Smoke, mirrors, and the joker in the pack: on transitioning to democracy and the rule of law in post-Soviet Armenia.

I. INTRODUCTION

A. Transitioning From "Them" to "Us'"

B. Armenia's Transition to Democracy II. ARMENIA AFTER THE U.S.S.R.

A. Geography and History of Armenia

B. Post-Soviet Political Developments; Conflicts & Consequences

C. Political Leaders and Assassins

D. Apparent Progress III. DEMOCRACY IN ACTION? ARMENIA'S POST-SOVIET ELECTIONS

A. Democracy and Elections

B. Overview of Armenia's Post-Soviet Elections

C. Post-Soviet Elections Violation Trends

D. Theatrical Non-Reform Reform?

E. Post-reform 2003 Election Violations

F. Role of the International Community

G. Implications of the 2003 Election Violations for

Democracy in Armenia IV. ELECTORAL NARRATIVES

A. Voting Armenian Style

B. The Knock on the Door & Carousel Voting

C. No Unchecked Ballots

D. The Second Round: Observing the Vote

E. The Second Round: Observing the Count

V. THE RULE OF LAW: CONSTITUTIONAL FRAMEWORK AND THE ROLE

OF THE JUDICIARY

A. The Rule of Law

B. Constitutional Framework and the Role of the Judiciary

C. The 2005 Constitution--Theatrical Non-Reform Reform VI. THE JOKER IN THE PACK?

A. Endogenous Suspects

B. Exogenous Suspects VII. CONCLUSION VIII. APPENDIX

With smoke and mirrors the entertainer-magician creates images that thrill, delight, or confound the audience. (1)

In Armenia, the smoke and mirrors of shining words and the strategic adoption of progressive legislation hide the reality of stagnant democratization and rule of law reform that reflects a creeping authoritarianism (2) exemplified by the Russian Federation. (3)

In the deck of cards, the joker is the wild card--the unpredictable element that may trump all the other cards, and put the other players off balance--throwing, and perhaps winning, the game. (4)

Appearing and disappearing among the smoke and mirrors that project the image of Armenian democracy and rule of law reform is the joker which, to date, has blocked Armenia's transition.

The joker's identity is unknown and perhaps unknowable. Is it a cadre of power holders? Is it the hidden power behind the 1998 parliamentary assassinations? Or is it the psychological mindset of powerlessness and alienation, (5) bureaucratic paralysis and corruption lingering from the Soviet era? Is the joker the dominance of the Executive Branch enshrined in the post-Soviet Constitution, with its accompanying abasement of the Judiciary and Legislature? What of the intersection of the hopes and dreams of the Armenian Diaspora and the political power of its lobby with the reluctance of the Armenian power structure to concede power to the people?

I. INTRODUCTION

A. Transitioning From "Them" to "Us"

The Union of Soviet Socialist Republics (U.S.S.R.) officially dissolved in 1991, and its component republics were set free to make their own sovereign way in the world. (6) These are called transitional countries. (7) The depth and breadth of the contemplated transition is breathtaking in its scope. (8) "Transitional" describes a movement: from communism to capitalism and democracy; from command and control economies and dependence to the free market and independence; from repression and acceptance to freedom and questioning; from constituent part to autonomous whole; and from represented to representing. (9)

In other words, transitioning from "them" to "us" (10)--to the mirror image of the idealization of Western capitalist democracies. After all, capitalism, democracy, and the West, had won the epic, decades-long battle of the Cold War. (11)

The complexities and challenges of the process of transition for the former Soviet Republics, now more than a decade and a half long, is evident in the disparate nature of their current circumstances. While Poland, the Baltic Republics (Lithuania, Latvia, and Estonia), and the component parts of the former Czechoslovakia (the Czech Republic and Slovakia), Hungary and Slovenia (formerly a constitutive republic of Yugoslavia) are now members of the European Union, others continue to struggle with the challenges of the post-Soviet reality. (12) Ethnic conflicts--which led, for example, to the breakup of the former Yugoslavia, low standards of living, and difficulties--both economic and social--of adjusting to free market economic systems have created stumbling blocks for many of the new states. (13) Further, the installation of authoritarian regimes in Azerbaijan, Belarus, and Uzbekistan, has stymied the republics' movements toward democracy. (14) Even the republics that have overcome post-Soviet political malaise or repression, or both, through a successful expression of "people power" (namely the Orange Revolution of Ukraine, the Rose Revolution of Georgia, and Kygyrstan's ejection of its former President) have encountered difficulties in the execution of pro-Western, popularly backed reform. (15)

B. Armenia's Transition to Democracy

This Article assesses, through the lenses of elections and Armenia's Constitution, the transition to democracy and the rule of law in the former Soviet Republic of Armenia (Armenia or the Republic). Armenia, which has encountered many of the challenges faced by the other transitional countries, and might appear to be similarly, if not better, circumstanced, provides an excellent case study, particularly in view of the advantages that the Republic appeared to have when it became an independent member of the international community.

Through exploration of multiple layers of meaning in the analogy of smoke, mirrors, and the joker in the pack, it is possible to recognize certain broad themes in the process of transition in Armenia--themes which have general applicability to other transitional societies. To challengers who may claim "There is no joker" and "All transitions, whether from communism to democracy or from feudalism to fettered monarchy entail upheaval, are imperfect, and do not flow smoothly," I interpose the following rebuttal: To the extent that no transition is easy or free of challenges, it is more crucially the task of the analyst to identify the factors that pose barriers to such transitions. Only through identification, subjection to analysis, comparison, and contrast of individual factual circumstances can the jokers be managed, constrained, and neutralized.

The assessment performed in this Article neither implies nor adopts a particular incarnation of democracy. However, a normative bias in favor of democracy does underlie the analysis. In 1992, Professor Thomas Franck wrote of the emergence of a new international norm--the right to democratic governance. (16) Tracing the emergence of the norm through both state practice and its foundation in the right to self-determination, among other rights, (17) Franck identifies "[t]he ... newest building block in constructing the entitlement to democracy ... the emerging normative requirement of a participatory electoral process." (18) In a later work, Franck acknowledged the complexities inherent in a global movement toward democracy. (19) In clarifying his claim, he made clear that the democracy that is protected by the new norm is "not some unattainable, impracticable absolute democracy"; (20) instead, the content of the emergent right is the creation of "a presumption in favor of governance by the free, equal, and secret expression of popular will." (21)

Similarly, the analysis conducted in this Article does not attempt to measure Armenia's transition to democracy (or its adherence to the rule of law) against some extant manifestation of democracy, the rule of law, or even a particular idealized conception of those terms. Clearly, even if one looks to more mature democracies, such as the United States, serious questions could be raised not only about the electoral processes (22) but also structural features of the U.S. constitutional framework. (23) Instead, this Article attempts to ascertain, with respect to Armenia's transition to democracy, whether the Armenian people govern through the "free, equal, and secret expression of popular will." (24)

Since September 1991, when the Republic declared its independence from the Soviet Union, (25) the country has often been held up as a beacon of democracy (26) and economic freedom (27) among transitional countries. The country appeared to be poised for success, with a well-educated population (28) and ardent support from the Armenian Diaspora, (29) which had attained much lobbying power in Western countries such as the United States. (30) Although a superficial examination would indicate, based on the adoption of new laws, (31) the amendment of much Soviet-era legislation, (32) the ratification of international human rights treaties, (33) among other overt actions such as memberships in the World Trade Organization (34) and the Council of Europe, (35) that the Republic of Armenia is in the midst of a grand transition toward democracy and rule of law reform, this is, in a fundamental sense, but an illusion.