Gearing towards Consensualism or Unrestrained Majoritarianism? Constitutional Reform in Armenia and its Comparative Implications

A rare constitutional reform process is underway in Armenia. On December 6, the Armenian people will vote on a comprehensive package of constitutional amendments that would replace the current (semi)presidential form of government with a parliamentary one. Historically, a change from (semi)presidential to a parliamentary system is quite exceptional. In the past, such changes occurred in Bangladesh, Pakistan, Sudan and Turkey, where civilian/military dictatorships - formally operating as presidential systems - were replaced by democratically elected civilian governments that (re)adopted a parliamentary form of government. In the context of a democratic (or semi-democratic) regime, a change of similar kind took place only once, in Moldova in 2000.

The reform process was formally launched on 4 September 2013, when President Serzh Sargsyan set up an ad hoc commission on constitutional reform. In the past years, several opposition parties have argued for a change to a parliamentary form of government and proportional electoral system. However, at the time of the establishment of the commission, its members remained ambiguous about the exact content of the reform. A member of the reform commission stated that the commission had been tasked “with the matter of general reform, especially the entire procedure of the defense of human rights and fundamental freedoms, subjects, competent bodies, methods of implementation.”

The current constitutional reform is remarkable, as President Serzh Sargsyan and the ruling Republican Party have initiated a process of constitutional change that could potentially put an end to their monopoly on power. Despite being formally a semi-presidential system, Armenia is essentially a presidential one, since the incumbent president has virtually unlimited power jointly exercised in his capacity as executive president and the chairman of the ruling Republican Party that holds absolute majority in the parliament. The president and his party control the executive presidency, the government, an absolute majority in the parliament, all country governorates and all but one mayorships.

President Serzh Sargsyan is serving his second and last term and is ineligible to run in the 2018 presidential elections. In a past statement, the president expressed commitment to respecting the constitutional term limits. He also declared that he was not planning to run for any other political office, including that of the prime minister. At the same time, the president and the ruling party members have simultaneously made it clear that President Sargsyan would continue to play an important role in Armenian politics. It has thus remained a puzzle how the incumbent president can retain political influence without amending the existing term limits, and/or running for another public office.

Changes the Amendments would Bring

The proposed constitutional amendments would introduce a pure parliamentary system with the president, elected by the parliament, as the ceremonial head of state. The cabinet and the prime minister would exercise full control over the executive power. Following parliamentary elections, the president would appoint as prime minister the candidate nominated by the parliamentary majority. In time of peace, the armed forces would be subordinated collectively to the cabinet of ministers. During war, it is the prime minister, who would assume the role of commander-in-chief. The package would introduce legislative quotas for national minorities and would guarantee the opposition the post of a deputy speaker. There is a theoretical possibility for smaller and opposition parties to exercise veto power through a 3/5 majority vote over the adoption/amendment of organic laws, as well as crucial appointments to the election commission, cassation, and constitutional courts, prosecutor general, central bank, and independent oversight bodies.

The most controversial item of the package has been the constitutional requirement of an unorthodox majority-assuring electoral system that would blend together elements of a proportional party-list and run-off voting of a two-round system. The proposed constitutional amendments state that the electoral system shall be a proportional representation (PR) system, guaranteeing the formation of a “stable parliamentary majority.” In case such a majority is not formed either due to the election of a single party or a coalition of parties, a second round of elections could be held with a possibility of forming new party coalitions. The amendment proposal on introducing a majority-assuring PR electoral system comes quickly after the 2015 Italian electoral law, which goes even further than the system proposed in Armenia, and reinforces majority formation by a majority bonus.

The Constitution Drafting Process

The constitutional amendment package was developed by a presidential commission created for the purpose of the current constitutional reform. The commission consists of nine members, all appointed unilaterally by the incumbent president without consultation with the parliament or any other body. The commission is headed by the chairman of the constitutional court and consists of current and former ministers, and deputy ministers of justice, the dean of the faculty of law of the state university, and a legal expert. The commission does not include any members from the opposition or civil society. The lack of inclusiveness (and independence) of the commission, whose members are selected by and answerable to the president, has resulted in an exclusive process without meaningful political deliberations or representation of the opposition, civil society, minorities, and other dissenting voices.

The constitution drafting process was in fact hardly deliberative and apart from regular press releases, the work of the commission largely lacked transparency. In March 2014, the commission published the concept paper of the constitutional reform, which was approved by the president in October 2014. The commission made public the draft amendments to the various chapters of the constitution in July and August 2015. The publication of the concept note in 2014 and the separate chapters in 2015 were followed by a series of public discussions with political parties and civil society organizations both in the capital and provinces that, however, served the purpose of information sharing rather than substantive deliberation. At the final stage, in August 2015 the president personally met with representatives of a wide spectrum of parliamentary and extra parliamentary political forces. Two major opposition parties, however, declined to meet the president. They argued that these consultations are in fact the pretense of deliberation and public consultation and that neither the president nor the constitutional commission is accommodative of a broader spectrum of opinions. The fact that hardly any substantial suggestions put forth in these consultations made it into the final text of the proposed amendments seems to confirm these claims.

There has been limited reaction and involvement of the international community in the process. Not any member of Armenia’s closest partners – France, Russia and the US – has stated an official position. The silence might hint that they are either satisfied or at least indifferent to the reform process and its consequences. The only high-level official having spoken about the constitutional reforms was EU Council President Tusk, who commended the reform efforts on his visit to Armenia in July 2015.

On a visit to Armenia in October, the president of the Venice Commission lauded the amendments; while the Venice Commission issued separate preliminary opinions on the concept note and the amendments concerning various chapters of the constitution (chapters 1-7 and 10; chapters 8, 9, 11, 16). It expressed concern about the majority assuring requirement. A previous iteration of the draft amendments specified that only the two front-running parties would be eligible to run in the second round. Following discussions with the Venice Commission, the requirement for two front running parties was removed and it was left to be regulated by the electoral code. The new iteration of the amendments also included the possibility of formation of party coalitions in the post-election period, opening space for bargaining among political parties. On the Venice Commission’s insistence, the article that explicitly prohibited the formation of new factions within the parliament was amended. However, the amended formulation still leaves very little space for formation of new factions in the parliament. This is an important consideration since Armenia’s deeply clientelistic political system has been marred by defections from parliamentary factions. The prohibition provides an important mechanism for party leaderships to exercise strict party discipline, and keep rank and file MPs subordinated. Consequently, this provision would prevent splintering of party factions and the emergence of new inter-party coalitions with uncertain loyalties in the parliament.

The Political Context

The proposed amendments present both opportunities as well as dangers to the prospect of political pluralism and democratization in Armenia. On the one hand, the parliamentary system could be considered as more conducive to inclusive and consensual decision making, to the emergence of mechanisms of checks and balances and hence an overall more pluralistic and democratic system. The increased majority requirement for passing certain legislations and appointments present parliamentary parties with real possibilities of veto. We could also expect to see greater institutionalization of political parties with increased intraparty discipline. Thus, the amendments suggest a number of potentially positive developments towards greater political pluralism and democracy.

On the other hand, the inclusive nature of a parliamentary system rests on its ability to create incentives for multiple parties to arrive at a consensus in decision making, given that no single party is large enough to dominate the parliament and government on its own. In semi-presidential and presidential systems, where the legislative and executive branches are separate, checks and balances emerge due to the interaction of the different branches of power. In parliamentary systems, the executive is subordinated to the legislative branch. The checks and balances can only emerge within the legislative branch, as the parties represented in the parliament check on each other’s majoritarian tendencies. The most straightforward way for emergence of such checks and balances in the legislature is to increase the number of parties in the parliament through a permissive electoral system. If on the other hand, the electoral system and political practice grant any single party a stable governing majority, the otherwise consensual parliamentary system could become an oppressive majoritarian one with a single monolith of unlimited power for one party with no real checks on its power.

Armenia has a history of flawed electoral processes. Essentially, all elections were followed by allegations of widespread vote rigging, vote buying, voter intimidation, use of administrative resources in favor of the incumbents and other flawed electoral practices. Consequently, the public trust in the fairness of the upcoming constitutional referendum and elections is low. Given these flawed electoral practices, there is justifiable skepticism of the ability of the PR electoral system, and even more so of a majority-assuring PR system to return a fair and balanced composition of the parliament and enable opposition parties to exercise the veto power that the constitutional amendments envision.

The opposition has argued that through these constitutional changes the president wants to hold on to power not by occupying a public office but through the chairmanship of the ruling Republican Party. With the full executive power concentrated in the hands of a parliamentary majority, there are incentives to increase the party hierarchy and discipline. There is also indeed a possibility that the chairman of the major party could exercise virtually unchecked political power without actually being popularly elected and carrying any degree of legitimacy and accountability. If true, such developments would be extremely harmful as they would lead to blurring the nodes of accountability between political decision making and the electorate, and would inevitably lead to the entrenchment of a single party and individual.

On the other hand, there is quite some uncertainty for all parties about the new rules of the game, their possible impact, and parties’ ability to adapt to the new rules. At the moment, the content and consequences of the future electoral code are unclear, as are the rules of procedures of the parliament, the law on parties and other related legislation. Little can be predicted about the degree of proportionality of election results, the extent of representation of the opposition parties in the parliament and consequently their ability to veto the ruling party. According to the constitutional amendments, the prime minister is a very powerful figure with extensive executive powers. Given Armenia’s clientelistic political system it is also possible that with the emergence of a new powerful prime minister figure, the loyalty of many ruling party members could switch and the incumbent president might end up failing to retain his political influence.

Constitutional Amendments in a Comparative Context

The constitutional amendments also have implications for constitutional design in other semi-democratic or competitive authoritarian countries. The institutional combination of the parliamentary executive and the PR electoral system is traditionally considered as more inclusive and consequently more conducive to democratization and social peace. It is often advocated by scholars and practitioners especially for countries in regime and/or war-to-peace transitions.  However, the proposed amendments demonstrate that neither the parliamentary form of government nor the PR electoral system provide a surefire way to an inclusive democracy. Depending on institutional micro details, as well as on the political culture and practice, this combination could very well lead to entrenchment, and to an overall more majoritarian and exclusive politics.

Presidential term limits are one of the crucial constitutional mechanisms enforcing leadership turnover and political change. It is not surprising that special attention is paid to upholding term limits both domestically, by opposition and civil society groups, as well as internationally, by international organizations and states that often condition financial assistance on upholding term limits. Disregarding domestic and international pressures, many leaders in semi-democratic and competitive authoritarian states have initiated constitutional changes repealing term limits in their attempts to maintain power.

The constitutional transformation of the kind currently underway in Armenia offers an attractive alternative to the visibly undemocratic practice of repealing constitutional term limits. Instead of openly violating existing constitutions and angering the international community, leaders and elites who have no intention to retire can use more creative tactics to hold on to power. One such move is to adopt an edifice of inclusive and consensual institutions with a hidden potential for personal and elite entrenchment. Keeping up with the authoritarian innovations of the 21^st century seems to require a careful mapping of the political context as the prerequisite of effective constitutional reform. An early warning for constitution builders, the current Armenian experience flags the potential (ab)use of constitutional change as an example of an unorthodox way of power entrenchment via re-allocation of power from elected posts to the leadership of political parties.

Artak Galyan is a PhD Candidate at the Doctoral School of Political Science, Public Policy and International Relations at Central European University in Budapest, Hungary. His research interests lie at the nexus between constitution building, democratization and social peace, with a focus on divided and post-conflict societies.