Venice Commission Prez on Draft Constitution – “We are there to assess a text in general and not the reasons for the text”

On December 6 there will be a referendum in Armenia on whether or not to change the country’s constitution.The Venice Commission of the Council of Europe has delivered six opinions on different editions of the concept paper and the draft constitution.

What follows is a Hetq interview with Gianni Buquicchio (President of the Venice Commission) and Simona Granata-Menghini (Deputy Secretary of the Venice Commission).

By Oksana Musaelyan

Granata-Menghini: We have been working with specialised constitutional commission since the preparation of the concept paper. So, we have had several expert meetings with the discussions on draft amendments on principles developed by the Venice Commission over the years, in general and with respect to Armenia. Armenia is the country we know rather well.

The cooperation was very fruitful. We have a very big team of experts and each time formulated some recommendations and proposals. There were discussions, and at the end of each meeting there were recommendations which were made, and then we received the text, which was redrafted or rewrote in the line of the recommendations, and I would say that most of recommendations were followed, and the rapporteurs were extremely pleased with the level of responsiveness of the specialised commission.

Buquicchio: We’ve been cooperating with Armenia for a long time. We have been involved in all the procedures in your country. Our cooperation was always very good; with the authorities, with civil society and experts.

I remember well when we worked together before the 2005 reform. There was an attempt to hold a constitutional reform, but unfortunately it failed. The referendum did not approve the constitutional reform. In 2005, another step was made. Another step now there is a new constitution for Armenia, a referendum will be on the 6 of December. It is up to Armenians to decide whether they want a new constitution or not; if they want to go towards a parliamentary regime or not.

All regimes can be good. Even the same presidential regime if you have the necessary checks and balances. But I must say; now there is a trend in Europe towards more parliamentary regimes.

Do you think this new parliamentary system in Armenia will improve the situation regarding democracy in the country? Does it have these checks and balances?

Buquicchio: The risk of a presidential regime is that it could become an authoritarian regime. We have seen it in many countries; especially in Eastern and Central Europe. With a parliamentary regime you have less risk for this kind of authoritarian situation in principle. But, you know, we have the same presidential regime in France and in the US, which work very well.

You probably know about the much discussed claim by those opposed to constitutional change that this new system will perpetuate the power of the current leadership; namely that of President Sargsyan. How plausible is this claim?

Buquicchio: We cannot know whether this is true or not.

Granata-Menghini: What we can say is that there is a very clear standard. If it is not a standard, it is at least a rule.  A best practice exists in most countries of the world that there is a limit to the terms of a president, because a president in a semi presidential and even more in a presidential regime has such strong powers, which are checked by other powers. But as you know the mandate is different from the government. The president is elected for five years, and there he is for five years and apart from impeachment there is nothing anybody can do if this president does not do what he announced to. So, because of this, there is a risk that the regime will drift into an authoritarian one, and therefore there is a very clear rule of two terms and no more. 

This does not exist, at least for most countries there is no limit to how many mandates a prime minister may have. This is because a government responds to parliament. So the power of the prime minister is necessarily more limited. You asked how much this new regime, if it is adopted, will bring democracy.

There are plenty of things that make a parliamentary system work and one is the political culture, and I would say, the political maturity of the political class. We cannot of course know, and it is not our business whether the current president will run for prime minister. If he does and if he is elected, the constitution which perhaps will be adopted will have mechanisms that will allow parliament and the people to intervene. How well it will function is difficult to say. The potential is there, but there are many things that make the exercise a little bit of a guessing one.

Buquicchio: Indeed, there is a problem of political culture in many new democracies. As the Venice Commission, we are working in many countries at present, and we are faced with the problem of political culture. The problem for instance, that the majority will not respect the rights of the opposition, lack of transparency sometimes. So this is very important for young democracies. I would not say, that Armenia is too developed in this political culture, and the kind of events such as World Forum for Democracy, political schools, which are present in many member countries, continue to develop this new political culture.

What do you imply by political culture how it is possible to enjoy this “culture” in the new parliament when the vast majority are members of the ruling Republican Party of Armenia with Serzh Sargsyan as its leader?

Buquicchio: Political culture is the culture of the political figures but also the culture of the citizens. Everybody should develop more balanced, more democratic culture.

Granata-Menghini: I think what normally happens and what should happen is that there is what the French people call “l’alternance”.  It means that I am in power today and you are the opposition.    Come the next election, it may well be that things are the other way round. This brings some moderation, unless you are very, very certain that you will be always in power, which in the parliamentary democracy is never so certain. You better put in place and respect the rules that enable even the opposition to have a voice.

Now in Armenia, the political scene is rather fixed; it has been very constant for a long time. This does not of course favor this view of politics but this is how I think the international organizations, the Venice Commission, the Council of Europe, schools of political studies work. They may intervene and facilitate this approach, that I am in power but it is not my business. It is the business of this country. Participation of the people obviously is important. Obviously, the more people feel they have a say, the more they will be inclined to participate. In Armenia there is a problem with  the elections and there have been problems in the past with elections. And obviously that is not an incentive for everybody to participate. That remains a challenge for Armenia, and I think it is the challenge now. It will happen in time. We have to remind ourselves that any system, no matter what system, cannot be satisfactory unless elections are fair. Obviously, because otherwise the very first part of the contract is not kept. But also in many other respects development must bring everybody to think what is at stake is their own situation. It will take time, and no text is a sufficient guarantee. No text ever.

Buquicchio: Talking about political culture, the winner takes all. This happens also in old Western democracies, because a political figure wants to win the election and remain in power, everywhere. But the difference between old and new democracies is in the fairness of the elections. If the people are satisfied by the action of the parliament and the government, they will vote again for them. If they are not satisfied they will vote against them and the opposition will win. But this does not happen always in many Central and Eastern European countries for the time being. This what we are waiting for, the development of this political culture in order to have more sound democracy, good elections, fair and free.

It is rather “Plutocracy culture” in the Armenian politics, when those, who are in power protect their businesses and money rather than “political culture”…How you can put an end to such a state of affairs?

Buquicchio: I cannot say anything, because I don't know in that situation in Armenia. One thing I can say, I am following Armenia since the 1990s and I see progress.

You mean fewer businessmen in the parliament?

Buquicchio: I don't know. Concerning business in the parliament I cannot express any opinion myself, because really I don't know the situation. In general I can see progress in Armenia, as I see the same in many other post-soviet countries. Of course this progress could be more rapid, but you are going step by step towards a better situation, better democracy.

Granata-Menghini: Armenia is not the only country where this tendency to have business people stepping in occurs.

In Italy we had Berlusconi. When he decided to step in the idea was, “I am such a successful businessman, and I can run my business so well that I can run the business of government well.” And for many people this was a good idea, a good change. So I think this is also something that one should consider and that the people get used and get fed up with systems that continue too much.

If you have a system, political elite of very sophisticated politicians, people might say they are not in touch with the society. They might welcome it, and this happened in Italy. Mr. Berlusconi has bought a football team, AC Milano, which was losing all its games. He stepped in and AC Milan started winning games. Why? Because, he knew how to run the business, he’s gotten the best players, communication, and for people it was ok, they thought “ok, let’s give him a chance”. 

Buquicchio: He did not succeed in Italy.

Granata-Menghini: He did not. But sometimes, what is necessary is a change. It is not necessarily a good thing, if at least there is this culture, which we are talking about, which is admittedly the most difficult to achieve, I don't think it exists in every country. But again we go back to the most fundamental guarantee - that of elections. Businessmen who wanted to be elected. Obviously, if you want to be elected you have to please parts of the electorate. So if people are passive, if the ordinary people are passive and it is only those who are businessmen themselves, businessmen can avoid addressing the issues of the ordinary people. In a way, it is a vicious circle, but I believe it is the point to be addressed, and everybody is aware of that.

Buquicchio: You cannot forbid a rich man to run for elections, for power.

But you may forbid him from faking elections…

Granata-Menghini: Yes, yes.

Buquicchio: I must say, unfortunately, rich men when elected, become richer and not poorer. With some exceptions, I must say. If the present case there are instruments in order to avoid this. For instance, in Italy we had some laws to prevent conflict of interests between a fortunate of the person involved and national business. There are instruments in order to stop a plutocrat, rich political men, become richer…

Granata-Menghini: At least becomes  richer illegally. There is a joke in Italy - it is better to find a rich politician so he would not need to enter politics to become rich, assuming that it is the main aim for everybody. But I don't think it is very true, because rich men want to become richer and I think there are no limits to how rich a man can be… There are indeed tools which should help to avoid these things.

How do you assess the situation in Armenia on the eve of the referendum? Do you think it will be a free and fair ballot? As you may know, Armenian Prime Minister Hovik Abrahamyan has been appointed to head the ‘yes’ campaign.

Granata-Menghini: I have not been following events, because once we gave the assessment on the text, we always gave three things about constitutional reforms: the first - is the good text, obviously, and for us this is a good text,you need political and social consensus.

It had political consensus. It was reached and was adopted by a large majority. And to my knowledge there were negotiations and changes were made in the text to accommodate. As for social consensus, it was not discussed very much. This is true. I don't know what is happening. This should be discussed as much as possible. This is in general. For us, it must be a genuine possibility for the Armenian people to express their view.

Buquicchio: And you know the Armenian people should be informed about the constitution itself, because in a small village in the mountains, you put the question, ‘are you in favour or not’, but you have to explain. This is the role of the political people, and you are saying that the prime minister is heading the campaign…

Is it usual for the prime minister to do this kind of job?

Buquicchio: It is strange for me. In principle the prime minister should be busy with other things. There could be some other people that can assume this burden, which for a political party is necessary because it becomes a political game between opposition and majority.

Granata-Menghini: It is not a standard policy. Having said so, the government is not neutral. These amendments are supported by actually all the parliament more or less, and by the government, so they are not neutral. Now if the question is if it is the full time occupation for the Prime Minister? Is it the first priority? This is a political evaluation.

Do you see any risks that the personal involvement of the prime minister may impact the fairness of the referendum?

Granata-Menghini: There is backfiring in this kind of things, and that is that is raises suspicion. I have heard lots of speculation about what the reasons could be. So if this speculation reaches    voters, this might bring the voters not to accept the text. So in general, obviously it depends. Two months are given for the campaign; I don't know how broad it has been. I don't know if the media has covered it.

Buquicchio: But this is important, because, political parties campaign anyway, the problem is to have a balance between different political parties and equal access to the media. Every faction should be able to explain to the people the reasoning and arguments. The elections will be free and fair if the campaign is free and fair, and if the voting day is good…

Granata-Menghini: And the voting lists are correct, which is the problem identified in Armenia.

Buquicchio: I think Armenia did a good job in the last election. They are improving the fairness of the elections more than in other neighbouring countries(laughing). There are still some problems with electoral lists.

How do you intend to address the voting list issue in a short period of time?

Buquicchio: Armenian authorities know very well that we are at their disposal in order to improve the electoral legislation, including the electoral lists.

Granata-Menghini: We have made recommendations in the past. There are some outstanding problems, which have not been addressed. I have read in the news about this possibility with   voting with IDs that cannot be stamped. But these are very technical questions, about which I don't know what to say. There are always arguments for and against.

Buquicchio: To conclude, political culture with a good electoral law you can have bad elections, and I would not say bad electoral law, but with imperfect electoral law, you can have good elections. It depends on the authorities, on citizens, because much fraud is made by citizens themselves.

Granata-Menghini: What struck me from the beginning is that there is backfiring to all this, it is obvious that too much interest raises suspicion.

I do not know how the average people will react. This is not a law, this is a new constitution, a new constitution is a very important thing, and it is also a very technical thing.

At the end of the day, people do not really understand. I don't think that every voter has understood in detail what is going to change. In every country, a vote on constitutional reform, in my view, is an assessment of the general situation. So, I would say in a way, obviously having pushed for reforms, having worked so, I would not say in a rush, I heard it was done in a rush, but I have seen constitutional reforms being rushed more quickly that this one, for example in Hungary and Georgia.

What I read were some objections being made to the text of the amendments. I did not find the text   problematic. We really did not find that the text was problematic. What was problematic is for some the lack of trust. There was this idea that no there must be something wrong with this, there must be, because otherwise it is too good to be true. And it is not only the opposition, but even more the civil society. I think the society was at ease with this. And I think in the end there was this final finding that the text is fine, but perhaps the reasons are not good. So, in my view, it is not necessarily a healthy thing for those in power that the society is questioning the reasons behind reforms.

Buquicchio: But we are there to assess a text in general and not the reasons for the text, especially if the text is in conformity with international standards.

Granata-Menghini: I think for me it will be interesting to see whether these seeds of distrust will lead to something later; whether it will reinforce the checks on the government and if there will be more reaction in the media in the society. That’s to say if people will actually be there to see, because they have been alerted to something and if parliamentary regime is well checked by the society and media.

The photo of  Simona GRANATA-MENGHINI from Venice Commission Secretariat archive
The photo of Gianni Buquicchio from  ec.europa.eu.