at the Session of the Specialized
Commission on Constitutional Reforms
of July 30, 2016
ON THE CONSTITUTIONAL REFORMS
OF THE REPUBLIC OF NAGORNO-KARABAKH
The Constitution of the Republic of Nagorno-Karabakh adopted on 10 December 2010 has played a significant role in the strengthening of the statehood of self-determined Artsakh, and the establishment of democracy and rule of law in the country. Being in a situation of imposed war, regular violations of the ceasefire as well as large-scale military actions, the Republic of Artsakh has managed to create and strengthen the institutions common to independent states, and confidently advance in the path of democratic and legal reforms.
The current Constitution has shown vigor and contributed to the establishment of a number of constitutional-legal institutions and the Republic of Nagorno-Karabakh as a sovereign, democratic and legal state.
However, at this point, conditioned by the new realities of public life and new imperatives of security protection and progress of the country, there is a necessity to further improve the legal regulations of constitutional norms. This should contribute to good governance, strengthening the sovereignty of the country, further advancement of democratic processes, adoption of more effective mechanisms that guarantee and protect fundamental human rights and freedoms, introduction of a system of government free from internal inconsistencies , independence of the judicial and local self-government, as well as enhancement of the institutions of direct democracy.
1. Fundamental Human and Citizen’s Rights and Freedoms
The Chapter of the 2006 Constitution of the Republic of Nagorno-Karabakh dedicated to the fundamental human and citizen’s rights contains progressive regulations consistent with the approaches of democratic states and international protocols. However, there is a need to further improve those constitutional norms in line with international developments in this field taking as a guideline the provisions of international law, especially those of the Charter of Fundamental Rights of the European Union, the European Convention for the Protection of Human Rights and Fundamental Freedoms and international covenants on human rights, as well as new international legal approaches on the rule of law.
The main directions of constitutional reforms include:
Besides content-related reforms, it is equally important to make structural adjustments related to the constitutional status of individuals, revision of their logical sequence which, in practice, may cause problems with the understanding, interpretation, and application of this fundamental document.
Thus, in line with international best practice, the constitutional reforms should expand the scope of individual and citizen constitutional rights, by further developing the rights already enshrined by the Constitution, as well as prescribing new fundamental rights. In this respect, a number of issues referring to certain rights can be addressed on the conceptual level.
In line with current international regulations, the right to the protection of personal data should be regulated by addressing issues related to the collection, processing, and access of personal data.
Taking into consideration the high public value of the right to inviolability of the home, the right to freedom of communication, the right to freedom of marriage, it is necessary to clarify the grounds for restricting those rights and the underlying legitimate reasons therefore.
One of the pillars of democratic society is the freedom of assembly. The constitutional norms should specify the boundaries of the right to freedom of assembly and the obligation to serve advance notification when it applies to outdoor assemblies, as stipulated by law.
In respect to the protection of the rights of convicted persons, in line with international documents and the judicial practice of ECHR, the progressive step would be to reserve the right of suffrage in particular cases.
The current Constitution enshrines the right of every person to judicial protection of his/her rights and freedoms; however, it does not address the right to effective legal protection in cases related to state bodies. The installation of the right to proper administration (for instance the right of a person to have his/her affairs handled impartially, fairly and within a reasonable time; the right of a person to be heard, etc.) on a constitutional level, can be seen as the progress and effective safeguard of acting constitutional norms.
The Constitution in force protects the rights of parents but does not address child rights. An important step would be to stipulate child rights in the Constitution so as to meet current international practice on the inclusion of child rights in the constitution as well as the Convention on the Rights of the Child. Moreover, the constitutional approaches should view the child not only as the subject of protection measures but also as bearer of those rights and decision maker in matters concerning child rights. The international practice on the constitutional establishment of the rights of a child makes it necessary to enshrine the following rights of a child, particularly protection from threats, guarantee for the development of a child, and primary consideration of the best interests of a child.
Concerning the democracy, open governance and transparency of the functioning of public authorities, it is important to enshrine the right to access information on the activities carried out by the state and local self-governing authorities and officials, including the distinct provision of the right to access of documents.
The guarantees of the person's legal-criminal protection need to be expanded, including the additional safeguards of the right to protection of a convict, the principle of guilt as a basis of criminal legal responsibility, as well as the principle of proportionality of sentencing.
One of the most essential elements related to the constitutional-legal status of persons is the possibility, basis, and legitimacy of limitations of the fundamental rights. Otherwise, the substance of those fundamental constitutional guarantees could be distorted or lose their intended meaning. In international documents and practice in this field, guarantees from non-proportional restrictions of the rights are safeguarded by the principles of proportionality, legal certainty and inviolability of the essence of those rights.
In this respect, Article 54 of the Constitution contains an essential provision which, by limiting the fundamental rights and freedoms, prohibits any distortion of the spirit of those rights and freedoms. However, it does not address the other two guarantees related to proportionality and certainty. Moreover, from the perspective of drawing guidelines for drafting future legislative provisions on the limitation of rights, discursive attention must focus on defining the precise grounds for restricting the fundamental rights following generally accepted principles enrooted in international documents and judicial practice for years.
Along with the constitutional-legal status of a person, it is necessary to ensure the direct effects of those rights and freedoms. In this respect, from the perspective of a systemic approach of the constitutional regulation of human rights, it is of core importance to distinguish between the classical and basic social rights and the primary objectives of state policy. The current Constitution enshrines certain social rights, however in many cases the objectives of state social policies are formulated in the Constitution as basic social rights (for example the right to an adequate standard of living, the right to live in a favorable environment, etc.); yet the blend of classical and basic social rights and primary objectives of state policy weakens the guaranteed protection of classical human rights and basic social rights. This is problematic because classical fundamental rights are unquestionably mandatory for states and the extent of their realization can neither be different nor dependent on the state's discretion. Whereas social rights, as a rule, are not rights of direct application and the extent of their realization mostly depends on state economic capacities. In situations where classical basic rights are placed on the same level as social rights, people would have unrealistic expectations. As the State cannot meet the protection of such right, there could be rights that are violated. In its turn, this results in the undesirable consequence of automatic weakening of the level of protection of all basic rights by the State.
Indeed, there are also some social rights that have developed into classic basic rights in the theory and science of constitutional law (for example the right to education, the freedom to choose one’s work and other employment rights, the right to strike, etc.). Such basic social rights are directly effective rights; consequently, judicial protection of those rights should be considered. Regarding other social rights (such as the right to work conditions, the right to social insurance, the right to dignified existence and minimum wage, the right to health care) and state policy objectives in the field, although these are not directly applicable rights, it does not mean that public authorities could simply ignore and not fulfill these provisions that have originated from the principle of social state and other special regulations.
2. The System of Government
2.1 The drawbacks of the current system
With the adoption of the Constitution, the semi-presidential system of government was established in the Republic of Nagorno-Karabakh, which is characterized by the fact that the citizenry grants direct mandate to two bodies: the National Assembly and the President of the Republic. However, the President is not legally the head of the executive power, but shares that power with the Government which is accountable to the Parliament. That is, the dualism of executive power, typical to the semi-presidential system of government, has also been reflected in the Constitution of the Republic of Nagorno-Karabakh. Although, in contrast to the 2005 Constitution of the Republic of Armenia, the President of the Republic has a stronger position over Government, this does not guarantee the unity of executive power for a country that actually lives in a state of emergency imposed by external forces and where the flexibility of the system of government and the operativeness of decision-making and implementation are of special importance.
In accordance with the Constitution of the Republic of Artsakh, forming the government is a complicated and time-consuming procedure, which, in the case of political dissent, results in the dissolution of the National Assembly. According to Point 4 of Article 68, the President of the Republic appoints the Prime Minister in a manner prescribed by Article 100 of the Constitution, with the power of also appointing and dismissing other members of the Government at the recommendation of the Prime Minister. The President of the Republic has the right to dismiss the Prime Minister, in consultation with the President of the National Assembly and the leaders of the parliamentary factions. Under Article 100 of the Constitution, the President of the Republic appoints the Prime Minister whose candidacy has been approved by a majority vote of the total number of deputies of the National Assembly. In cases where the National Assembly doesn’t approve the candidacy of the Prime Minister, the President of the Republic presents the candidacy of the Prime Minister to the National Assembly’s approval a second time. If the National Assembly fails to approve the candidacy of the Prime Minister for the second time, then the President of the Republic appoints the Prime Minister at his sole discretion. In all cases, the new Government submits for approval by the National Assembly the Program of activities of the Government. In the event that the National Assembly consecutively fails to approve the Program of activities submitted by the Government that was formed by approval of the National Assembly, or the Program of activities of the Government, which Prime Minister was appointed at the discretion of the President, then the National Assembly is necessarily dissolved and special elections are scheduled. The essence of this complicated and time-consuming process is to ensure that the Government has the support of both the President of the Republic, as well as the majority of the National Assembly. This, however, does not guarantee an expected outcome, including cases, when the Parliament is dissolved following insurmountable contradictions between the President and the National Assembly. Given the fact, that the President of the Republic has discretionary power to remove the Prime Minister, the Constitution derives from this dominant position of the President of the Republic over the Prime Minister, which, however, does not guarantee the unified and coordinated functioning of the executive power particularly when the majority of the Parliament is in opposition to the President of the Republic. The dualism of the executive power is vulnerable for Artsakh considering the fact that the President of the Republic needs to cooperate with the Government in matters concerning defense.
The necessary balance also is absent in relations between the President of the Republic and the National Assembly. Whereas the President of the Republic by way of removing the Prime Minister can basically achieve the dissolution of the National Assembly, on the other hand, the National Assembly can avoid dissolution by putting up with the Prime Minister appointed by the President; this may result in a situation when the Government, not having real support of the Parliament, continues to function but is unable to realize its programs, especially those pertaining to the adoption of laws necessary for the realization of the Program of the Government. The right of the National Assembly to dismiss the President can be realized only through the impeachment procedure and can not revert to calling the President of the Republic to political responsibility.
Thus, the current system of government does not lead to ensuring a united executive power and does not imply a genuine political charge of the executive branch (President of the Republic and Government).
The President of the Republic possesses extensive political power, but he does not bear political responsibility over executive branch.
The National Assembly cannot serve as a real counterbalance to the President of the Republic because, when in opposition to the President, it can be dissolved through the removal of the Prime Minister and formation of a new Government.
The possible situations of coexistence can have irreversible negative consequences for Nagorno-Karabakh that lives in extraordinary conditions, lead to internal clashes, uncoordinated actions, etc.
In general, the main drawbacks of the system of government reflected in the 1995 and 2005 Constitutions of the Republic of Armenia, as well as in the constitutions of a number of CIS countries, are typical to the system of government of the Republic of Nagorno-Karabakh, which could become more accentuated in emergency situations.
2.2 The transition to a presidential system of government
The challenges facing the Republic of Nagorno-Karabakh require a robust and united executive power, able to mobilize all the resources of the country and promptly react to the demands of any situation, in peaceful as well as war times. Hence the reason why the matter of stability of the executive branch becomes more important for the Nagorno-Karabakh Republic.
Further, such stability cannot be guaranteed by the parliamentary system of government, because considering the small size of the National Assembly of Nagorno–Karabakh, provisions on securing a stable majority are not applicable.
Along with stability, effective mechanisms of checks and balances are needed to avoid having a super-centralized system of government and to require the executive branch to consider the political will of the parliamentary majority in policy making. Therefore, it is advantageous for Artsakh to have a system of government that will integrate the main principles of the presidential system of government but also will underscore the importance of having the Parliament exercise its counterbalancing function.
In this system of government, the President of the Republic is directly elected by the people, which is a common feature of the presidential system of government. The President of the Republic forms the executive branch of power in an extra-parliamentary way, he is the head of the executive authority, but, in contrast to the classic presidential system, the President of the Republic, as a head of the executive power, carries not only legal but also political responsibilities before Parliament, as in the parliamentary system. The National Assembly may express non-confidence in the President by the absolute majority vote of the total number of parliamentarians. As the President is elected directly by the people and not by the Parliament, as is the case with parliamentary republics, the expression of non-confidence in the President automatically brings to the dissolution of the National Assembly, as both the President and the Parliament have equal democratic legitimacy. In the presidential system the President of the Republic does not have authority to dissolve the Parliament; thus, when the President of the Republic and parliamentary majority represent opposing political majorities, the system of the government not only functions ineffectively but also may generate gridlock. Considering this fact and to overcome such impasse situations, the President of the Republic is empowered to dissolve the Parliament, which is typical of parliamentary republics. But, in contrast to the latter, if the President of the Republic dissolves the Parliament, then new presidential elections also should be conducted. The basic advantage of this system is that the matter of forming the executive branch is resolved by the people, as is the case in presidential systems, and not by the political parties, through behind the scenes negotiations, which usually occurs in parliamentary countries having multiple political parties. On the other hand, the problem of resolving conflicts between Government and Parliament, one of the weaknesses of the presidential system, is managed well here. Considering that either side has the right to suspend the other's authorities, but only at the cost of surrendering its own powers, the problem of opposing majorities can be resolved through the expression of a non-confidence vote or dissolution of the Parliament.
Whereas this system will ensure an effective balance of power and will keep the government free from gridlock, it also could make both the President of the Republic and the Parliament suspend the other's authorities albeit in cases of extreme necessity taking into account the requirement of holding new elections of both bodies as a result of expressing non-confidence in each other. As a result, the system of government will be more stable.
This system exceeds by far the semi-presidential system in terms of political responsibility, as the President of the Republic, in contrast with the Presidents of both presidential and semi-presidential countries, bears political responsibility for the executive power before Parliament during the whole term of office. Although, the proposed system, grants the President of the Republic greater power, (s)he cannot govern against the will of the parliamentary majority. Otherwise, the Parliament can go forward expressing non-confidence in the President. This, in its turn, means that the President of the Republic would always be interested in having a strong position in his party or in the party that has nominated his candidacy which, in turn, would be interested in the success of its political leader. Accordingly, the Parliament has a strong influence on the head of the executive branch, while in the presidential system the head of the executive does not bear political responsibility; as to the semi-presidential system, the Parliament can express no confidence only in the Government and not in the President of the Republic, who can dominate the executive power in full or in part. The position of the Parliament is stronger in this system than in the semi-presidential system, because, by dissolving the Parliament, the President of the Republic also surrenders his mandate, while this is not a hindrance for the President of a semi-presidential country. The price of a mistake in the political scheme of the President of a semi-presidential country is seen in the weakening the political influence of the President, but not in his loss of mandate.
As is the case in presidential and semi-presidential forms of government, the proposed system does not preclude that the President of the Republic and the parliamentary majority would be opposed to each other. To mitigate the risk of creating two opposing majorities, it is proposed to hold both presidential and parliamentary elections concurrently. Similarly, the provision that requires candidates for the Presidency to be nominated only by the political parties running in the, serves the same purpose.
In this system, the people’s choice has a more direct effect on governance than in a semi-presidential system. The President of the Republic, elected by the people, gets the people's mandate to realize his policies. In a semi-presidential system, because of the bipolarity of the executive power typical of this model of governance, the selection of the Prime Minister is carried out by the President ¾ as long as he holds majority in the Parliament ¾ or by the opposition parties, if they, having won in the parliamentary elections, gain majority (coexistence). In the first case the Prime Minister is the second person of the executive power, and in the second case, the first. In both cases, the people have reduced direct influence on the executive branch.
Even greater are the advantages of the proposed system in terms of manageability. The directly elected President of the Republic has an incontestable legitimacy that is not less than that of the Parliament. The prospects of the President of the Republic to realize his policies are more than in the parliamentary and semi-presidential systems. In contrast to the parliamentary system, a non-confidence vote automatically results in the dissolution of the Parliament. The semi-presidential form provides only alleged stability in the event that the President of the Republic loses his political support in the Parliament. In that case, he cannot govern effectively and should wait until the next parliamentary elections, if he has no discretionary power to dissolve the Parliament.
Another advantage of the proposed system over the presidential system and, also in some cases over the semi-presidential system is that the concurrent conduct of presidential and parliamentary elections eliminates or at least substantially mitigates the ''winner-take-all'' principle, common to those other systems. The candidate, who came in second in the presidential elections, as a rule, becomes the second force in the Parliament.
2.3 The main provisions of the proposed system of government
Based on the above mentioned rationale, the specialized commission on constitutional reforms proposes the following key provisions for the system of government of the Republic of Nagorno-Karabakh:
1. The President of the Republic is the head of the executive branch.
2. The President of the Republic shall be elected by direct popular elections. The elections of the President of the Republic and the National Assembly shall be conducted on the same day.
3. If the office of the President of the Republic remains vacant, the President of the National Assembly shall occupy that office till the expiration of the current term of President.
4. The President of the Republic has the right to dissolve the National Assembly. In that event, simultaneous special elections of the President of the Republic and National Assembly shall be conducted.
5. The National Assembly, by a majority vote of the total number of parliamentarians, may express non-confidence in the President of the Republic. In that event, simultaneous special elections of the President of the Republic and National Assembly shall be conducted.
6. The candidates for the office of President of the Republic shall be nominated only by the political parties running in elections of the National Assembly.
7. The President of the Republic shall appoint and remove ministers.
8. The President of the Republic has the right to legislative veto, which can be overcome by a majority vote of the parliamentarians of the National Assembly.
9. The National Assembly, by a two-thirds majority vote of the parliamentarians and by decision of the Supreme Court, has the right to dismiss the President of the Republic for state treason or other high crimes.
10. The same person may not be elected for the post of President of the Republic for more than two consecutive terms.
11. The National Assembly shall be elected by a proportional representation voting system.
3. Judicial Power
An independent, professional and accountable judiciary is the cornerstone of rule of law, legality and protection of human rights in every state. Back in 2006, the constitutional regulations of the Republic of Nagorno-Karabakh had embraced internationally accepted principles of independence of judicial power and judges, necessary for the existence and functioning of the judiciary. However, the judicial system is now facing new challenges of advancement necessitating further constitutional reforms aimed at:
1. strengthening the independence of the judiciary and judges and advancing the constitutional guarantees concerning the status of a judge;
2. elaborating on the distinct authorities of the President of the Republic in the process of appointing and dismissing judges along with establishing stronger guarantees of transparency and autonomy of the appointment process;
3. increasing the independence and effectiveness of self-governance of the judiciary, specifying the status and mission of the Council of Justice
4. developing the effectiveness of the institution of constitutional justice.
In regard to the constitutional guarantees related to strengthening the independence of the judiciary and judges, they too should evolve firstly with regard to the process of appointment of judges. That is, a primary precondition for ensuring the admittance of independent, ethical and highly qualified professionals into the judicial system to begin with, thereby creating the necessary conditions for the proper performance of an incumbent judge. These objectives should be achieved by introducing a transparent process for assessing the merits of candidates for judge’s positions and balancing the authority of participants in the appointment process. In this respect, the Constitution of the Republic of Nagorno-Karabakh has rather progressive regulations for the appointment of judges to the Supreme Court, envisaging the participation of the President of the Republic and the National Assembly in the process. However, the process of appointment of the judges of other instances is centralized in the hands of the President of the Republic and the Council of Justice. Moreover, the extent of power of each in this process and the guarantees of the independence of judges are not clear. Even in the case of the appointment of judges to the Supreme Court, the constitutional norms are silent on the crucial procedural issues, including the nomination of candidates and persons authorized to nominate a candidate to the Supreme Court, etc. The appropriate safeguards should be incorporated in the appointment of judges by the Parliament to offset the risks of politicizing the process. In this respect, the key principle of the constitutional regulations should be that the procedure pertaining to the appointment of judges upholds the factor of independence of the judge such that (s)he would not be coerced by the nominator on the one hand and exalt the responsibility and public accountability of a judge.
Another important issue related to the outward independence of a judge is the scope of those authorized to discharge judges. By the present Constitution, the authority of final decision pertaining to the termination of the authorities of a judge and also his/her arrest and involvement as an accused is vested in the President of the Republic. Moreover, the constitutional provisions do not make a distinction in such matters even in case of; for instance, the authority of the appointment of judges to the Supreme Court is vested in the National Assembly. The installation of relevant procedures that would ensure the independence and impartiality is also important in this respect.
Parallel to ensuring the admittance of qualified personnel to the judiciary, the issue of the status of a judge is of no less importance for the existence and effective functioning of an independent and impartial judicial system. In this respect, the constitutional norms need to be further developed and modified. On the one hand, this concerns the restrictions imposed on judges and, on the other, issues pertaining to their immunity, prosecution, and other material and social guarantees.
A necessary precondition for the independent and autonomous functioning of the judiciary is the existence of a cohesive and competent system of judicial self-governance. In this regard, Article 115 of the Constitution of the Republic of Nagorno-Karabakh foresees the creation of the Council of Justice. The articulation of the role and mission of the latter comes through analyzing the authorities vested in it by Article 116 of the Constitution. However, the constitutional provisions concerning the Council of Justice are problematic, particularly in the following respects:
1. The status and mission of the Council of Justice are not specified in the Constitution. Although by the current Constitution, this body is vested authorities that are typical to the highest body of judicial self-governance, they are, firstly, incomplete; secondly, a substantial part of the authorities of the Council of Justice is of an advisory nature. In terms of transforming the Council of Justice into a complete judicial self-governing institution, it is crucial to expand the constitutional power of the Council by bringing it closer to the typical authorities of such bodies reflected in international documents.
2. Also, the current Constitution does not address the requirements for the members of the Council of Justice; there is no restriction on the reelection to the post of a Council member.
3. In terms of being a fully self-governing body that represents the interests of all judges, the absence of norms that define the need for the representativeness of the judges of all court instances is also problematic.
4. The balanced role of the judges and non-judge members of the Council is not ensured. By the present Constitution, the President of the Supreme Court presides over the sessions of the Supreme Court. Thus, the election of the President of this body by its members is deemed more appropriate by international practice in order to guarantee the impartiality of judges and to ensure equality among the judges and non-judge members of the Council.
4. Local Self-Government
Analysis of Chapter 10 of the Constitution of the Republic of Nagorno-Karabakh reveals that, in general, it corresponds to the key principles of the European Charter on “Local self-government." In reality, conditioned by the unique characteristics of the communities of the Republic of Nagorno-Karabakh, there are circumstances that do not secure the full capacity of local self-government.
The fact that the communities are small and the small size and often the lack of their revenues do not allow full execution of local self-governance of respective communities.
In practice, political parties, by and large, do not attach importance to elections of local self-government bodies, and do not actively participate in those elections, as a result of which the elections do not become an integral part of the overall political life of the state. The marginal role that elections to local self-government play is also due to the fact that they are held at different times.
Therefore, the methodical approaches of the Chapter in the Constitution on “Local self-government” need to be fundamentally revised, and the required and appropriate constitutional safeguards for ensuring the independence of the local self-governance should be enshrined. To this end, certain provisions need to be amended and reconfirmed.
The conceptual approaches to constitutional and legal reforms related to the institution of local self-government basically constitute the following:
1. The local self-government bodies should have a clear constitutional status, real power, the possibility to produce their own sources of revenues to address problems of community significance;
2. The role of the Council of Elders in the system of local self-government should be strengthened, particularly by increasing its oversight power;
3. To elect the leader of the community by the Council of Elders, from among its members;
4. To amend the institute of removal of the leader of the community by the Government;
5. To provide the Council of Elders of the community with broader authority in establishing local taxes and duties;
6. To enlarge the forms of the participation of community members in the affairs of local self-government; to provide effective mechanisms of the local referendums.
In modern world, democratic governance is carried out primarily by way of a representative democracy: the people elect their representatives, who on their behalf, exercise state power. In the case of a direct democracy, the people themselves make political decisions on certain issues through referendums. Today the referendum, as an institution, is adopted by more than a dozen European countries. Although Article 3 of the Constitution of the Republic of Nagorno-Karabakh stipulates that the people exercise their power both directly and through the bodies and state officials prescribed by the Constitution (representative democracy), the Constitution envisages only one form of direct exercise of power by the people, the referendum; and only government bodies have the right to initiate and call a referendum. According to Article 133 and 134 of the Constitution, referendums can be called for the adoption of the Constitution and laws, as well as for related amendments. A constitutional referendum can be initiated by the President of the Republic and the National Assembly, and a referendum on the adoption or amendments of laws, by the National Assembly and the Government. The Constitution does not grant the people the direct privilege of initiating a referendum. In addition, the Constitution does not specify the frame of the issues that do or should warrant a referendum.
Highlighting the role of institutions of direct democracy in the checks and balances of institutions of representative democracy, it is expedient to stipulate in the new Constitution that a certain percentage of citizens, having the right of suffrage, are entitled to the right of proposing to the National Assembly a draft law by civic initiative. It can be stipulated that civic initiatives initially rejected by the National Assembly could be put to a referendum if an additional number of citizens with the right of suffrage joins the initiative within a certain period of time.
At the same time, the frame of the issues that cannot be put to referendum should be embedded in the Constitution.