THROUGH THE PREAMBLE

On July 5, Prime Minister Nikol Pashinyan announced in a national address that the adoption of a new Constitution of Armenia remains on the agenda of the ruling Civil Contract party.

With negotiations on the text of the peace agreement between Azerbaijan and Armenia now concluded, the main obstacle to its signing remains the question of bringing Armenian legislation into line with the principle of mutual recognition of states' territorial integrity.

Baku has repeatedly stated that it cannot sign a final peace treaty as long as the Armenian Constitution retains a reference to the 1990 Declaration of Independence, the provisions of which it regards as containing territorial claims against Azerbaijan. Amending the Constitution has become a key condition for completing the peace process.

The official Yerevan has not yet issued a response to this demand. Furthermore, Prime Minister Nikol Pashinyan has publicly declared the necessity for a new Constitution of the Republic of Armenia.

It is important to note that a significant amount of time has already elapsed since the peace agreement was initialled. During this period, parliamentary elections were held, with the ruling Civil Contract party retaining its majority, securing 64 parliamentary mandates. However, this has not been sufficient to enable the adoption of a new Constitution, since submitting its draft to a referendum requires a two-thirds majority in parliament—70 deputies.

At present, the Armenian side has effectively focused on the idea of preparing an entirely new Constitution, which raises questions.

Azerbaijan regards a complete revision of the fundamental law as an essential prerequisite for signing the peace treaty. Is this a prerequisite that must be met in order to fulfil the condition? Does the current Constitution of Armenia contain legal mechanisms that would enable the removal of those provisions that are the subject of the greatest disagreement, and which would allow this to be done at a faster rate?

The answers to these questions have not only legal but also significant political implications. If the legal mechanisms exist, then the subject of analysis is no longer the feasibility of introducing changes, but the reasons why they have not been used to date.

How to amend the Constitution of Armenia

It is imperative that preparations for the changes to the Constitution of the Republic of Armenia begin with the Law on Referendum being brought into order. It should be noted that amending the preamble of the Armenian Constitution, which contains a reference to the 1990 Declaration of Independence with territorial claims against Azerbaijan, does not necessarily require a nationwide referendum. In accordance with Part 2 of Article 103 of the Armenian Constitution, the Law on Referendum, along with six other Armenian laws, is categorised as a constitutional law. It is adopted by parliament with a minimum of three-fifths of the total number of deputies. The 64 parliamentary mandates held by Civil Contract allow for amendments to or the adoption of a new Law on Referendum.

Article 202 of the Constitution is of particular significance in this regard. Please note that Part 1 contains an exhaustive list of chapters and articles that may be amended exclusively by referendum. As the preamble is not included in this list, Part 2 of the same article applies to it, according to which amendments to the remaining provisions of the Constitution are adopted by the National Assembly by a majority of at least two-thirds of the total number of deputies.

In that case, when Civil Contract submits a draft amendment to the preamble of the Constitution for consideration by the National Assembly, Pashinyan's supporters need 70 votes for the draft to pass.

There are two possible scenarios. In the first instance, the ruling party successfully wins the support of opposition deputies for its draft bill, thereby ensuring its passage through parliament. The requirement for a referendum is therefore rendered moot. In the second scenario, if the ruling party fails to secure the missing votes beyond its 64, the draft will naturally be rejected. In this case, Civil Contract deputies may exercise their prerogative as outlined in Part 3 of Article 202. This stipulates that "if the National Assembly does not adopt the draft amendments to the Constitution stipulated in Part 2 of this Article, it may be submitted to a referendum by a resolution passed by at least three-fifths of the total number of deputies".

Pashinyan's supporters hold a three-fifths majority of the total number of deputies in parliament, so submitting the draft amendment to the preamble to a referendum and securing its adoption, under the above conditions, is a realistic prospect.

In accordance with Article 207 of the Constitution and Article 35 of the Constitutional Law on Referendum, an act is adopted if more than half of the referendum participants vote in favour, provided that the number of votes in favour is at least one-quarter of those who took part.

Therefore, an analysis of Articles 103, 202 and 207 of the Constitution demonstrates that the removal of provisions that allow territorial claims against neighbouring states can be accomplished under the current status quo either through parliamentary means or via a referendum.

Legal feasibility and political expediency

Apparently, the current Constitution of Armenia does not present a legal obstacle to amending the preamble. Furthermore, it provides a series of actions that enable the adoption of the amendment in parliament and, in the absence of the necessary majority, the submission of the same issue to a nationwide referendum by a decision that the ruling party is able to adopt independently.

This indicates that there is a fundamental difference, both legally and politically, between amending a single preamble and drafting an entirely new Constitution.

The preparation of a new fundamental law is a complex and lengthy process. The process entails the establishment of a constitutional commission, the drafting of a constitution, the organisation of public consultations, the conducting of expert assessments, parliamentary deliberation, and the holding of a referendum. Research indicates that such processes frequently take several years to complete, as demonstrated by case studies of various states.

Amending a single preamble, by contrast, is a far more narrowly defined task. This prompts a valid question: if the primary objective is to facilitate the signing of the peace treaty, why is the focus being placed on the longest possible course of events?

There are a number of possible answers to this question. Firstly, Armenia's leadership is committed to the adoption of a new Constitution as a key element of deep state modernisation, and is not willing to limit itself to piecemeal amendments. Secondly, a large-scale constitutional reform allows the most politically sensitive issue to be deferred to an indefinite future. The domestic political situation in Armenia remains challenging. Any alteration to the Declaration of Independence, or the removal of the reference to it from the preamble, will inevitably provoke criticism from parts of the opposition and nationalist-leaning political forces. In such circumstances, a comprehensive constitutional reform may be perceived as a more convenient political format, one that does not concentrate public debate exclusively on the territorial question.

The second interpretation is supported by the anti-constitutional ruling of the Armenian Constitutional Court of 29 April 2021. This ruling, which contravenes Article 203 of the Constitution, seeks to classify the preamble as an unamendable provision of the Armenian Constitution.

As events unfold, it will become evident which of these interpretations is closer to reality. However, a legal analysis indicates that the issue does not lie in the absence of the requisite procedures. These entities are a recognised part of the current Constitution and are subject to rigorous regulation.

The key issue today is not whether the preamble can be amended without waiting for the completion of a full-scale constitutional reform, but whether this opportunity will be used to expedite the signing of the peace agreement.

The response to this question will serve as an indication of the Armenian leadership's genuine inclination to expedite the process of signing the peace treaty. Should constitutional procedures for amending the preamble be initiated in the near future, this would signal a desire to remove the existing legal obstacle in the shortest possible time.