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

Perhaps, instead, the joker in the pack is the resistance to change in times of uncertainty. It is possible that awareness of the potential instability of Armenia's geopolitical location creates a psychological resistance to change. That awareness may make the prospect of true democracy appear to be a dangerous possibility that might harm Armenia's long-term interests. Such resistance is even more pronounced in a nation at war, (341) among the average citizens, the political elites, and the military.

3. Corruption and Clientelism

Another key suspect is the corruption of public officials and the primacy of clientelist networks in the economic, political, and social spheres of the Republic. Corruption, including bribe seeking and receiving by judges and police officers, undermines both democracy and the rule of law as it negates one of the rule of law's central tenets--the neutral and equal applicability of the law to all who are subject to its power.

a. The Judiciary

In Armenia, the Judiciary is perceived to be "on sale." The ABA/CEELI Judicial Reform Index for Armenia of April 2002, (342) based on the survey of a cross-section of "judges, lawyers, journalists and outside observers with detailed knowledge of the judicial system," (343) notes "[b]ribery ... is a common problem, caused, many respondents say, by low judicial salaries, mistrust of the Judicial system and historical practice. One respondent lawyer reported cases are often stalled by judges who are waiting for a sufficient bribe to be proposed." (344) Some respondents theorized that the consequences of such corruption were less deleterious to the rule of law than may be superficially apparent: "Many respondents did claim, however, that just because a bribe is transferred does not mean an illegal decision was made, implying that the judge evaluates the case, and then solicits a bribe from the party he thinks, by law, should win." (345)

In the 2002 Transparency International Country Corruption Assessment, a survey of public officials in Armenia revealed, in their opinion, "the first three extremely corrupt institutions in Armenia are courts, the Prosecutor's Office and Yerevan City Hall." (346) The depths of the cynicism of the Armenian populace are made clear by a 2005 survey conducted by the Armenian office of Transparency International. In response to a contemporaneous anti-corruption drive by the Republic, "less than 10% of Armenians expressed faith in the government's campaign to combat corruption...." (347)

b. Unequal Application of the Law

Corruption undermines the rule of law by allowing officials in the legal system (the courts, law enforcement officials, and the prosecutors) to prioritize their personal interests (obtaining monetary bribes or gathering influence) above the function of their offices. In addition, the influence created by bribe-taking or other illicit exercises of power undermines the equal application of law, a fundamental characteristic of the rule of law. For example, in the Judicial Reform Index for Armenia, respondents indicated that the influence of the Executive was felt in the Judiciary's decision-making: "[O]ne lawyer respondent described 'perceived potential government interests' as another factor influencing judicial decisions.... One lawyer stated that an appellate judge told him directly that he could not resist the opposing pressure to decide a certain way for fear of jeopardizing his professional future." (348)

The unequal application of the law was displayed in legal proceedings that took place before the presidential elections of March 2003. The Armenian media reported the case of a presidential (and later General Assembly) candidate and the conflicting interpretations of his eligibility to run for President and General Assembly office.

One presidential candidate who lost and decided to run for

Parliament was not allowed to do so because he did not meet the

residency requirement. How he could have met the requirement two

months earlier in the presidential contest was unclear to the media

as well, who hounded the Central Electoral Commission without

receiving an answer. (349)

Pursuant to Armenia's Electoral Code, in addition to having attained at least thirty-five years of age, presidential candidates must have been citizens and permanent residents of the Republic for the preceding ten years. (350) Candidates for the General Assembly, in addition to attaining twenty-five years of age, must have been citizens and permanent residents of the Republic for the preceding five years. (351) Based on the statute, it would appear to be impossible for a candidate to satisfy the eligibility requirements for presidential candidature but not those for the General Assembly.

In contrast, although repeated questions and court challenges have been raised about President Kocharian's eligibility to run for the Armenian presidency, as a native of Nagorno-Karabagh, he twice was qualified to run for presidential office in the Republic, and challenges to his eligibility were summarily dismissed by the courts in 1998 (352) and again in 2003. (353) The questions and challenges stemmed from Nagorno-Karabagh's Soviet-era status as a part of the Republic of Azerbaijan. If Kocharian was born in, and was a citizen of, Azerbaijan who was not naturalized as an Armenian citizen, he would not have satisfied the constitutional requirements of citizenship and residence in Armenia.

c. Popular Loss of Confidence

Among the deleterious effects of corruption is the lack of confidence engendered in the citizenry. That lack of confidence leads to general disregard of the rule of law by the average person. A former chairman of the anticorruption commission of the Georgian Parliament is reported to have explained the effects of corruption as follows:

Corruption is a way of life. People don't believe that the state

will ever provide services or enforce the law, so they don't pay

taxes. There are only two ways to survive here. To become

financially strong yourself, or to place yourself under the

protection of someone who is stronger. But there is no way to be a

citizen; there is only a kind of feudalism, in politics, government

and business. (354)

The effects of the corruption of public officials in the Republic are intensified by the clientelist patronage networks that control the conduct of public and private business in Armenia. (355) Christoph H. Stefes describes the phenomenon of the sale of the position of police officer. The office is sold for more than the annual public salary earned from the position; therefore it is clear the officeholder must take bribes to repay the money loaned to purchase his position. In addition, the officer must surrender specified amounts to superior officers, who pass a mandatory sum of money further up the chain of command. The officer must also make sure to secure sufficient bribes to maintain his own standard of living, which exceeds the standard he would have been afforded by his official salary. (356)

According to Stefes, the clientelist structures and networks in the republics of the South Caucasus have survived (and even thrived after) the upheaval caused by the end of the Soviet system. (357) So widespread have the networks become that ordinary citizens are unable to conduct private or public business other than through the medium of a network--membership becomes essential to ensure survival. (358) If membership in a network is essential for survival, and if participation in corruption is necessary to get a "fair deal," establishment of the rule of law in Armenia faces steep obstacles. (359)

The undermining effect of corruption on the rule of law is replicated in its effects on democracy. Indirect democracy requires the exercise of choice by the demos. However, in the face of endemic corruption, it is rational for an individual member of the electorate to choose to sell his or her vote in return for ready cash. (360) When the individual realizes her exercise of the vote will not (no cannot) make a difference, that her vote will be nullified through corrupt means, the incentive is created to receive an immediate personal benefit, however small, from the performance of a meaningless public act. The availability of the sealed official ballots utilized by the carousel networks is evidence that such a situation exists. (361) Only a powerful network would have access to the ballots, which are in a closely-guarded chain of custody from the time of printing until the time of counting.

Corruption and clientelist patronage networks, then, appear to be a key suspect in the search for the joker in the pack, perhaps shedding some light on the reasons for the stuttering transition to democracy and the rule of law in Armenia. While corruption in Armenia certainly existed prior to transition, (362) it is difficult to determine with exactitude the relationship between corruption and the halting transition, that is, the proverbial chicken-and-egg problem. Either the pervasive corruption gives rise to uneven democratic and rule of law reform, or uneven rule of law and democratic reform gives rise to endemic corruption.

4. The Presidency