9th, the Armenian parliament authorized a referendum that would
allow the Prime Minister of Armenia, Nikol Pashinyan, to remove seven of the
current nine justices from the Constitutional Court. Pashinyan has called the
decisions of the Court a “threat
to democracy”. On its face, this seems like yet another example of a
populist leader trying to use a referendum to increase his power. Examining the
context of the situation in Armenia, however, paints a different picture.
Referenda have gotten a bad reputation in
recent history. Whether the 2009
Swiss referendum banning minarets, the 2016
Colombian referendum that rejected the peace agreement, or the infamous 2015
Brexit referendum, referenda have been criticized as a means of using direct
democracy to allow populism to undermine the rule of law.
This negative attitude has been compounded
by the use of referenda by populist governments to bypass constitutional
restrictions. The governments of Hungary,
have all used or attempted to use referenda to increase their constitutional
powers. It is in these settings when referenda become most concerning as there
no international legal requirements for referenda, and even the Venice
of Good Practice on Referendums spends less than a page on the substance of
Armenia’s Prime Minister Nikol Pashinyan – Popular, but far from a Populist
This referendum is not an impulsive decision.
Pashinyan has spoken about the need for transitional justice
mechanisms since coming to power in mid-2018. To understand this, it is important
to know Armenia’s recent history.
Armenia’s entire political system was
upended in the summer of 2018 with the Velvet Revolution. The Velvet Revolution
saw over 100,000 Armenians pour into the streets to oppose the previous
President, Serzh Sargsyan, who was attempting to stay in power beyond the
constitution’s two-term limit. Sargsyan had masterminded a 2015
referendum that shifted key powers of the Presidency to the position of the
Prime Minister. Then days before his term would end, he announced that he was
stepping into the Prime Minister position despite saying earlier that he had no
intentions to hold on to power. This move is not unlike how Erdogan had powers
shifted to his position as President or Putin’s holding onto power regardless
of his title as President or Prime Minister. The Armenian people rejected this en
masse and forced Sargsyan to resign, clearing the way for Pashinyan, a
former parliamentarian and the main protest organizer, to become Prime
When Pashinyan took power, he remade Armenia’s political space by focusing on anti-corruption. One of his largest accomplishments was forcing oligarchs to pay taxes, increasing the state budget by a whopping 43% in two years. He removed corrupt figures from key positions and fought the culture of corruption in Armenia’s public sector that had persisted since the Soviet era. And, the Minister of Justice brought charges against the former President, Robert Kocharyan, over the killing of 10 protesters on March 1st, 2008, killings that shocked the country and inspired an era of political fatalism. These actions resulted in Armenia being named The Economist’s Country of the Year in 2018.
Pashinyan has been willing to go against
his base when he believes it is necessary. Armenia has a history of polluting
mining operations, and Pashinyan’s activist
base sought to block a new gold mine. The problem is that Armenia had
already signed agreements with the mining company and breaking the contract
would have resulted in liability for hundreds of millions of dollars in
investor-State arbitration. Ultimately, Pashinyan bucked his activist base and approved
the mining project.
The Constitutional Court fulfilling its Mandate or Protecting a Political Ally?
The Constitutional Court has persistently
impeded Pashinyan, particularly
regarding the prosecution of former President Kocharyan. The seven members of
the Court that Pashinyan wants to remove were appointed either by Kocharyan or
his political ally Sargsyan. The President of the Constitutional Court was
Minister of Justice under Sargsyan and was instrumental in drafting the 2015
referendum, after which he was appointed to the Constitutional Court. Pashinyan
alleges he has evidence that the Court’s President was appointed through fraud.
While there is undoubtedly an air of impropriety in how the President of the
Court was appointed, closer scrutiny is required to assess the allegation of
illegality. However, any legal assessment would be a constitutional question,
meaning the Constitutional Court would have to rule on one of its own members.
The Court has already refused to do just that.
To complete the transition away from the
Soviet-designed system, Pashinyan knew that reform required judicial reform. His
to do so in May involved popular protests wanting the forced resignation of
judges whose judgments are found by the European Court of Human Rights to
violate Armenia’s human rights obligations. While raising the political stakes,
his actions did little to resolve the legal situation. The government’s
2019-2023 Judicial and Legal Reform Strategy, which was approved
in October, outlined changes to the constitution. And, a poll conducted in
September and October found
(page 35) that 82% of the public believes judicial reform is either important
or the highest priority, giving his idea for a referendum democratic support.
But does democratic support translate to
democratic legitimacy? When does the political removal of oppositional judges
promote rather than undermine the rule of law? Are Armenia’s Constitutional
Court justices simply protecting a political ally or are they fulfilling their
mandate? I can provide no clear answer, but I can suggest one factor that must
be considered: context.
Armenia’s Political Context and its Trajectory
What is the relevant context that one
should consider? I highlight three areas: international indices, foreign
relations, and domestic perspectives. International indices provide the most
objective assessment of the current government. Foreign relations demonstrate
whether the country’s allies are supportive or concerned about domestic
affairs. Regarding foreign relations, I’ll focus exclusively on foreign
relations with the EU as a proxy to assess how much Pashinyan has promoted
European norms like the rule of law. Finally, a domestic perspective is an
essential component to governmental legitimacy.
The International Institute for Democracy
and Electoral Assistance (International IDEA) conducts yearly reviews of States
and evaluates the health of their democracy. Two of the attributes of their democracy
index are “Representative Government” and “Checks on Government”. In 2017,
Armenia received scores of .48 and .43, respectively. Both scores are at the
bottom of the “mid-range” of European States. Post-revolution, Armenia’s “Representative
Government” score jump to .54 and its “Checks on Government” score skyrocketed
to .59, a .16 point increase. The
Global State of Democracy 2019 report shows Armenia’s staggering increase
in the “Checks on Government” attribute (page 226). The same report positively
described Armenia as “the only country in Europe to transition from being a
hybrid regime in 2017 to a democracy in 2018.It also recorded the
highest number of statistically significant advances in Europe for 2018: on
Checks on Government, Impartial Administration and Participatory Engagement,
and on eight related democratic subattributes” (page 212).
The Economist Intelligence Unit’s (part of
The Economist magazine) gave Armenia a democracy index score of 4.11 in 2017,
4.79 in 2018, and 5.54 in 2019. Their democracy index report for
2019 concluded that Armenia’s “improvements [to accountability,
transparency and public confidence] were consolidated and peaceful political
activity became possible without government interference” (page 32). Armenia jumped
three ranks higher than neighboring Georgia, which is often pointed to as the
best representative of European values in the Caucasus.
Foreign relations with the EU
Pashinyan has been actively negotiating better
relations with the EU such as visa-free travel to Europe for Armenians or the
Armenia-EU Comprehensive and Enhanced Partnership Agreement (CEPA). CEPA will
obligate Armenia to adopt a wide
range of EU norms. It was signed in November, and at the time of writing, 21
EU States have ratified it.
Working on the periphery of CEPA, Armenia
and the EU have worked together to further strengthen their relationship.
Armenia signed three
financial agreements with the EU, which will unlock €65 million to use for
implementation of CEPA. The EU also recently removed
Armenia from its “gray list” of non-cooperative tax jurisdictions.
The perspective of the domestic populace is
essential to the legitimacy of a government. The straight-forward pitfall is to
use popularity as a synonym for legitimacy, as majority support does not mean
that core democratic norms are not being eroded. A superior metric is the
perception of corruption within a country because it provides a more neutral
metric to judge a government’s adherence to the rule of law. I recognize the
metric is not perfectly politically neutral as someone who supports a
government is likely to perceive it as less corrupt.
Transparency International’s Corruption
Perceptions Index gave Armenia a score of 35 in 2017
and 2018, putting Armenia 107
out of 180 countries. But in 2019,
the score jumped to 42, moving Armenia up 30 ranks to be tied with Bahrain compared
to previously being tied with Egypt. A survey released on the
21st of February found that 75% of those asked did not think
Pashinyan was corrupt. In contrast, only 6% believed that there wasn’t
widespread corruption under the previous regime.
Taking Account of Facts
There is no clear rule to assess whether a referendum will promote or undermine abstract concepts like the rule of law. The best approach is to examine the domestic political situation – and its trajectory – to assess the legitimacy of a referendum. Rule of law approaches tend to focus on principles rather than facts. Principles are universal while facts are messy and complex. But it is context that distinguishes this referendum from the populist referenda we have seen in Hungary or Poland that are undoubtedly aimed at undermining the rule of law.
While I cannot say whether a yes or a no vote would be a better outcome for Armenia, I do believe the context of Armenia’s revolution makes it democratically legitimate to allow the Armenian polity to answer the question.