Helsinki Citizens’ Assembly-Vanadzor

The Draft Law on making amendments to the RA Electoral Code was published on the RA National Assembly website. The Draft Law was presented by the Ministry of Territorial Administration and Infrastructure of the Republic of Armenia and has already been included in the National Assembly agenda and was discussed on 26 May. 

Helsinki Citizens’ Assembly-Vanadzor gave its preliminary assessment of the Draft on 21 December 2019, when the Draft was placed on and then removed from edraft.am. 

After the discussion in the National Assembly on 11 March 2020, a few important amendments were made to the Draft. However, certain problems still remain.

Thus,

• it is necessary to conduct a wide discussion with all stakeholders regarding the possibility of nominating civic initiatives (at least the ones in transition from an initiative to a party), about which recommendations were given not only by the Venice Commission, but also by a number of local NGOs and initiatives.
• The Ministry recommends proportional elections of the Council of the Elders  in communities with 4,000 and more voters, as well as in amalgamated communities  with up to 4,000 voters. During the NA discussion it was stated that there were also communities inhabited by national minorities or other small communities, which were united, but were not enough to provide their participation by party representation.   In communities of multiple settlements with up to 4,000 voters, there is also a problem concerning the provision of sufficient, i.e. at least 15 candidates in each electoral list (Article 130 (2) proposed in Article 26 part 2 of the Draft). Further, there are no set guarantees for representation from every settlement of amalgamated communities.
• The concept of amendments to the Constitutional Law “On political parties” envisages to assign the control of financial flows, including the expenditures during the pre-election campaign to the Corruption Prevention Commission. In the previous Draft, the Ministry of Territorial Administration and Infrastructure reserved this function for CEC Control and Audit Service and multiplied the volume of work in addition to all the communities moving onto proportional representation system. The number of those communities reaches 80, if we take into account the current number of administrative territorial divisions and the voters during the period of NA snap elections of 2018. For the fulfillment of this function, the Ministry was proposing to give the above-mentioned service a possibility to expand its staff by up to 5 employees for a period of up to one month. The Draft placed on E-draft and the Draft presented on the NA webpage do not envisage any regulation of control over the funding of the parties and expenditures of pre-election campaigns. This means that before the Corruption Prevention Commission takes over this function, it is to be performed by CEC Control and Audit Service, that is, the structure with limited powers is to continue its ineffective activity, not having enough human and financial resources.
• Though in contrast to the previous one, the new Draft suggests 70/30 gender representation in electoral lists, it does not provide mechanisms of guaranteeing that ratio in the elected factions. This problem was raised during the NA discussion, but remained unsolved.  
• The Draft envisaged lowering the electoral threshold and eliminating the bonus given to the party that got more than 40% of votes. This was positive. A possibility of forming coalitions was created, however, there was an ungrounded restriction on the formation of coalitions by up to 3 political factions. That restriction was criticized during the NA discussion and currently, the provision of the formation of coalitions has been factually fully removed from the Draft, and it is envisaged that if a party does not receive more than 50% of the mandates, the head of the community shall be elected by secret ballot, though open ballot would be preferable.
• By proposing amendments in the Draft Law “On political parties”, the Ministry again proposes to maintain the requirement to suspend a party’s activity in case of not participating, twice in a row,  in national or local self-government bodies elections by proportional representation system  (Article 32 of the Law on Political Parties). The possibility to suspend a party’s activity on this ground was recognized anti-constitutional by the RA Constitutional Court’s decision DCC-669 of 22 December 2006, and it is clear that it should be recognized invalid. However, even in the absence of such a decision, the position of the presenter of the Draft (that not participating in two local self-government bodies’ elections should lead to the suspension of the party’s activity, while those elections can factually occur in 3-4 months) is incomprehensible.
• Moreover, in order to promote the activity of the party as a union, instead of such ungrounded punitive sanctions, it is necessary to envisage funding for parties in case they participate in local self-government elections and receive enough votes․ This will encourage parties to be represented at the local level and develop local party units.  Furthermore, without envisaging this funding,  the fulfillment of the requirement of the representation of at least 3 parties can be problematic, since the parties may simply not have resources for participation in elections in this or that community.
• During the discussion, a concern was raised that sometimes, elections of local self-government bodies are scheduled and then cancelled by the governor, despite the fact that the latter does not have the power to cancel elections. It is positive that considering the observation, it has been added to the Draft that the governor’s decision on community elections shall be published 70 days in advance and cannot change except in cases prescribed by law. 
• As a result of the discussion, one more point was reviewed. In the previous version, it was proposed to terminate the powers of the mayor or the Council of the Elders ahead of time, if the other’s term of office has expired, and the new elections were to be organized in a proportional representation system. As a result, there would be violation of constitutional rights of the acting Council of the Elders or the mayor. The amended Draft envisages that in case of earlier elections of the Council of the Elders, the head of the community holds his position until the end of his powers. And in case of later elections, he continues holding his position as the head of the community until the elections of the Council of the Elders. 
• The Draft specifies that once a community has shifted to the proportional representation system, its elections are not organized by a majoritarian electoral system, if the number of community residents has decreased below the threshold. Nevertheless, it is important to clarify whether the electoral system is maintained, in case, for example, one or a few communities of communities with multiple residence places secede, or a new electoral system is determined in accordance with the new situation. 
• An important amendment has been made to the Draft, according to which, since 1 January 2023, the state authorized body in the field of local self-government shall keep a database on the term of office of local self-government bodies on their official webpage. If possible, the publication of that database by 2021 would be more expedient, since it would give enough time to specify the dates of the large-scale elections of 2021․
• The issue of limiting the term of office of community heads has been discussed in various formats, but still remains unregulated. Acting community heads continue being nominated without any competition or under the conditions of formal competition. It is necessary to establish that the same person cannot be elected as a community head more than twice. This can be done through both direct and indirect elections. 
• It is also necessary to discuss the provision of the possibility to conduct direct elections of the community head in all communities. The direct election is also important from the point of view of the mayor’s independence, when the Council of the Elders and the mayor are elected independently of one another.

This draft is also an opportunity to envisage and make amendments to the Electoral Code, when, during the state of emergency, the postponement/prohibition of the elections of local self-government bodies may be determined by the Government’s decision to declare a state of emergency and, in case elections are held, to envisage additional measures for their organization. Only in case of providing such measures will it be possible to organize elections of local self-government bodies envisaged for autumn 2020, depending on the epidemiological situation in a given community.