Executive's role in dismissing high court judges would be inacceptable – Alfred-Maurice de Zayas on Armenian constitutional reforms

16:32 • 20.02.20

Politics

Hripsime Hovhannisyan

In the runup to the April 5 constitutional referendum, Tert.am has interviewed Alfred-Maurice de Zayas, an American lawyer, writer, historian, expert in the field of human rights and international law and a retired high-ranking United Nations official.

Mr. De Zayas, Armenia is going to hold a referendum on terminating the powers of the majority of members of its Constitutional Court. The move is seen by political analysts as Prime Minister Nikol Pashinyan’s attempt to remove judges who have opposed him. What opinion do you in general get following the reports about the developments over the Constitutional Court of Armenia?

Obviously, you want the constitutions to have stability and be vigorously respected. But you had the revolution, you had the changes and you have to also take into account that your Constitution has evolved as has various constitutions, and the advice of the Venice Commission is not a bad idea. That is what the [PACE] monitors [on Armenia] have recommended. But the Venice Commission only gives advice, which is not binding. So if the government disagrees with the Commission, it doesn't mean that they cannot go on with the referendum.

I have always believed that democracy through law is a hope – just as democracy through referendum - as you know in that way how people think. Of course, people can be manipulated to the media, but if you get, say - not 25 per cent which is the minimum requirement in the law – but 50 per cent of ther population going to the referendum and actually expressing their views, that is important; that is participation. You need to get people to have a stake in what is going on.

Do you think it is rational to hold a referendum for changing just a few clauses in a country's Constitution?

A constitution should not be changed every other day. But it is, actually, more legitimate to have a referendum first – and to know what the people want – then to have just the National Assembly adopt the legislation. Because the National Assembly is the representative of the people. And representatives do not always represent the views of the electorate. So if your are straight in the electorate - like in a constitutional assembly - then you are closer to the people then you would through representatives of democracy through a vote in the National Assembly. Now, I feel that you can rely upon the Venice Commission but you can also ask advice from the Office of the High Commissioner for Human Rights, who is Geneva. You are interested in democracy, in furthering democracy, so you can get a lot of advice. We have advisory services, technical assistance that we can make available, and we also have a rapporteur. We have the monitors for Armenia in Strasbourg. But we also have a rapporteur on the independence of judges and lawyers, that is the Peruvian Diego García-Sayán whom I know very well. And he could possibly issue an opinion – also as an urgent matter. I am following [the developments], and I find it very interesting that all this is happening in Yerevan.

The Venice Commission, as you know, has already issued no less than 120 opinions in the past. So we have a lot of experience. And these are professors of international law, constitutional law; there are former judges in the Venice Commission the act, of course, independently on their own account (and not for their respective governments). So there is something to be said for this forceful action. But not being an Armenian myself and not being a stakeholder, I had difficulty supporting one side or the other.

The bill drafted by the parliamentary majority has not submitted to the Venice Commission. It is first time - since Armenia membership in the Council of Europe - that amendments proposed to the country's commission have not been coordinated with the advisory body. What could be the expected consequences?

The Venice Commission will issue an opinion and, as I said, that can issue it as an urgent matter. An opinion [will be available] before the date of the referendum. And that opinion might say that the referemdum is only with regard to ″do you want to make these changes to the Constitution? That still has to happen; we still need to have a vote in the National Assembly. So it's not the immediate result of the referendum that this is going to be this way … I would think that to the extent that there are questions as to the manner in which certain judges were appointed after 2015 – in the period between 2015-2018 – that, I am sure, has to be examined on a case-by-case basis.

I would like to see, actually, a more gradual [process that would] take a bit more time for this change. As I know that the date of the referendum is appraching, I don’t like to rush these things. But I trust the common sense of the Armenian people, and ultimately, what you want, is a Constitutional Court that is competent and independent. We have the Montesquieu idea of check and balances; we have the division of the executive, judiciary and legislative, and the judiciary must remain independent.

Obviously it would be inacceptable if the [order] to dimsiss the judges was from the executive. On the other hand, if you go step by step and you examine the case on a case-by-case basis, then I think there would be little objection from the methodological aspect, from the - shall we say – democratic aspect of evlauting the functioning of the judiciary (and for that matter, the functioning of the executive and the legislature in Armenia).

A couple of words about the concerns expressed by the PACE co-rapporteurs on Armenia. The monitors have raised alarm over tensions between the Constitutional Court and the Office of the Prime Minister. What might that mean for a country which became a symbol of democracy in the past couple of years since the revolution?

Obviously, the reputation of a country is important. And Armenia is not a self-sufficient country. It is not a terribly wealthy country like Azerbaijan which has oil, etc. So Armenia needs friends; Armenia needs allies, and Armenia needs good relations with the Council of Europe; it needs even good relations good relations with the European Union. Of course Armenia is not right now being considered for membership in the European Union, but I think it's something that at some point later you may want to look into (obviously without coming into confrontation with Russia as you want to have good friends in Moscow, you want to have good friends in Brussels). I would not be afraid of the Parliamentary Assembly of the Council of Europe; I think they mean well. And we they are also very credible, if you want … he monitors, say, the monitors for Poland. They have also issued warnings; they are also concerned about the independence of the judiciary in Poland. So these are, shall we say, expressions of concern.

The Parliamentary Assembly of the Council of Europe is not a supra-national organization. The European Union is; it can open an investigation under Article 7 of the Treay of Lisbon, and they can impose sanctions. But that's a different function. But the Council of Europe will give you advice; the Venice Commission will give you advice; my friend Diego García-Sayán, the UN rapporteur on the independence of judges and lawyers, will give you good advice. So it's not a bad idea to reach out to these people who mean well. No one is trying to – shall we say - make Armenia look bad. Of course, internally, i.e. – in the country itself.

It's obvious that all the opposition parties aspire to be elected. Obviously, there is an opposition, and so much the better. Democracy depends on this system of opposition.

Explaining the reasons behind the referendum plan, Prime Minister Nikol Pashinyan started laying the blame on possible opponents, saying that those who would oppose to them would be considered as 'anti-state' figures. It evoked heated reactions by the parliamentary opposition. How would you evaluate such a conduct? Do you think the prime minister's steps run counter to the principles of democracy?

Polemic - and this kind of rhetoric - belongs to politics. They are used to that. I would prefer that he [the prime minister] met with the voters, lowered the tone and sat down and talked to them in a more cooperative, sympathetic manner. I don't like to point fingers, I don't like to put ethicets on people - putting them a label as being unpatriotic or whatever ... It's not a good practice. And I would hope that the media will be intelligent enough not to magnify on these texts.

Any politician can say things that later on he’ll regret, but once it’s said, it said; you can’t undo it. You cannot just come with any razor and take it away.

So as I said I hope that the prime minister, who himself is a journalist, knows the impact of the pen, will cool down a little bit so that a more congenial atmosphere will emerge between the prime minister and the opposition.

The proponents of the constitutional reforms have joined to create their campaign headquarters. The Prosperous Armenia and Bright Armenia parties said they would be privy to the referendum process. And a number of number of human rights activists recently launched headquarters for the “No” campaign. What general attitude to you expect to the entire electotal process without a parliamentary opposition?

I must say that the legitimacy of any election depends on the level of participation. If you only have 30%, 40%, 50% … When you are making decisions for your future, for the future of your country, I must say I am quite skeptical – I have always been skeptical – about the wisdom of boycotting elections. When we boycott elections, we don’t prevent the powers that win to remain in power. As a matter of fact, we are making it easier.

Take, for instance, the opposition in Venezuala. I was the first UN rapporteur to go to Venezuela. I spoke with the opposition, with the National Assembly, with the Chamber of Commerce and most of people from the opposition – besides speaking to the ministers of the current government … The idea of boycotting the elections made it only easier for President Maduro to achieve his result, which was the result of 67% in favor of him.

I think what you need in a democratic country is more dialogue, not less. The situation in Venezuela is incredibly polarized; they don’t like to talk to each other. And I wouldn’t like to see that in Armenia. I would like to see now each one stretching hands, shaking his hand with the others and trying to work together for the future of the country. If there are issues of corription, etc., give them to the courts court to examine; if there are issues of abuse of power, abuse of influence …, let the courts invesgitate them. Democracy through law; that's what we're trying to achieve. And I am sure the Armenians can achieve if everybody cools down a bit… Maybe the churches can be useful in calming down the spirits.

As I can guess from your words, a lot of things depends on the authorities as they have really much to do in terms of improving the situation.

Of course. As I said, I would hope that the tone goes down and that people are more serious about a genuine dialogue.