Helsinki Citizens' Assembly-Vanadzor

HCAV position on the draft law on making amendments to the RA Law on Public Service

June 28, 2023

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On 5 May 2023, the draft law on making amendments to the RA Law on Public Service was put for public discussion in the unified website for draft legal acts. The draft proposes to solve a number of issues that emerge in practice with respect to the use of mechanisms of temporary tenure of the deputy employee holding an administrative position and deputy minister or deputy community head in case of the change of the superior or immediate manager of the person holding the administrative position, as well as change of the Minister or the community head.

 

Back on 3 September 2021, HCAV published its position regarding part 2 and part 3 of Article 6 of the RA Law on Public Service, addressing the issue whether determining the change of a superior official or the immediate manager as grounds for terminating the service of a public servant is in line with the public service principles of the dismissal prohibition - a component of free choice of employment - as enshrined in Article 12 of the Law, as well as international obligations undertaken by the RA. In particular, it was noted that termination of employment relations with a person holding an administrative position in case of change of that person’s political superior or immediate manager solely at the arbitrary, subjective discretion of the newly appointed manager, without objective grounds, is not in line with the public service principles established under Article 12 of the Law, since public service is based on performance of functions based on merits and professional competencies, fundamental values of public service stability and exclusion of ungrounded interference, while change of the superior official or direct manager leads to arbitrary interference, instability of state or public service and termination of service for reasons unrelated to the public servant’s obligations or conduct.  In addition, stability and sustainability is one of the essential features of various components (including public service) ensuring the state system. If public servants are allowed to continue value-based work characterized by career progress and requirements of professional activity also during the rule of the next government or in case of changes in political forces, it not only contributes to maintenance of capacities, but also institutional memory.

 

We hereby record that part 2 and part 3 of Article 6 of the Law on Public Service contradict Article 12 of the Law on Public Service, part 2 of Article 6 of the Law on Fundamentals of Administration and Administrative Proceedings, Article 57 and Article 81 of the Constitution, and Article 24 of the European Social Charter. Thus, it is necessary to review the mentioned legal regulations by making them in line with the RA Constitution and international legal standards in terms of labor rights.

 

Taking into account the condition that the draft put for public discussion concerns the relations related to the use of the mechanism of change of the superior official or immediate manager of a person holding an administrative tenure, we hereby present our previous positions and proposals.

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