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

As a condition of its accession to the Council of Europe, the Republic made commitments to conduct reforms of its legal system. (293) Pursuant to those commitments, Armenia obligated itself to, among other things, sign and ratify international treaties and reform its domestic law to comply with those treaties, including amendments to its 1995 Constitution. (294) For example, the structure of the courts and appointment and removal of judges is addressed in the 1995 Constitution. (295) The commitments included the requirement that Armenia "fully implement the reform of the judicial system, in order to guarantee, inter alia: the full independence of the judiciary...." (296) Since the balance of power among the branches of government was specified in the Constitution, only a reform of the relevant constitutional provisions could affect such a change.

The principal areas identified for reform were recognition and protection of human rights, local self-government, and the balance of power among the Executive, Judiciary, and Legislature. (297) The process of constitutional reform was supported by the Venice Commission (298) and other international organizations that assisted in the drafting and evaluations of proposed provisions.

2. Process of Amendment

In 2002, the government of Armenia announced a halt in the process of constitutional reform. (299) Then, unexpectedly, some weeks prior to the National Assembly elections of 2003, the government announced that the referendum on the Constitution would take place simultaneously with the National Assembly elections. (300) The draft submitted for referendum did not reflect the comments of the Venice Commission, but instead inexplicably was a reversion to an earlier draft. (301) The referendum did not pass, failing to receive the minimum vote required by the Constitution. (302)

Efforts to present another referendum to the Armenian voters began in January 2004. (303) Three competing proposals were presented to the National Assembly, (304) which accepted the proposal of the ruling coalition. (305) The Venice Commission of the Council of Europe issued successive opinions on three iterations of the amendment. (306)

President Kocharian signed the order to hold the referendum on October 4, 2005, with the vote scheduled for November 27, 2005. News reports (307) and the 2005 Needs Assessment Report of the OSCE/ODIHR revealed deep flaws in the process, including lack of access to the media for opponents of the referendum, (308) potentially inaccurate or fraudulent voter lists, (309) and violence perpetrated against participants in demonstrations against the referendum. (310) Although opposed to the proposal, the opposition parties failed to work cohesively or devise a viable plan of opposition. A campaign encouraging voters to vote "no" on the referendum was changed midstream to a campaign for voter boycott. (311) Some opposition figures disagreed, alleging that a boycott would give electoral officials a greater opportunity for fraud. (312)

The Republic declined to request observation by the OSCE/ODIHR (313) of the conduct of the referendum. Consequently, no OSCE/ODIHR observation mission was constituted nor was an OSCE/ODIHR election observation report issued on the referendum. However, contemporaneous press reports and opposition allegations center on discrepancies between voting activity and the number of "yes" votes reported by officials. (314) The Council of Europe, the E.U., and the government of the United States have questioned the accuracy of the reported "yes" vote. (315) Demonstrations arose following the announcement that the referendum had passed, (316) continuing a seemingly inevitable feature of the Armenian political scene whenever the people are asked to exercise their quintessential democratic power--the right to vote.

3. Implications for the Future

Whatever may be the advantages or beneficial aspects of the new Constitution, the conduct of the plebiscite, as well as official reaction thereafter, (317) reveal contempt for the rule of law and a thinly masked trend toward authoritarianism. The exclusion from the drafting process of opposing viewpoints, including the opposition parties, problems with voter lists, violence directed against and intimidation of opposition figures and supporters, and limited media access all reveal a power structure that operates on its own terms, with little room for the input of others.

The question then arises--why bother to go through the motions of reform, if resources will then be dedicated to limiting the effects of those reforms? Theatrical non-reform reforms operate as the smoke and mirrors that hide the true nature of the regime, and act as carrots to stimulate continued Western aid and engagement, while giving the regime cover to continue its consolidation of power.

The 2005 Constitution of the Republic of Armenia addresses a majority of the structural balance of power issues of the 1995 Constitution discussed earlier in this Part. After three rounds of comments, (318) the Venice Commission of the Council of Europe substantially approved the third version of the proposed amendment in the form that emerged from the third reading in the National Assembly. (319)

Principal changes included curtailment of the President's power to dissolve the National Assembly (320) and limitations on the President's power to appoint the Prosecutor-General and remove deputies of the Prosecutor-General. (321) Most importantly for the purpose of judicial independence, among other things, the 2005 Constitution increased the input of the Armenian Judiciary and National Assembly in the composition of the successor to the Judicial Council, (322) and, for the first time, created individual access to the Constitutional Court. (323) Also symbolically important, "the Constitution and laws" (324) replaced the President as guarantors of the independence of Armenia's courts. (325) Importantly (and controversially), the Constitution provides an avenue to citizenship for nonresident Diaspora Armenians and, almost certainly, a concomitant right to vote. (326)

These and other changes appear to bring Armenia's constitutional framework into closer congruence with European standards. (327) However, the non-inclusive and heavy-handed process of amending the Constitution, together with allegations of fraud surrounding the November 27, 2005 referendum, undermine the image of progress in rule of law reform. Despite the exhortations of the Venice Commission (328) and of PACE, (329) the Armenian authorities appear to have pursued the now familiar unilateralist approach of ignoring input that comes from outside the administration.

Indeed, based on previous conduct of the Armenian authorities, it is logical to question the manner in which the 2005 Constitution will function following its coming into effect. This is an administration accustomed to undermining the rule of law, while appearing and claiming to adhere to it. Whether the 2005 Constitution is but another theatrical non-reform reform, another smokescreen and mirror held up to the gaze of the international community, remains to be "seen."

VI. THE JOKER IN THE PACK?

The joker is the trump card in the pack; it throws the other players and perhaps wins the game. (330) But what is the game? Is it the process of transition to democracy and the rule of law? Or is the evolution of transitional countries in Central Asia and the Caucasus merely a sideshow of the "Great Game" (331) that continues to be played in that region of the world? In the new Great Game, (332) might the prospect of the success of such a transition be the joker in the pack?

The joker could be an active sentient agent that manipulates the smoke and mirrors of apparent reform for his or her own benefit. Or it could be a nonsentient force or background reality that undercuts efforts toward reform. In the context of the smoke and mirrors of Armenian post-Soviet political reform, who or what is the joker? (333)

A. Endogenous Suspects

1. Geo-Political Realities

Is it possible that Armenia's geographic and geopolitical location condemns it to instability and stillborn reform? The Republic is a Christian island (together with the Republic of Georgia) surrounded by a sea of Muslim countries, in a region that is a crossroads of three storied empires. (334) The Russian, Ottoman, and Persian Empires are long gone, yet the tensions live on or have found new manifestations among their political descendants. Iran, Persia's modern incarnation, threatens the world's security with nuclear dreams. (335) Ongoing tensions with Turkey, direct successor to the Ottoman Empire, stemming from the unresolved issue of the 1915 Armenian Genocide, (336) mean that the Turkey-Armenia border is closed. (337) Russia, heir, via the U.S.S.R., to the Russian Empire, is Armenia's friend, but a friend that holds the upper hand. (338)

The potential instability of the South Caucasus region also includes the ceasefire brokered by the Council of Europe between Armenia and the Republic of Azerbaijan. Little progress has been made in finding a lasting resolution, (339) which means Armenia is located in a region with the potential to flare into deadly conflict.

This potential instability, in addition to the financial and energy resource opportunities presented by Azerbaijan's oil and gas, keeps the world's focus on the region. It may explain the active engagement in the Transcaucasus of the world's sole current superpower, the United States, and the continued interest of the successor of that superpower's erstwhile Cold War competitor--the Russian Federation. (340)

2. Resistance to Change--Inertia