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

Thus, all judges are appointed by the President upon recommendation of the Judicial Council (265)--a council over which the President presides. (266) The Vice Presidents of the Council are the Prosecutor-General and the Minister of Justice. (267) While membership of the Judicial Council includes some judges, the appointment of those members is decided by the President, who, following a non-public interview process chooses among candidates presented by the members of the Judiciary. (268)

These constitutional limitations on the Judiciary's status and function are further elaborated on in the Law on the Status of Judges (269) that mandates the independence, (270) immunity, (271) and irremovable nature (272) of the judges' office. Nevertheless, the law enshrines the subordination of the Judicial branch to the Executive (273) with respect to the discipline (274) and termination of judges. (275)

While lifetime appointments of all judges and members of the Constitutional Court, (276) as well as the constitutional requirement of independence, (277) appear to guarantee the neutral application of the rule of law and independence of the Judiciary, the preceding discussion outlines the hollowness of the provisions, and the disconnect between de facto reality and de jure adjurations. The provisions function as smoke to obscure the reality of lack of independence and as mirrors to reflect outward the desired normative imitation of the West.

3. The Judiciary and the 2003 Presidential Elections

This allocation of power greatly affected the functioning of the rule of law in Armenia during the crucible of elections: The status of judges, as delineated by the 1995 Armenian Constitution, prevented the attainment of independence by the Judiciary and contributed to the serious dereliction of duty on the part of the Judiciary between the first and second rounds of the 2003 presidential elections.

The Armenian public widely perceives judges as corrupt state actors. (278) It is within this context that international organizations determined special training for the Armenian Judiciary was necessary in preparation for the presidential election, especially in light of the amendments to the election laws. The training appears to have been largely in vain: As described in Part II, the presidential election, featuring nine presidential candidates, was decided by a runoff vote after the incumbent President, Robert Kocharian, failed to win an absolute majority in the first round. (279) The period from the second round of elections until the conclusion of the parliamentary elections was marked by civic and social unrest, manifesting the anger of the Armenian people at the "theft" of the elections by the incumbent President. (280)

The actions of the Judiciary in reaction to these events evidenced the serious deficits in the balance of power between the Executive and Judicial branches and the challenges facing Armenia in its path toward the implementation of meaningful rule of law reform. Judges presided over secret trials of opposition campaigners who, after being denied (or, according to official reports, "refusing") access to counsel were sentenced to from fifteen days up to a month in prison based on allegations of public misconduct and hooliganism. (281)

4. Procedural Constraints and Challenges of Interpretation

Some flaws in the performance of the Armenian courts stem from procedural rules that constrain the courts' ability to act. For example, access to-in other words, standing before--the Constitutional Court is denied to the individual Armenian citizen. It is instead restricted to the President of the Republic, a one third vote of the National Assembly, or candidates who challenge election proceedings. (282) In addition, due to procedural flaws in the election laws and the statute of the Constitutional Court, the Court's decision with respect to the challenges against the administration's actions during the first and second rounds of the presidential elections, was not issued until after the second round had been held (283) and the winner declared. (284) Further, in its decision, the Court acknowledged the irregularities alleged by the challengers but decided to uphold the results of the election. (285)

Considering the factual difference in votes for Presidential

candidates as per the March 5, 2003 election result, the impact

thereon of the size of discrepancies and the results recognized

unreliable by the Court as a result of investigation of the case;

as well as evaluating the analytical material available in the

case; and the impact of duly legally formulated and evidentially

justified electoral violations of a qualitative nature on

realization of active and passive electoral rights, to keep

unchanged the RA CEC Decision 36-A dated March 11, 2003 on electing

a President of the RA. (286)

The Constitutional Court, noting that the alleged violations and subsequent events continued to leach the public's confidence in the legitimacy of the government, urged the conduct of a national referendum of confidence. (287)

[C]onsidering that on the level of constitutional solutions, for

institutions of representative democracy, not only the legality of

their formation is important, but also important is the large

continuous confidence of society in that process and a body of

state power;

...

stating the fact that in the circumstances of the yet imperfect

constitutional democracy, the election dispute, which is of crucial

importance for the destiny of the state, also has a deep

socio-political context based on lack of confidence and

intolerance;

giving high importance to referenda and plebiscites as a special

significant form of immediate democracy and realization of people's

power, and of resolving issues of special importance for the state

and establishing social confidence and people's consent;

to suggest to the newly elected RA National Assembly and the RA

President, within one year, in the consonance to democracy and rule

of law to bring the RA Law 'On Referendum' in compliance with the

requirements of the first part of unchangeable Article 2 of the RA

Constitution and to select the organization of a referendum of

confidence as an effective measure to overcome social resistance

deepened during the presidential elections. (288)

The court thus appears to acknowledge implicitly, that even in the face of a finding that violations were committed, it has no power under the Constitution or electoral law to hand out or impose sanctions to cure the violations. Given that the Constitution does not provide for the administration of a referendum of confidence to legitimate electoral results, it is not surprising that the government questioned the legitimacy of this suggestion from the Court. (289)

The Constitutional Court's call for a referendum of confidence transports the observer into Samuel Beckett's theatre of the absurd. While affirming that violations did take place, and deciding that those violations did not have a material effect on the results of the elections, yet recognizing that their decision would not have validity in the eyes of the citizenry, the Judicial body, implicitly acknowledging its own impotence and lack of authority, suggests a potentially legitimizing mechanism that is illegal under Armenian law. More significantly, the Constitutional Court's suggestion evidenced a belief by the judges that the machinery of democracy in the Republic of Armenia failed with respect to the 2003 presidential elections.

The Court's opinion is illustrative of Professor Frank Emmert's description of the methodological challenges to legal reform among the then-candidate countries to the European Union (E.U.):

[M]ethodological problems ... are widespread in Central and Eastern

Europe. First of all, the judges are trained to apply the law and

the (written) law only. They have no training to overcome lacunae

in the law, for example, by recourse to general principles of law,

such as the notion of unjust enrichment. Second, the judges have no

experience with the concept of justice in contrast to the concept

of law. This can lead to cases where the letter of the law is duly

followed but the result is obviously unjust, if not outright

absurd. (290)

The conduct of the Judiciary in the period between the first and second rounds of the elections, and the inability of the Constitutional Court to provide a timely or real remedy in the face of documented violations, depicts the true status of the Judiciary and the structural flaws of that status. These flaws, however, have been obfuscated by the smokescreen of the highflown enunciations of the Law on the Status of Judges (291) and the guarantees of independence constitutionally provided by the President. (292)

C. The 2005 Constitution--Theatrical Non-Reform Reform?

The process of amendment of the 1995 Constitution also demonstrates flaws in Armenia's transition to democracy and the rule of law.

1. Purposes of the Amendment