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EVERYTHING WAS DONE WITHIN THE SCOPE OF THE CONSTITUTION
Arthur Hovhannisyan
Hayots Ashkhar Daily
Published on March 28, 2008
Interview with Justice Minister GEVORG DANIELYAN, Second-Class State
Advisor of Justice
"Some people currently announce that by declaring a state of emergency,
the President of the republic violated our country's Constitution and
the norms of international law. Does such allegation have anything
to do with the reality?"
"It is a barefaced statement. Moreover, by distorting the facts, they
insisted the competent international bodies were the authors of such
statements. Let's note that there are certain constitutional norms
underlying the decree. First, Article 44 of the Constitution authorizes
the President to restrict, in a manner presribed by law, separate human
and civil rights and freedoms during the state of emergency. In the
meantime, exceptions are only envisaged for the rights and freedoms
enshrined in Articles 15, 17-22 and 42. And let's note that the decree
contains no provision with regard to these rights and freedoms.
No law on the legal regime of the state of emergency has been
adopted yet; however, Section 6 of Article 117 of the Constitution
clearly states that 'Before the definition of the legal regime of the
state of emergency by law in the event of an imminent danger to the
constitutional order the President of the Republic after consulting
with the Chairman of the National Assembly and the Prime Minister,
shall take measures appropriate in the given circumstances and address
the people on the situation."
As regards the international documents, Article 15 of the Convention
on the Protection of Human Rights and Fundamental Freedoms makes it
clear that the above-mentioned institution is recognized and used
internationally. Article 44 literally repeats the relevant provision
of the Convention.
By the way, regrettable though it is, we know many examples from the
history of our country when a state of emergency was declared without
constitutional bases. Thus, in the period between 1991 and 1996,
a state of emergency was declared throughout the republic six times,
based on Clause 15, Article 8 of the RA Law on the RA President (the
law is no longer in effect). They were, as a rule, accompanied by
imposing curfews; such practice was still up-to-date in those days
and was automatically preserved from the Soviet times.
Speaking about restrictions, let's recall that in order to do that
it was not frequently required to resort to the institution of the
state of emergency. Everything was done in accordance with the rules
characteristic of the Soviet legal regime, in strict observance of
the former traditions.
In this respect, the decree on the 'Temporary termination of the
activity of 'Armenian Revolutionary Federation-Dashnaktsutyun'
public-political organization", adopted on December 28, 1994 and
entered into force on the same date, is characteristic. If you think
that there is at least one legislative norm underlying it, you are
sadly mistaken. The decree is unique in terms of its kind and does not
have its precedent in the history of law, as it contains absolutely
no reference to any legal act.
That's to say, in the atmosphere of impunity, no steps were
taken towards the establishment of formal bases. Furthermore,
the conversation is about a decree terminating the activity of a
political party. Unfortunately, the examples are not few in number,
but luckily they are in the past."
"The March 1 decree on declaring a state of emergency and the March
11 decree on introducing amendments thereto contain some restrictions
regarding the media. There are still speculations over the fact that
such restrictions were in breach of the Constitution of Armenia
and the international instruments on human rights and especially,
freedom of speech. Were there really such breaches?"
"Touching upon this question, I refer to the above-mentioned Articles
of the Constitution. In terms of its legal bases, the decree is
invulnerable.
Those speculating the issue ignore the fact that there were and there
still are sufficient legal bases for restricting the right and that
under the well-known international norms the right to freedom of
speech is not absolute; it is also subject to restrictions. In the
meantime, it was also clear that the goal of the restriction was to
keep the public from provocative information, and this was done with
state security considerations.
The fact that one can hardly ever meet examples of the restriction of
freedom of speech in the EU member states is often discussed. We'll
soon introduce the experience of those countries on one occasion,
and it will become clear that they are more consistent in terms
of protecting state security and envisage incomparably stricter
punitive measures for such abuses of freedom of speech that violate
those values.
I deem it necessary to underline that the security of the country
and the state, as well as respect for the rights of others are not
abstract notions.
It is not allowed to make populist statements on democracy, by
violating those values.
Arthur Hovhannisyan
Hayots Ashkhar Daily
Published on March 28, 2008
Interview with Justice Minister GEVORG DANIELYAN, Second-Class State
Advisor of Justice
"Some people currently announce that by declaring a state of emergency,
the President of the republic violated our country's Constitution and
the norms of international law. Does such allegation have anything
to do with the reality?"
"It is a barefaced statement. Moreover, by distorting the facts, they
insisted the competent international bodies were the authors of such
statements. Let's note that there are certain constitutional norms
underlying the decree. First, Article 44 of the Constitution authorizes
the President to restrict, in a manner presribed by law, separate human
and civil rights and freedoms during the state of emergency. In the
meantime, exceptions are only envisaged for the rights and freedoms
enshrined in Articles 15, 17-22 and 42. And let's note that the decree
contains no provision with regard to these rights and freedoms.
No law on the legal regime of the state of emergency has been
adopted yet; however, Section 6 of Article 117 of the Constitution
clearly states that 'Before the definition of the legal regime of the
state of emergency by law in the event of an imminent danger to the
constitutional order the President of the Republic after consulting
with the Chairman of the National Assembly and the Prime Minister,
shall take measures appropriate in the given circumstances and address
the people on the situation."
As regards the international documents, Article 15 of the Convention
on the Protection of Human Rights and Fundamental Freedoms makes it
clear that the above-mentioned institution is recognized and used
internationally. Article 44 literally repeats the relevant provision
of the Convention.
By the way, regrettable though it is, we know many examples from the
history of our country when a state of emergency was declared without
constitutional bases. Thus, in the period between 1991 and 1996,
a state of emergency was declared throughout the republic six times,
based on Clause 15, Article 8 of the RA Law on the RA President (the
law is no longer in effect). They were, as a rule, accompanied by
imposing curfews; such practice was still up-to-date in those days
and was automatically preserved from the Soviet times.
Speaking about restrictions, let's recall that in order to do that
it was not frequently required to resort to the institution of the
state of emergency. Everything was done in accordance with the rules
characteristic of the Soviet legal regime, in strict observance of
the former traditions.
In this respect, the decree on the 'Temporary termination of the
activity of 'Armenian Revolutionary Federation-Dashnaktsutyun'
public-political organization", adopted on December 28, 1994 and
entered into force on the same date, is characteristic. If you think
that there is at least one legislative norm underlying it, you are
sadly mistaken. The decree is unique in terms of its kind and does not
have its precedent in the history of law, as it contains absolutely
no reference to any legal act.
That's to say, in the atmosphere of impunity, no steps were
taken towards the establishment of formal bases. Furthermore,
the conversation is about a decree terminating the activity of a
political party. Unfortunately, the examples are not few in number,
but luckily they are in the past."
"The March 1 decree on declaring a state of emergency and the March
11 decree on introducing amendments thereto contain some restrictions
regarding the media. There are still speculations over the fact that
such restrictions were in breach of the Constitution of Armenia
and the international instruments on human rights and especially,
freedom of speech. Were there really such breaches?"
"Touching upon this question, I refer to the above-mentioned Articles
of the Constitution. In terms of its legal bases, the decree is
invulnerable.
Those speculating the issue ignore the fact that there were and there
still are sufficient legal bases for restricting the right and that
under the well-known international norms the right to freedom of
speech is not absolute; it is also subject to restrictions. In the
meantime, it was also clear that the goal of the restriction was to
keep the public from provocative information, and this was done with
state security considerations.
The fact that one can hardly ever meet examples of the restriction of
freedom of speech in the EU member states is often discussed. We'll
soon introduce the experience of those countries on one occasion,
and it will become clear that they are more consistent in terms
of protecting state security and envisage incomparably stricter
punitive measures for such abuses of freedom of speech that violate
those values.
I deem it necessary to underline that the security of the country
and the state, as well as respect for the rights of others are not
abstract notions.
It is not allowed to make populist statements on democracy, by
violating those values.