Sometimes a political event or a major societal issue compels us to return to the academic sphere, revisit and rethink theories and concepts studied in the past, examine different cases, formulate questions anew, and seek answers to them.
Recently, one such question for me has been the issue of adopting a new constitution and proclaiming a new republic. It is well known that the Civil Contract parliamentary faction does not hold the two-thirds majority required to initiate a referendum. At the same time, the adoption of a new constitution requires precisely such a referendum. The majority wants a new constitution because it believes that:
a) the Constitution has a legitimacy problem, as it was adopted under an authoritarian regime, that is, not through a free and fair referendum;
b) it contains problematic provisions that prevent the full implementation of the necessary democratic reforms;
c) it obstructs the signing of a peace agreement because it contains a reference to the Declaration of Independence, which is viewed by Azerbaijan and Türkiye as a territorial claim.
The political minority disagrees with all of this.
This raises the question: how can a government with a popular mandate effectively implement its agenda and govern the country without adopting a new constitution, if it considers the adoption of a new constitution to be a matter of existential importance? It follows that the majority of the population and the country’s authorities may be unable to make decisions of existential importance because the minority prevents them from doing so. But is it really the minority that bears responsibility for confronting these challenges? Who will bear responsibility if, as a result of decisions not being made, the country and society face serious problems? Clearly, the authorities will bear that responsibility.
In other words, we face the following question: what should be done in a situation where, in the majority’s view, the adoption of a decision that is essential and existentially significant for a democratic society is blocked by the existing constitutional procedure, while the minority prevents that procedure from being changed? Can a democratic system remain indefinitely bound by a procedure that makes it practically unlikely for society to revise its constitutional will, given that, in general, it is very rare for any political force to hold two-thirds of parliamentary seats? Can the constituent power—the people—be denied the possibility, even in exceptional circumstances, of revising the constitutional order, for example, by expressing its will through a referendum, simply because the government lacks a supermajority and the parliamentary opposition does not want a referendum to be held?
Let us begin by examining the principle of two-thirds, which is commonly referred to as the supermajority principle. It is not a new phenomenon and is widely used in constitutional states. For example, the US Constitution, adopted in 1787, established higher voting thresholds for certain fundamental decisions. Here, it is important to understand why a supermajority is necessary in the first place.
The most common mechanism for democratic decision-making is the majority principle. If one of two options receives 51 percent and the other 49 percent, the former prevails. This does not mean that the first option is “more true,” “more moral,” or “better.” It simply means that some rule is necessary for making decisions, and under democracy, the majority principle is the most common such rule. It is a relatively fair and reasonable principle.
But on certain issues, societies consciously depart from the simple majority principle and require a higher threshold. Why? Because a two-thirds threshold limits majority rule. It is intended, above all, to prevent a temporary political majority, acting quickly or arbitrarily, from unilaterally making fundamental decisions. At the same time, it is generally accepted—although this thesis is disputed by some theorists—that the supermajority principle protects minorities and compels different political forces to seek consensus.
James Madison expressed this logic particularly clearly when he noted that a supermajority requirement can serve as a “shield” for certain interests and as an obstacle to hasty and partial decisions. Alexander Hamilton likewise defended the requirement of an extraordinary majority, viewing it as a healthy counterweight to legislative power.
In other words, a two-thirds threshold is not “more democratic” than 50%+1; rather, it is an additional constraint placed on democratic decision-making, justified by certain objectives.
Now let us pose the following question: is it possible, in exceptional circumstances, to adopt a new constitution by departing, to some extent, from the existing constitutional procedure?
To answer this question, it is useful to turn to international experience. One of the most interesting examples is the birth of France’s Fifth Republic in 1958, when the country departed from the procedure for constitutional revision established by the Fourth Republic and adopted a new constitution through a different, ad hoc route.
The 1946 Constitution of the Fourth Republic provided for a special procedure for constitutional amendments. In 1958, amid the Algerian crisis and the deep political crisis of the Fourth Republic’s political system, Charles de Gaulle returned to power.
Through a constitutional law adopted in 1958, Parliament authorized the government to draft a new constitution, although no such power had been provided for. Parliament, however, established certain parameters. The new constitution was drafted through a special and exceptional procedure, and the final text was submitted to a nationwide referendum. In the referendum of September 28, 1958, the draft Constitution received overwhelming support. It should be noted that the executive was authorized to draft the constitution on the condition that certain principles be preserved, including universal suffrage, the separation of powers, the accountability of the government to Parliament, judicial independence, and others.
The French example—I do not cite it to demonstrate that the Armenian and French cases are identical—shows that at certain pivotal moments in history, the need may arise to establish new rules of the game, requiring a particular form of democratic legitimation.
The French example demonstrates that a departure from the constitutional procedure does not, in itself, answer the question of whether such a departure is democratic or undemocratic. What is decisive is the process through which it is carried out, the degree of participation involved, the constraints imposed, and the form of public legitimation it receives. It should be emphasized here that a procedural deviation must not undermine the essence of the democratic order or violate human rights and freedoms. Ultimately, the essence of a constitutional order is nothing other than a democratic order founded on human rights and freedoms.
The theory of “constitutional moments” developed by the prominent American constitutional scholar Bruce Ackerman provides an important theoretical framework for analyzing such situations. Ackerman demonstrates that at certain pivotal stages in the history of US constitutional development, fundamental constitutional changes took place outside the formal amendment procedures provided for by the Constitution. His concept of “higher lawmaking” views such instances as exceptional democratic processes in which society, through intense political mobilization and public debate, reconsiders and transforms the fundamental principles of its constitutional order. However, Ackerman does not argue that every crisis can be regarded as a “constitutional moment.”
I do not know which solution would be acceptable in Armenia’s case if a supermajority cannot be secured. However, it is necessary to reject two extremes. Tthe first is procedural absolutism, according to which any departure from the existing procedure is automatically equivalent to the overthrow of the constitutional order. The second is an arbitrary interpretation of popular sovereignty, according to which any action by the government can be justified in the name of the “will of the people.” I believe that democratic constitutionalism lies between these two extremes. I believe that debate on these issues can contribute to finding optimal solutions.
Edgar Vardanyan
This article was produced by the Armenian Council Research Center, with the support of the Yerevan office of the Friedrich Naumann Foundation for Freedom for the South Caucasus region.
The views and positions expressed in this article do not necessarily reflect those of the Friedrich Naumann Foundation for Freedom or its staff.
