Armenian CC`s decision fraught with undermining for constitutional  order - Hrayr Tovmasyan 

ArmInfo.No composition of the Constitutional Court has the authority to "devour" the Declaration of  Independence of Armenia at any time. Meanwhile, ignoring the normative nature of the Declaration of Independence of the Republic of Armenia may jeopardize the legitimacy of the independence process. 

This is stated in the special opinion of the judge of the  Constitutional Court, former head of the Constitutional Court and  former Minister of Justice of the Republic of Armenia Hrayr  Tovmasyan, published on October 7 on the official website of the  Constitutional Court.

On September 26, the Constitutional Court ruled that the obligations  enshrined in the regulations , signed on August  30, 2024, comply with the Constitution of the Republic of Armenia  (RKS-1749).

In it, the Constitutional Court, in particular, notes that if the  provisions of the Declaration of Independence are recognized as  having constitutional legal force, there will be a threat of  , and the Declaration itself will turn  into . It is noted that this  conclusion does not apply only to the theses of the declaration on  Armenia, which are also  contained in the Constitution. The Declaration, as is known, mentions  the reunification of the , which is why Baku has been demanding that Yerevan  change the basic law all these months. The Court came to the  conclusion that the provision in the preamble to the Constitution does  not refer to any principle or goal enshrined outside the  Constitution>. The text of the Constitutional Court decision states  that this conclusion now eliminates the need for further  consideration of the provision contained in the Declaration that  independence is proclaimed on the basis of the joint resolution of  the Supreme Council of the Armenian SSR and the National Council of  Nagorno-Karabakh of December 1, 1989 .

 

As stated in Tovmasyan's special opinion, the Constitutional Court  did not have the authority to consider this application, and  therefore, to make a decision based on this application. In addition,  the regulations were not subject to ratification by the National  Assembly, and therefore could not be the subject of an investigation  by the Constitutional Court.

, and in the  future may and may further undermine the constitutional order.

The Constitutional Court, first of all, limited itself exclusively to  considering the issue of constitutionality within the framework of  the preamble to the Constitution, which is a gross violation of the  Constitution and the Constitutional Law . In this way, the Constitutional Court, in essence, avoided  checking the constitutionality of the duties provided for by the  Regulation, which is its direct responsibility, according to Part 1  of Article 167, Clause 3 of Article 168 of the Constitution and .

The Constitutional Court did not consider the issue of the  constitutionality of the establishment and activities of the  commissions on border delimitation and border security issues, since  this issue predetermines the legality of the results of the  commissions' activities and the compliance of the duties stipulated  by the Regulations. Completely bypassing this issue simply means a  rejection of constitutional justice, the actual abolition of the  constitutional function of the Constitutional Court in this case, "  Tovmasyan noted. 

According to him, the commission created by the decision of the Prime  Minister could only be an advisory body that would submit advisory  documents for consideration by the Prime Minister or the government,  as well as, possibly, draft legal acts on issues within their  jurisdiction. In addition, according to Part 1 of Article 6 of the  Constitution, state and local government bodies and officials are  authorized to perform only those actions for which they are  authorized by the Constitution or laws. Thus, only those bodies  provided for by the Constitution, whose powers will be determined by  the Constitution and (or) law, can be vested with public powers. No  organ may be vested with public powers by any international treaty,  by-law or individual legal act. This is a violation of the  fundamental constitutional principle of legality.

Thus, as the Constitutional Court judge pointed out, the commission  in question is a body not provided for by the Constitution, but  illegally vested with specific public-authority powers, the  activities and results of which, therefore, are completely  unconstitutional, contradict the immutable Article 2 and Part 1 of  Article 6 of the Constitution, therefore the duties provided for by  the Rules of Procedure, related to the public-legal powers of the  commissions, are also unconstitutional. The Constitutional Court,  Tovmasyan is convinced, also completely ignored the issue of the  constitutionality of the delimitation of certain sections of the  state border of the Republic of Armenia and the Republic of  Azerbaijan as a result of the activities of these commissions, that  is, it did not assess the legal practice, and this is in the case  when the delimitation was carried out on the Armenian side not only  by a body not provided for by the Constitution and not having such  powers either under the Constitution or under any law.

In addition, the Constitutional Court has clearly bypassed  substantive issues of fundamental importance from the point of view  of the Constitution, by means of an unconstitutional and arbitrary  trick, limiting itself to assessing the obligations enshrined in the  regulations from the point of view of the preamble of the  Constitution, primarily the Declaration of Independence of Armenia,  ignoring a number of key normative provisions of the Constitution.

 

In order to clarify the meaning of the Declaration of Independence of  Armenia, the Constitutional Court used a trick that goes beyond all  logic. It compared individual provisions of the Declaration with the  provisions of the Constitution and, having discovered  , disqualified the normative nature of the  Declaration.

The Constitution does not call the Declaration a full-fledged  document, but by reference conveys the constitutional and normative  content to the fundamental principles of Armenian statehood and the  national goals established in the Declaration of Independence of  Armenia.

In this regard, it should be noted that the Declaration is one of the  reasons for the adoption of the current Constitution, and as the  basis for the adoption of the Constitution, it is included in the  preamble of the Constitution.

Therefore, comparing the Constitution of 1995, 2005 or the current  version with the Declaration is a gross methodological and logical  error, since it does not claim to replace the Constitution.

"I believe that ignoring the normative nature of the Declaration of  Independence of Armenia may jeopardize the legitimacy of the  independence process and lead to an increase in ontological dangers  for the current Republic of Armenia," he noted.

The position of the Constitutional Court, by which it exempts itself  from the binding force of one of the previous decisions of the  Constitutional Court, i.e., in fact, cancels the legal force of this  decision, without preserving it according to the constitutional law,  should be assessed as clearly contradicting the Constitution and the  Constitutional Law , Tovmasyan added.

Thus, in paragraph 3 4.1 of the RCC-1749 decision, the Constitutional  Court refers to the RCC-850 decision of January 12, 2010, in which  the Constitutional Court clearly emphasized that .  The above, the judge noted, means that back in 2010, the  Constitutional Court clarified the meaning of the provisions of the  Preamble of the Constitution and the Declaration on the  Interpretation of the Constitution, not allowing either the  legislator or legal practice to deviate from the duty of the Republic  of Armenia regarding the international recognition of the recorded  Armenian Genocide.

Meanwhile, the decisions of the Constitutional Court are binding for  the CC, including from the point of view of eliminating  arbitrariness, ensuring equality of applicants and ensuring the  authority of the Constitutional Court. If the Constitutional Court is  from the binding nature of any of its decisions without  the procedure established by law, then this is, first of all,  arbitrariness, in addition, it is an abuse of power, as well as  discrediting the power of constitutional justice.

, namely, if an  international treaty significantly affects the sovereign rights of  the Republic of Armenia, then the final part of the decision of the  Constitutional Court must contain a corresponding note about this,  which was also not done.

Taking into account the above, I disagree with the reasoning behind  the decision, I believe that the Regulations were not subject to  review by the Constitutional Court, and the obligations provided for  by the Regulations contradict the Constitution in their content.

Postscript:

The majority in the Constitutional Court sees a threat of  in connection with the Declaration of  Independence of Armenia and believes that this will turn  the Declaration into .

 

I believe that the use of such formulations is not typical for  decisions of the Constitutional Court.

If this is the approach adopted in the RCC-1749 decision, then my  response in this style is as follows: No composition of the  Constitutional Court is entitled to the Declaration of  Independence of Armenia> at any time, - says the dissenting opinion  submitted by Tovmasyan.