Constitution vs. Laws  

The following article, co-authored by Vardan Poghosyan, a substitute member of the Council of Europe's Venice Commission, and Nora Sargsyan, an Associate Professor of Law (Yerevan State University), addresses the legal mechanisms of immediate effect and enforcement in the context of the amended Article 213 of the Constitution of Armenia (the tenure of the chair and other members of the Constitutional Court).

Shortly after the "entry into effect" of the "constitutional amendments", the prime minister took to Facebook on June 22 to announce that "Hrayr Tovmasyan is no longer the chair of the Constitutional Court, and Felix Tokhyan, Hrant Nazaryan and Alvina Gyulumyan are no longer judges ... All the state institutions of Armenia are obliged to take this reality into account and guide themselves accordingly."

Given that the Constitution has a supreme legal force, the answer seems to be very clear, i.e. - the authority of the judges must be immediately terminated. But that isn't true for the simple reason that the legal system includes also other legal acts - laws and by-laws - which add to the Constitution, concretizing its provisions on the one hand while outlining independent norms with no direct relationship to the Constitution on the other

The avalability of norms enjoying a lower status than the Constitution would be simply pointless if each and every enforceable law were "entitled" to decide that it faces no constraint and is free to resort to what it believes to be a Constitutional provision subject to enforcement (interpreting it at is own discretion). Hence it is necessary to avoid confusions between the supremacy of constitutional norms and the hierarchy of enforcement, i.e. - the succession of implementing the said legal norms.

What the supremacy of constitutional norms implies is that the norm in question has a supreme legal effect in the system of legal norms, which is to say all the laws with a lower status must be in line with the Constitution (Sections 1 and 2, Article 5 of the Constitution of Armenia).

In other words, the supremacy of the Constitution is just a norm resolving collisions, which requires that any conflicting provision between the Constitution and other norms be identified and eliminated by the competent authority. That, however, doesn't imply that any authority is competent to resolve the conflicting provision by resorting directly to the constitutional norm.

To put it plainly, the supremacy of the Constitution implies that a hierarchical structure of legal norms would have the Constitution at the top, arranging all the laws and by-laws (e.g. government decisions) on lower levels. Whereas the functioning hierarchy in the application of legal norms is just the opposite, i.e. - from low to high.

At first sight, this may give an impression that the Constitution loses its value in a sense, ruling out any discourse on the Constitution's supreme value. Yet, the principle of applying legal norms from lower to higher levels stems from the specific and thoroughly worded binding nature of the law.

Otherwise, the subject responsible for law enforcement would easily and at its own discretion "set aside the law" and resort immediately to the constitutional norm (having normally a more general wording). Enforcing the Constitution directly in such a manner is fraught with hazards, as it may leave the ground open for various interpretations by courts and administrative bodies in identical situations. And that in turn would entail risks in terms violating the principle of equality before the law.

Having adopted the centralized model of constitutional oversight, the Republic of Armenia opts for the distinction between the "authority to interpret" and the "authority to declare null and void". While the former is reserved only for the subject responsible for law eforcement, the latter is reserved only for the Constitutional Court. Hence in case of doubts with respect to the constitutionality of legal acts, the procedure of applying to the Constitutional Court is defined as an obligation even for all the other courts (Section 4, Article 169 of the Constitution). Such a model is aimed at ensuring the uniformity of constitutional oversight and guaranteeing universal equality before the law. With respect to the "constitutional amendments" it is worthwhile to mention that we, in the specific circumstances, are dealing with the "amended" Article 213 of the Constitution on the one hand and Section 5, Article 88 of the law "On the Constitutional Court" on the other. The two legal acts envisage regulations running directly counter to each other.

Under Section 3, Article 167 of the law "On the Constitutional Court", the procedure for the formation and activity of the Constitutional Court is prescribed by the Constitution and the law "On the Constitutional Court". Meantime under section 11, Article 164 of the Constitution, the details pertaining to the status of judges of the Constitutional Court are prescribed by the law "On the Constitutional Court".

That is to say, the Constitution relies on the thesis that the said issues are not subject to regulation on the constitutional level alone; a reference is made to a specific law, that on the Constitutional Court, vesting it with the high status of a constitutional legal act (adopted and amended by 3/5 of the total parliament votes).

Under Section 1, Article 213 of the "amended" Constitution, "The tenure of a judge or a member of the Constitutional Court is considered complete and subject to termination provided that person has served overall for no less than 12 years".

Whereas under Section 5, Article 88 of the law "On the Constitutional Court", the chair and the members of the high court continue service until the entry into effect of Chapter 7 of the Constitution to complete their tenure established under the 2005 constitutional amendments.

Additionally, the "amended" wording of the constitutional norm "overall duration of no less than 12 years" has given way to various interpretations , arising questions as to whom the concept applies.

Under conditions of valid legal acts running directly counter to each other, the pivotal question - regardless of the right or wrong nature of the interpretations given - is which authority is competent to issue the final interpretation to eventually decide which norm is subject to enforcement under the given circumstances.   

As indicated above, the supremacy of the Constitution as a top legal instrument is not enough to exclude the conflicting norm from the legal system, preventing its implementation (given that pravalence is normally given to the legal norm with a lower value, i.e. - Section 5, Article 88 of the Constitution).   

It is also noteworthy that the supremacy of the Constitution does not stem from the act of enshrining the immediate effect of the entire set of constitutional norms.

Unlike the text of the 1995 Constitution and its re-edited version adopted in 2005, the re-edited text of Section 1, Article 5 of the 2015 Constitution skipped the universal wording, retaining immediate effect only with respect to fundamental human rights and liberties (Section 3, Article 3). The legal enshrinement of the immediate effect of the entire Constitution is alien to the Western European constitutional law. Only several post-Soviet and post-Socialist countries have opted for the procedure. The Socialist-era outlook treated constitutions as predominantly political-ideological instruments with norms serving largely as keynote provisions or general guidelines. In the context of such a past, the constitutional enshrinement of the "immediate effect" is defined in post-Socialist countries as just a step towards overcoming the traditions of the non-enforcement of constitutional norms.

The term "immediate effect" would make sense if applied exclusively to fundamental rights. The immediate effect of fundamental rights means that the right in question is already in effect in the form of a claimant of rights (instead of being in a process of creation through a specific law). A fair example of this is the differentiation between Chapters 2 and 3 of the Constitution. Apart from fundamental rights, the effect of other constitutional norms does not differ from what is prescribed by an ordinary legal norm.

P.S. The authors presented their views on the immediate effect and enforcement of the Constitution at the YSU Law Department's annual faculty symposium back in December. The full version of the article is in a process of publication.