US embassy cable - 04YEREVAN945

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