Armenia’s ruling party has elected three new judges to the country’s Constitutional Court, the culmination of a long battle between the new government and the judicial system.
But the fact that the new justices are tied, in varying ways, to the former regime has prompted questions about what the long fight actually achieved.
The three judges were approved by parliament on September 14, with unanimous approval from the ruling My Step coalition and over a boycott by the body’s two opposition factions.
Two days later, at a question-and-answer session in parliament, Prime Minister Nikol Pashinyan declared that “the crisis over the Constitutional Court is over,” and added: “Does this mean that an ideal Constitutional Court has been formed? No.”
Many in Armenia’s civil society agreed with the second sentiment.
“These elections contradict their [government’s] initial policies,” said Hayk Martirosyan, a legal expert with the local branch of Transparency International, an anti-corruption NGO. “After so much noise around the Constitutional Court, it seems like this is not how the results should look.”
Immediately after coming to power in the spring of 2018, Pashinyan identified judicial reform as one of his government’s key priorities. The court system was effectively the only branch of government not controlled by Pashinyan allies, and the prime minister accused the country’s judges of being loyal to the former regime.
The Constitutional Court “represents the corrupt regime of Serzh Sargsyan, rather than the people, and it must go,” Pashinyan said in February.
The government has tried a wide variety of methods to remove the old judges from the country’s top court, but was stymied at every turn. Parliament called for the current head of the Constitutional Court, Hrayr Tovmasyan, to voluntarily step down, then law enforcement agencies opened criminal cases against him. Those cases are still ongoing.
Parliament then elected a new judge, Pashinyan ally Vahe Grigoryan, to the court and tried to install him as chairman in a technical maneuver which was criticized by a European advisory body, and the government backed down.
Later, judges were given financial incentives to retire; all refused. Pashinyan launched a splashy campaign to hold a national referendum on reforming the court, but was forced to abandon the plan amid the COVID-19 lockdown.
Finally, on June 22, parliament held an emergency session to pass a bill removing three judges, who had all served more than 12 years, without a referendum. The same bill demoted Tovmasyan but kept him on the court. The three fired judges appealed to the European Court of Human Rights, but that court has not yet issued a ruling.
Now, after so many accusations that Pashinyan was trying to repoliticize the court system, he is coming under fire for going too far in the opposite direction, picking top judges who are too connected to the old regime.
“I think civil society expected from Pashinyan that he wouldn’t think about his own power, like the former authorities did,” said Avetik Ishkanyan, the head of the Armenian Helsinki Committee. “That he was ready to create an independent court with high quality judges, that was the expectation,” he told Eurasianet.
The identities of two of the new judges in particular caused some consternation among advocates of judicial reform.
Edgar Shatiryan was a former member of the Commission of Ethics of High-Ranking Officials from 2015-8, under the old regime, when the body was criticized for laxness in its pursuit of corruption cases.
Still more controversial was Yervand Khundkaryan, who had been head of the Court of Cassation. Khundkaryan was best known for his role in a case from the early 2000s involving the then-independent TV network A1+, when it was taken off the air, allegedly at the behest of then-president Robert Kocharyan. Armenia has lost 13 cases at the European Court of Human Rights that had been handled by Khundkaryan.
“Khundkaryan personally participated in Kocharyan’s seizure of power,” independent MP Arman Babajanyan said during the September 14 parliamentary vote. “This is a slap to the revolution and to democracy.”
Many civil society activists agreed.
“For me after this much noise to present these kinds of candidates was surprising,” said Varuzhan Hoktanyan, a program manager at Transparency International. “It could be that they were chosen for their professionalism, but time will show how impartial they are,” he told Eurasianet.
The new judges were hotly debated among the My Step coalition, with MPs friendly with Western-funded civil society groups and allies of former president Levon Ter-Petrosyan in particular allied against Khundkaryan.
“As many as 20 MPs support Vahe Grigoryan and they wanted to elect his friends to fill the vacancies,” said Benyamin Poghosyan, head of the Yerevan think tank Center for Political and Economic Strategic Studies. “However, the government and prime minister have been disappointed in Grigoryan and rejected the idea of bringing his friends into the court,” Poghosyan told Eurasianet.
Some Pashinyan allies said that, in the end, the appointments were a necessary concession to pragmatism.
“Pashinyan's theory of change is that we cannot bring enough new people to fill all the government posts, what we can and should do is to encourage old people to behave in a new way,” said one My Step MP, speaking to Eurasianet on condition of anonymity.
“For example, immediately after the revolution, some people who worked under the previous government were appointed to high positions, such as the police chief [Valeriy] Osipyan, which was received controversially by many Pashinyan supporters, but he still went on with that,” the MP added.
But to many, the compromise candidates represented a betrayal of the ideals that Pashinyan promised when he came to power.
“Nothing fundamentally has changed,” said Arthur Sakunts, the chairman of the Helsinki Citizens’ Assembly in Vanadzor. “It’s one thing to say and another to do. The main people responsible for this are the government and the Justice Ministry. They could have carried out reforms in the system but instead only this technical issue was solved,” he told Eurasianet.
The Constitutional Court’s days may be numbered in any case: A Pashinyan-appointed commission is working on an amendment that would replace the court with a new supreme court modeled somewhat after the American system. That is scheduled to happen in 2023.