by Richard Giragosian
Of the many pressing challenges facing Armenia today, the strengthening of the rule of law is perhaps the most important. The rule of law serves as the foundation for the country's political, economic and even social development. It is also a crucial prerequisite for true democracy in Armenia, in terms of both setting the parameters for proper political discourse and policing political behavior. But most significantly, the rule of law is essential for the development of a stable and secure society, affording the average citizen the protection of civil liberties and individual rights.
In the case of Armenia, a country still engaged in a long and difficult stage of transition and reform, the strengthening of the country's rule of law depends on the course of judicial reform. Judicial reform serves as the main avenue toward a more balanced system of governance, comprising both a more effective legislative and an independent judiciary, with each capable of balancing an overly dominant executive. Such a system of governance is key to forging a mature democracy in Armenia.
Reformation is not a quick process. But:
The imperative for reforming the Armenian judiciary stems from its role as a fundamental element of a stable and secure state. Yet judicial reform is also an essential element of Armenia's commitments and obligations as a member of international organizations and institutions, such as the Council of Europe. But the course of judicial reform to date has been disappointing as the Armenian judiciary remains far from the ideal of an independent and impartial pillar of the state.
RECENT ACHIEVEMANTS, REMAINING OBSTACLES
Changing the Armenian judicial system is a dynamic and ongoing process where incremental movement must be measured for its impact on future generations. Still, last year saw significant gains. Bolstered by the passage of a set of constitutional amendments in November 2005, Armenia has been able to implement important structural reforms. In conformity with Council of Europe standards, Armenia's constitution was amended to forge a more balanced distribution of powers between the executive, legislative and judicial branches of government.
Most notably, these constitutional changes included an end to the power of the president to appoint the prime minister; a new requirement calling for the mayor of Yerevan to be elected by municipal council rather than appointed by the president; and the replacement of presidential appointments to the Council of Justice, which serves as a supervisory and disciplinary body within the judiciary.
Additionally, access to the country's highest judicial body, the Armenian Constitutional Court, which interprets and enforces basic law and ensures the constitutionality of legislation, was broadened to provide ordinary citizens with the right to challenge the constitutionality of laws and legal provisions applied against individuals.
DISPARITY BETWEEN IDEALS AND REALITY
Despite the promise of the reforms from the adoption of the recent constitutional amendments, there are still three main obstacles to ensuring a durable and lasting rule of law in Armenia.
The first obstacle is the most basic and involves the lack of political will necessary for the implementation of these reforms. More specifically, it is the wide disparity between Armenian rights and laws and the reality of their rather arbitrary and sporadic enforcement that poses the most obvious problem. In this sense, it is not the reforms alone that matter, but the process of their implementation and application that is most significant.
One example of this disparity between ideals and reality can be seen in the case of Armenia's first human rights ombudsman. Armenia's presidential-appointed human rights ombudsman, Larisa Alaverdian, left office only after a heated confrontation with the government over its decision to evict residents from a central part of the capital to make way for new residential developments.
Alaverdian sharply criticized the eviction as a flagrant violation of the residents' property rights and exposed several cases of police harassment against some residents who protested the eviction and lodged formal complaints in May 2005. The incident escalated to include a police raid on the offices of the human rights ombudsman, suggesting that there was little tolerance for criticism from within the political system.
Although one of the recently adopted constitutional amendments altered the ombudsman selection process from a presidential- to a parliamentary-appointed position, Alaverdian was quickly replaced in December 2005 by a member of the presidential staff, a figure seen as more compliant and complacent. And just prior to the end of her term as the country's first human rights ombudsman, she was prevented from even presenting her official closing report to the Armenian parliament.
A CULTURE OF IMPUNITY
In the absence of an entrenched rule of law, a culture of impunity or even an arrogance of power has been allowed to develop in Armenia. In the first nine months of this year, eight assassinations or attempts took place on high-profile figures, in public, and often in daylight.
In a spring-day shootout on a crowded street in the Malatia district of Yerevan, an innocent bystander was among the casualties in a hit aimed at a powerful businessman. In September, the head of the "Tax Police" was assassinated by a car bomb that also injured his driver and his son. And, in October, a senior Armenian police official was shot in the chest (but survived) while parking in his private garage. Arrests were made in only one of the crimes.
Perhaps most reflective of this new arrogance of power has been the emergence of "criminal politics" in Armenia, demonstrating a nexus between criminal acts of impunity and political acts of violence. Most recently, the arrest of notorious parliamentarian Hakob Hakobian for assault in October tends to affirm this link between crime and politics. But in this case, the subsequent vote by parliament to lift the deputy's parliamentary immunity offers some hope that the Armenian state has finally begun to recognize that this trend threatens its own legitimacy and authority.
ARMENIA'S INSTITUTIONAL FRAGILITY
A third obstacle to the rule of law in Armenia centers on the fragility and impotence of its institutions. Although there have been some positive changes, stemming from the constitutional rebalancing of governance, there remains a serious lack of institution-building efforts to match the improvements to the political landscape, such as the strengthening of a new "checks and balances" role for the parliament and judiciary. For institutions to be leveraged as the building blocks of true democracy, they must be backed by a strengthened rule of law. And the rule of law must also go beyond the political, to incorporate social and economic justice in Armenia.
In this sense, the absence of such effective institutions and the resulting weak regulatory framework have allowed a pattern of flagrant abuse and excess to emerge relatively unchallenged by authorities. This lack of institutionalization is especially evident in terms of economic regulation and enforcement, and has permitted the emergence of a new elite in Armenia. This new elite has steadily acquired economic and, subsequently, political power, at the expense of both society and the State.
While the institution of justice ultimately suffers, the impact of misplaced power is first felt on average citizens, who lose faith in the system and, eventually, hope of a remedy.
This condition was most disturbingly demonstrated in central Yerevan when hundreds of residents of the Buzand Street district appealed to courts with claims alleging that their homes had been taken from them "in the interest of the State" at prices 10 times lower than market value.
Indeed the court heard their claims, but in every case ruled in favor of developers, who in many cases were oligarchs and/or Members of Parliament.
Further, the attorney representing the residents was arrested on falsified charges unrelated to the Buzand dispute and held in jail until the last of the houses were torn down—even as some cases were still being heard.
The threat posed by this elite is also to the system itself, as such a disparity of power only undermines the legitimacy, rule of law, and the equity of opportunity that is essential to a stable and promising society.
One step in overcoming these obstacles is through an acceleration of judicial reforms capable of combating corruption and enhancing the rule of law. But this requires the political will to push these reforms forward. Within this context, the Armenian citizen needs to be elevated from spectator to activist, allowed to more freely participate in the political and economic life of the country.
But this, too, has come at personal costs to some who took the challenge and turned activism into rebellion.
During protests surrounding the 2003 presidential elections, and the quelled attempt at an opposition uprising in April 2004, more than 600 citizens were picked from rallies or rounded up from their homes and jailed for no reason other than dissent.
An Armenian law held over from Soviet times allowed for administrative arrest, essentially giving police carte blanche to hold anyone for up to 15 days, while finding something with which the person could be charged.
"In all cases that we studied, administrative violations were made up in police reports," says attorney to the Armenian Ombudsman Zhora Khachatrian "Such falsifications were ignored by the courts and illegal rulings were issued. The same wording figures in all cases: 'he or she used foul language, failed to comply with our lawful demand, interfered with our work for 3-5 minutes, etc."
Khachatrian cites the example from two police protocols, according to which the same policeman of Marash, on the same day (April 10, 2004), at the same time (6 p.m.), brought to police headquarters two people from different parts of the city—one from near the monument to Mamikonian and the other from Freedom Square, and both for public disturbance. The courts unconditionally accepted the police report and handed down convictions, without questioning how one policeman could be in two places at the same time.
By 2005, when similar protests followed the disputed constitutional referendum results, police held demonstrators in custody for 12 hours, but none were placed under "administrative arrest", due to changes that were part of ongoing judicial reform.
While last year's constitutional amendments laid grounds for more civil execution of authority, Armenian Bar Association attorney Ara Ghazarian says there are still holdovers from the old days. Criminal cases are still fabricated against politicians when convenient.
"The authorities can no longer apply administrative arrests against political figures, but unfortunately they can use the criminal code instead," the attorney says. "Essential changes are being made in the judicial system, but it is more the legislation that is improved, while practice limps and falls out of step and these changes are hard to apply."
THE ROLE OF AN EMERGING MIDDLE CLASS
Judicial reform must also address the mounting socioeconomic inequalities in Armenian society, with particular attention to the role of a vibrant middle class that offers more than simple economic entrepreneurship and commercial activity, but exercises a political activism and civic participation with unimpeded mobility in both areas.
The development of a middle class is dependent on two important factors: access and opportunity. And the structure of the society as a whole, and its economic and political systems in particular, must also be opened and expanded rather than closed or divided between a small wealthy and powerful elite and a much larger impoverished and marginalized majority. Once these preconditions are met, and once a middle class is able to emerge, it tends to prosper quickly and becomes far too entrenched and resilient to surrender its position in society.
Once in place, a middle class generally represents the interests of society as a whole, rather than the small ruling elite. It is this role that buttresses political and economic reform, empowers civil society and encourages the political will for deeper democratic reform. There is also a "trickle down" effect, with the middle class both serving and strengthening a civil society, free press and real political opposition.
Thus, for Armenia, the development of lasting democracy rests on the need for regulatory reforms to match judicial reforms and the development of an emerging middle class as an essential "agent for change" to forge democracy from within. Only then can one truly speak of an Armenia based on democracy and governed by the rule of law.
(Information for this report was also provided by journalist Vahan Ishkhanyan.)