ARM-2009-1-004
a) Armenia / b) Constitutional Court / c) / d) 30-06-2009 / e) DCC-810 / f) On the conformity with the Constitution of Articles 12 and 14 of the "Rules of Procedure of the National Assembly" RA Law / g) to be published in Tegekagir (Official Gazette) / h) .
Keywords of the alphabetical index:
Mandate / Proportionality system of elections.
Headnotes:
In such a proportional electoral system, where the elector votes for a political power on the basis of its political items and publicly announced program approaches, without expressing separate attitude to the persons proposed by the proportional voting lists of the parties, the bearer of the political power delegated by the people is the political entity. In the framework of such electoral system the people's confidence based rather on the political entity and its announced program approaches than on persons.
Any alteration of proportion of political powers in parliament pursuing concrete interests and changing political balance established in legislative body by the declaration of people's will, is inconsistent with fundamental principles of democracy and, thus, cannot be deemed as legitimate.
Summary:
Members of the RA Parliament challenged the constitutionality of the provisions of Articles 12 and 14 of the RA Law "Rules of Procedure the National Assembly" by the appeal submitted to the Constitutional Court. According to the Applicant, the unconstitutionality of the aforementioned provisions is manifested in lack of a norm stipulating that retirement and/or expulsion of deputy from the relevant party and faction may be the basis for termination of the mandate of the Deputy elected by the proportional electoral system.
In Applicant's view, although Article 66 of the RA Constitution rejects the imperative mandate institute, nevertheless in the cases when the general principle of exercising people's power through elected officials provided by non-amendable Article 2 of the Constitution is violated, an objective necessity to stipulate by the legislation the circumstance of Deputy's retirement from faction as a basis for termination of his/her mandate raises.
The Constitutional Court, attaching importance to the significance of the idea of the free representative mandate for the establishment of the constitutional democracy in the country, has emphasized that at the same time there is another institute in international practice, which although linked to the imperative mandate institute but, nevertheless, has different legal meaning. This institute is the termination of the mandate as a result of changing the membership of the party.
The Constitutional Court evaluated the legitimacy of termination of Deputy's mandate on the basis of changing the membership of the party, first of all, in the context of feature of the appropriate electoral system. Analyzing the electoral legislation, the Constitutional Court has stated that in the Republic of Armenia (as well as in a number of other countries) such a proportional electoral system exists in the framework of which the elector votes for a political power on the basis of its political items and publicly announced program approaches, without expressing separate attitude to the persons proposed by the proportional voting lists of the parties. In this case a political entity is the bearer of the political power delegated by the people either separately or via making political coalition. In the framework of such electoral system the people's confidence based rather on the political entity and its announced program approaches than on persons. The analysis of the international practice witnesses that in the case of such electoral systems the circumstance of leaving the party or changing the membership of party becomes the serious problem for modern democracies in the perspective of parliamentarian stability and the adherence to electors' votes. Such practice leads to the situation when electors' decision is subject to often large-scaled alterations.
According to the Constitutional Court it is necessary to take into considerations the following circumstances to solve the problem.
1. to evaluate appropriately the role and place of political parties in the political system of the country;
2. to take into consideration not only technological (technical and organizational) specifics of majority and proportional electoral system, but also their role in the course of establishing political power as well as holding and implementing political responsibility;
3. to emphasize necessity and role of program approaches of political parties and politicians in clarifying political trends of state development and elucidating electors' views concerning the mentioned matters in the course of elaborating and adhering program approaches of state development;
4. to facilitate proper election of persons to whom voters delegate implementation of their state-authoritative right during delegating the latter;
5. to reject further authoritative influence to the parliamentary political proportion established as a result of free manifestation of people's political will as well as to prevent the establishment of non-elective new proportion pleasing to authorities especially in transitional countries;
6. to take into account the historical development of essence and substance of the termination of the mandate as a result of changing the membership of the party.
The RA Constitutional Court, considering the issue in the context of the aforementioned circumstances, has found that any alteration of proportion of political powers in parliament pursuing concrete interests and changing political balance established in legislative body by the declaration of people's will, is inconsistent with fundamental principles of democracy and, thus, cannot be deemed as legitimate.
The RA Constitutional Court has found that in the framework of electoral system existing in the Republic of Armenia, when a Deputy who has got the mandate due to the voting for the party, whose name was not included in the ballot-paper, in whose respect voter did not manifest any political will, but who nevertheless wish to quit parliamentary faction, can do this only after voluntary vacation of his/her seat, since, otherwise, he/she will facilitate the alteration of proportion of political powers in parliament, which change political balance established in legislative body by the free manifestation of people's political will and does not follow from the fundamental constitutional principles of rule of law state and democracy.
The Constitutional Court declared the provision of Article 14, Paragraph 3 of the RA Law "the Rules of Procedure of the National Assembly" stipulating that "The Deputy may quit a faction by notifying in writing to the head of the corresponding faction" as inconsistent with provisions of Articles 1, 2 and 7 of the RA constitution and null and void in respect of Deputies who was not mentioned in the ballot paper as ticket candidacy as far as it facilitate the alteration of political balance established in the National Assembly by the free manifestation of people's political will.
Languages:
Armenian.