ARTICLES AND BOOKLETS / CONSTITUTION` ARMENIA Encyclopedia of World Constitutions, Editor Gerhard Robbers, Facts on File; 1st edition 2006 Author of article: Vardan Pogosyan Data: 08.08.2005 At-a-Glance Official name: Republic of Armenia Capital: Yerevan Population: 3,100,000 (2005 est.) Size: 11,506 sq mi (29,800 sq km) Languages: Armenian Religions: Armenian Orthodox 94%, other Christian 4%, Yezidi (Zoroastrian/animist) 2% National or ethnic composition: Armenian 96%, Kurd 4%, Yezid, Russian, Jewish, Assyrian, and Greek Date of independence or creation: September 21, 1991 Type of government: Mixed presidential-parliamentary democracy Type of state: Unitary state Type of legislature: Unicameral parliament Date of constitution: July 5, 1995 Date of last amendment: No amendment Armenia is, according to Article 1 of the constitution, a sovereign, de-mocratic, and social state based on the rule of law. It is a unitary state. Al-though the constitution provides for guarantees of human rights, in practice there are substantial barriers to the effective protection of these rights. Despite the proclamation of the principle of separation of power, politi-cal power is concentrated in the presidency. The president is the central politi-cal figure who puts together and dismisses the administration. The administra-tion is also responsible to the National Assembly, but the latter has substan-tially less authority than the president. Armenia has a market economy with equal legal protection for all forms of property. The constitution guarantees freedom of economic activity and free economic competition. By its constitution Armenia is obliged to conduct its foreign policy in accordance with the norms of international law, with the aim of establishing good neighborly and mutually beneficial relations with all states. Constitutional History One of the world’s oldest civilizations, Armenia, over the centuries, has been conquered by the Greeks, Romans, Persians, Byzantines, Mongols, Ar-abs, Ottoman Turks, and Russians. Following the collapse of the Russian Em-pire, an independent republic was established in May 1918, which survived only until November 1920, when it was annexed by the Communist Soviet Army. The first independent Republic of Armenia did not manage to adopt a constitution. The first Soviet Armenian constitution was adopted on Febru-ary 3, 1922. On March 12, 1922, the Soviets joined Georgia, Armenia, and Azerbaijan to form the Transcaucasian Soviet Socialist Republic, which be-came part of the Soviet Union, the USSR. In 1936, after reorganization, Ar-menia became a separate constituent republic of the USSR. The second and third Soviet Armenian constitutions were adopted in 1937 and 1978. They were modeled on the Soviet constitutions of 1936 and 1977, respectively. Armenia gained its independence from the Soviet Union in Septem-ber 1991. Work on the constitution only began in October 1992, although the Constitutional Commission of the Parliament had been established in Novem-ber 1990. The constitution-building process, dominated by the president and his party, lasted over three years. The draft constitution was approved by the parliament in May 1995 and was adopted on July 5, 1995 by referendum. Form and Impact of the Constitution Armenia has a written constitution, codified in a single document that takes precedence over all other national law. International law must be in ac-cordance with the constitution to be applicable within Armenia. International treaties that have been ratified are a constituent part of the legal system of Ar-menia. The norms of these treaties prevail over the ordinary laws of Armenia. The impact of the constitution is not comprehensive because of the per-sisting imperial and Soviet legacies and the authoritarian practices of the suc-cessive administrations. None of the elections held since 1995 have met inter-national standards. The right of citizens to change their government has been severely restricted in practice. The elections were marked by abuses of state power, fraud, and harassment of the opposition. Basic civil rights are fre-quently violated. Basic Organizational Structure Armenia is a unitary state. The administrative territorial units are the provinces and communities. The provinces are governed by the national ad-ministration. The administration appoints and removes the governors of the provinces, who implement the central government’s regional policy and coor-dinate the regional activities of the national executive branch. Local self-government is exercised in urban and rural communities through bodies such as the Council of Elders and the leader of the community, who are all elected by universal suffrage for terms of three years. Armenia’s system of government is characterized by features typical of both parliamentary and presidential systems. For example, the administration is responsible to parliament, yet the president is elected by universal suffrage. The main feature of this system, which has been called a “semi-presidential government,” is the dualistic structure of executive power. This dualism can accommodate a great variety of distribution patterns of power between the president and the prime minister. In principle, semi-presidential governments come in two varieties: pre-mier-presidential and president-parliamentary. Armenia clearly belongs to the president-parliamentary category, which is characterized by the dual responsi-bility of the administration: the administration depends upon the ongoing con-fidence of both the president and the National Assembly. This type of regime does not provide for a clear line of authority over the administration, since the constitution permits either the president or the parliamentary majority to dis-miss the administration. Besides, the popularly elected president has the dis-cretion to dissolve the National Assembly at virtually any time, which puts the president in a very strong position towards the parliament, especially during the formation of the administration. The strong constitutional position of the president and the poorly institutionalized party system allow the president, in practice, to dominate governmental power. The system functions as a super-presidential system with a premier fully subordinated to the president. Leading Constitutional Principles The leading constitutional principles are set forth in Chapter 1 of the constitution. The key principles are the sovereignty of the state, democracy, the rule of law, the social state, and the division of power. However, the prin-ciple of the division of power is distorted in the constitution by extensive powers of the president over the legislative, executive, and judicial branches. This has resulted in the dominance of the president in the political system; it has left the legislature powerless to hold the executive to account, and has pre-cluded the development of an independent judiciary. Constitutional Bodies The basic bodies provided for in the constitution are the president of the republic, the parliament called the National Assembly, the administration, and the Constitutional Court. THE PRESIDENT OF THE REPUBLIC The president is the head of state. The president’s main functions are laid down in Article 49 of the constitution, according to which he or she shall uphold the constitution and ensure the normal functioning of the legislative, executive, and judicial authorities. The president of the republic shall also be the guarantor of the independence, territorial integrity, and security of' the republic. The 17 sections of Article 55 of the constitution provide the president with extensive powers, including the power to appoint and dismiss the prime minister and, at the proposal of the latter, the members of the administration, and to dissolve the National Assembly practically at will. The president has vast appointment powers, covering civil servants, judges, and the prosecutor general. The president is elected by direct universal suffrage for a five-year term. The same person may not be elected for the post of the president of the repub-lic for more than two consecutive terms. THE ADMINISTRATION Executive power in the Republic of Armenia is vested in the administra-tion, which is composed of the prime minister and the ministers. The admini-stration’s organization and rules of operation are determined by decrees of the president of the republic, based on recommendations of the prime minister. Meetings of the administration are chaired by the president of the republic, or upon the president’s recommendation, by the prime minister. Decisions of the administration are signed by the prime minister and approved by the president. Due to the president’s organizational powers towards the administration (es-pecially the right to appoint and dismiss the prime minister) and the presi-dent’s authority in the areas of foreign, defense, and security policy, the presi-dent is generally the dominant figure in Armenian politics. THE NATIONAL ASSEMBLY (PARLIAMENT) The legislative power is vested in the National Assembly. All powers of the National Assembly are determined by the constitution. The National As-sembly is a legislative body; it also approves the administration’s program, and can bring down the administration with a no-confidence vote. The body also adopts the state budget, and has some supervisory powers towards the administration. The Law-Making Process The main function of the National Assembly is the passing of laws. The right to initiate legislation in the National Assembly belongs to the deputies and the administration. The president has a veto right over legislation, which can be overridden by an absolute majority of the deputies. In order to make the law-making process effective, the constitution gives the administration the right to require urgent consideration of its proposals, and to force a vote of confidence in conjunction with its proposed bills. THE JUDICIARY Although Armenia’s constitution enshrines the principle of an independ-ent judiciary, the president wields control over all judicial appointments. The president shall be “the guarantor of the independence of the judicial bodies,” and presides over the Council of Justice. The Council of Justice drafts annual lists of judges and prosecutors fit to be appointed or promoted, and it submits those lists to the president for approval. It may also subject any judge to disci-plinary action and recommend removal of a judge from office in cases pro-vided for by law. The Constitutional Court is composed of nine members, five of whom are appointed by the National Assembly and four by the president of the re-public. The Constitutional Court decides on the constitutionality of normative acts, on election disputes, and on the suspension or prohibition of a political party in cases prescribed by law. Access to the Constitutional Court is re-stricted to the president, one-third of the members of parliament, and election candidates. Citizens do not have the right to constitutional complaints. The Election Process All Armenians over the age of 18 have the right to vote in elections. Citizens who are recognized as incapable by a court or duly convicted of a crime and serving a sentence can not vote or be elected. Any person who has attained the age of 25, been a citizen of the Republic of Armenia for the pre-ceding five years, permanently resided in the republic for the preceding five years, and has the right to vote, may be elected as a deputy to the National Assembly. Every person who has attained the age of 35, been a citizen of the Republic of Armenia for the preceding 10 years, permanently resided in the republic for the preceding 10 years, and has the right to vote is eligible for the presidency. Political Parties Armenia has a pluralistic political party system. The multi-party system is a basic structure of the constitutional order. Its constitutional function is to promote the formulation and expression of the political will of the people. Political parties can only be banned by a decision of the Constitutional Court. Citizenship Armenian citizenship is primarily acquired by birth. This means that a child acquires Armenian citizenship if one of his or her parents is an Armenian citizen. It is of no relevance where a child is born. A citizen of the Republic of Armenia may not simultaneously be a citizen of another state. Fundamental Rights The fundamental rights are set forth in the second chapter of the consti-tution, right after the chapter on the foundations of the state and before the provisions on the state’s organization. This structure reflects the constitution maker’s new attitude to human rights, which were now considered fundamen-tal values that should be protected by the state. Article 6 of the constitution states that its norms are applicable directly; thus the legislature, the executive, and the judiciary are bound by those fundamental rights and freedoms. The constitution enshrines both liberal and social rights. The constitution guarantees the traditional set of liberal human rights and civil liberties and states in Article 43 that the rights and freedoms set forth in the constitution are not exhaustive and shall not be construed to exclude other universally ac-cepted human and civil rights and freedoms. Thus this clause opens the door to consider as constitutionally guaranteed rights those universally accepted rights that are not explicitly enshrined in the constitution. The constitution lacks a differentiated approach to liberal and social rights. A specific feature of liberal rights are that they are directly enforceable. On the other hand, many social rights are organically related to the existing economic structure of the state, and thus do not directly entail personal rights to individuals. Social rights typically include the right to housing, free medical assistance, social security, and preservation of health, among others. Because the norms of the Armenian constitution are supposed to be directly applicable, this undifferentiated approach to liberal and social right will create difficulties when these norms are interpreted by the Constitutional Court. IMPACT AND FUNCTIONS OF FUNDAMENTAL RIGHTS In practice the impact of fundamental rights is limited. The barriers to the effective protection of fundamental rights stem mainly from the absence of an effective system of checks and balances. The judiciary is weak and far from fulfilling its role as a guarantor of law. A fundamental flaw of the constitution is the absence of the right of the citizen to apply to the Constitutional Court with a complaint. As a consequence, the provisions on fundamental rights do not decisively impact ordinary legislation. LIMITATIONS TO FUNDAMENTAL RIGHTS The limitations to the fundamental rights are laid down in Article 44, ac-cording to which “the fundamental rights and freedoms of persons and citizens established under Articles 23-27 of the constitution may only be restricted by law, if necessary for the protection of state and public security, public order, public health, and morality, and the rights, freedoms, honor, and reputation of others.” This article provides for constraints to limitations (the so called "limi-tation-limits"): they can be established only by law and are subject to the prin-ciple of proportionality. Economy The Armenian constitution does not provide for a specific economic sys-tem. However, the constitution lays down certain basic principles which frame the economic system: the free development and equal legal protection of all forms of property, the freedom of economic activity and free economic com-petition, the freedom of choice of one’s place of work, and the right to form associations. The principle of the social state requires the state to combine the market freedom with balanced social policy. Religious Communities Freedom of thought, conscience, and religion is guaranteed by the con-stitution. Freedom of religion also incorporates the freedom of religious com-munities. There is no established state church. About 94 percent of Armenians belong to the Christian Orthodox Armenian Apostolic Church. In line with the conditions for membership in the Council of Europe, Armenia is committed to ensuring freedom from discrimination for nontradi-tional religious communities, of which about 50 are officially registered. Military Defense and State of Emergency The guarantor of the independence, territorial integrity, and security of the republic is the president, who is the commander in chief of the armed forces and appoints the staff to its highest command. The administration has responsibility for ensuring implementation of defense and national security policies. In the event of an armed attack, immediate danger to the republic, or a declaration of war by the National Assembly, the president is mandated to declare a state of martial law and may call for a general or partial mobiliza-tion. In the event of an imminent danger to the constitutional order, and upon consultations with the president of the National Assembly and the prime min-ister, the president is mandated to take measures appropriate to the situation and to address the people on the matter. In Armenia, general conscription requires all men over the age of 18 to do basic military service of 24 months. Conscientious objectors can file peti-tions to be excluded from military service and perform service in social insti-tutions instead. Amendments to the Constitution The constitution can be changed only by a referendum. Amendments can be initiated by the president or the National Assembly. They are considered to have been passed if they receive more than 50 percent of the votes cast, and not less than one third of the number of registered voters. Certain fundamental provisions are not subject to change at all. Article 114 says: “Articles 1, 2 and 114 of the constitution can not be amended.” These refer to the essential identity of the constitution--sovereignty of the state, democracy, rule of law, social state, and sovereignty of the people. Further Reading: The Constitution of the Republic of Armenia (Yerevan: Mkhitar Gosh, 1996). Constitution of the Republic of Armenia in Armenian (online): http://www.parliament.am/parliament.php?id=constitution&lang=arm. Constitution of the Republic of Armenia in Armenian (online): http://www.parliament.am/parliament.php?id=constitution&lang=eng. Secondary Sources: Henrik M. Khachatryan, The First Constitution of the Re-public of Armenia (Yerevan: Hayagitak Printing Office, 1998); Elizabeth F. Defeis, Constitution Building in Armenia: A Nation Once Again, In: The Parker School Journal of East European Law 1995, Vol. 2, No. 1, pp. 153-200. Vardan Poghosyan