Artificial crisis 'surrounding' Constitutional Court – opinion

12:24 • 02.12.19

Law

Asya Ovanyan

My Voice Project

The Constitutional Court has remained the only independent body on which the legal community now relies in its efforts towards exercising justice. Ask any practicing lawyer about it, and he or she will definately confirm that in the struggle against the dependent judiciary we have today, the Constitutional Court remains the last link where one can expect the realization of constitutional justice. Ask the judges who still have the chance to carry on the struggle, and they too, will confirm that the remaining constitutional guarantee today – and in specific cases also the guarantor of a judge's independence – is the Constitutional Court with its decisions.

Look into the CC decision, for instance, against Arayik Melkumyan, a judge to whom the Supreme Judicial Council (SJC) applied an anti-constitutional ruling, subjecting him to the strictest administrative penalty by terminating his authority on the grounds of a disciplinary breach.

Such decisions demonstrate that the crisis is around – rather than in – the Constitutional Court, with the CC’s regular functioning and the decision-making (aimed to guarantee the Constitution) standing as a fair proof of that.

The draft law porposing an amendment to the Republic of Armenia constitutional law ‟On the Constitutional Court” to establish a pension for a CC judge (appointed initially as a CC member and continuing his service in the status of a judge) in the amount of his or her estimated salary (upon the termination of his or her authority until the retirement age) – provided that person resigns until January 31, 2020 – poses a real hazard to the Constitutional Court's independence.

The proposed ″early pension″ model had received the Venice Commission's rather tough approach in terms of the realization of such models in relation to the justice authorities. In Poland, particularly, the criticism of the justice reforms refers to two categories of questions: mandatory and voluntary early pension, with the restraint of legal conequences applying even to the latter form (provided it deals with several judges whose resignation may block the institution's work).

The bill drafted by the government proposes a fully voluntary model as it envisages a temporal restriction, i.e. - until the date of January 31. The said restriction will thus impose a certain process upon the judiciary. The proposed changes are tantamount to an attempted intervention in the Constitutional Court's exclusive authority to exercise constitutional justice (a process virtually realized by all the nine judges of the Constitutional Court).

The bill under discussion was notably a subject of debates at the Venice Commission which, in the opinion released on October 14, emphasized particularly the security of judges as an essential guarantee of their independence. The irreplaceability of judges is virtually designed as a protective shield against the ruling political majority's influence. So it is impermissible for any new government to replace officiating judges with new ones elected at their own discretion.

The Venice Commission also underlined that all the CC judges – regardless of being appointed before or after the 2015 [constitutional] amendments – must be vested with an equal status. As for the early pension scheme, proposed for the judges elected until the 2015 reforms – the Venice Commission was crticial of the scheme only in the cases when they bore a mandatory charcter (influencing a great number of judges). But no criticism can be raised provided resignation from office is based on a voluntary decision by the Constitutional Court judges themselves. If early retirement, as a principle, remains exclusively voluntary, i.e. - ruling out unfounded (political and personal) pressure upon judges, or is not designed in such a way that would potentially impact the outcome of the case under consideration, there aren't any criteria prompting the Venice Commission to oppose such a scheme.

Nevetheless, the simultaneous retirement of several – or even seven out of the nine – judges may disrupt the effective functioning of the Constitutional Court. This is why the Venice Commission recommends the Armenian authorities to revise the proposed scheme in an effort to mitigate the concern. The voluntary principle – to the extent that it outlines a fixed restricting timeframe for submitting an early retirment application – cannot possibly meet the voluntary requirement, with no mechanism being in place to restrain an attempted disruption of the Constitutional Court's effective functioning.

The authors of the legal initiative have to re-submit the edited version to the Venice Commission to identify the compliance with the best Council of Europe's practice and requirements. Yet, they have so far failed to do that.

It is noteworthy that the acceptable pracitce applying to legislative reforms – especially in case of constitutional laws – is to identify (within the scope of constitutional oversight) their compliance with the Constitution of the Republic of Armenia. Given that the regultions under the bill are now a topic for the Venice Commission (which pointed out to a reservation), it is again necessary to apply to that particular body to receive their advisory opinion.

The artificial crisis surrounding the Constitutional Court should not, after all, be resolved not through ″bribes″ - offered to judges in the form of pensions - but rather. through a realization (by the authorities) of the importance of the Constitutional Court's independence.

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