By Philippe Raffi Kalfayan
Special to the Mirror-Spectator
I have never described the events of April-May 2018 as a “revolution” for two reasons. The first is that Serge Sargsyan gave up power with reason and wisdom, making the transmission of power bloodless. Secondly, a real revolution, in the political sense, would have sought a fundamental change to the foundations of the Republic, its Constitution and the entire political system. This was not the case; on the contrary, the new team wore the costume of the previous one and globally pursued the policies of the previous governments with one major exception, an intensified fight against corruption.Popular support for the incumbent Prime minister is not an excuse for it. If the Constitution no longer meets the expectations of the country, then a constitutional reform must be launched. Until then, it must be respected.
Prime Minister Nikol Pashinyan, on September 26, spoke before the General Assembly of the United Nations in New York, where he blamed all the country’s shortcomings on the old corrupt elites. Pretending that the financial capabilities of those elites gives them power in the media and elsewhere yet pursuing and accepting money from the same groups for the foundation led by his wife, Anna Hakobyan, is not very consistent. Nor is declaring that the promotion of sustainable development and human rights is an inclusive process but harassing all supporters of the Kocharyan and Sargsyan governments. While the prime minister built his entire campaign against the excessive institutional powers of his predecessor, not only did he not reform them but he exaggerated them by eliminating five ministries, and strengthening his personal powers.
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A number can eloquently illustrate this concentration of power: The Prime Minister of Armenia, with 2.5 million inhabitants, now has more than 720 employees. By comparison, the Prime Minister of France, with 67 million inhabitants, counts 1,900 employees.
What motivates this policy? Is it a lack of trust in the people surrounding him? Is that the conviction he is the only one who can lead the transformation? Is it his desire not to share the power, nor to delegate it? Or fear of seeing former Republican leaders back at the helm of the country? It is probably a combination of all these factors. The stakes are such that it is impossible for a single man to carry out a strategic reflection and coherent action, especially when his team is made up of courtiers without critical approach or experience. It is amusing to see a 28-year-old Minister of Justice, just out of school, say at the time of his appointment that he already has significant experience. It is to be feared that in this field, as in others, young ministers will be reduced to copying and pasting inappropriate projects, models or proposals from international institutions.
The Good
What has changed positively — and it is a major breakthrough — is the discourse and actionsregarding corruption, as well as insisting that every citizen and corporation must contribute their fair share to the state budget by paying taxes and in return state officials must be above reproach and abandon their practices of favouritism at the expense of national, community and justice interests.
Corruption is highly dangerous for national interests, but to assign all the evils of this practice to two former leaders, Serzh Sargsyan and Robert Kocharyan, and their teams, is short-sighted. That vice has been entrenched since the advent of the Soviet republic and has passed on from generation to generation. Selfish individualism was exacerbated after the collapse of the Soviet Union, and everyone, in all parts of society, prioritized his or her personal interestsabove those of the state. The most enterprising and ambitious have benefited more than others. Taking some of them to trial is necessary to deter future wrongdoings for society as a whole, but this is not sufficient and in no way justifies the current policy of judicial harassment by using illegal remedies against certain individuals. In addition, if we were to eliminate all those with a corrupt past, then we would see the disappearance of the Armenian state. The current raft of “resignations” of senior officials show the limits of this enterprise. Some government advisers or members of the parliamentary majority will certainly be implicated.
Mikael Minasyan, businessman and former ambassador (and incidentally the son-in-law of Sargsyan) advocates abandoning this policy of hatred and division, and instead taking advantage of the experience of the three former presidents. I always agreed with this approach (see https://mirrorspectator.com/2018/08/23/pashinyan-needs-to-succeed-but-questions-remain-about-methods/),despite all the failings and turpitudes of those leaders, some of which can even be described as criminal. But I set one condition that there be a transitional justice process in parallel; one that has yet to be defined. In order to meet the internal and external challenges ahead, Armenia needs to reconcile all the meagre forces at its disposal.
A head of state must ensure the unity of the nation, respect its constitution, and offer equal rights for its citizens. Several recent statements or decisions of Prime Minister Pashinyan are more than a little disturbing.
First, he asserts that it is out of the question that Serge Sargsyan and Robert Kocharyan play a future role in the political life of Armenia. Promoting democracy and asserting the above is contradictory: it is not he who can decide that, but the ballot box.
Second, he said at a press conference in Los Angeles in September that he was not excluding the government’s involvement in church affairs. He said: “If it turns out that the Armenian people want the government to enter church affairs, the government will discuss this and will understand what practical possibilities exist.” It should be asked on what constitutional or legal grounds such an intention would be based.
Third, he expressed a fundamentally shocking idea at a meeting with NGOs (September 13, “Fostering and protecting human rights”). In the presence of representatives of the United Nations and the European Commission, he declared “there is the need to clarify what human rights mean, who is the human, who can exercise the right. There may be a need for clarification…” Is this the same person who advocates human rights in the United Nations forum? These remarks could be described as clumsy if we did not put them in perspective with the attempts of manifest violations of the constitutional order.
The Not-So-Good
In recent months, we have witnessed episodes that are not glorious for Armenia’s reputation on the international scene.
This observation is all the more paradoxical in that the prime minister praises the “Velvet Revolution” and the democratic progress of Armenia in international forums. If there was any doubt about the exportability of the revolution as a “product” in a regional and international political environment dominated by leaders who are increasingly defiant of the rule of law and democracy, the credibility of its promoter is now widely damaged.
Indeed, the recent violations of the constitution by the prime minister are so blatant as to be considered “illegal,” especially with regard tothe decision of the Constitutional Court on the legal issues raised by the attorneys of Robert Kocharyan. Is the prime minister more competent than the Constitutional Judges or the Venice Commission experts? He further publicly dictated what Judge Anna Danibekian should do with regard to Robert Kocharyan’s petition for parole.
This method brings the Armenian prime minister more in line with the style of someone like President Recep Tayyip Erdogan, who rejected the “illegal” decisions of the Constitutional Court in 2016, which ordered the release of two journalists unduly imprisoned. A parallel could be drawn between Erdogan’s permanent cleansing of all government and civil society institutions on the alleged grounds that they have beeninfiltrated by the Gülenists, and the Armenian prime minister’s desire to purge the Armenian administration, civil society and religious institutions of all persons who have had a direct or indirect link with the Republican Party or with Robert Kocharyan.
The attacks on the members of the Constitutional Court and the public declaration of his intention to remove them are serious violations of the Constitution, which strictly protects their tenure in office.
The attempt began with a letter from a newly elected judge, Vahe Grigoryan, suggesting that he and another new judge were the sole legitimate judges as they were the only ones elected post-Velve Revolution. The Venice Commission of the Council of Europe, consulted by the government, swept aside the claim in a single line. They recalled that Article 213 of the revised Constitution of 2015 provides in a clear and unambiguous way that the President and the members of the Constitutional Court appointed before the entry into force of the constitutional amendments will continue their mandate until the end of their terms.
The blind obstinacy of My Step party continues with a new initiative of the President of the Armenian National Assembly and the parliamentary majority who are pushing for a law aimed at dismissing the President of the Constitutional Court. The legislature has no constitutional right to do so either. Any contravention of this principle would be considered a coup d’état and would tend to establish a dictatorship. It is impossible to remove a judge either by a decree of the government or by an act of Parliament unless it is proven he or she has committed a crime.
Judicial Meddling
This undemocratic situation is indicative of the dangers of the destruction of the foundations of the Republic that constitutes this arbitrary witch hunt against people suspected of sympathizing with the former Republican Party. Since taking office, the government has gone so far as to suggest to its representative at the European Court to let it condemn Armenia so as to better challenge the national judges who have rendered decisions under previous governments.
The President of the Venice Commission of the Council of Europe recalled in his letter of May 22, 2019 to Prime Minister Pashinyan that justice reforms should be designed and implemented in accordance with the laws, the Constitution, and according to European standards on the rule of law and human rights. The report of the Venice Commission on Armenia dated July 15, 2019, indicates that an agreement was reached with Armenian authorities that it would be neither necessary nor useful to carry out a general vetting of all sitting judges. Instead, disciplinary procedures should be strengthened and a link with the asset declaration system established.
This did not prevent the government’s incongruous move of proposing a law that would sanction any judge who has rendered a judgment having violated the European Convention on Human Rights. This illustrates the level of aberration and mediocrity reigning in Armenia. It must be remembered that justice is rendered by men and women, not robots, and making wrong decisions can happen. The European Convention, like any other text of law, can be interpreted in the light of each case and its context. Moreover, the European Court clearly authorizes wide margins of interpretation in certain areas of the Convention.
In this context, I extend my full support to the Constitutional Court, its President and its members, and urge them to resist these unacceptable anti-constitutional coup attempts by the Executive and Legislative branches. I also call on all political forces inside and outside Parliament to do the same.
I would also add that Armenia has few qualified lawyers. Hrayr Tovmasyan has co-authored a considerable number of laws currently in force, including those relating to the administrative corpus. It took three years to find an acceptable replacement for AlvinaGulumyan, a former judge at the European Court of Human Rights. Armenia could not offer candidates meeting European criteria.
Be it amateurism, authoritarianism, or incompetence, the result is disastrous. The prime minister and his parliamentary majority had the chance to build a new climate, respectful of democracy and of the rule of law, to put everyone back to work, and to work to appease the country. The content of public speeches and declarations of good intentions, however, are contradicted by the reality of daily acts. Personal goals and hatred seem to override the national interest.
Overall, rather than a “revolution,” we are witnessing a coup against democratic institutions.
Philippe Raffi Kalfayan
1st October 2019
[Philippe Raffi Kalfayan is a Lawyer, Political Analyst, Lecturer in International Law and a former Secretary General of FIDH (International Federation of Human Rights). He is a regular columnist for the Armenian Mirror-Spectator.]