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

However, 43% of the population lives below the poverty line, (93) and the unemployment rate stands at 30%, (94) stimulating the emigration of large numbers of the Armenian population, (95) despite an 8% growth in gross domestic product. (96) Together with the phenomena discussed in Parts III and IV infra, the economic figures suggest that Armenia's reality may be at variance with the image projected abroad.

III. DEMOCRACY IN ACTION: ARMENIA'S POST-SOVIET ELECTIONS

"[T]he ballot box has yet to effect a change of government or President in an independent Caucasian state." (97)

Since establishing its independence, Armenia has held seven presidential and parliamentary elections. (98) Following each Armenian election, the international community, including the OSCE/Office for Democratic Institutions and Human Rights (OSCE/ODIHR) observer missions, has expressed concerns regarding the freedom and fairness of the proceedings, (99) but generally has agreed that Armenia is making progress on the path to democracy. While this may be true in a broad sense, (100) the events of the presidential elections in February and March 2003 and the parliamentary elections in May 2003 can be viewed as both prism and snapshot, facilitating analysis of the progress of democracy and the rule of law in Armenia. The events of February through May of 2003 (and, indeed, the lead-up to that critical period) demonstrate that the transition to democracy is in large part legalistic and formalistic, and has not penetrated to institutional and administrative levels. (101) This negative analysis is more forcefully suggested when the 2003 elections and the 2005 plebiscite to amend the Armenian Constitution are situated within the history of Armenia's post-Soviet elections.

Further, review and analysis of the Republic's post-Soviet elections indicate that fundamental characteristics of democracy--elections, popular demonstrations, political parties--are carefully stage-managed to convey a superficial image of democratic transition. However, the consistently fraudulent elections reveal an entrenched regime that has minimized the "free, equal, and secret expression of popular will." (102)

A. Democracy and Elections

To undertake to define "democracy" would be a task of Herculean difficulty and splendor. To create a new definition of the term is beyond the scope of this Article. Instead, before reviewing Armenia's post-Soviet elections, this Part will attempt to identify some essential characteristics of democracy.

To break down "democracy" to its component linguistic parts, it is defined as the rule by the demos, the people. (103) However, the demos cannot govern when the population's size surpasses that of the ancient city states, and expansive territorial boundaries are commonplace. In the era of the nation state, rule by the people is possible only through the mechanism of indirect or representative government. (104) That is, given the size and complexity of the modern polity, the people no longer have the ability to practice direct democracy, (105) that is, to govern themselves via face-to-face meetings of all the people/citizens. Instead, a system of representative government is required, where the people designate the representatives that will govern them or, better put, designate the representatives through whom they will govern themselves.

Modern democracy, then, government by the people in a nation state, involves representation by voters of the entire polity and populace of the political unit. It involves government by the people through their elected representatives. Further, it requires participation, through oversight and quality controls, of the governance provided by the representatives. Fundamentally, democracy requires the express consent of the people regarding the identity of their representative governors and the nature of that governance.

Why use elections as a lens through which to analyze a country's transition to democracy and its rule of law reform? Elections have been called the "traditional acid test" of democracy (106) and "[f]ree and fair elections[] the sine qua non of a democratic society." (107) According to this view, elections, the process through which the people elect their representatives, are the fundamental test for a functioning democracy. (108) It is through the mechanism of elections that the demos participate in governing itself. (109) As discussed in Part I supra, Thomas Franck has identified "the emerging normative requirement of a participatory electoral process" (110) and the creation of "a presumption in favor of governance by the free, equal, and secret expression of popular will." (111)

Yet, equally assertive are the voices that maintain the insufficiency of elections as the measure of the functioning of a democracy, or as an indicator of the successful transition of a society. Thomas Carothers warns of the danger of idealizing elections as democracy achieved: "Elections do not equal democracy ... [,] they are, at best, only an early step, one that often leaves underlying political problems largely untouched." (112) Susan Gibson notes the inadequacy of elections as an indication of successful transition: "[c]learly, something more than elections are required before a country can be said to have a democratic government--rather than merely having a democratically-elected government." (113) And Thomas Franck notes the irony that majoritarian and totalitarian regimes may be emplaced through the mechanism of elections. (114) Furthermore, Carothers emphasizes the fragility of elections in transitional countries:

Not only are many bad elections still held in

transitional countries, despite the impressive

development of elections assistance, but even when an

election does come off well it often results in less

significant democratic gains than the providers of

electoral aid hoped for. The 1990s have seen many

successful first elections fail to fulfill their promise as

launching pads for democratic transition and

consolidation. Several dozen transitions have moved

from exciting breakthrough elections into stagnation,

backsliding toward authoritarianism, or even

breakdown into civil conflict. Democracy promoters

often regard elections aid as a key that will help open

the door to broader democratization. Once the door is

open, however, the remaining challenges are often

overwhelming. (115)

Despite, or perhaps in light of, these admonitions, however, it is undeniable that elections present a crucial test for democratic or would-be democratic entities. The principal reasons are two-fold: (1) elections and their conduct are the mechanism through which the people gives its consent (116) and governs itself and (2) elections require that the representatives previously elected by the people, and holding the reins of power, be prepared for and acquiesce in their removal from power by the people.

While conceding that well-run elections, by themselves, do not signify the successful functioning of a democracy, it is clear that badly-run elections, whether stemming from lack of resources or fraudulent intent and lack of respect for the will of the people, denote a malfunctioning of the democratic process. Democracy is even more threatened when the conduct of elections serves to prevent "the free, equal, and secret expression of popular will." (117)

If well-run elections alone cannot be considered a guarantee of a functioning democracy, is the reverse true? That is, can consistently fraudulent elections, alone, be considered an indicator of illusory democratization and adherence to the rule of law? The conduct of elections and plebiscites in Armenia raises this fundamental question.

B. Overview of Armenia's Post-Soviet Elections

The first post-Soviet, post-independence election, the presidential election of October 1991, was generally said to have been free and fair in light of the Republic's lack of experience with elections. (118) Those elections brought Levon Ter-Petrossian, Armenia's first post-Soviet President, to office with a mandate of 83% of the popular vote, (119) riding into office on a cresting wave of market and political liberalization. (120)

However, by the time of the National Assembly elections of 1994, the electoral procedures in Armenia were shrouded in doubt. (121) The downward trend continued with the presidential election of September 1996. (122) Two years later, Ter-Petrossian was forced to resign in a bloodless coup orchestrated by Karabagh-affiliated officials in his administration as well as members of the military, which was heavily invested, and had its origins, in the Karabagh conflict. (123)

In accordance with the Armenian Constitution, following the resignation of Ter-Petrossian's constitutionally-mandated immediate successor, (124) Robert Kocharian, Ter-Petrossian's Karabagh-born Prime Minister and second-in-line, was designated the Republic's second post-Soviet President. (125) Kocharian's appointment was confirmed by general elections that, in accordance with the Armenian Constitution, took place within forty days of Ter-Petrossian's removal. (126) While Karen Demirchian accepted the results of the election, there were rumors that Demirchian, Kocharian's principal opponent, was the true winner. (127)