The importance of legal regulation of the right of community to be heard during the process of changing their administrative boundaries.
Amendment of the administrative boundaries of communities is a matter of fundamental importance for communities, the implementation of which is subject to special legal regulation both at the constitutional and legislative levels. This is due, inter alia, to the fact that the process of changing the administrative boundaries of communities is complex and comprehensive, and involves a wide range of stakeholders. Among the latter, special importance is given to communities and community members, whose legalization and dissemination process in each state must be in line with international commitments and standards.
2. The Concept of the Right of Community to Be Discussed in Changing the Communities' Administrative Borders and the Forms of its Implementation
When changing the administrative boundaries of communities, the right of the community to be heard means that whenever any change in the boundaries of the local self-government unit (community or division of communities, including the administrative territory of a community in another community administrative territory), the state must directly or indirectly consult the community / Communities and / or local self-governing bodies and take into account their opinion on the change of administrative boundaries. Meanwhile, interested communities should participate in the process of changing the administrative borders of the communities both at the stage of preparation and at the decision-making stage and have a real opportunity to express their opinion and make it audible.
A study of best international practices shows that there are two ways to hear community feedback.
1. Raising the opinion of the community directly, ie through local referendums, meetings, opinion polls and other means,
2. Indirectly, that is, by submitting an opinion by the municipal authorities.
Moreover, these two modes not only exclude, but complement each other and are mainly used together.
The study of international documents and standards provides grounds for concluding that consultation with relevant communities should be carried out in advance in the process of changing the boundaries of the local self-governance unit. It should ensure the real participation of stakeholders in the process from the preparatory stage to the decision-making phase.
The European Charter for Local Self-Government considers a referendum (Article 5) as the best way to consult with communities as local referendums are best suited to the objectives of such consultations. According to the Explanatory Report of the European Charter for Local Self-Governance, other forms of consultation should be used by Member States when there is no legislative basis for holding a mandatory local referendum on community frontier changes.
3. Legal regulation of the right of the community to be heard during the first round of enlargement of the communities in the Republic of Armenia
The first phase of community consolidation was implemented by the Government of Armenia in 2011. On the basis of the "Community Convergence and Inter-Community Unions Concept" approved on November 10, 2010. At this stage a pilot program for community consolidation was implemented in three regions of Armenia - Lori, Tavush and Syunik, which included 22 communities.
According to the constitutional regulation of the first phase of the consolidation of communities, the unification and separation of the communities is carried out through the adoption of the corresponding law by the NA on the basis of the legislative initiative of the Government. Before introducing a legislative initiative, the government must designate local referendums in the relevant communities whose results are attached to the legislative initiative. Communities can be merged or separated, regardless of local referendum results.
The above-mentioned norm of the Constitution was further adjusted in the second paragraph of Article 7 of the RA Law on Local Referendum, according to which, "the Government of the Republic of Armenia appoints local referendums in appropriate communities prior to the legislative initiative on the issue of joining or separation of communities".
In the first phase of consolidation of communities within the framework of above mentioned constitutional and legislative norms, On May 17, local referendums were convened and conducted through which the communities had the opportunity to express their opinion on the change of the community borders.
ccording to local referendum results, six out of the 22 communities (Atan (Lori), Ahnidzor (Lori), Haghartsin (Tavush), Teghut (Tavush), Shamut (Lori), Gosh (Tavush) were against the change of community borders. Nevertheless, the negative opinion of the communities did not become a subject of discussion and did not take into consideration the NA's decision to unite the communities by making the appropriate amendment to the RA law "On Territorial Division".
The basis of such a law-enforcement practice was laid in 2005. Article 110 of the Constitution of the Republic of Armenia "Communities can be merged or separated, regardless of the results of local referendums", which in essence affirms the advisory nature of local referendums on changing community borders.
4. Legal regulation of community right to be heard during the second round of enlargement of communities
The second phase of community consolidation was implemented in 2016. And included 118 communities in Ararat, Shirak, Vayots Dzor, Tavush and Syunik marzes. Communities can be merged or divisible by public interest in accordance with the constitutional norm of the second round of consolidation of communities. The National Assembly is obliged to hear the opinion of those communities when adopting a relevant law.
Based on the fact that there is no legal or legislative regulation on the implementation of a local referendum on the change of community borders, the second round of community enlargement has been carried out without conducting a local referendum in the respective communities. Two meetings and discussions were held with the communities' residents and local self-government bodies.
Residents of a number of communities (Voskepar, Berdavan) reported their disagreement with the change of community borders through petitions, petitions to the deputies and public complaints. Nevertheless, they did not have any influence on the process of adopting the HO-100-N law on making amendments to the RA law on "Administrative division" and the right of the communities to be heard has not been properly implemented.
5. Legal regulation of the right of the community to hear the legal analysis of existing constitutional and legislative norms
2015 According to the 1906 Constitution of the Republic of Armenia, communities may be merged or separated from the public interest. The National Assembly is obliged to hear the opinion of those communities when adopting the relevant law.
As it stems from the analysis of the constitutional norm, it establishes the obligation of the National Assembly to change the boundaries of the community, in the case of their unification or division, to hear the opinion of the respective communities. "Community opinion" means the community's consent or disagreement with the change to the community borders. Moreover, the obligation to "listen" to the opinions of the respective communities can not be formal.
Obligation to listen to community opinions can be considered "formal" when communities are not given a real opportunity to make their voices heard. The "formal realization" of the obligation to hear a community opinion can be qualified as the legal practice in the second round of consolidation of communities when the Government did not disclose the opinion of the respective communities through any legal mechanism (directly or indirectly), and the opinion of the communities did not receive any expression at the formal level. As a result, the obligation of the legislature "to hear the opinion of relevant communities" was not fulfilled. Implementation of the right of community to be heard may be formal, even though the Government, having legal mechanisms for raising public opinion, nevertheless ignores the negative attitudes as it has been in the first round of enlargement of communities.
A study of international experience shows that the obligation to listen to the opinion of the state and community may be dealt with properly if:
- The disclosure of the opinion took place in advance (ie before the discussion of the draft law in the National Assembly).
- The disclosure of the Opinion took place directly (community discussions, opinion polls, local referendums) and / or indirectly (by community council decision-making).
- The state has ensured the participation of communities / their representatives throughout the process of changing the borders of the communities, starting with the preparatory phase.
- Communities have had a real opportunity to express their positive or negative opinion on changes in community borders.
It should be noted that international practice on hearing and responding to community feedback suggests that communities do not have a veto right in relation to acts of change of community borders, but States generally abstain from making decisions contrary to their will in case of community disagreement. The decision to change their borders against the Will of the Communities can only be made in exceptional cases, based on the community's reasonable interests which are subject to a detailed legal regulation.
The study of RA domestic legislation shows that in 2015, The amendment to the National Assembly, as defined in Article 190 of the Constitution, "Obligation to listen to the opinion of the communities" has not received its further approval at the legislative level. This legal gap is conditioned by the fact that in 2015, After entry into force of the constitutional amendments, the National Assembly of the Republic of Armenia, 16.12.2016, HO-238-N on Making Amendments to the RA Law on "Local Referendum" was annulled by the law on the appointment of a local referendum (paragraph 7 of Article 1) and no other rule was adopted. As a result, the legal relationships related to hearing community opinions in the case of community frontiers are not regulated at this time, therefore, the law does not define the ways, mechanisms, procedures, and the responsibilities of the relevant bodies in this regard.
In such a legal context, the term "narrow interpretation" was given to the constitutional norm that led to the right of the community to hear "just as the right to participate in parliamentary hearings" or "the right to participate in the NA plenary session" to form a non-democratic legal practice, which is inconsistent with the rule of law and Armenia's international obligations regarding changes.