Difference in statuses of the judge and member of Constitutional Court is obvious – Vahe Grigoryan addresses letter to top leadership of Armenia (part 1)

21:04, 28 June, 2019

YEREVAN, JUNE 28, ARMENPRESS. Newly elected Judge of the Constitutional Court of Armenia describes the situation over the Constitutional court as crisis. ARMENPRESS reports Vahe Grigoryan has addressed a letter to the President of the Republic of Armenia, the National Assembly of the Republic of Armenia, the Government of the Republic of Armenia, the General Assembly of Judges of the Republic of Armenia, Members and the Judge of the the Constitutional Court, where he mentions the reasons of the crisis.

Below is the 1st part of the letter,

''The purpose of this letter is the clarification of the legal bases of the constitutional crisis surrounding the current composition of the Constitutional Court of the Republic of Armenia (hereinafter: the Court) and the adoption of the necessary decisions aiming to resolve this crisis.

The text of this letter (to the extent possible) is free from the formal terminology typical of legal texts with a view to outlining the essence of the problem and stimulating a discussion among the constitutional authorities having powers in the procedure of the formation of the Court to come to a commonly agreed solution, as there is no other possible solution to this problem (as will be demonstrated below).

 Concise Description of the Constitutional Norms and Facts

 In conformity with Paragraph 1 of Article 166 of the Constitution, the Court is composed of 9 judges. In conformity with Paragraph 5 of Article 170, decisions and conclusions of the Court, depending on the nature of the case, are adopted by a minimum of 2/3 of the total number of judges, while decisions on other matters are adopted by a majority of the total number of the votes. 

 Article 213 of the Constitution foresees that the chairperson and members of the Court continue their term of office until the expiry of their powers set by the Constitution amended in 2005. The same Article then foresees the sequence of nominations of judges for vacant positions. 

 At present, there are two judges in the Court (Judges Mr. A. Dilanyan and myself) who were elected after the provisions of Chapter 7 of the Constitution amended on 6 December 2015 became effective, and 7 members of the Court appointed prior to that date (Members of the Court Ms A. Gyulumyan, Ms. A. Petrosyan, Mr. H. Nazaryan, Mr. F. Tokhyan, Mr. A. Tunyan, Mr. H. Tovmasyan, Mr. A. Khachatryan).

 The difference in the statuses of the judge and the member of the Court is obvious, including by the clear differentiation between these two by the constituent power in the texts of, for example, Articles 166, 170 and 213 of the Constitution. 

 In other words, by specifying the term of office of the members and chairperson of the Court in Article 213 of the Constitution, the constituent power could not have implied the judges of the Court and the Chairperson elected from among these judges due to no-coincidence between the statuses of the members of the Court and the judges of the Court. Furthermore, the linguistic analysis of the norms of this Article demonstrates that the the term of office was not extended for judges to imply that judges were the same as members. This Article does not provide for a change of position for the members of the Court.  

 Had the constituent power intended to have extended the term of office of the members of the Court and the elected member-chairperson in the status of a judge until the expiry of their term of office set by the Constitution amended in 2005, they would have added the words ‘as judges’ to the same sentence, something, which was not done.  

 Even the linguistic interpretation of these norms sufficies to demonstrate that the members and the member-chairperson of the Court were not conferred the status of a judge by the constituent power given the fact that the failure to adopt the approach of purposive clarity (adding the words ‘as judges’ had this been the will of the constituent power) is not a shortcoming of the wording which lacks clarity but an outright purpose of not bestowing the status of a judge on the members and the member-chairperson of the Constitutional Court.

 However, this problem cannot be resolved by the application of the method of linguistic interpreration only. This method was applied to clarify that the text of the Constitution did not identify, transform, or rename the position of the member of the Court to that of the judge of the Court. Therefore, in the text of the Constitution not only are they (the members and judges of the Court) not identical but, on the contrary, purposively different.

 Conformity with the Purpose of the Constituent Power

 Interpreting Article 213 of the Constitution as implying an unreserved change of the position of the judge of the Court cannot be interpreted as one conveying the will of the constituent power. Furthermore, this interpretation must be dismissed in its entirety due to its being clearly contrary to the aims enshrined in the Constitution by the constituent power.

 Hence, at the heart of the 2015 constitutional amendments was the necessity (according to paragraph 2.6.3. of the 2014 Concept of the Constitutional Reform in the Republic of Armenia) of clearly enshrining the main function of this judicial authority exercising constitutional control, which was ensuring the supremacy and direct effect of the Constitution, by foreseeing necessary and sufficient constitutional guarantees for it.

 Consequently, when speaking about the substance of the constitutional norms it is necessary in the first place to keep the purpose of the constituent power in perspective. This purpose indisputably encompasses prescribing necessary and sufficient constitutional guarantees essential to perforiming the functions of the Court, including the procedure and guarantees for the formation of the Court. Hence, it is the will of the constituent power to have a Court formed and operating in line with the new procedure and guarantees of Court formation and to abandon the former procedure of the formation of the Court.  

 With a view to achieving this aim, the 2015 constitutional amendments adopted in principle a new and different approach of the formation of the Court intended to increase the independence of judges and their effective selection through a process of checks of their moral and professional qualities. With a view to achieving this aim, the constituent power opted for the inclusion of the President of the Republic, the Government and the General Assembly of Judges in the process of formation of the Court. With the inclusion of these parties, the Constitution foresaw simultaneous participation of two parties in the formation of the Court – the one nominating the candidates for judges (the President of the Republic, the Government and the General Assembly of Judges) and the one electing the judges (the National Assembly). The term of office of a judge was limited to 12 years in contrast to the former life term of office (until the age of 65 or 70, depending on which Constitution’s term of effect a particular member was appointed).

Where the Court is concerned, an essential element of the last amendments was preventing any interference on the part of the political authorities in the election of the chairperson of the Court and the delegation of this power to the judges of the Court as a sign of respect for the independence and internal authonomy of the Court.

 From the moment of adoption of the amended constitution in 2015 it was clearly understandable that the purpose of the constituent authority was to have a Court formed by/composed in conformity with the requirements of the 2015 constitution, where judges must be elected in accordance with the new procedure for a 12-year term of office, while the chairperson of the Court must be elected by the judges for a 6-year term of office. The direct purpose of the transitional Article 213 was making this come into force as expediently as possible not losing sight of other notable interests.  

 As a result, the Constitutional Court foreseen in accordance with the rules of Chapter 7 of the Constitution is a court which is clearly and essentially different from the former Courts by (1) its composition and (2) rules of court formation.

 Compared with the Court foreseen by the Constitution amended in 2005, the Court foreseen by the Constitution amended in 2015 is more representative (3 judges must necessarily be from the judiciary) and follows a much more balanced model of court formation where the candidates are nominated and elected by different bodies, two of which (the General Assembly of Judges and the President of the Republic) do not (or must not) have any political-partisan affiliation with the National Assembly, thereby ensuring elimination of party interests in the process of election of judges.  

 Meanwhile, the interpretation of Article 213, which was used as a basis for the automatic transformation of the positions of the members and member-chairperson of the Constitutional Court appointed prior to 9 April 2018 (the date when the 4th President of the Republic took his oath and when Chapter 7 of the Constitution became effective) to the status of judges and a chairperson elected from among the judges could create an ample ground for arbitrariness, when Article 213  is being applied not in the transitional logic in line with the purpose of the constituent power, i.e. to contribute to the entry into force of the amended constitutional provisions as speedily as possible and without undue complications but, on the contrary, to delay to the extent possible the formation of the Court in line with the rules of the Court formation foreseen by the constituent power in full discretion and to serve the interests of one political party or force (of no relevance which). 

 In other words, the constitutional amendments adopted on 6 December 2015 by an interpretation, which directly transforms the position of a member of the Court to the position of a judge of the Court until the entry into force of the rules of Chapter 7 could be open to such arbitrary application, the restriction of which according to this interpretation is impossible. In particular, invoking the contextual peculiarities of the period in question (from 6 December 2015 to 9 April 2018), I cannot ignore the fact that the two key institutions competent to form the Court (the President of the Republic and the National Assembly), which appointed the members of the Court were under a decisive influence of one political party.

 In other words, from the moment of adoption of Chapter 7 of the Constitution amended in 2015 until the moment this Chapter became effective (9 April 2018) – for 2.5 years – the influence of the appointments by one party was obvious. It became decisive when prior to that moment having already appointed a significant number of the Court members it made its last appointment to ensure the majority of its appointees in the Court. Thus, under the circusmatnces of the adoption of the constitutional amendments when it was clear that the former procedure of court formation (foreseen by the Constitution amended in 2005) was not to be applied in the coming future (literally forty days later) appointing a chairperson of the Court under the absolute discretion of one political party (appointing him as a member of the Court and then 20 days prior to the entry into force of Chapter 7 of the Constitution appointing him as chairperson of the Court) meant postponing the entry into force of a significant number of the provisions of Chapter 7 of the Constitution until 2035 in the absence of any publicly acceptable explanation for this other than the private and partisan interests of seeing the member of the same party as a member and chairperson of the Court until 2035. 

 In what follows, the aim of indicating the names is ensuring accuracy of facts rather than focusing on persons, in respect of who I have no other attitude than personal respect.

• Hrayr Tovmasyan, member of the Republican Party of Armenia was nominated in the position of the member of the Court on 1 March 2018 by Mr Ara Babloyan, member of the same political party and Speaker of the parliament. He was elected to this position the next day, on 2 March 2018, 40 days prior to the effect of Chapter 7 of the Constitution amended on 6 December 2015. In other words, Mr Hrayr Tovmasyan, by the nomination and appointment of his own political party 40 days prior to the entry into force of the 12-year restriction for holding this office enshrined in the constitutional amendments drafted in its major part with a decisive involvement of his political party, was appointed as member of the Court, thereby coming under the scope of application of Article 213 and staying out of the 12-year limitation of the judge’s term of office. Thereby, keeping the Court under the influence of the transitional provisions for his life-term, he and his political party postponed the moment of the formation of the Constitutional Court in line with the procedure and form determined by the constituent power for more than the double period (about 17 years) than is the lifetime of constitutions in Armenia.

• Following this, on the 20th day of his appointment as a member of the Court, the Court member Mr. Hrayr Tovmasyan was nominated and appointed by his former party (he terminated his membership in the RPA 20 days earlier) to the position of a chairperson 20 days prior to the entry into force of Chapter 7 of the Constitution amended on 6 December 2015, thereby according to the interpretation that he gave to Article 213 coming out of the scope of the application of the 6-year limitation for the entire term of this office. Hence, having been appointed as chairperson of the Court by his former political party and having regarded his tenure in the office in question as a lifeterm (until the age of 65, which is the term of office foreseen by the Constitution of 2005) by resorting to the above interpretation (which to me is unacceptable) of Article 213, not only did he confine the Court to the effect of transitional provisions for his own lifespan but gave an interpretation to the above provision contrary to the original and true purpose of the constituent power (which is to have a Court conforming to the rules of Chapter 7 along with a chairperson elected by judges). Thus, according to this interpretation, the right of judges of the Court to elect the official representing the Court was limited for the lifespan of one person for at least 3 times without any reasonable explanation for limiting this particularly important right of judicial autonomy by one political party and the former member thereof.

• It is impossible to ignore that the National Assembly, having adopted the above two resolutions, was formed by the electoral procedure prescribed by the 2015 Constitution establishing a stable majority of one political party with the election of the 2017 National Assembly. Hence, in no case is it imaginable that by the adoption of the constitutional amendments and assessing highly the position and the role of the Court and by prescribing the requirement of the election of the judge by 3/5 of the votes of the members of the National Assembly, the constituent power would assume that in the period of 6 December 2015 until 9 April 2018 any political force having received significantly less than half of the votes of the Armenian nationals would be entitled to elect a member of the Court (and in line with the above interpretation) to hold an office in a Court composed of judges elected by 3/5 of the votes who would remain in this office for a term 1,5 times longer than these judges without any reasonable explanation.

• Having sworn the oath of the Judge of the Court I can no longer keep silent that the start of the process was given by Mr Gagik Harutyunyan, former Chairperson of the Court, when 22 days before the expiry of his maximum term of office he sent his letter of resignation to Mr Ara Babloyan, Chairperson of the National Assembly. In particular, on 2 March 2018 the latter announced: ‘In conformity with Paragraph 1 of Article 147 of the Constitutional Law of the Republic of Armenia “By-Laws of the National Assembly”, I hereby announce that on 1 March 2018 Gagik Harutyunyan, Chairman of the Constitutional Court of the Republic of Armenia submitted a letter of resignation from this office.’ I am far from thinking that these temporal coincidences were accidental: the regular session of the National Assembly was to end on 23 March 2018, which coincided with the last day of tenure of Mr Gagik Harutyunyan, whereas the next regular session was to start on 10 April 2018, i.e. a day after Chapter 7 of the Constitution was to become effective (providing for the election of the Chairperson of the Court from among the judges). Meanwhile, with an interesting coincidence of the fact of his early (22 days prior to the expiry of the term) resignation Mr Tovmasyan obtained the possibility to be elected as chairperson of the Court not only for a life-term (which is 3 times more than the term prescribed by the Constitution, which was to come into effect several days later) but also the possibility to be elected to this position by his own political party rather than judges. Thus, the elimination of the procedural mechanism of the internal autonomy of the Court to elect a chairperson from among themselves, if regarded as an accidental occurence and having developed in the stated accurate sequence of facts, render the above interpretation of Article 213 completely vulnerable, which in the light of what was described above not only does not stem from the will of the constituent power but is an outright obstacle to the fulfillment of the will of the constituent power.

It is beyond any reasonable doubt that the above inerpretation of Article 213 of the Constitution served as a basis for the commission of such acts, which postponed the fulfillment of the will of the constituent power under the influence of the events having occurred in the period of 6 December 2015 to 9 April 2018, when the will of the constituent power was perfectly clear on the principles of formation and operation, as well as the internal autonomy of the Court. Hence, the compliance of such an interpretation of this Article with the will of the constituent power in the light of the above events is seriously questionable and had not been raised by any Member of the Court. Thus, the entire scope of interpretation of Artcle 213 requires clarification.   

 Not only was the aforementioned a scenario diametrically contrary to the will of the constituent power, which the constituent power could not have intended with the transitional provisions of Article 213 but, in the light of the above events, a factual and clearly implemented project irrespective of the fact whether there was a clear intention for this or this was the result of purely chance coincidence of accidental actions and anyone following the course of these events, including the members of the Court would not see any intention going contrary to the will of the constituent power. If the former, than this again requires serious clarifications.

 I would like to reiterate that what was described above did not happen in violation of any formal norm of the Constitution but through an interpretation, which created ample grounds for the arbitrary application of Article 213 of the Constitution, which served as a basis for automatic transformation of the tenure of the members of the Court appointed prior to the entry into force of the amendments of 6 December 2015 to their tenure as judges of the Constitutional Court. The aforementioned happened by means of a purely formalistic application of Article 213, which was diametrically contrary to the purpose of the constituent power. Therefore, the scope of application of Article 213 until now must become a subject for discussion with a view to finding a solution to the stated problem. 

 Therefore, as a judge to the Constitutional Court and bound by the oath I have given to the constituent power I refuse to accept any formalistic conformity with the will of the constituent power, which is contrary to the purpose thereof, only one manifestation of which I concisely described above. Having described my conviction on this matter I do not attach any importance to the question as to why this has not so far been raised by any member of the Court. In the determination of the justifications of my judgments and the necessity of my actions and in publicising thereof I cannot be guided by the views and approaches of others.

        On the Oath Sworn by the Member of the Constitutional Court

 While taking over their powers the members of the Court swore the oath of the member of the Court and have not so far sworn an oath as judges of the Court. The oath of the Court members is substantially different from the oath of the judge of the Court. In particular:

• In conformity with the Law on the Constitutional Court adopted by the National Assembly on 20 November 1995, the wording of the oath of the member of the Court is as follows: ‘Assuming the position of the member of the Constitutional Court I swear this oath in front of the people of the Republic of Armenia to abide by the Constitution, to be impartial, to hold the calling of the member of the Constitutional Court in high esteem’. This text was preserved in the Law on the Constitutional Court adopted by the National Assembly on 9 December 1997.  

• In accorance with the Law on the Constitutional Court amended by the National Assembly on 1 June 2006, the wording of the oath was changed into the following: ‘Assuming the position of the member of the Constitutional Court, I take this oath in front of the people of the Republic of Armenia to ensure the supremacy of the Constitution, to be impartial, to remain faithful to the calling of the member of the Constitutional Court.’

• In conformity with the Constitutional Law on the Constitutional Court adopted on 17 January 2018, the wording of the oath of the judge of the Constitutional Court is as follows: ‘Assuming the position of a judge to the Constitutional Court I take this oath in front of the people of the Republic of Armenia to ensure the supremacy of the Constitution, to act independently and impartially, to remain faithful to the high calling of the judge of the Constitutional Court.’

 Not having the least doubt in the professional integrity and honesty of the members of the Court, as well as their high human qualities and characteristics, but, on the contrary, having every confidence in these qualities, they, like any other person, having sworn a public oath, must have continued as members of the Court and remained faithful to the calling of the member of the Constitutional Court (see the texts of the oaths above). Meanwhile, if they are to act as judges as required by Article 213 of the Constitution, is this interpretation not a violation of the oath sworn by them? Thus, either they have to abide by their oath or their interpretation of Article 213. There is no parallel application of both since these two are essentially incompatible'', judge of the Constitutional Court of Armenia Vahe Grigoryan wrote.