Buquicchio's statement: Reading between the lines

Armen Kareyan

Venice Commission President Gianni Buquicchio’s recently released statement, addressing the Armenian Constitutional Court, evoked a variety of comments. Yet, questions still remain open as to the substance of the statement in question, its specific addressees and, last but not least, the underlying implications behind the fact that it eventually remained unanswered.

First, speaking about a "close monitoring" of the situation in Armenia for several months, the Commission hinted its awareness of ″all the details″ behind the campaign against the Constitutional Court and the seriousness of the problem, which it promised to keep under spotlight for some time in the future. But emphasizing the lasting nature of the events, they are dropping a hint that the entire chain of the developments around the Constitutional Court – rather than a single episode – is the underlying message behind the statement, (necessitating a consideration of future developments under that specific light). In that sense, any ″legitimate″ objective behind any future action targeting the Constitutional Court or its president must, first of all, pass through the prism of the entire set of events to provide answers to the questions below (to rule out any future persecution or intervention in the judiciary's affairs).

Why, in particular, did the Constitutional Court ″crisis″ start in June? How come that the Constitutional Court, which the prime minister claims ″should never stand out″ from the entire judiciary system, did nonetheless stand out with its problems in a certain period? How come that only ahead of his election [as a judge at the high court] did Vahe Grigoryan remember about the ″crisis″ and the ″absence″ of the Constitutional Court as such, focusing instead on an effective collaboration with its chairman? Why did the prosecutions start after the failure of the National Assembly bill and reference to Plan ″B″ by the National Assembly's speaker? Why did the leader of My Step [the ruling parliamentary faction] opt for suspending the authority of the Constitutioal Court's chairman as a possible way towards resolving the Constitutional Court crisis? ″ Why were the underlying causes so fickle and varying in a period when the crisis was in what they believed ″another place" and why was it so much dependent upon the taste of the one expressing an opinion? Why isn't the National Assembly – which attaches so much importance to the judges' conduct and the reputation of courts – troubled at all by the conduct of one single judge missing a session or the self-proclamation of a Constitutional Court judge from the National Assembly's tribune (choosing instead to encourage the practice)? Why doesn't the justification behind being appointed by the former [authorities] apply also to other high-ranking officials and why would the Constitutional Court's chairman have been apologized had not he applied to the Venice Commission?

The Commission revealed also its concerns over an open conflict. And it would be naïve indeed to take a hint about what they call an "open conflict" for an encouragement or toleration of a closed one.  The Commission, in that way, hinted a blatant violation of the Constitution and the laws, and a blatant disrespect for, and isolation from, the international community’s opinion and the international obligations.

The Commission also stated: “In a Democracy, the parliament is the depositary of popular sovereignty and thus enjoys the highest democratic legitimacy. The constitutional court is a safeguard institution, entrusted with upholding constitutional values. In a democratic country, all State institutions and office holders have to respect their own prerogatives, obligations and competences and acknowledge and respect those of the other institutions.” It wasn't absolutely in vain that the Commission did voice its awareness. It, one the one hand, eliminated the justification of permissiveness for the National Assembly “enjoying a high legitimacy” and on the other hand, emphasized that phrases such as “public trust”, “being appointed by the former authorities”, “not representing the people” and the like do not meet any of the categories characterizing the judiciary authorities. The opinion here is unequivocal, independent of the high level of legitimacy and reasoning, i.e. – it is impermissible to intervene in courts’ affairs to obstruct the judiciary’s independence. The Commission’s president spoke, by the way, more openly about it in his subsequent interview, noting that the judge at the Constitutional Court is enjoys a non-political mandate and independence of the political cycles, with the fact of being the former authorities’ appointee demonstrating a possible non-restraint and a higher degree of independence. 

And that opinion did, in point of fact, dismiss yet another cause of the crisis. As for the epilogue, this institution, which uses the subtle language of diplomacy, has given its clear-worded and strict assessments on the existing situation, highlighting the hazards to democratic culture and maturity, the regular functioning of government institutions, the society’s democratic, civil and economic progress and the regular functioning of the Constitution of Armenia. They made a call for demonstrating restraint and mutual respect and developing a constructive institutional cooperation to de-escalate and restore the troubling situation. Admittedly, it is not on a daily basis that an institution like this "diagnoses" a state's condition with such extreme wordings, highlighting even the non-functioning of the Constitution and the real hazards to the state (with calls for putting an end to the practice).

Addressing the equality principle for judges and [Constitutional Court] members, the judiciary's irreplaceability regardeless of political rearrangements, the higher likelihood of the independence of judges appointed by the former regime, as well as the pressures against the chair of the Constitutional Court and intervention in the judiciary’s affairs, they dismissed any crisis - directly and indirectly - to declare the allegations fictional.

As to the specific addressees – to whom those calls and statements by the “well-aware commission” are actually directed –  they are revealed through what is termed as an “open conflict” and the accentuations of the text, as well as the finalizing interview addressing, among other things, the complicated tests overcome by the Constitutional Court’s chairman, and the fact of his being under target and repeated pressures (the chronology of the events did not, by the way, slip their eye).

And at the end, as a remainder to those referring to the advisory character of the Commission’s opinion and the possibility of a voluntary suspension of membership, it is worthwhile to mention that the opinions by that body are followed by states more powerful than the Republic of Armenia, as they avoid the scenario of being “blacklisted”, and isolation from the European family which, in the long-run, would imply a loss of economic, security-related and other assistance . It isn’t as though the Commission is a Council of Europe body whose evaluation may be a guideline not only in the above-listed matters but also in terms of applying the sanctions stemming from the implementation or non-implementation of international obligations. As to what extent the fact of endangering the democratic culture and maturity, the regular functions of government institutions and the society’s democratic, civil and economic progress and the functioning of Armenia’s Constitutional Court may constitute a breach of international obligations, that question is, to all appearances, rhetorical.