Abolition of Constitutional Court 'driven by political interests' - lawyer

11:47 • 07.09.20

Law

Hermine Mikayelyan

Tert.am has interviewed Siranush Sahakyan, a co-founder of the Legal Path NGO, over the proposed merger of the Constitutional Court with the Court of Cassation to create a new judiciary body acting in the capacity of a Supreme Court.

The conceptual changes propose the decentralization of the Constitutional Court to distribute its function of exercising constitutional justice throughout the entire judiciary, thereby enabling every court to rule on the unconstitutionality of any law within the scope of its authority. What may be the imminent problems in such circumstances?

I think it will, by and large, affect the judiciary's quality, leaving a great impact on the protection of the Armenian citizens' rights. The judiciary in Armenia has its specifically underlined course, as it ensures a kind of specialization for judges and courts. Hence constitutional justice is very specific, with its implicit complexities and peculiarities. That specialization is well manifested also in other areas; for instance, we have a Bankruptcy Court to handle civil cases. Moreover, in the sphere of criminal law, we have judges specializing in juvenile affairs, for example. Additionally, the state is now considering the creation of [anti-]corruption courts. In this entire specter of regularities, I see attempts of opting for special exceptions when it comes to constitutional justice. They are trying to apply that function to judges, but that does not stem from considerations of improving the quality of justice.

Opinions were voiced also over the "not sufficiently high level of constitutional justice" - given the post-Soviet education and the fact that constitutional justice may be more properly exercised by a court or a judge specializing in those specific affairs. Do you expect a non-professional interpretation of constitutionality issues in case of the court merger?

Those problems will inevitably arise given the increasingly deepening shortage of specialists of constitutional law in Armenia. General background knowledge will not be enough for us to entrust the courts, which resolve such kinds of disputes, with the function of considering and settling cases that deal with constitutionality in essence. And it is in the processes of such selections that we see the authorities' difficulty (despite the huge resources under their possession) in "brunging to light" their experts in constitutional law. In most cases, they nominate rejected candidates time and again, thereby reaffirming the impossibility of considering constitutionality issues by a judge lacking the necessary quality and preparation to provide a high quality [interpretation of] breaches of constitutional law. And that eventually will have its negative impact on the protection of human rights. as we are undermining the existing mechanisms in this manner.

Are these changes likely to be problematic given that Armenia's legal system is modeled after the European law, whereas a Supreme Court would require systemic approaches? Would this necessitate structural changes in the entire judiciary?

I do not envision drastic transitions between the Anglo-Saxon and continental laws, but [our] Constitution was written based on the continental ideology, and so the distribution of roles fell within that very logic. Hence, if we are now trying to exercise constitutional justice relying on the Anglo-Saxon model, i.e. - that of the Supreme Court, it will inevitably lead us to a dead-end, creating virtually more problems rather than offering solutions. I have questions which I think need to be properly interpreted by the authors of that concept. In the Republic of Armenia, the president is vested with the authority to exercise oversight over the implementation and observance of the Constitution. And so his basic tool is to apply to the Constitutional Court to obtain clarifications on matters dealing with constitutionality and to ensure the constitutional order through a specialized institution. If we have opted for distributing the [powers] of state institutions based on the continental model, how then are we supposed to transform the presidential institute? Will [the president] be entitled to apply to the Supreme Court or a court of [general] jurisdiction or will he lose his main function? If he is expected to lose it, will we then have a presidential institute in Armenia at all? How are we expected to combine all that? I can raise scores of questions. The Anglo-Saxon model can be introduced in point of fact, and be adjusted to the Armenian reality after certain transformations. But that requires large-scale changes, which we do not practically see. What we see instead is the logic behind the continental legal system being maintained with the specific task of "implanting" one single institution. I think strange bodies are expelled naturally in the course of time, unable to ensure efficiency but also potentially trying to expel other institutions, which is really troublesome.

Do you see political expectations behind the proposed changes given the different processes going on around the Constitutional Court for quite a long period?

Considering my dual status, I will refrain from evaluations now. I will voice my position on the issue after the draft is submitted. As for my second status, i.e. - that I represent the interests of CC judges in the European Court of Human Rights, we have cited the violation of at least one article dealing with processes outside the scope of legal objectives. Among them is also the political one. So we do see political motives and expediency in this entire chain. And this change may well be a constituent part of the [proposed] chain of reforms - given especially that our authorities have recently convinced the international community that the change of judges stems from the necessity of enacting the new CC model, which is extremely important in terms of enhancing the quality of constitutional justice in Armenia (a vital issue when it comes especially to elections, and the citizens). And there is no explanation at all as to why that institution [the Constitutional Court] is being abolished if it has been able to justify the violation of individuals' rights through constitutional justice. With no answers to these questions in either the legal or logical domains, we have doubts, to say the least, that they may be dictated by political interests.

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