Since the previous posting has been transformed into discussion of what the newly amended Constitution entails, let’s repost the primer on the amendments that the RFERL translated.

1. What new possibilities do the proposed constitutional changes create for the development of the individual?

The draft law on amending and amplifying the constitution envisages incorporating into the constitution a series of new human and civil rights, expanding those rights and freedoms enshrined in the existing constitution, and adding to it new obligations on the part of the state aimed at respecting and guaranteeing human rights and freedoms. All these changes serve one purpose: to strengthen the real position of persons and of citizens of the Republic of Armenia and in doing so to promote the free development of the individual.

So, it is planned to augment the package of human and civil rights by including in addition the right of each person to address statements or proposals — with the aim of defending his personal or society’s interests — to the competent state organs, organs of local government, and to specific officials; and to receive an appropriate response within a reasonable time period (Article 27.1); the right to defend the interests of the consumer (Article 33.2); and the right to live in a healthy environment (Article 33.2). No less important is the provision according to which forced labor is banned in the Republic of Armenia and children under the age of 16 may not be permanently employed (Article 32).

It is proposed to redesignate as human rights a series of rights that are qualified as civil rights in the existing constitution. This affects the following rights: the right to freedom of movement (Article 25); to conduct peaceful, unarmed assemblies, meetings, marches, and demonstrations (Article 25); to the free choice of work (Article 32); to a satisfactory standard of living for one’s family (Article 34); to social security in old age or in the event of disability, illness, or other circumstances (Article 37); and the right to education (Article 39).

Of exceptionally important significance are the changes it is proposed to introduce to Articles 14 and 42 of the constitution. The amendments to Article 14 oblige the state to respect and defend human dignity as part of the indivisible basis of human rights and freedoms. According to the proposed amendment to Article 42, restrictions on human and civil rights and freedoms may not exceed the limitations imposed by the international obligations of the Republic of Armenia.

2. In democratic states, particular importance is attached to the existence of effective legal mechanisms for defending human rights and freedoms. What will change in this regard if the constitutional amendments are adopted?

There are numerous known cases in which the human rights and freedoms enshrined in the constitution were a mere formality and “existed only on paper” insofar as effective legal mechanisms were not prescribed to defend them. Cogent proof of this is the human and civil rights and freedoms enshrined in the Soviet-era constitutions. It should be noted that the legal mechanisms for defending human and civil rights and freedoms that are written into the existing constitution are to be augmented by three new provisions, the effectiveness of which has been demonstrated by the experience of foreign countries.
a) In line with the proposed change to Article 18, in order to defend his rights and freedoms everyone is entitled, in accordance with the legally established procedure, to receive the assistance of a human-rights ombudsman. International experience shows that this institution [of human-rights ombudsman] is an effective means of defending human rights and freedoms. It was therefore appropriate that after World War II it was introduced in the constitutions of numerous countries.
b) Another amendment to the same article of the constitution envisages the right of every person, in accordance with international agreements to which the Republic of Armenia is a signatory, to appeal to international organs for the defense of his rights and freedoms. The use of that possibility will doubtless contribute to bringing our existing legal mechanisms for defending human rights and freedoms into compliance with international — in the first instance European — values, principles, and norms.
c) Under the amendment to Article 101, any person may appeal to the Constitutional Court in connection with a specific case in which there is a final legal ruling, when all other means of legal defense have been exhausted, and when the constitutionality of the provision of the law applied by that legal ruling is questioned. The need for this change is dictated by the fact that, in specific cases, the human rights and freedoms enshrined in the constitution are circumscribed or infringed upon by the law currently in force. If this amendment is adopted, every citizen will be able to challenge in the Constitutional Court the constitutionality of such laws or of their individual provisions.

3. What is the essence of the restrictions imposed on the presidential powers and what is the rationale for them?

In a semi-presidential system, the president is in a position to seek to maintain a balance and to safeguard the normal functioning of the legislative, executive, and judicial branches only if he has the constitutionally guaranteed possibility of exerting influence on the activities of all three branches of power. At the same time, it is clear that the president may not deprive the branches of power of the possibility of acting independently, and from this angle the amendments are intended to substantially limit the powers of the president of the republic in his relations with the legislative, executive, and judicial branches.

In the relations between the president and the parliament, it is envisaged to abolish the exclusive right of the president of the republic to dissolve the National Assembly. In addition, it is the position of the parliament, not that of the president, that is decisive when it comes to forming the government.

It is envisaged to transfer to the National Assembly other aspects of the powers of the president of the republic. Thus, under the present constitution it is the president who appoints and dismisses the prosecutor-general at the proposal of the prime minister, whereas the constitutional amendments envisage that the National Assembly will appoint the prosecutor-general at the proposal of the president of the republic (Article 103). One more example: under the existing constitution, the president can convene an emergency session of the National Assembly, while after the amendments have been passed that right will devolve on the chairman of the National Assembly (Article 70). In line with the constitutional amendments the president will not establish the structure of the government or monitor the decisions of the government, and he will no longer head the Council of Justice.

4. How will the changes affect the interaction between the president and the government?

Significant limitations will be imposed on the powers of the president with regard to the formation and activities of the government. If according to the existing constitution the president of the republic can appoint and dismiss the prime minister at his discretion, the amendments envisage that on the basis of the distribution of deputies’ mandates and consultations with parliamentary factions the president appoints as prime minister a person who enjoys the trust of the majority of deputies (Article 55.4). In other words, it is the opinion of the National Assembly, not that of the president, that is crucial in appointing the prime minister. It is planned to abolish the president’s right to dismiss the prime minister.

It should be noted that under the existing constitution, the president of the republic is not only the head of state but in fact also heads the government. At the prime minister’s suggestion, the president of the republic determines the structure and priorities of the government, convenes and chairs its sessions (the prime minister may convene and chair a government session only at the behest of the president), and he monitors the decisions of the government.

In line with the amendments the structure of the government will be determined by law (Article 85). From now on government sessions will be convened and chaired by the prime minister. The decisions of the government will have legal force without being signed by the president of the republic. The president may only suspend implementation of government decisions for one month and ask the Constitutional Court to rule on whether they comply with the constitution (Article 86).

These amendments have one single purpose — to form an independently functioning government that is answerable to the National Assembly, not to the president of the republic.

5. How will the role of the parliament be strengthened after these changes?

If under the existing constitution the dominant role in the system of political and legal institutions belonged to the president, then in line with these amendments it is the parliament that will receive the dominant role in that interaction. Thus, if the opinions of the president and the parliament majority on the question of forming the government and appointing the prime minister do not coincide, then it is the opinion of the parliament that proves decisive, because Point 4 of Article 55 stipulates clearly that the president is obliged to appoint that candidate who enjoys...

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