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

Other potential suspects for the role of the joker include the President himself or the constitutionally mandated powers of his office. Some may wonder whether President Kocharian, the Armenian political figure who gained most from the confusion and uncertainty following the 1999 parliamentary assassinations, (363) may be the joker in the pack. The stymieing of the development of the rule of law may lie with the attributes of the office of the Armenian Presidency: The power conferred to the office of the President by the Constitution and background maneuvering by the current officeholder also may have contributed to the halting substantive rule of law reform and lack of progress toward real democracy.

For the rule of law to develop and flourish, the substantive content of the legal framework must facilitate contributions from many points of the political spectrum. The 1999 assassinations of the opposition parliamentary leaders may have dealt a potentially mortal blow to the development of democracy and the rule of law in Armenia. The confused and conflicting response of the Armenian opposition to the proposed constitutional reforms in 2005, (364) for example, demonstrate the weakness and inability to speak on the part of politicians outside the administration.

As discussed in Part V, the balance of power in the 1995 Constitution overwhelmingly favored the Executive branch over the other two branches of government. This characteristic of the Armenian political and legal framework stifled the inclusion of substantive content in the laws that serve to protect essential features of democracy and the rule of law. It also silenced interpretations of the law that would uphold the fundamental characteristic of equal and neutral applicability of the law to all.

In order for the demos to fulfill the role of watchdog in a democracy, the opposition and others who hold different viewpoints among the populace must have the ability to speak and influence decision-making. The domination of the Legislative and Judicial branches by the Executive, and the political advantages accruing to the incumbent following the 1999 assassinations have stifled those other voices.

B. Exogenous Suspects

1. Nationalism/the Genocide/the Diaspora

Other potential jokers in the pack are the 1915 Armenian Genocide and Armenian nationalism. The 1915 Genocide of the Armenian people scattered the survivors throughout the world. (365) The Diaspora continues to be interested in and committed to Armenia, the acknowledgement of, and reparation for the Genocide, and the furthering of the Republic's prospects. (366) Furthermore, the Diaspora in the United States has worked to gather political influence that can be deployed for the perceived benefit of Armenia. (367) Could that power, that interest, be a joker in the pack, serving to undercut real impetus toward reform in the Republic?

The following two examples of the exercise of power by the Armenian Diaspora in the United States are telling.

a. The FREEDOM Support Act

The 1992 FREEDOM (Freedom for Russian and Emerging Eurasian Democracies and Open Markets) Support Act included Section 907 that provided:

United States assistance under this or any other Act (other than

assistance under title V of this Act) may not be provided to the

Government of Azerbaijan until the President determines, and so

reports to the Congress, that the Government of Azerbaijan is

taking demonstrable steps to cease all blockades and other

offensive uses of force against Armenia and Nagorno-Karabagh. (368)

This provision was introduced by Senator John Kerry in the aftermath of the dissolution of the Soviet Union and was supported by many Congressional members of the influential Armenian Caucus. (369) Section 907 prevented the United States from providing reform assistance to the Republic of Azerbaijan that might otherwise have been analogous in scope to the assistance offered to the other former Soviet Republics. (370) The provision also appeared to demand a unilateral lifting of the blockade by Azerbaijan, but it imposed no corresponding pressure on Armenia to work toward a resolution of the Karabagh dispute that might facilitate removal of the blockade. (371) The provision thus represents unequivocal United States support for Armenia in the complicated Nagorno-Karabagh conflict.

Not until after the events of September 11, 2001, when Azerbaijan allowed the United States to use its airspace and facilities to make strikes against Afghanistan, did a U.S. President (President George W. Bush), use the waiver provision of the FREEDOM Support Act (372) to allow analogous aid to flow to Azerbaijan.

b. Post-September 11 Registration of Nonimmigrant Aliens

The second development was even starker in its demonstration of the influence of the Armenian Diaspora in the United States. In December 2002, as part of the United States efforts to reform its immigration laws in response to the events of September 11, 2001, then-Attorney General John Ashcroft issued a list of countries whose nationals, if present in the United States, were required to register with the Department of Justice. (373) The list included Armenia, Pakistan, and Saudi Arabia. (374) The reaction of Armenians at home and of ethnic Armenians in the United States was swift, immediate, and effective. The list was issued on Monday, December 16, 2002. (375) By Wednesday, December 18, 2002, Armenia had been removed from the list. (376) Facing official protest from Armenia and members of the Congressional Caucus on Armenian Issues, as well as an avalanche of faxes to the White House from Armenian Americans, the administration backed down and removed Armenia from the list. (377)

The depth of support for the Republic within the Diaspora is exemplified by billionaire Kirk Kerkorian. Kerkorian, a friend and supporter of President Kocharian, has, since approximately 2001, through the mechanism of the Lincey Foundation, poured an estimated $180 million (USD) of his personal fortune into Armenia's roads and other infrastructure. (378)

The nationalism and power of the Diaspora do not create preconditions for reform; rather, they may play the role of a joker in the pack that undermines the transition to democracy and the rule of law. By ensuring blind and powerful support for Armenia's interests, no matter the merits of the particular circumstances, the Diaspora may facilitate the theatrical non-reform reform that has characterized Armenia since its independence from the Soviet Union. Blind support does not encourage true reform; rather, it promotes the utilization of smoke and mirror mechanisms to create a simulacrum of reform.

In addition, donor countries have been too slow to recognize the existence and implications of nationalism for the transition of the former Soviet countries. Shlomo Avineri, in On Problems of Transition in Postcommunist Societies, attributed the West's blindness to the existence and ramifications of nationalism in former Soviet republics to "the way anticommunist movements of dissent in Central and Eastern European countries were almost exclusively understood in the West in liberal, democratic, and anti-totalitarian terms, overlooking a strong nationalist ingredient that gave many of these movements so much of their mobilizing power in their respective societies." (379) He further warned "[w]hile Western attention is focused on the developments towards democracy and the free market, a serious realization of the power of nationalism in these societies is key to understanding their present development and the possible trends of their future course." (380)

The role of the Diaspora in post-Soviet Armenia has been a central one. It is, in large part, the ardent support for the Armenian cause among the Diaspora that has enabled the Republic to survive the many vicissitudes of the post-Soviet experience. That support has included political (381) and economic (382) investment enabling Armenia to retain control of the Azeri lands conquered during the Nagorno-Karabagh dispute by, for example, funding the construction of the road that connects Karabagh to Armenia through the Lachin Corridor. (383)

As we seek to identify the joker in the pack, however, the question lingers whether the physical survival (even expansion) of the Republic has come at the cost of the stimulation of democratic and rule of law reform. Unquestioning support of the status quo and protection of that status quo's interests abroad may, counter-intuitively, serve to stifle the very goal sought by the Diaspora--the flourishing of Armenia. The issue becomes even more immediate in light of the provisions of the 2005 constitutional amendment that grants citizenship and voting rights to members of the Armenian Diaspora. Their votes, cast from afar, may be based on a smoke-and-mirror-engendered illusion of rule of law and democratic reform.

2. Donor Country Motives

Looking further a field, there lurks another potential joker in the pack: the multilayered motives of donor countries whose ability to formulate clear policy is fractured by reluctance to apply too much pressure on fragile regimes in unstable neighborhoods. Donor countries such as the United States urge and fund reform efforts in transitional countries. However, donors are reluctant to take concrete action when their reform efforts are undermined and fail to flower. Instead, recalcitrant reformers and backsliders are often "given a pass." For example, Thomas Carothers, in Aiding Democracy Abroad noted:

In 1998, for example, strongmen leaders in Armenia, Azerbaijan, and