On 28 June, the 1in.am news website published the interview with Ms Heriknaz Tigranyan, the Deputy of the RA National Assembly, on the Draft Law on making Amendments and Supplements to the RA Law “On Corruption Prevention Commission” (hereinafter referred to as the Draft).
Iravaban.net talked with Ms Syuzanna Soghomonyan, lawyer, Anti-Corruption Expert at the Armenian Lawyers’ Association.
In the interview with us she mentioned that the Ms Tigranyan’s interview is extremely subjective, non-evidence based and manipulative, and at the same time does not reflect the reality that exists in the Republic of Armenia. According to the expert, the process of elaborating the draft and its content was accompanied by gross violations of the RA legislation.
– Mr. Soghomonyan, in her interview, the MP noted that CSOs had previously submitted their proposals on the RA Law on Corruption Prevention Commission, about which ruling force was aware and therefore there was no need to present the draft to the public discussion. Do you think it is legitimate to present to the National Assembly a draft law that has not been presented to public discussion?
According to Article 3 (1) of the RA Law on Normative Legal Acts, “Legal Acts shall be subject to public discussion, except for the draft law on ratification (accession) of an international treaty.”
In the meaning of the same law, the legal act is the normative legal act adopted by the people of the Republic of Armenia or the National Assembly: the Constitution, constitutional laws and other laws.
In other words, the MP’s argument that CSOs had previously submitted their proposals on the law, of which the ruling power was familiar, and consequently did not need to present it to the public discussion, is not a legal justification stemming from the RA legislation. Moreover, the argument that all the opinions of all actors were taken into account when elaborating the draft, as they had already submitted relevant recommendations, it should be noted that this does not correspond to the reality. Particularly, the legal regulations of the RA Law “On the Corruption Prevention Commission” especially the recommendations of the Competition Committee and the requirements to the Committee members regarding the recommendations of the Armenian Lawyers’ Association and the CSO Anti-Corruption Coalition of Armenia, refer to the RA Law “On Corruption Prevention Commission” (hereinafter also referred to as the Basic La) before its adoption. That is to say, the essence of the proposals related to the draft Basic Law and not the amendments to the Basic Law. In fact, according to the MP, it turns out that when some Basic Law governing a sphere is put to public discussion and CSOs have made suggestions, then an entity initiating the legislative changes in the package of amendments and supplements to these laws, further deprives the interested parties of the opportunity to make suggestions and positions. You may agree that this contradicts not only the RA Law on Legal Acts, but also the principles of public participation in the rule of law, democracy and governance.
In addition, I do not exclude the fact that in this process the MP has a conflict of interest because the she had been working for Transparency International anti-corruption centre for many years and currently she is a Board Member of TI and maybe by saying that the recommendations of the civil society are taken into consideration, the deputy is referring to the recommendations of Transparency International Anti-Corruption Centre.
– In the interview, the MP stated that the elimination of the legal regulation on the Competition Committee is conditioned by the fact that the amendments aimed at ensuring the unity of the process of formation of autonomous bodies in Armenia. How do you feel about this argument?
In reality, it is much worse when an attempt is made to introduce unreasonable legislative changes in the light of the Constitution, but in practice, with an aim of creating imitating fundamental changes. If we put aside this vicious practice and study the Constitution, then it is obvious that these proposed amendments violate the Constitution. Thus, Article 122 (4) of the Constitution provides: “The powers of autonomous bodies, guarantees for independence, and the requirements set forth for the members and the rules of operation thereof shall be prescribed by law.” In other words, it is clear that the constitution has left the order of formation and functioning of the autonomous body, requirements to members, powers, definition of guarantees of independence, to the regulatory laws, thereby expressing a clear position that in the case of each autonomous body different social relations subject to regulation, scope of activities and the resulting peculiarities should be determined by the regulatory laws.
Thus, the Constitution of the Republic of Armenia does not provide a provision for having one single requirement for the formation of autonomous bodies.
In addition, according to Jakarta Statement on Principles for Anti-Corruption Agencies, heads shall be appointed through a process that ensures his or her apolitical stance, impartiality, neutrality, integrity and competence. That is, it turns out that the authors of the draft law violate the aforementioned principles, which, in my opinion, will be guaranteed exclusively through fair, impartial and non-politicized competition, considering it as a sector subject to specific regulation.
– Ms Soghomonyan, as far as we know, the order of the former President of the National Assembly on the creation of a Competition Committee has not been revoked in accordance with the law, at least the public is not aware of such a legal act. How would you comment on the idea of the MP that the Competition Committee was abolished by the dissolution of the 6th convocation of the NA?
By the order of K-195 of 20 June 2018, the Chairman of the National Assembly of the Republic of Armenia Ara Babloyan has formed the Competition Committee for the selection of the members of the Corruption Prevention Committee and approved the composition of the Committee. In other words, the order to form a competition committee and approve the personal composition has been signed by the previous National Assembly, which has not been revoked by any legal act, at least as we have just mentioned, the public is not informed about it. And yet, if the order was annulled by the 7th convocation of the National Assembly then it turns out that it was kept secret from the public, which is subject to condemnation. In addition, the public does not have reason to believe that the order is invalid. And if we are guided by the logic presented by the MP, then the decision of the National Assembly of the 6th convocation related to assuming the duties of the RA Prime Minister by Nikol Pashinyan should be under the question, as it should also be supposed to be eliminated along with the dissolution of the National Assembly. I hope, the reply to this question will be provided in the scope of the same logic and judgment that was made by the MP regarding the above-mentioned regulation.
-How do you evaluate the work of the Competition Committee and do you agree with the MP’s assessments?
There was an opinion that the process of formation of the competition Committee was intricate and artificial. I consider that these are purely subjective judgments, lacking any legal grounds, and cannot be considered justification for making amendments and additions to the law. Moreover, there are other structures, including civil society organizations, which have argued about the formation of a competition committee, but the MP prefers to keep silent about it and thus show biased approach.
It is curious to me that in the past, being a member of the civil society, and now a member of the government, the MP doubts about a process that was participatory and was held in a competitive manner. Objectively there is a question why there is no doubt about the process of nomination of the candidates to Constitutional Court or the Ombudsman, where one person has decided to nominate a candidate without a competition. Only the Chamber of Advocates has organized a competition and selected a candidate in fair conditions. Hence, advocates of transparency and accountability should appreciate this mechanism rather than focus on narrow interests.
Now I’m asking a question: Are the MP and her supporters aware of what activities the competition committee has done so far, who has been present or absent at the sessions, if they are aware of it, it will be correct to publish the information and specify the main shortcomings that have been discovered. Moreover, the current Chairman of the NA Standing Committee on State and Legal Affairs, before becoming a deputy, was also a member of the Competition Council, whose candidacy was presented by the CC Chairman. It would also be interesting to hear his assessment of the work done by him and his colleagues, which his colleague MP today qualifies as “ineffective”.
– Do you think that the drafting process has been transparent?
As I have already mentioned, the draft law has not been submitted to public discussion in the manner prescribed by law, which, in its turn, is sufficient to qualify this process as non-transparent and directed by violations of law. Further, it becomes clear from the interview that a working group has worked on the draft, but the composition of this working croup is not clear. It is not clear either based on what legal act has the mentioned group been formed? What issues were discussed? How were the recommendations of all CSOs available to the group? Who were the authors of these proposals? Whether CSOs, who are the actors in this field, have been invited to the discussion?
Moreover, according to the information published on the website of the RA National Assembly, the author of the draft law is Mr. Ararat Mirzoyan, Speaker of the RA NA. But it becomes clear from the interview that the draft has been worked out by a working group, and the MP is a member of the working group as well. Moreover, according to the interview, the working group agreed that the Competition Committee, as a mechanism for the establishment of the Corruption Prevention Committee, should no longer exist. Notably, first it would be honest to publish the list of members of the working group and the protocols to understand whether the decision has been taken by consensus and which are the real justifications of that decision. Thenceforth, it should be clarified and a clear answer should be provided to the public, who, ultimately is the author of this scandalous draft.
In fact, this series of these questions can be continued. And since these issues are not yet dissolved, I can state that the working group has acted in a non-transparent and accountable manner.
I would also like to mention that the main recommendation of the Armenian Lawyers’ Association and the CSO Anti-Corruption Coalition of Armenia related to the requirement of the candidate, as well as the requirement of ten years of professional experience, impeccable behaviour and high reputation. These recommendations have been included in the Law. Now, there is a question: on what basis and on whose recommendation the professional experience for this important and responsible office has been reduced from ten years to five years, whether this decision was adopted by a consensus? And again, no convincing arguments have been presented to broad public circles.
– To what extent does this draft ensure guarantees of the independence of the Corruption Prevention Committee?
Jakarta Statement on Principles for Anti-Corruption Agencies, the guarantees of independence are interpreted differently. If a deputy discreetly interprets the Armenian legislation, the same procedure cannot be applied to international instruments. In particular, one of the key principles of Jakarta Statement is appointment of the heads of anti-corruption agencies through a process that ensures their apolitical stance, impartiality, neutrality, honesty and competence. Further, one of the recommendations of the OECD Fourth Round of Monitoring of the Istanbul Anti-Corruption Action Plan on Armenia is to ensure transparency and objectivity of the appointment of Commissioners, free from any, including political interference and that the process is seen as objective by the public at large.
In the 2017 Report on Strengthening Anti-Corruption Agencies in the Asia and Pacific, the objective criteria and transparent procedures for the appointment of the ACA Commissioner are mentioned as an indicator of the independence and transparent procedures in the methodology of assessment of Anti-Corruption Agencies (ACA).
Obviously, the proposed draft law does not reflect the aforementioned principles and recommendations, as well as is far from the definition of objective criteria and tangential procedures. And my point of view has been shaped by the legal requirements set out in the draft. Particularly, the draft, which, in our opinion, is the most pro-governmental one, has established that 3 out of the 5 candidates are nominated by the ruling political force, of which 1 by the Government and 2 by the ruling faction of the National Assembly. Moreover, if the opposition factions of the National Assembly are unable to represent a candidate by consensus, this candidate is also nominated by the ruling power in the person of the NA ruling faction. The SJC nominates the 5th candidate. To make it clearer; if the opposition factions, in this case, the “Bright Armenia” and “Prosperous Armenia” factions do not have a consensus to nominate a single candidate, then all three candidates are nominated by the ruling power – the “My Step” Faction, 1 candidate is nominated by the Government which again represents the “My Step” Faction.
As for the candidate nominated by the SJC, here I also have concerns that the 5th candidate will actually be nominated by dominant power, as the recent cases have shown that the two candidates for the SJC have been nominated exclusively by the “My Step” Party and it has not been discussed with opposition factions. By the way, according to the above methodology of 2017, international experts have noted that the operational autonomy of the anti-corruption agencies is high, if political interference is low or excluded.
– Do the proposed legal regulations guarantee the participation of opposition factions in the process of nomination of a candidate of the Committee?
In general, I think that the process of nominating a candidate to the Committee should be exclusively apolitical. The Jakarta Principles and the recommendations on the Corruption Prevention Commission of the OECD Fourth Round of Monitoring of the Istanbul Anti-Corruption Action Plan on Armenia indicate that. Therefore, by saying that the opposition factions are given the opportunity to nominate a candidate for the Commission member, disrupts the apolitical principle of the Commission and casts great doubt on its independence.
However, returning to regulations provided by the draft, it should be noted that the possibility provided to opposition factions to nominate a candidate to the Commission is not is not univocal. Particularly, opposition factions should nominate one of the five candidates. I think at least such assessment it is not honest, in case when during the first reading the draft law at the NA the opposition MPs expressed disagreement over the above mentioned legal regulation noting that “this draft aims to incite dissent in the camp of opposition factions” considering that the oppositionists may not reach a consensus on a single candidate, and in this case, the right to nominate a candidate is again given to the government. It turns out that the ruling parliamentary faction plans merely formal regulations.
Summing up our interview, anti-corruption expert Syuzanna Soghomonyan urged the authors of the draft and its proponents to refrain from making statements that are not evidence based and misleading for the public and when drafting legal acts, be guided by the logic of serving to the interests of the public, rather than the certain people.
