To be law-abiding you must know the law, and to protect your rights, you must know the current legal norms. EVN Report is launching a new series on Armenia’s current legislative and judicial system, including topics around current laws, planned legislative changes, and how they affect people’s lives.
In this article, we present Armenia’s legal system, discuss the hierarchy of legal norms, and how laws are adopted.
Hierarchy
The legal system encompasses all written legal norms that govern the state and unwritten norms of customary law. All social relations are regulated by these norms.
Gor Hovhannisyan, a Doctor of Law and member of the Saxony Chamber of Lawyers in Germany, explains that there should be no contradictions within a legal system, as contradictory norms in a state’s laws or within the same law, undermine legal security.
Nevertheless, in practice there are instances where existing legal norms contradict one another. In these cases, the hierarchy of norms helps to resolve the contradiction.
“In the case of a contradiction, the existence of a higher level norm renders a lower level norm invalid. In other words, [the lower level norm becomes] inapplicable. This is how the inconsistency is resolved,” Hovhannisyan explains.
According to Article 5 of Armenia’s Constitution, the hierarchy of legal acts is as follows:
The Constitution of the Republic of Armenia→ International agreements → Constitutional laws of the Republic of Armenia→ Laws of the Republic of Armenia → Sub-legislative normative legal acts of the Republic of Armenia.
“In this series, the Armenian Constitution has the highest legal power, and other legal acts must comply with it. In practice, for example, if there is a conflict between the provisions of the constitutional law––the so-called “Judicial Code”, and one of the procedural codes, which is common, the regulation of the Judicial Code will apply because it is a constitutional law. All other normative legal acts are subordinated to constitutional laws, while the sub-legislative normative legal acts aimed at ensuring the implementation of normative legal acts are subordinated to the latter,” says Arnold Vardanyan, a PhD in Law.
Vardanyan notes that constitutional laws are new to the Armenian legal system, and that there are seven of them: the Rules of Procedure of the National Assembly, the Electoral Code, the Judicial Code, the Law on the Constitutional Court, the Law on the Referendum, the Law on Parties, and the Law on the Defender of Human Rights.
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The Invariable and Highest-ranking Norm
According to Hovhannisyan, the articles of the Constitution are also not equal. The “eternity clause”––Article 203 of the Constitution—which states that “Articles 1, 2, 3 and 203 of the Constitution are not subject to amendment” is at the top of the hierarchy. These articles are as follows:
Article 1. The Republic of Armenia is a sovereign, democratic, social state governed by the rule of law.
Article 2. In the Republic of Armenia, the power belongs to the people.
The people shall exercise their power through free elections, referenda, as well as through state and local self-government bodies and officials provided for by the Constitution.
Usurpation of power by any organization or individual shall be a crime.
Article 3. The Human Being, His or Her Dignity, Basic Rights and Freedoms
- The human being shall be the highest value in the Republic of Armenia. The inalienable dignity of the human being shall constitute the integral basis of his or her rights and freedoms.
- The respect for and protection of the basic rights and freedoms of the human being and the citizen shall be the duty of the public power.
- The public power shall be restricted by the basic rights and freedoms of the human being and the citizen as a directly applicable law.
International Treaties
According to Article 5 of Armenia’s Constitution, in cases of conflict between Armenian laws and international treaties, international treaties take precedence.
In principle, there should be no contradiction between Armenia’s Constitution and international treaties that Armenia has ratified. Article 116 of the Constitution stipulates that international treaties that contradict the Constitution cannot be ratified. In other words, before ratification, the Constitutional Court determines their constitutionality. When the Constitution is amended, norms of international treaties ratified by the state are taken into account.
Vardanyan notes that in the event of a contradiction, not only are the provisions of international agreements applicable, the established legal position of judicial bodies based on those agreements can also be applied. An example is the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) and the legal positions of the European Court of Human Rights (ECtHR) acting on its basis.
For example, before 2020, Article 143 of Armenia’s Criminal Procedure Code stated that bail could not be granted if a crime was grave or particularly grave. In 2007, the Criminal Chamber of the Court of Cassation ruled that that approach contradicted ECHR legal positions and that, regardless of the gravity of the crime, bail could be granted. Thus, between 2007-2020, by virtue of a decision of the Criminal Chamber of the Court of Cassation, the use of bail became permissible even in the cases of people charged with committing grave and particularly grave crimes.
How New Laws Are Adopted
Gor Hovhannisyan points out a dualistic perception of law: formal and material. Legal acts adopted by parliament are considered formal laws, whereas material acts are those that establish mandatory rules applicable to all but were not adopted by the legislature. For example, traffic rules adopted by the government are material laws––they were not adopted by the National Assembly but they are legally binding for everyone. The vast majority of acts adopted by the National Assembly are considered to be law in both the formal and material sense.
Article 28 of the Constitution stipulates that everyone is equal before the law. This also refers both to formal and material law. Meanwhile, in other cases it is used only in a formal sense: “According to the procedure established by law”, “Not provided for by law,” and so on.
In passing laws in a formal sense, Article 109 of the Constitution stipulates that a Member of Parliament, a faction of the National Assembly and the executive have the authority to introduce new bills. Additionally, civil initiatives can become draft legislation with the support of 50,000 citizens with voting rights.
In Armenia, draft legislation has not yet been brought forward on the initiative of 50,000 citizens. The majority of legislative initiatives are initiated by the government, MPs and factions. According to Vardanyan, other state departments also frequently prepare legislative drafts and send them to relevant bodies for them to circulate as draft laws. “In essence, ordinary citizens can also take advantage of this opportunity by developing relevant initiatives and submitting them to the authorized bodies,” he said.
Thus, after the draft law is presented, it is subject to public debate. Draft laws are made public on e-draft.am, and anyone can make remarks, suggestions, and comments on them.
That commentary is then summarized, indicating which proposals were accepted and which were rejected. The bill is then discussed by the National Assembly’s relevant standing committee, followed by the bill’s first reading by the National Assembly.
During this process, the collection of remarks on the draft law continues. The bill goes through the same procedure again, being discussed by the relevant standing committee of the National Assembly, and then a second reading––in essence, the final stage of the draft law’s consideration in the legislature. The bill is then forwarded to the president of the Republic to be ratified and signed into law.
How Often Can Laws Be Amended?
There are no regulations on how frequently laws can be amended. However, as politics and society evolve, legislators should adapt regulations to the current realities. At the same time, it is critical that new norms correspond to higher-level norms.
Vardanyan points out that frequent initiation and adoption of legislative changes can have negative consequences and undermine the integrity of the entirety of the legal act, as well as the internal connections within that act, especially if it is voluminous.“For example, the 1998 Code of Criminal Procedure underwent hundreds of systematic changes over its more than two decades of operation, resulting in conflicting solutions on the same issue,” he explains. “It was also frequently the result of insufficient refinement of the legislative draft, as a result of which law enforcement practices and the protection of human rights suffered.”
To avoid that issue, legal acts, according to Vardanyan, should be subjected to more specialized examination, the expediency of their adoption should be considered for a longer period of time, and their impact on the law’s enforcement should be comprehensively evaluated.
He also points out that a simple legislative amendment does not always solve a legal problem. Frequently, the problems stem from the law’s enforcement as well as how the law is interpreted and applied. He cites the example of the U.S. Constitution, which was adopted in 1789, amended only 33 times, and yet to this day continues to be enforced, despite broad social and political progress.
Furthermore, the question arises as to whether frequent changes undermine people’s trust in state institutions.
According to Hovhannisyan, the law does not become unconstitutional and invalid if it violates the principle of trust, but it is in the state’s interest to have norms that are as stable and long-lasting as possible. An entrepreneur, for example, is unlikely to want to run a business in an environment where new rules and regulations are frequently established and there is uncertainty.
Arnold Vardanyan argues that legitimate public expectation is jeopardized not by the quantity, but by the quality of changes. There are cases, when a draft law is circulated for public comment, but it undergoes such radical changes in the process before its second reading, that it appears to be completely new legislation. In such cases, the legitimate public expectation formed by preliminary versions of the draft law is unquestionably jeopardized.
