NO LEGAL GROUNDS FOR OPPOSITION REFERENDUM

UNCLAS SECTION 01 OF 02 YEREVAN 000945

SIPDIS

SENSITIVE

DEPT FOR EUR/CACEN; DRL

E.O. 12958: N/A
TAGS: PHUM PGOV AM
SUBJECT: NO LEGAL GROUNDS FOR OPPOSITION REFERENDUM



1. (U) Sensitive but unclassified. Please protect
accordingly.

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SUMMARY
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2. (SBU) Opposition leaders have made a national
referendum of confidence on President Kocharian one of
their key demands during their anti-government
demonstrations of the past month. The Constitutional
Court first raised the idea following the disputed 2003
elections; the government, however, rightly contends
that such a referendum would be unconstitutional.
Opposition leaders have dodged questions regarding the
legality of the proposal. End Summary.

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CONSTITUTIONAL COURT PROVIDES OPPOSITION AN OPENING
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3. (SBU) The Constitutional Court first presented the
idea of a national referendum on the presidential
administration as a comment on its April 2003 decision
on the Armenian presidential elections. The Court, in
affirming Kocharian's legitimacy and the validity of
the election results, made a non-binding suggestion
that a national referendum on the government's
legitimacy could be held. The Court Chairman, Gagik
Harutunian, noted at the time that no provision in
Armenian law or Constitution permitted the holding of a
"Referendum of Confidence." Opposition deputies placed
the issue of the referendum on the National Assembly's
agenda during its Fall 2003 session. When the
governing coalition refused to consider the measure for
the Spring 2004 session, opposition deputies walked out
of the chamber February 2, 2004 and initiated a boycott
of parliamentary sessions.

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NO ROOM FOR REFERENDUM IN CONSTITUTION?
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4. (SBU) The Kocharian administration and the governing
coalition contend that the concept of a "Referendum of
Confidence" runs contrary to explicit provisions of the
Armenian Constitution of 1995. The Constitution states
that referenda are required to amend the Constitution
and may be held at the discretion of the president or
parliament on certain laws. The Constitution does not
mention the use of referenda for other purposes. The
Constitution also provides for a detailed process of
removing the President from office for "state treason
or other serious crimes." The process to impeach and
remove from office (a majority vote of the National
Assembly to impeach followed by a formal finding by the
Constitutional Court followed by a second vote in the
National Assembly) does not include a national
referendum. (Note: The 1991 "Law on Referenda"
permits a broader scope for national referenda, but the
subsequent 1995 Constitution states, "The Constitution
of the Republic has the highest legal force... Laws
found to contradict the Constitution as well as other
legal acts found to contradict the Constitution and the
law have no legal force." The provisions of the 1991
law that contradict the constitution are thus not
valid. End Note.)

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OPPOSITION ON SHAKY GROUND
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5. (SBU) The opposition deputy who drafted the proposal
for the "Referendum of Confidence" told us that some
constitutional grounds for the referendum exist. He
pointed to Article 2 of the Constitution that states,
"The people exercise their authority through free
elections and referenda," arguing that the provision
permits a wider scope for referenda. The same deputy,
however, conceded that the Constitution seemingly did
not provide room for a referendum of confidence. He
told a National Democratic Institute representative
that the opposition really wanted the National Assembly
to simply debate the referendum, recognizing that the
government coalition would vote it down anyway. He
said that he believed that the Constitutional Court had
unintentionally created an opening for the opposition
to exploit. Armenian People's Party leader Stepan
Demirchian has also dodged questions about the proposed
referendum's constitutionality, noting last week that
the government's "illegal arrests and rigged elections"
were also unconstitutional.

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COMMENT: WITHOUT AMENDMENT, REFERENDUM EXTRA-LEGAL
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6. (SBU) Though some have pointed to the national
referendum of confidence as a means to resolve the
current political impasse between the administration
and the opposition, such a move would not only be
unprecedented, but extra-legal. We agree that the
Armenian Constitution makes no provision for such an
extraordinary referendum. In order for a referendum of
confidence to have legal standing, the National
Assembly would have to first give its consent for the
necessary amendment, which itself must be put forward
as a national referendum. The Constitutional Court did
seemingly step outside of its bounds in advancing the
idea last year, but the court's judges' subsequent
statements indicate that they did not foresee the
consequences of their non-binding suggestion. For
their part, opposition leaders have been willing to
accept the court's political gift, and have used the
government's refusal to call the measure to a
parliamentary vote as further fuel for their anti-
Kocharian campaign. To date, however, the opposition
has not introduced the necessary pre-requisite
constitutional amendment that would give legal standing
to a referendum.
ORDWAY