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

In the interval between the first and second round of the presidential campaign of 2003, a joke made the rounds of Yerevan, the Armenian capital city, demonstrating the populace's weariness and cynicism regarding the electoral process. The joke went something like this: A man from Malatia went to the polling station to vote. As he handed over his ID and bent over to sign the voter list, he noticed that his father, dead lo these last three years, had voted before him and signed the voter list. "That wretched old man!" he thought bitterly. "Three long years, and he didn't even have the decency to come visit me and his grandchildren!" (201)

B. The Knock on the Door & Carousel Voting

An Armenian acquaintance recounted to the Author her experience with carousel voting: (202) A week prior to the presidential election, a knock on her apartment door presaged the appearance of two gentlemen who offered a certain number of Armenian drams (203) in return for her agreement to vote for the incumbent. In order to ensure she carried out her commitment, on the day of the election she would be required to check in with the contact person, receive a pre-checked ballot, and return to the handler the blank ballot given to her at the polling station. Only after completing these steps would she receive the promised payment. (204)

C. No Unchecked Ballots

Another Armenian acquaintance returned to her small village to vote. (205) Despite movement of a large part of the rural population to Yerevan, the capital city, many citizens continue to be registered in their home villages. Upon entering the polling station and presenting her identification, she was handed a ballot already checked for the incumbent. A sophisticated resident of Yerevan, my acquaintance demanded she be given a clean ballot. The puzzled village election officials were unable to comply, as every ballot in the precinct had been pre-checked for the incumbent President. (206)

D. The Second Round: Observing the Vote

I was an official international observer for the OSCE observer mission for the second round of the 2003 Armenian presidential election. My partner, a U.S. Embassy employee, and I were driven through the streets of our assigned precincts in Yerevan in a large white SUV that flew the blue and white OSCE flag. We noticed as we approached various polling stations, there was a flurry of movement outside followed by a mini exodus of individual civilians. Voters? Or persons not authorized to gather in the polling stations?

At the second precinct we visited, we were approached by a middle-aged woman who haltingly relayed her complaint to us through our driver-translator. She explained that her two children lived in Moscow; however, when she came to the precinct to vote, as she bent over the voter list to sign her name, she noticed her son's and daughter's names had been signed on the list, indicating they had already voted. But neither of them had traveled home from Moscow! What should she do?

Knowing the courts of first instance would be open all day to enable those erroneously omitted from the voter lists to be reinstated and allowed to vote, we advised her to go to the nearest court to complain. But would she be able to have the names struck?

When I relayed the story to my Armenian acquaintances, they laughed knowingly. "Yes, the dead, the migrated, and the moved-away all voted in these elections!" they said. (207)

E. The Second Round: Observing the Count

"It's not who you vote for that matters, but who counts the votes." (208)

These were the wee hours of election night; the majority of Yerevan's residents were long abed. My partner and I sped through the streets, following what we hoped were the ballots from the polling station we had just observed.

We chose that particular station because the election officials had seemed rather uneasy when we visited earlier in the day, and were visibly relieved when we announced we were leaving. Shocked at our unexpected return toward the end of election day, the chairman of the precinct electoral commission insisted we sit a full twelve feet across the room away from the action we had come to see--the counting of the vote. Nevertheless, thanks to the transparent ballot boxes the ACEC had been persuaded to use, (209) we could keep a somewhat close watch.

The chairman would pull out an individual ballot, announce his determination of the candidate in support of whom it had been cast or, if it was a spoiled ballot, and hand it over to the other committee members. An initial lead by the challenger was whittled away by thickly enwrapped mother loads of pro-incumbent ballots that the chairman visibly wrestled to separate in order to take them from the ballot box. The final determination after many hours of counting was that the incumbent had carried the polling station.

Then came the hard part for the precinct electoral commission: making the numbers look legitimate. The number of votes counted, including the spoiled ones, exceeded the number of voters on the precinct's list, that is, the number of ballots counted exceeded the number of ballots delivered to the precinct in preparation for the vote and signed for by the committee. (210) How would the precinct electoral commission resolve this? It was a simple matter to change the numbers to match the official number of voters assigned to that precinct.

A committee member representing an opposition candidate loudly protested the arithmetical contortions to no avail and finally stalked out. He did not sign the precinct's official count document (the "protocol") that must be submitted with the ballots at a central location. The committee continued to fill out the form, and the chairman ordered us to leave the room for a few minutes. "Is this right?" we asked ourselves. "Can he do that? Did our training cover this issue?" Once we had begun to observe the count, we were not supposed to let the ballots out of our sight. But we didn't have an armed soldier on our side--they did. We decided to wait in the car. As we waited, a car sped out of the precinct. "After them!" we yelled to our translator-driver. "They've got the ballots! They're trying to get away."

We thought we had kept them in sight, but by the time we showed our ID cards at the central location some miles away, we lost sight of them. We were then directed to a small antechamber where we found several other teams of official observers. We all were tired and wound up. We swore we would wait until our polling station's number was called. We wanted to see whether the protocol reflected the nonmatching counts and the absence of the opposition committee member.

Several hours later, dawn breaking in the sky, outwaited, outwitted, and outlasted, we left. Our precinct had not been called. We were too tired and had to go home. We agreed to make a note of this matter in our report, but realized we would not be present to challenge the official submission by the precinct electoral commission. We assumed a forged signature had been submitted and the doctored count had been matched to the official numbers for the precinct. (211)

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

Through an examination of the 1995 Constitution of the Republic of Armenia, particularly the status of judges under the Constitution, this Part assesses the rule of law in Armenia. The role played by the Judiciary and the law during the 2003 elections exemplifies the gap between the appearance and reality of rule of law reform in Armenia, as do the process and events leading to amendment of the 1995 Constitution.

A. The Rule of Law

Defining the term "rule of law" would be no less arduous than attempting to define democracy. (212) This Article neither creates nor attempts to adopt a single definition of the rule of law; Professor Brian Tamanaha describes the rule of law as, "stand[ing] in the peculiar state of being the preeminent legitimating political ideal in the world today, without agreement upon precisely what it means." (213) However, the three clusters of meaning of this "conceptual concept," identified by Professor Tamanaha: (1) law as a limit on governmental power; (214) (2) formal legality (or rule by rules); (215) and (3) "the rule of law, not man" (216) illuminate attributes of the term as referred to in this Article.

The rule of law is thought to be essential to the functioning of a democracy, as law provides the rules to which the citizens and population of a polity and their government (Legislative, Judicial, and Executive branches) will adhere. Professor Thomas M. Franck expresses the interaction between the rule of law and democracy as follows: "To counteract the tendency of democracy to corruption and illegitimacy, societies have sought relief through the rule of law." (217) Professor Franck further notes "[t]he need to balance democracy and safeguard legitimacy through implementation of a rule of law has been widely recognized in the recent global resurgence of democracy." (218) In a democracy, the rule of law functions to restrain the actions of the people and of the representatives through whom they govern themselves. The rule of law operates to restrain: (1) the peoples' leader-representatives in their interaction with the people; (2) the people in their interaction with each other; (3) the people in their interaction with their representatives; and (4) the state in its interactions with the people and with other states. Fundamentally, then, the rule of law maintains an equilibrium among relevant actors. (219)

B. Constitutional Framework and the Role of the Judiciary