The Constitutional Court’s decision, by which the intergovernmental agreement on approving the regulations of Armenian-Azerbaijani border demarcation and delimitation commissions is considered not contradictory to the Constitution, relates to the fundamental principles of Armenian statehood and responds to the dilemmas of state and “non-state” issues, therefore requiring several legal-political clarifications.
Before addressing the actual decision, it is necessary to record several important truths:
On Eternal Provisions
The Constitution of Armenia belongs to the relatively few constitutions in the world that have (eternal) immutable provisions. This means that the founding authority – the Armenian people – have limited itself regarding the modification of these provisions. The Armenian people have placed this limitation upon themselves, permanently restricting even their future generations. This is an extremely important and significant event. It is also crucial that this self-limitation can only be performed by the sovereign (the same founding authority), and no one else – not the parliament, government, or High Court – can expand this framework. The Armenian people have made this decision regarding absolutely specific points, which are: Articles 1, 2, 3, 203 of the Constitution and the Constitution’s Preamble. And therefore, no other point or text can expand the specific obligation of self-limitation that the Armenian people have undertaken. Constitutional certainty is the most important component of constitutional stability. Moreover, it is noteworthy that no state can have a constitution whose eternal provision’s content lacks specificity. If we compare the Armenian people to an absolute monarch, it would appear that the throne has promised to limit itself, and the throne does not change its word. But this applies only when the throne’s word is direct, and the monarch’s servant cannot, through legal sleight of hand and personal discretion, expand the monarch’s self-limitation promise while faithfully serving the monarch’s sovereignty, attempt to further restrict the monarch.
The Constitutional Court’s decision is about the following: The expansion of the Constitution’s immutable provisions, by which the founding authority limits and constrains himself, remains exclusively within the founding authority’s jurisdiction. And the Constitutional Court, as a servant of this constitution, will not tolerate any additional limitation mindset from any other state body, political group, or individuals within the realm of constitutional justice.
On Constitutional Stability and “Legal Guile”
Only the people of Armenia are authorized to adopt or nullify the Constitution. In this sense, the corresponding point of the Constitutional Court’s decision is literally formulated as follows: “3.6. As a result of the cumulative combination of the above considerations, for the purpose of a comprehensive solution to the issue outlined in point 2 of this decision, the Constitutional Court concludes that the provision in the Constitution’s Preamble ‘based on the fundamental principles and national goals affirmed in the Declaration of Independence’ does not relate to any principle or goal that is not enshrined in the Constitution.” This is a constitutional truth that has not become a truth today. Meaning, no principle or goal affirmed in the Declaration becomes or can become part of the Constitution unless it is literally mentioned in the Constitutional text. And nobody can arbitrarily interpret, measure, or decide on behalf of the founding authority what the “fundamental principles and national goals of Armenian statehood” are. Only the founding authority can do this, and they have done so in Articles 1, 2, 3, and the Preamble. Neither the Constitutional Court, nor the Centra Council, nor the National Assembly, nor the government can spatially interpret the framework of these self-limiting provisions or their substantive scope.
At the same time, the Constitutional Court’s decision absolutely does not relate to terminating the Declaration’s effect. The Declaration has maintained the legal power it previously had and continues to have now, and the Constitutional Court has not addressed its legal force in any sense (except for measuring its impact on the Constitution). Moreover, the Constitutional Court has addressed the Declaration in terms of historical value and evaluated its exceptional significance in the entire process of Armenia’s independence, because the Declaration, adopted by the Supreme Council of the Armenian SSR, was the tool that made possible the start of Armenia’s independence process by breaking through the monolithic Soviet legislation. But Armenia has only one Constitution – the one adopted on July 5, 1995, through a nationwide referendum, with all subsequent amendments. Neither the Constitutional Court nor the Supreme Council of the Armenian SSR are or have been bodies adopting the Constitution. The text adopted by the Supreme Council cannot be equivalent to the Constitution and obviously it cannot be a supra-constitutional text without a nationwide vote. The Declaration of Independence itself was not considered part of the Constitution, was not enshrined in it, and was not put to a referendum. For comparison, around the same time our Constitution was being adopted, in South Africa, under the same constitutional science perceptions, for the South African Constitution’s “Bill of Rights” to become part of the state’s Constitution, a special provision was made in the SA Constitution. In other words, as the Constitutional Court has noted, without clear constitutional consolidation, no principle or goal can be considered a component of the Constitution’s Preamble, and therefore an immutable provision. No political force can attempt to expand the self-constraining obligation taken by the founding authority through “legal guile” by using a reference, and even less to further limit it, or moreover, to form a constitutional dual sovereignty or deep constitutional institution according to their own discretion. This is an extremely dangerous path that the Constitutional Court has permanently closed with its decision, bringing a political uncertainty into the field of constitutional certainty.
On the Adoption of the Declaration or a story of Political Compromise Around an Uncertainty
The 1978 Armenian SSR Constitution, although formally providing the possibility of the Republic’s independence, did not practically form such a path. As a result, to initiate the independence process and break through the Soviet constitutional deadlock, the Declaration of Independence was adopted, which was essentially a constitutional revolution and a suspension of the Soviet constitution (in the relevant part). In other words, the Declaration of Independence was initially adopted as a tool to tear through the entire fabric of the Soviet law. But most importantly, it was a temporary solution adopted by the Supreme Council of one of the 15 Soviet republics, until the implementation of the referendum provided by Soviet legislation itself. That is, the Declaration of Independence was drafted as an instrument to organize the transition from the Soviet Constitution to independence and constitutional democracy, and from the moment of its entry into force, it ceded its actual role to the new Constitution. The Constitution reflects the sovereign will of independent Armenia’s constituent people. In this context, unless the founding authority itself has chosen such self-limitation, the will of the Supreme Council of the Soviet Union’s union republic cannot be considered supreme or binding.
Referring to the Declaration in the Constitution was a political process, evident during its adoption. Political consensus was sought, and ambiguities were allowed to address key issues. A 2/3 vote in the Supreme Council, per Article 171 of the Armenian SSR Constitution, was required to initiate the process.
In 1994, pseudo-patriotic maximalists, though not a majority, controlled part of these votes, obstructing and pushing a pseudo-patriotic agenda. Thanks to the skillful approach of the opposing side, the Constitution avoided these issues in its text. Supreme Council minutes reveal debates on including provisions of the Declaration, particularly the “Armenian Cause,” which were ultimately excluded in favor of a politically ambiguous reference to the Declaration. This created uncertainty, resolved in 2024, 30 years later, by the Constitutional Court’s decision.
But let’s provide also several arguments that the adopted political ambiguity was never brought into the Constitutional field and there was never such an intention. The critically important provision in the Declaration about the reunification of the Armenian SSR and Nagorno-Karabakh (NKAO) has effectively never been implemented and was never brought into Armenia’s Constitutional field: The NKAO population has not become part of Armenia’s constituent people, the NKAO population has never participated in any Armenian referendum or election, NKAO residents were not Armenian citizens
In more than 30 years, in all legislative and executive governance decisions and acts, there is no reference to the Declaration as part of the Constitution. Regarding the judicial branch, in over 10,000 Supreme Court decisions and over one million decisions across all court instances, there is no reference to the Declaration as part of the Constitution, with the sole exception being the Supreme Court decision ensuring Robert Kocharyan’s presidency. This clearly shows for what purpose an artificial connection was created between the Constitution and the Declaration: to form a deep constitution as needed and to pursue state coups and appropriations of state power.
Moreover, in more than 100 meeting minutes of the Constitution-drafting commission, the Declaration was never referenced as justification for embedding any provision in the Constitutional text.
Thus, although the Republic of Armenia had neutralized certain political ambiguities around the Constitution over the passing years, the Constitutional Court has resolved this issue by definitively recording that it is impossible to expand the founding authority’s self-limiting provisions by reference.
On Constitutional Review and the Possibility of Reviewing the Constitutionality of a Treaty Afterwards
The Constitution of Armenia belongs to the few constitutions that provide for mandatory preliminary review (ex-ante) of international treaties by constitutional courts (or other constitutional review bodies), in contrast to the vast majority of constitutions that do not have a mandatory preliminary review mandate and where such review can occur after ratification (ex post), or where there is no provision for judicial review of an international treaty’s constitutionality at all. In other words, all international treaties and Armenia’s undertaken obligations are, from the outset, mandatorily sent to the High Court for constitutional review. This is a fairly rare practice. For example, the Netherlands does not have a constitutional review institution at all. At the same time, decisions of Armenia’s High Court are final and irrevocable, meaning that a decision made on a specific topic can never be overturned, according to Article 170, Part 2 of the Constitution. This is an extremely important provision to remember. The decision that the Constitutional Court makes now or in the future regarding the constitutionality of any international treaty can never be reviewed, neither under the current government nor under subsequent governments, and the signed treaty cannot be declared null and void on the grounds of contradicting the Constitution. In other words, once a treaty is signed at a certain point and before parliamentary ratification, it is brought to the Constitutional Court, and if the Constitutional Court concludes that the treaty corresponds to the Constitution, the decision on the treaty’s constitutionality cannot be changed from that moment onward.
This completely demolishes the Azerbaijani thesis that the peace treaty could be recognized as unconstitutional and overturned in Armenia later. Moreover, the resolution proposed by the Prime Minister from the National Assembly podium has effectively resolved all concerns, and from that point onward, references to imaginary problems with Armenia’s Constitution are no longer serious.
- First Scenario: Signing of the peace treaty, recognition of constitutionality by the Constitutional Court, ratification by the National Assembly, issue closed.
- Second Scenario: Signing of the peace treaty, recording of unconstitutionality by the Constitutional Court, process of adopting a new constitution.
Moreover, it should be added that the published Constitutional Court decision in the context of the connection between the Declaration of Independence and the Constitution’s preamble makes the second scenario unlikely.
About the Substantive Case Being Examined
Regarding the substantive case under examination, it can be noted that the Constitutional Court’s decision has two important reasoning sections: one relating to the correlation between Armenia’s Declaration of Independence and the Constitution’s preamble, and the other to the constitutionality of obligations provided in the signed regulation.
The scope of obligations provided in the regulation under the Constitutional Court’s examination includes the issue of implementing the demarcation process in accordance with the principles of the 1991 Alma-Ata Declaration (Bilateral, mutual territorial integrity recognition). The only directly relevant principle in the Alma-Ata Declaration relates to the “existing borders” concept in the Declaration of Independence. At the point when the Constitutional Court concluded that the Declaration has no effect on the Constitution’s preamble, it logically no longer addressed the question of the 1989 reunification decision’s relevance to the dispute being examined, since in any case, that decision could not contain any constitutionally significant principle or goal, either in itself or by virtue of the reference in the Declaration.
Conclusion
Thus, the Constitutional Court’s decision not only put an end to any possibility of legitimizing Azerbaijani attempts to make the Constitution a part of the negotiation process, but more importantly – which runs as a red thread through the Constitutional Court’s decision – it resolved and brought absolute constitutional certainty to the long-neutralized, but nevertheless existing (it would not be wrong to say “creeping”) uncertainty, thereby strengthening the foundations of the constitutional order.
Reference link to the Constitutional Court’s published decision of September 26.
Photo by CivilNet
Areg Kochinyan
