional provision

   Article 213 of the Constitution is already an implemented transitional provision. According to paragraph 5 and 6 of Article 34 of the Law on Normative Legal Acts of Armenia, no amendment or addition is made to a normative legal act providing for changes or additions officially published and in force according to the prescribed procedure. New changes or additions are made only to the basic act. Amendments or additions may also be made to a normative legal act officially published in accordance with the prescribed procedure but not yet in force, or to the part of it that has not yet entered into force, while if the act has already been incorporated, then in the main normative legal act. In other words, no change could have been made to the transitional provisions that are already in force; moreover, it could not have been discussed and voted on.

2. The prohibition of retroactive effect of legal acts that worsen the legal situation

   According to Article 73, paragraph 1 of the Constitution, laws and other legal acts that worsen a person's legal situation do not have retroactive force. Thus, such a legal act could not have been brought to parliament at all and adopted in any manner. And this is not only a provision enshrined in our Constitution, but also a well-known and unbreakable principle of law.

3. The danger of creating an unconstitutional situation

   The dismissal of 7 out of 9 judges at once will create a situation where, in fact, there will be no Constitutional Court in the Republic of Armenia, which is unacceptable from the perspective of constitutional order and security. In this case, we would indeed face a constitutional crisis.

4. The principle of legal certainty

   This constitutional amendment limits the right of the 7 judges of the Constitutional Court, who are dismissed before the end of their term, without defining the grounds and scope of this limitation, thus failing to comply with the principle of legal certainty enshrined in Article 79 of the Constitution, which states that when restricting fundamental rights and freedoms, laws must establish the grounds and scope of those restrictions, being sufficiently specific, so that the holders and addressees of those rights and freedoms can exhibit appropriate behavior.

5. The dismissal provided for by the amendment is equivalent to a punishment

   The political statements made from the podium of the National Assembly (and not only) by representatives of the ruling political force, including the Prime Minister's speech directed at a specific person, in some cases, at the actions of individuals, were presented as the consequence of those actions—punishment. However, if we consider that the 7 judges under discussion have committed a crime, then they must be punished according to the procedures established by criminal and criminal procedural legislation. And if there is no criminal composition, then there can be no mention of punishment.

6. The amendment proposed for the referendum is discriminatory between the President of the Constitutional Court, 6 judges, and the remaining 2 judges, with no objective grounds and legal purpose.

For now, this is everything. We will later address other issues of the draft posted for the referendum.