The Chief of General Staff Will Continue to Serve as the President Lacks Authority to Dismiss Him: Aram Orbelian

Former Deputy Minister of Justice and candidate of legal sciences Aram Orbelian presented a brief analysis on LinkedIn regarding the process initiated by the Prime Minister to dismiss the Chief of the General Staff.

"The Chief of the General Staff will continue to serve, as the President of the Republic lacks the authority to dismiss him. Moreover, the failure to sign a decree does not cause the legal right to come into force because the President does not possess the authority to remove the Chief of the General Staff," wrote Orbelian, attaching the analysis, which we reproduce below.

For several days, the primary topic of public discussion, or at least one of them, has been the process of "terminating the powers" of the Chief of the General Staff. The public is holding its breath, waiting to see whether the President will send the relevant act to the Constitutional Court or not. They are calculating the deadlines for when the "respective act" is considered accepted by law, discussing what will happen if the President does not sign the act, and whether he can not sign it at all, and so on.

However, the central question remains open: Does the President of the Republic have the right to dismiss the Chief of the General Staff, becoming a subject of discussion again? Is the process even being executed properly?

1. What Defines the Powers of the President of the Republic?

Before addressing the core issue, let us try to understand which act or acts define the powers of the President of the Republic. According to Article 123, Part 4 of the Constitution:

The President of the Republic shall execute his functions through the powers defined by the Constitution.

This regulation (that powers are defined exclusively by the Constitution) also applies to the National Assembly (Part 4 of Article 88), unlike, for example, the Government, whose powers are defined by the Constitution and laws (Part 4 of Article 146). Hence, the powers of the President of the Republic are defined exclusively by the Constitution and therefore no additional powers not provided by the Constitution can be assigned to him by law.

2. What Authority Does the Constitution Grant to the President in Military Affairs?

Chapter 5 of the Constitution is dedicated to the President. The functions and authority of the President are established by this chapter (specifically Articles 128-138) and also by separate articles in chapters concerning other constitutional bodies. The powers of the President concerning the military are addressed in Articles 133 and 155 of the Constitution.

Article 133 states: 1. The President of the Republic, upon the recommendation of the Prime Minister, shall appoint and dismiss the high command of the armed forces and other troops in cases and manners established by law.

2. The President of the Republic, upon the recommendation of the Prime Minister, shall grant high military ranks in cases and manners established by law.

Article 155 pertains specifically to the armed forces, and it defines the President's authority regarding the "subject of discussion," including the Chief of the General Staff. According to paragraphs 3 and 5 of that article:

3. The highest military official of the armed forces is the Chief of the General Staff, who is appointed by the President of the Republic upon the recommendation of the Prime Minister for the term established by law. In non-war situations, the Chief of the General Staff is subject to the Minister of Defense.

5. The subordination, management of the armed forces, as well as other details are established by law.

Thus, the President has the authority to appoint the Chief of the General Staff for a term established by law (which is five years as per the law). The law must define the term of office for the Chief of the General Staff and may also establish the subordination and management of the armed forces, but under no circumstances may additional powers not granted by law be given to the President.

It is noteworthy that when examining the regulations for different bodies, in some cases, the authority for appointment is indicated explicitly (without authority for dismissal), while in other cases, both the appointment and the authority to dismiss are mentioned.

For instance, the President appoints judges of the Court of Cassation and the Presidents of chambers, judges of the first instance and appellate courts, and court presidents (by various bodies' recommendations - Article 166). In contrast, the President appoints and recalls diplomatic representatives in foreign states and international organizations (Article 132), or the Government appoints and dismisses regional governors (Article 160).

This makes it clear that the President only has one authority regarding the Chief of the General Staff: to appoint him upon the Prime Minister's recommendation for a five-year term.

3. Does the Authority to Appoint Imply an Authority to Dismiss (Implied Competence)?

The interpretation that the authority to appoint implies an authority to dismiss does not stem from the fact that these two powers (appointment and dismissal) are separated in various articles of the Constitution (where the authority for dismissal or recall exists, it is clearly stated). Additionally, in such a scenario, it would imply that the President could remove judges, court presidents, or the Prime Minister without restrictions (since he appoints them), which is plainly inconsistent with any interpretation of the Constitution.

Therefore, we can conclude that the President has the right to appoint the Chief of the General Staff, but that authority does not include the right to dismiss the Chief of the General Staff.

4. What If the President Does Not Sign the Prime Minister's Recommendation?

As I already mentioned, the President lacks the authority to dismiss the Chief of the General Staff. The next question, which is being intensely discussed by the public, is whether the Chief of the General Staff is dismissed from duty by law if the President does not sign the Prime Minister's recommendation and does not apply to the Constitutional Court.

The procedure for the President to exercise his powers (despite lacking the aforementioned authority) is regulated by Article 139 of the Constitution:

1. When exercising his powers, the President of the Republic shall adopt decrees and orders.

2. The President of the Republic may return the relevant act with his remarks to the proposing or petitioning body within a three-day period in cases defined by Articles 131-137, Article 155, Paragraph 3, and Articles 166, Paragraphs 3, 4, 6, and 7. If the competent body does not accept these remarks, the President shall sign the relevant act or apply to the Constitutional Court.

3. If the President does not fulfill the requirements set out in Part 2 of this article, the relevant act shall enter into force by law.

Thus, the constitution provides a regulation whereby the proposing body applies to the President, who may either sign or return it with remarks. However, upon repealing the act, the President is entitled (has the right and is obliged) to either sign the act or apply to the Constitutional Court. Moreover, the Constitution assumes that the President is obliged to apply to the Constitutional Court if he believes the act contradicts the Constitution; otherwise, he must sign it.

In any case, if the President does not perform his duty (sign or apply to the CC) within the specified time, then the Constitution presumes that he has signed the act, applying the theory of entering into force by law. This means that the President cannot stall the processes through inaction; if he fails to fulfill his obligations in the specified timeframe, he is considered as having signed the act in terms of legal consequences.

* This aspect is outside the focus of this analysis, but the President may, if he concludes that there is no constitutional issue, choose not to sign the act, indicating his political position. However, this does not apply when the President believes that a constitutional issue exists; as the guarantor of the Constitution, he is obliged to apply to the Constitutional Court.

We clarified that certain acts acquire legal force, as outlined in separate articles. This includes also Item 2 of Article 155, which we addressed earlier. Therefore, if the authorized body submits a petition to the President concerning the issuance of any of the acts specified by the article, and the latter fails to issue a decree and remains inactive, the decree will be deemed as issued by law. There are no other provisions regarding the acceptance of acts by legal force concerning the powers of the President in the Constitution. However, there is no mention of dismissing the Chief of the General Staff in any of the references in paragraph 2 of Article 139. This means that to make anything happen by legal force, it must be included among the articles listed.

For example, if the Prime Minister approached the President to appoint the Chief of the General Staff but the latter did not take any action, the act would be considered accepted. The same claim does not apply if any other petition is presented outside of the enumerated considerations. If, for instance, the Prime Minister petitions the President to terminate the authority of the President of the Court of Cassation or any judge (the President’s authority to appoint judges is stated in Article 166, which is also referenced in Article 139) and the President does not respond (since that is not an issue requiring response and is an evident illegal petition), it cannot lead to the termination of that judge’s or the President of the Court of Cassation’s powers in any way.

In other words, for something to happen by legal force, it is crucial that the specified function (appointment, dismissal, granting, etc.) is clearly present among the articles where the regulations for entering into force by law apply.

5. Does This Mean That the Powers of the Chief of Staff Cannot Be Terminated at All?

Here, it is important to differentiate between the cessation of powers and the termination of powers (in both cases, the individual is removed from their position). The Constitution excludes the possibility of terminating the powers of the Chief of the General Staff, which does not imply that his powers cannot cease altogether (more on this below).

Moreover, one can argue that there is no mistake or omission in the Constitution in this regard; it specifically excludes the political powers from terminating the powers of the Chief of the General Staff. This is one of the mechanisms of constitutional checks and balances, practically implementing the guarantee of political neutrality of the armed forces as defined in Article 14 of the Constitution. This excludes any chance that the Chief of the General Staff, at risk of removal, would be constrained in acting freely. Otherwise, political authorities, for political expediency, could always remove the Chief of the General Staff and appoint someone whom they find politically more desirable. The Chief of the General Staff is not considered a political position (the Constitution excludes it from being political), while the possibility of removal for political expediency turns the position into a political one. Regardless of the changes in political authorities or their preferences, the Chief of the General Staff must continue to serve as a professional military leader.

At the same time, as I mentioned, this does not imply that the powers of the Chief of the General Staff cannot cease. The cessation of powers (as distinct from termination) occurs as a legal consequence of external circumstances and do not result from a legal act (for example, a presidential decree); rather, such an act simply records the fact.

Article 40, Section 1 of the Law on Military Service and the Status of Military Personnel provides specific grounds for such cessation, such as when appointed to another position; being sentenced to imprisonment or a prohibition on holding certain positions by a court ruling; failing to appear for service for more than a month without a valid excuse; in case of captivity, etc. (I do not list the complete list here). The purpose of this analysis is not to discuss the compliance of these grounds with the Constitution (in my assessment, some applications concerning the Chief of the General Staff and the Supreme Command are problematic), but nevertheless, there should be special regulations concerning the Chief of the General Staff where, based essentially on fitness parameters, circumstances leading to the cessation of his powers should be established, and a corresponding legal act should simply register the fact without terminating the act's powers.

6. Did the Powers of the Previous Two Chiefs of Staff Not Cease by the Same Procedure?

It is noteworthy that the powers of the two previous Chiefs of Staff ceased (did not cease independently of the wording) based precisely on the provisions of the said law. Thus, Movses Hakobyan was relieved from the post of Chief of the General Staff by presidential decree NH-330-A dated May 24, 2018, where the basis cited was Item 1 of Part 1 of Article 40 (transition to another position), while Artak Davtyan was dismissed by decree NH-118-A dated June 8, 2020, where Item 11 of Part 1 of Article 40 (release from military service) was cited as the basis.

This means that in both cases, the cessation of powers was not mentioned; instead, the reasons occurred outside the actual "termination of powers" process, effectively based on the individual's will and which excluded the individual's capacity to occupy the position of Chief of the General Staff. This is significantly different from the situation involving the current Chief of the General Staff, Onik Gasparyan's attempt to terminate his powers.

7. What is the Outcome?

This leads us to a situation where the Prime Minister, on behalf of the President, is attempting to issue a decree to relieve the Chief of the General Staff by legal force. As described above, neither the Prime Minister nor the President has the authority to terminate the Chief of the General Staff’s powers. Therefore, the act has the same effect as, for instance, if any minister were to issue a decree regarding the termination of the Prime Minister's powers, or a deputy prime minister decided to terminate the powers of the general prosecutor, or any village leader decided on the Prime Minister's powers. The act is null and void, which means it produces no consequences.

Thus, it does not matter whether three days, five days, ten days, or a year has passed; the ongoing process cannot produce any consequences. However, this does not exempt the President from the obligation to apply to the Constitutional Court to affirm this circumstance, and it does not deprive the Chief of the General Staff, in addition to continuing in his post, of the possibility of validating this fact through an administrative court.

* I will present a separate analysis on this matter later if necessary.