Informal Comments on Proposals of the Parliamentary Opposition of Armenia (Armenian Revolutionary Federation and Heritage Factions) Prepared by the Venice Commission Secretariat
Based on comments by Ms Maria Teresa Mauro (Expert, Italy) Mr Kåre Vollan (Expert, Norway)*
(*) On May 5 the National Assembly Standing Committee on State and Legal Affairs initiated parliamentary hearings to debate the draft law of RA Electoral Code adopted in the first reading (with new edition), on which the joint opinion of the Venice Commission and OSCE/ODIHR had been received. The NA deputies, members of the government, CEC, Public Council, representatives of NGOs and international organizations and others took part in the debates.
ARF-D parliamentary faction member and Chairman of the ARF-D Supreme Council of Armenia Armen Rustamyan considered necessary the conduct of free and just elections and the restoration of the public trust towards the elections. He also said that the opinion of the Venice Commission experts on the parliamentary opposition’s proposals on amendments to the Electoral Code had been received.
The following is that opinion.
1. At the request of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) of the Parliamentary Assembly of the Council of Europe (on 28 January 2011), the Venice Commission prepared informal comments on the “Proposals of the parliamentary opposition – ‘Armenian Revolutionary Federation’ and ‘Heritage’ factions of the National Assembly [hereinafter referred to as the parliamentary opposition] on Electoral Legislation”.
2. The comments, which were not reviewed or adopted by the Venice Commission, are given based upon an English translation of the document without further clarifications from the Armenian text. Therefore, there is always a possibility that some issues have been misinterpreted through translation.
2. Reference Documents
3. This report is based upon:
· Proposals of the parliamentary opposition – ‘Armenian Revolutionary Federation’ and ‘Heritage’ factions of the National Assembly on Electoral Legislation.
· The draft Electoral Code of the Republic of Armenia (hereinafter called “the draft Code”; CDL-REF(2011)009). 
· The previous opinions issued by the Venice Commission and the OSCE/ODIHR on the Election Code of Armenia or draft laws amending the Election Code, in particular the last Joint Opinion on the Election Code of the Republic of Armenia  and the Joint Informal Comments on the recommendations of the national assembly working group on reforms in the election code of Armenia. 
· OSCE/ODIHR election observation missions’ reports. 
· Venice Commission, Code of Good Practice in Electoral Matters (CDLAD(2002)023rev). 
2. General Comments on the Purpose of the Proposed Changes
4. The parliamentary opposition prepared proposals within the framework of the ongoing electoral reform in Armenia aiming at adopting a new Electoral Code. The proposals raise problems and suggest solutions but do not go into great detail. Moreover, it has to be underlined that these proposals are not drafted as legal provisions or a draft law.
5. Additionally, some of the proposals listed are more suggestions of implementation of rules rather than legal provisions. Nevertheless, the proposals underline the necessity for the parliamentary opposition to introduce additional safeguards in the draft Code in order to avoid malpractice or suspiciousness of such malpractice. These proposals have to be assessed in light of the current lack of trust between the political parties. Additional safeguards in the law also aim at more securing roles and duties of the electoral administration as well as the judiciary regarding electoral disputes.
3. The System of representation
6. The parliamentary opposition suggests a change from a parallel system (First Past The Post and List Proportional Representation system (List PR); proposal no. 1) to a pure Lists PR system. The reason is probably to strengthen the role of the political parties, which is one of their expressed objectives. This is a political issue which will not be assessed in these comments apart from confirming that both the current parallel system and a full List PR system are well accepted systems. The choice of an electoral system should be done within the framework of a broad political consensus; the Venice Commission does not recommend any specific electoral system. 
4. Election Commissions
7. The parliamentary opposition suggests changes in the appointment of the members of the Central Electoral Commission (“the CEC”; proposal no. 2.1). The members were previously appointed upon the nomination of the political parties represented in parliament, but the appointment has later changed into appointment by the President upon nomination of 5 members from each body namely: the Human Rights Defender of the Republic of Armenia, the Chairperson of the Chamber of Advocates of the Republic of Armenia and the Chairperson of the Court of Cassation of the Republic of Armenia. 
8. The parliamentary opposition suggests that the CEC members be appointed “according to the equal representation of opposition and other factions of the National Assembly”.
Subsequently, “Constituency and Precinct Electoral Commissions (PEC) should be formed according to the same principle – through appointment by the members of the Central Electoral Commission”. With this proposal, the parliamentary opposition wishes to maintain the partisan composition of the CEC but with the adjustment that the government faction and the opposition faction have equal representation – the same is suggested for subordinate election commissions – whereas the previous membership was dependent on the number of political parties in the parliamentary majority and opposition, which produces a rather random result dependent of how fragmented the parliamentary majority and opposition are.
9. The parliamentary opposition does not specify in its proposal the calculation for an equal distribution of the CEC seats. What has to be equal? Is it each party’s representation? Or the representation of the majority and of the opposition? The choice of model of electoral administration should be done by broad consensus among the political parties. Whatever the model chosen, it has to be broadly accepted by the political factions from majority and opposition.
Electoral violations registered by the members of precinct election commissions
10. The parliamentary opposition calls for the introduction of an obligation for the CEC to investigate all violations reported at polling station level (proposal no. 2.2). In addition, the precinct election commissions’ (PEC) members would have to react to violations that they would observe during the process. The parliamentary opposition suggests a provision leading to the obligation for PEC members to denounce and register violations they may observe; they also require that the other PEC members either sign the protocol which would underline the violation or write the reasons and justifications for refusing to do it. According to this proposal, non-compliance with the above procedure would be punishable.
11. This proposal for strengthening the CEC’s obligation to investigate complaints is welcomed and is in line with the Venice Commission’s earlier comments,  underlining that the CEC need to take full responsibility for the correctness of the election.
5. Voters’ lists
Assessing the voter’s lists
12. The parliamentary opposition suggests that the voters’ lists with the voters’ signatures are being published and made available to the political parties (proposal no. 3.1). This would show who actually voted in the election and offer a check against multiple voting. However, this has to be balanced against the need for protection of personal data and the principle of secret suffrage. The Code of Good Practice in Electoral Matters recommends that the electoral registers be published.  However, in order to respect the principle of secret suffrage, it is recommended not to publish the lists of those who actually voted. This comment applies to the supplementary voter’s lists as well. It is also not recommended to provide the party agents and observers with copies of the signed voters’ lists. Preferably, party agents and observers should check the voters’ lists posted at the polling stations before election day. As a remedy to multiple voting, the practice of inking a finger could be introduced as it had been recommended in past opinions. 
13. The parliamentary opposition proposals suggest a mandatory video recording during the voting and counting processes. They also suggest authorising proxies, observers, and media representatives to “be entitled to video recording” as well (proposal no. 3.2). The introduction of the video recording of the voting and counting processes should be carefully considered.
It may lead to a feeling of voter intimidation. Photographs and videotape inside the polling station should be carefully used. Some voters may be intimidated by the recording of activities in the polling station even if this provision is not intentionally abused.
Scanning and archiving voters’ passports
14. The parliamentary opposition suggests the scanning and archiving of the voters’ passports (proposal no. 3.3). Information on who voted is already recorded through the voter’s registers in the polling stations. Moreover, the huge additional means required and the lack of sufficient safeguards regarding the use of such data do not justify such practice. This practice is therefore not recommended.
6. Vote Counting
Electronic voting ballot boxes
15. The parliamentary opposition suggests the introduction of electronic voting ballot boxes, which would permit to record at any time the number of envelopes in the ballot box (proposal no. 4.1). This proposal supposes to change all the ballot boxes of the country. This may provide more transparency; nevertheless, it needs to be balanced against the additional cost it represents. Moreover, it is a rather unusual measure. Improving the vote counting process
16. Following the closure of a polling station, the parliamentary opposition suggests that the envelopes in the ballot box be counted and packed in 100 pieces. After this step is done, it is proposed to open and count each pack. The voting results of each pack shall be registered as soon as all the packs are counted (proposal no. 4.2). This proposal is welcomed.
17. The counting procedure is quite detailed even in the draft Code.  In particular the rules for entering data on the number of voters turning up and access to material before opening the ballot box is important. The parliamentary opposition suggests that “[i]mmediately after the voting is over, the number of the envelopes in the box shall be counted and recorded”. If the suggestions were changed to “immediately after opening the ballot box”, the procedure would be an additional safeguard which is recommended.
18. The parliamentary opposition also suggests that the “provision and receipt of all protocols related to the voting shall be established as an obligatory matter” (proposal no. 4.3). Today an excerpt of the protocol shall be given out only upon request. Making it mandatory may therefore increase the trust in the process and is a welcomed proposal.
19. The proposal of providing a copy of the results’ protocol to each PEC member and to the proxies (proposal no. 4.3 as well) is welcomed and adheres to the principle of transparency. 12
7. Pre-election Campaign
20. The parliamentary opposition suggests the law “[to] define the concept of pre-electoral campaign” (proposal no. 5.2).
This proposal is not clear, especially since the Code already stipulates detailed rules for media, funding and use of public resources. For a public monitoring and supervision methodology of the National Commission on Television and Radio
21. The parliamentary opposition suggests that the National Commission on Television and Radio (NCTR) makes public its monitoring and supervision methodology (proposal no. 5.1).
This proposal has to be linked with Article 19.9 of the draft Code, which stipulates that “the NCTR shall elaborate and, not later than twenty days after calling national elections, publish and submit to the Central Electoral Commission a methodology of assessment of the provision – by television and radio companies…..” . This proposal is welcomed; the CEC should therefore make public the methodology devised by the NCTR.
22. The parliamentary opposition suggests that during the pre-election campaign, the price for one minute advertising in TV and radio companies shall not exceed the average commercial advertisement price for one minute set by the given TV-radio company for the last six months (proposal no. 5.3). This proposal is therefore welcomed since it would reinforce the provisions suggested in the draft Code.
8. Competences of the Police
23. The parliamentary opposition suggests strengthening the duties of the police when dealing with election violations (proposal no. 6). In this respect, the proposals suggest to clarify and define more concretely the specific responsibilities and competences of the police in preventing and dealing with the election violations and election bribes during elections period, e.g. throughout three days prior to election, on the election day and up to the publication of the preliminary results of elections. This proposal may help in preventing election fraud and is therefore welcomed.
9. The Appeals Process
24. The parliamentary opposition suggests that if a court case addresses the issue of a voter identity, the court shall verify the identification data of the persons participating in the voting. Moreover, the court should have to verify the identity of the voter (proposal no. 7).
25. The proposal that a court shall have to verify the details of the identity documents of people when investigating possible “proxy” voting may enhance the trust in the process. This proposal should be therefore considered.
10. Control of Funds
26. The parliamentary opposition proposes to set up an efficient mechanism to control the funds spent for pre-electoral campaign. It is proposed to form a Supervisory and Verification body in the CEC. This new body would be composed of a representative of each parliamentary faction, should be in place for the whole electoral period and should enjoy real powers (proposal no. 8).
27. The CEC disposes of an Oversight and Audit Service in charge of supervising and monitoring roles over the use of funds provided to the electoral commissions, the staff of the Central Electoral Commission, contributions made to election funds (including calculation and expenditures), as well as over financial activities of political parties.  According to Article 25.5 of the draft Code, the Oversight and Audit Service is required to summarise financial data, compile a statement and post it on the Internet website of the Central Electoral Commission. There should be only one body in charge of monitoring the funds spent by the political parties during electoral campaigns.
11. Use of Public Resources
28. The parliamentary opposition suggests regulating the use of the state property as well as the state position by government representatives for electoral campaigns (proposal no. 10). This proposal has to be linked with Article 22 of the draft Code, which states that Candidates occupying political and discretionary positions, as well as candidates occupying a position of state or community servant shall conduct election campaigns taking into account the following prohibitions: conducting an election campaign while performing official duties, any abuse of official position to gain advantage at elections; as well as the use for election campaign purposes of constructions, means of transport and communication, material and human resources provided for performing official duties. However, such restrictions are not applied to high-ranking officials “subject to state protection under the Law of the Republic of Armenia”. This proposal is therefore welcomed. The draft Code should suggest not to give any more such advantage to high-ranking officials.
12. Women Representation on Lists
29. The parliamentary opposition suggests strengthening the requirements for gender balance on the candidate lists by increasing the minimum number of women from 20 % and every tenth position on the list  to at least 30 % (proposal no. 11). This would provide a better gender balance in the National Assembly. The placement on the list would have to be regulated accordingly. Additionally, it could be regulated that a woman be replaced by a woman in case of vacancies.
30. The parliamentary opposition’s proposals make concrete suggestions to be taken into consideration in the future new Electoral Code, currently under discussion among political parties. The parliamentary opposition makes the following positive proposals:
– concerning the composition of election commissions, the parliamentary opposition’s proposal is positive since it would produce a balanced result;
– the parliamentary proposal asking for investigation by the CEC of all violations at polling stations level is welcomed;
– the proposal made by the parliamentary opposition to improve the counting process is welcomed;
– the procedure of providing the voting results’ protocols to observers and party agents is positive;
– the proposal to make public the report from the National Commission on Television and Radio is welcomed;
– the suggestion of setting a maximum price on political advertisements in TV and radio is welcomed;
– the proposal to improve the appeals process is welcomed;
– the proposal of having more detailed rules concerning use of public resources is welcomed;
– finally, the proposal of having at least 30 % of women in the candidates’ lists is welcomed.
31. Some other proposals do not appear as improvements of the Electoral Code or should be carefully considered:
– the possibility to publish the signed voters’ lists, for transparency purposes, is not recommended, considering the principle of secrecy of the vote;
– scanning and archiving voters’ passports should be carefully reviewed against the need for protection of personal data and use of such data;
– the proposal to establish a new body in charge of supervising and monitoring the campaign funds replacing or supplementing the Oversight and Audit Service of the CEC should be carefully reviewed and any overlapping authorities would have to be removed.
  www.venice.coe.int/docs/2011/CDL-REF(2011)009-e.pdf.
  Joint Opinion on the Election Code of the Republic of Armenia as amended up to December 2007 (CDLAD(2008)023). www.venice.coe.int/docs/2008/CDL-AD(2008)023-e.pdf.
  Joint Informal Comments on the recommendations of the national assembly working group on reforms in the election code of Armenia (CDL-EL(2010)003, 3 February 2010).
  www.osce.org/odihr/elections/armenia.
  Venice Commission, Code of Good Practice in Electoral Matters. Guidelines and Explanatory Report. Adopted by the Venice Commission at its 52nd session (Venice, 18-19 October 2002, CDL-AD(2002)023rev). www.venice.coe.int/docs/2002/CDL-AD(2002)023rev-e.pdf
  Code of Good Practice in Electoral Matters, II. 4.
  Article 40.2 of the draft Code.
  CDL-AD(2008)023, §§ 11-15.
  Code of Good Practice in Electoral Matters, I 1.2 iii.
  CDL-AD(2008)023, § 45.
  Article 68 of the draft Code.
  CDL-AD(2008)023, § 51.
  Article 28 of the draft Code.
  Article 108.2 of the draft Code.