Crashing the Constitution to Crush a Court

BY GAREN YEGPARIAN

For many months, there has been chatter in the Republic of Armenia (RoA) regarding amending its constitution. And, come to think of it, that chatter extended all the way back to when it was last reworked four-five years ago. There have been concerns all along about having a prime minister with too much power, a product of the shenanigans of the previous regime.

Things began to crystallize after Prime Minister Pashinyan’s announcement on December 30. A committee of experts was to be established. But soon, another policy target of the current regime converged – the struggle to take control of the Constitutional Court. By early February, seven of the nine member court had clearly been named as the targets of an April 5th referendum featuring only one amendment to the country’s constitution. It would force the seven out of office.

Immediately the demonization of the court, already underway, started to get louder. It was accused of putting “limits on the people’s power” and being a “terrible and direct threat to democracy”… plus, anyone opposing this process was accused of being “anti-state”! This crusade against the court has been adeptly packaged as part of the ongoing (oft-abused term) “revolution” that began in Spring, 2018 and anyone opposed to the changes became, by extension, anti-revolutionary. All of this demagoguery somehow evokes George Orwell’s “Animal Farm” for me.

This run at the Constitutional Court is also reminiscent of U.S. President Franklin Delano Roosevelt’s (FDR) attempt to increase the size of the U.S. Supreme Court from 9 to 16 judges and pack it with supportive appointees. He was well intentioned in that the court was obstructing efforts to lift the country out of the Great Depression. But, that would have set a bad precedent, politicizing the judicial system. He was thwarted and that helped restore the country to a course of increasingly solid rule of law.

Pashinyan and his My Step bloc had been deriding the seven, and especially the court’s current president, as corrupt. In fact, a pro-government news outlet recently reported that an investigation of that judge and his godson had been completed and made it seem like charges against them were in the making. Pursuing this kind of investigative and legal path to removing one or more corrupt judges from the Constitutional Court would have been completely reasonable, appropriate, and an enhancement of the rule of law in the RoA.

Instead, Pashinyan has opted for a route that actually undermines the rule of law. At the most obvious level, the process is unconstitutional based simply on the fact that the constitution calls for a review by the Constitutional Court of constitutional amendments prior to their being placed before the voters in a referendum. Pashinyan and the parliament, with its My Step majority, have decided to bypass this requirement. This requirement, found in Article 169 Section 2 of the RoA Constitution struck me as strange, but it is the law of the land. By circumventing it in order to consolidate power, Pashinyan and My Step are behaving much like their corrupt predecessors and others in history, worldwide, who have come to power riding a wave of popular support based on promises of a better life who are then faced with the very real and large challenge of delivering on their promises.

In this light, you can see the irony of their assertions about the seven targeted judges being holdovers from the previous regime of the Republican Party who still do the latter’s bidding! Even if this is true, and I would not be at all surprised if it is, the way to correct the problem is NOT the one chosen by Pashinyan. After all, he is just as much a holdover of a previous regime as any of the judges. Remember, he is Levon Ter Petrosian’s protégé and has some dark chapters in his civic/political/public life, too. But, he seems to have come around to a better path. Why take a step backward into the corrupt, fast-and-loose-with-the-law approach of his predecessors.

Is it not possible that even the seven judges appointed by previous regimes will now behave properly (if they weren’t before) since they are free of the pressure that those formerly in power could apply?

Is there not supposed to be a system of checks and balances among the executive, legislative, and judicial branches of government? Doesn’t this look like a power grab by the executive and legislative branches at the expense of the judicial?

Isn’t the judicial branch supposed to be the defender of the rule of law, the staid and plodding guardian of a country’s constitution and laws, even at times when citizens may be worked up over various, legitimate, issues and problems leading them to want to circumvent law and procedure to more rapidly achieve their desired goals, thus undermining the very rule of law?

Do not My Step and Pashinyan realize that using tactics which vilify one sector of society ultimately serves to divide it and runs counter to their message of national unity?

Should Pashinyan and My Step, as proponents of democracy, not WANT an opposing pole of power in government to serve as a check on them should they fall into the trap of abusing power? That can happen and has happened to even the most well intentioned of public servants.

Besides, who’s to say the judges who will replace the seven will be any better? An opposition news source reported last week that one of the two Constitutional Court judges appointed since Pashinyan/My Step came to power has not completed his duties because of travel in pursuit of personal business. As a result, the court has not delivered verdicts in a number of cases.

It is a time of peril for the RoA. If this route is taken and followed to its conclusion, the country could easily fall into the same downward spiral that followed the collapse of the Soviet Union and the country’s re-independence when the corrupt system was established under its first president’s watch. There is no doubt in my mind that given the popularity still enjoyed Pashinyan and My Step, they will succeed on April 5, setting them on a path of unchecked rule.

Let’s raise our voices in defense of the very process of positive change initiated two years ago by Pashinyan and our compatriots who took to the streets to reclaim their rights and dignity as citizens. Let’s remind the current regime of its responsibility and help it step back from the brink. Let’s make Pashinyan the Armenian FDR!