Governments need to be protected from their worst instincts to control the judiciary: Thomas de Waal on developments over CC in Armenia: World Politics Review

Thomas de Waal, a senior fellow with Carnegie Europe based in London published an article in the World Politics Review about situation with judicial power in Armenia.

Below is the full article:

"If you thought judicial appointments were an explosive issue in the United States, just look at Armenia, where over the past year, the government of Prime Minister Nikol Pashinyan has declared war on Armenia’s senior judges. Most recently, Pashinyan has called a popular referendum for April 5 to remove seven of the nine judges on the Constitutional Court, whom he accuses of blocking his reform agenda.

The government sees this as a last-ditch measure to clean up a corrupt justice system that Pashinyan inherited from former President Serzh Sargsyan. For the judges, it is an assault by politicians on the rule of law. In an unusual statement last month, the president of the Venice Commission, the Council of Europe’s venerable advisory body on constitutional law, called on both sides “to exercise restraint and to de-escalate this worrying situation in order to ensure the normal operation of the constitution of Armenia.”

The clash between executive and judicial branches of government is most visible in Armenia, but similar conflicts are unfolding in other post-Soviet states. Georgia, Moldova and Ukraine now routinely deliver one prerequisite for a modern democracy, by holding mostly free and fair elections. But another democratic pillar—the rule of law, or the creation of a justice system that citizens can trust to hold the executive branch accountable—has proved much more difficult to achieve.

Armenia was a semi-authoritarian country when it experienced a sudden democratic awakening in 2018. Sargsyan sparked massive demonstrations that year when he tried to become prime minister after serving the constitutional limit of two five-year terms as president. Protesters took to the streets in massive numbers to protest, ultimately forcing his resignation.

The leader of that revolution, Nikol Pashinyan, became the country’s new prime minister. He has stayed in revolutionary mode after almost two years in office, routinely appealing for support from the street when he encounters obstacles to his reforms. He wrote in a Facebook post announcing the referendum that, “On April 5, we will say ‘yes’ to the Revolution, say ‘yes’ to Freedom and slam the door on corruption.”

Since taking office, Pashinyan’s chief target has been former president Robert Kocharyan, who was in office from 1998 to 2008. On March 1, 2008, Kocharyan ordered the suppression of protests that erupted in Yerevan, the capital, after that year’s disputed elections. Kocharyan had effectively handed over the presidency to his close associate, Sargsyan. Eight opposition protesters and two policemen died in the ensuing unrest.

Those events are a touchstone for Pashinyan—he was a leader of the opposition that day and was later arrested and jailed for 16 months. In 2018, after Pashinyan came to power, Kocharyan was arrested and charged with “overthrowing the constitutional order of Armenia” for his actions in March 2008. The case put the judiciary right at the center of a clash between the country’s past and present leaders. Last May, a lower court ruled that Kocharyan should be released from pretrial detention on the grounds that, as a former president, he enjoyed immunity from prosecution. Pashinyan publicly denounced the judgement and called on his supporters to block entrances to courthouses in protest.

When the Constitutional Court upheld the ruling in favor of Kocharyan in September, the prime minister called the verdict “illegal.” Pashinyan then went to war with the head of the Constitutional Court, Hrayr Tovmasyan, calling for him to step down.

There are undoubtedly questions about the neutrality of Armenia’s Constitutional Court judges. Tovmasyan and four of his colleagues were appointed under Kocharyan and Sargsyan, while two remain from the era of Armenia’s first president, Levon Ter-Petrosyan, who was also Pashinyan’s first political patron. The judges have been blamed for facilitating the constitutional changes by which Sargsyan tried to keep hold of power and which his opponents called an undemocratic power grab.

Pashinyan’s rush to displace the judges, however, has worried many observers, even those who are far from being creatures of the old regime. They include Armenia’s ombudsman, the Venice Commission, and the progressive opposition party in parliament, Bright Armenia.

These critics express concern that, through the April referendum, Pashinyan is only seeking to replace the court’s old members with his associates. Vahe Grigoryan, a judge on the court who was nominated by Pashinyan, was also a prominent advocate for the victims of the March 1 crackdown. And Pashinyan’s new justice minister, 28-year-old Rustam Badasyan, worked with Pashinyan in the past.

These same issues are on display far beyond Armenia. Many other post-Communist countries, including members of the European Union, are discovering that developing an independent judiciary is a painful process. Give senior judges too short a tenure and they are vulnerable to political pressure. Let them sit on the bench too long and it becomes almost impossible to dislodge them if they are politically compromised.

Neighboring Georgia has had a good democratic record over the past two decades, but judicial reform has always lagged behind other changes. Under the previous regime of President Mikheil Saakashvili, acquittal rates in Georgian courts dropped to virtually zero. The government that succeeded him, led by the Georgian Dream party, now stands accused of politicizing the judiciary for its own purposes.

The problem goes beyond the judiciary, too. Across Eastern Europe and the Caucasus, where the politicization of law enforcement has long historical roots, the prosecutor general is frequently an especially controversial figure who is often accused of being a government enforcer. A case in point is Georgia’s prosecutor general, Irakli Shotadze. He was recently reappointed to the post two years after he had resigned from it over his implication in a scandal—including allegations of a prosecutorial cover-up—involving the acquittal of two boys who had been charged with the murder of their schoolmates in 2017.

If there is are lessons from all of these cases, they are perhaps rather grim: that judicial reform takes time; that it starts from below, with a professional judiciary; and that governments need to be protected from their worst instincts to control the judiciary. In Armenia and elsewhere in the region, the jury is still out on whether the government can yet be trusted to protect the rule of law."