Lawyer Levon Gevorgyan, member of the Professional Committee on Constitutional Reforms, wrote about Constitutional Justice ․

“Judicial specialization or function ․

In the last two days, specialization of judges is the most frequently heard counter-argument by the opposition to the creation of the Supreme Court and the “constitutionalization” of the courts of first instance. That is, if the development of the judiciary is in the direction of the development of specialized courts (administrative, bankruptcy, anti-corruption), then the administration of constitutional justice should also be entrusted to specialized constitutional law specialists. To further justify this argument, the proponents of it, hold an analogy: the reference to constitutional issues by a judge examining a criminal case is the same as having an operation performed by an ophthalmologist or a dentist. This is a classic example of a false analogy, let me explain why.

The main problem here is the result of confusion in the field of court specialization and branches of law (science). The specialization of the courts takes place according to the framework of regulated public relations: criminal, civil, administrative, bankruptcy (in some countries, tax, family, etc.). In other words, we are talking about horizontal specialization of the sphere. This specialization is not carried out according to the hierarchy of norms of the applicable law (vertical). There is no vertical judicial specialization and it cannot be. A judge administering constitutional justice is in fact dealing with each of the public relations issues in question, as he or she can make the issue of the constitutionality of any sectoral settlement relevant to the case (I will consider the only exception here the disputes between the Constitutional bodies and electoral disputes, with which, however, the Constitutional Court has primary jurisdiction and which are examples of horizontal field specialization. Such cases actually provide less than 1% of the CC’s work and have nothing to do with the discourse of “constitutionalization” of the courts of first instance).

To be clear, I will present an argument reductio ad absurdum: if the administration of constitutional justice is a separate type of judicial specialization, then where are the specialized courts of international treaties, courts of law, and courts of by-laws?

It is very clear that constitutional justice does not deal with a separate group of special public relations (hence necessarily presupposes the existence of special specialized courts), but with a special legal toolkit or function. This toolkit is ultimately used throughout legal relations that are subject to legal regulation. Let me emphasize once again that it is not a judicial specialization, but a toolkit/function.

It is no coincidence that sectoral judicial specialization also exists in countries with classical decentralized constitutional control, where there is no constitutional court at all.

Thus, the analogy, in which the judge examining a criminal case is the dentist, and the one administering constitutional justice is the surgeon, is simply wrong.

Now for the fans of analogies, I will present the right analogy, which better reflects the situation that exists in Armenia today. The dying patient is brought to a surgeon (that is, a specialized judge), who begins to treat the patient. During the surgical work it turns out that the patient can be saved only with the help of an expensive medical device brought from abroad (that is, constitutional justice). But there is a problem: only the chief doctor of the hospital (that is, the CC) is allowed to use the new device, who is currently on vacation and will return in only a month. Therefore, the patient either dies or suffers an irreversible loss of health, because the intervention made by the chief doctor a month later no longer has the same effectiveness.

The argument of the specialization of judges in fact more clearly reveals the problems that exist in the judicial system today.

A doctor who resolves a family dispute cannot consider the issue of constitutionality. The claimant of this issue must also answer the following question: can that judge examine the issue of the relationship between the spheres of his/her international treaties and laws? And in the current prevalence of international law, when its content is almost inseparable from the human rights sections of the constitutions, what is the essential difference between the discourse of a judge who decides that an international treaty should be applied, and not the law and the judge who decides to declare the law invalid on the grounds of contradicting the Constitution (see Michel Rosenfeld & Andras Sajo, The Oxford Handbook of Comparative Constitutional Law (OUP 2012), pp. 1167-1168). I suggest to look at what percentage of the decisions of the Constitutional Court are in fact directly anchored in the decisions of the ECHR; the edges of the differentiation of those exercises will become almost intangible.

It is no coincidence that, as a result of the proliferation of international law, courts invalidate domestic law even in countries that have not traditionally had a constitutional oversight body (for example, in the United Kingdom, where parliamentary sovereignty has ruled out the institution of constitutional control for centuries, or in Switzerland, where it has been replaced by the widespread spread of direct democracy), (see Douglas W. Vick, The Human Rights Act and the British Constitution, 37 Texas International Law Journal 329 (2002), pp. 349-351).

Or is it possible to carry out criminal justice without facing the restoration of violated human rights, or restriction of rights through punishment?

Unfortunately, formally, ‘yes’, it is possible. Both the criminal justice can be administered in a formalistic way through the reading of laws, as well as a family dispute can be examined in disregard of applicable international treaties. In both cases, however, the likelihood of human rights violations increases.

While the question is actually much clearer: the judge hearing a family dispute applies only to a certain set of international treaties and (in the proposed model) will only deal with a certain set of constitutional provisions. The scope of constitutional oversight expected from the latter is ten times smaller than the scope and variety of constitutional oversight issues to which the single or highest body of constitutional oversight necessarily relates (depending on the model).

Therefore, the judge examining a family dispute cannot resolve the issue of constitutionality. The function performed by judges for the sake of the Republic of Armenia cannot be equated with a mechanical craft.

# Supreme Court