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

In a constitutional order, the constitution is the fountainhead from which springs the substantive and procedural principles and laws, adherence to which signifies the rule of law. The Judiciary's function is integral to the functioning of the legal framework in its capacity as the neutral arbiter of disputes and interpreter of the laws. In order for the law and the rule of law to fulfill their functions, not only must the substantive and procedural content of the legal framework facilitate those functions, but the Judiciary must be empowered to uphold those procedural and substantive roles.

The 1995 Constitution of the Republic of Armenia was in effect during most of the elections described in Part III, including the 2003 elections. Via a plebiscite, described in this Part, the 1995 Constitution was replaced by a newly-amended Constitution. By its terms, the 2005 Constitution will come into effect upon publication in the Official Bulletin on the Republic of Armenia. (220)

1. The 1995 Constitution (221)

A review of the 1995 Constitution of the Republic of Armenia (Constitution or 1995 Constitution) is likely to engender some cognitive dissonance, in schooled and unschooled readers alike, due to the conflicting values it appears to enshrine. The document is divided into nine Chapters.

Chapter 1, The Foundations of Constitutional Order, outlines the fundamental principles upon which the Republic is based. Broadly written, these include "state guarantee[] [of] the protection of human rights and freedoms," (222) universal suffrage, (223) a multiparty political system, (224) ownership and protection of private property, (225) "protection and reproduction of the environment," (226) and, most importantly for purposes of the analysis here, the principle of "separation of ... powers": (227) "State power shall be exercised in accordance with the Constitution and the laws based on the principle of the separation of the legislative, executive and judicial powers." (228)

However, as discussed in this Part, the 1995 Constitution provided for extremely permeable lines among the three branches, effectively prescribing the domination of the other branches by the President of the Republic. (229)

Chapter 2, Fundamental Human and Civil Rights and Freedoms, is a veritable litany of fundamental human rights, encompassing the traditional Western civil and political rights, as well as socialist economic, social, and cultural rights. The rights recognized and to be protected by the state (230) are: equality before the law, (231) privacy in one's dwelling, (232) life, (233) freedom from unwarranted detention (234) or search, (235) and freedoms of speech, (236) expression, (237) and association. (238) Perhaps more extraordinary to American eyes are the rights to rest, (239) an adequate standard of living and housing, (240) and "freedom of literary, artistic, scientific and technical creation." (241)

Indeed, the Constitution's Chapters 1 and 2 present an almost blinding reflection of human rights norms. The Constitution is so solicitous of the rights of individuals and the people, that article 43 provides for the protection of unenumerated and perhaps still inchoate but universally accepted human rights: "The rights and freedoms set forth in the Constitution are not exhaustive and shall not be construed to exclude other universally accepted human and civil rights and freedoms." (242)

The provisions of Chapter 3, The President of the Republic; Chapter 4, The National Assembly; Chapter 5, The Government; and Chapter 6, Judicial Power, contradict and undermine the fundamental principles and rights expressly provided for in the preceding chapters, thus engendering the cognitive dissonance diagnosed at the beginning of this section. (243) Chapters 7, 8, and 9 address Territorial Administration and Local Self Government; Adoption of the Constitution, Amendments; and Provisions For the Transitional Period, respectively. (244)

The separation of powers among the three branches (Executive, Judiciary, and Legislative) is, in fact, merely illusory, with broad power concentrated in the President of the Republic. Professor Elizabeth Defeis notes: "[T]he powers vested in the President are vast and the office has been characterized as 'probably the strongest presidency anywhere in the western world." (245) Among the powers vested in the President by Chapter 3 of the Constitution are the ability to dissolve the National Assembly (the Republic's unicameral legislative body) after consultations with the Prime Minister and President of the National Assembly; (246) appointment and removal of the Prime Minister and members of the government, (247) for example, the cabinet; appointment, removal, and approval of the arrest of the members and President of the Constitutional Court (248) and the judges of all three levels of the tri-level Armenian Judicial system; (249) and appointment and removal of the Prosecutor General upon the recommendation of the Prime Minister. (250)

Vis-a-vis the Legislative branch, the President, and his government hold perhaps overwhelming power. Chapter 4 delineates the powers of the National Assembly, with Article 62 providing "[t]he powers of the National Assembly are determined by the Constitution." (251) In addition to the absence from the Constitution of a "necessary and proper" clause or its equivalent, which could provide room for the expansion of the National Assembly's power, the President and his government control the agenda of the National Assembly and, therefore, in large part, the Assembly's exercise of its power. (252) In Professor Defeis' words, "The allocated legislative powers are extremely limited" (253) and "the Government to a large extent controls the legislative agenda." (254)

2. Status of the Judiciary under the 1995 Constitution

As in any study of the existence and functioning of the rule of law, of particular concern is the status and power of the Judiciary, and the Judiciary's consequent power to enforce the rule of law. Judges in Armenia do not enjoy judicial independence, as separation of the balance of power between Executive and Judiciary--a separation that is essential to the checks and balances of power, and indeed, to the rule of law itself--has not been enshrined in the Constitution. (255)

The Judicial system in Armenia has three levels: courts of first instance, with general jurisdiction, review courts, and a court of appeals, (256) also referred to as the Court of Cassation. (257) A separate Constitutional Court hears constitutional challenges. (258) Analysis of the 1995 Constitution indicates that prior to the constitutional amendment in 2005, judges in Armenia were constrained by the structural realities of their office, while desire for change was impacted by the realities of intimidation and violence. (259)

"The President of the Republic shall be the guarantor of the independence of the judicial bodies." (260)

"The President of the Republic ... may remove from office any judge, sanction the arrest of a judge and through the judicial process, authorize the initiation of administrative or criminal proceedings against a judge." (261)

The above provisions from the 1995 Armenian Constitution encapsulate some of the principal flaws concerning the status of the Armenian Judiciary. The President of the Republic has the power to appoint, remove, and order the arrest of all members of Armenia's Judiciary. (262)

The appointment of judges, their evaluation, and discipline are decided and carried out by the Judicial Council. (263) Article 95 of the 1995 Constitution provides:

The Judicial Council:

1) shall, upon the recommendation of the Minister of Justice, draft and submit for the approval of the President of the Republic the annual list of judges, in view of their competence and professional advancement, which shall be used as the basis for appointments.

2) shall, upon the recommendation of the Prosecutor General, draft and submit for the approval of the President of the Republic the annual list of prosecutors, in view of their competence and professional advancement, which shall be used as the basis for appointments.

3) shall propose candidates for the presidency of the courts of appeals, the presidency and judgeship positions of its chambers, the presidency of the courts of review, courts of first instance and other courts. It shall make recommendations about the other judicial candidates proposed by the Ministry of Justice.

4) shall make recommendations regarding the candidates for Deputy Prosecutor proposed by the Prosecutor General, and the candidates for prosecutors heading operational divisions in the Office of the Prosecutor.

5) shall make recommendations regarding training programs for judges and prosecutors.

6) shall make recommendations regarding the removal from office of a judge, the arrest of a judge, and the initiation of administrative or criminal proceedings through the judicial process against a judge.

7) shall take disciplinary action against judges. The president of the court of appeals shall chair the meetings of the Judicial Council when the Council is considering disciplinary action against a judge. The President of the Republic, the Minister of Justice and the Prosecutor General shall not take part in these meetings.

8) shall express its opinion on issues of pardons when requested by the President of the Republic.

The operational procedures of the Judicial Council shall be prescribed by law. (264)