Davit Harutyunyan's observations on draft law on early retirement of Constitutional Court judges

On December 9, the Minister of Justice of the Republic of Armenia (RA) presented to the National Assembly a draft law on "Addendum to the Law on the Constitutional Court", which proposes the introduction of an early retirement system for the Constitutional Court judges who were appointed before April 2018.

At the sitting of the National Assembly, the Minister of Justice tried to substantiate the necessity of the draft with a number of contradictory arguments.

Below I present the arguments of the Minister of Justice, and my observations on them.

Argument 1: The early retirement institution of the Constitutional Court judges is not new to the RA legal system.

The major difference between the draft and the current regulation is that the existing rule provides for early retirement only for judges who have served as a judge of the Constitutional Court for at least 12 years at the time of the entry into force of the 2015 constitutional amendments. The current regulation is really logical and justified in terms of the unification of the status of the Constitutional Court judges, as the maximum term of office of the Constitutional Court judges elected after the 2015 constitutional amendments is 12 years. Applying such an approach to judges who have served for less than 12 years is in no way justified.

Argument 2: The purpose of the project is to implement the constitutional court model specified with the 2015 Constitutional amendments.

Contradictory arguments have emerged during the discussion of the draft at the Government meeting, as well as in the justifications for the necessity of adopting the draft. On the one hand, the basic need for the adoption of the draft is conditioned by the Government by the need to implement the constitutional court model specified with the 2015 edition Constitution. Without any legal basis, ignoring Article 213 of the Constitution, the Government claims that, with the 2015 constitutional amendments, a Constitutional Court "model" has been introduced which was to be implemented immediately, but as if it had not been implemented as a result of the "legal application practice".

Argument 3: The Minister also makes reference to international experience as an argument.

In initial clarifications presented on the draft, the Ministry of Justice had cited Poland and Hungary as the best example of international experience, where the mandatory early retirement institution was introduced. The experience pointed by the ministry did not withstand criticism, and the ministry later refused to cite the Polish and Hungarian experience. However, they began to make references to the experience of other countries. Unfortunately, the “picture” was repeated and distorted when presenting the international experience, as it was in the case of Poland and Hungary.

Argument 4: The Venice Commission’s opinion on the draft is also noted as an argument.

In the opinion of the Venice Commission, I would highlight two important elements: volunteering, and influencing current litigation.

The National Assembly did not provide any justification on how these two conditions are met.

Davit Harutyunyan

Former Minister of Justice

Source: Pastinfo