Analysis of the Draft Amendments to the Constitution of the Republic of Azerbaijan

February 21st, 2017

The Institute for Reporters’ Freedom and Safety (IRFS)

September 2016

Analysis of the Draft Amendments to the Constitution of the Republic of Azerbaijan

SUMMARY

Azerbaijan’s slide toward a family-run order is gathering momentum: on 26 September, voters will decide on constitutional changes that would hand additional powers to long-standing President Ilham Aliyev.
On 18 July 2016, President Aliyev signed a decree submitting the draft Referendum Act “On Amendments to the Constitution of Azerbaijan Republic” to the Constitutional Court.

The Constitutional Court approved the Referendum Act on 25 July 2016, following which President Aliyev set the referendum for 26 September 2016. Each amendment will be listed on the ballot paper, and voters will approve or reject each one separately.

IRFS believes that the proposed amendments are aimed at enhancing and prolonging the ruling family’s dominance in the public, political, and economic spheres. Furthermore, IRFS considers these amendments to be a clear violation of human rights standards. Specifically, these proposals run counter to Azerbaijan’s obligations before the Council of Europe.

The amendments would extend the presidential term from five to seven years. They would also create the powerful new position of First Vice President, along with several other vice-presidencies. In the event that the president is incapable of discharging his duties, authority devolves to the First Vice President (rather than to the Prime Minister, as under the current Constitution).

The amendments would also enable the president to call snap elections and to dissolve parliament if within one year if it twice votes no confidence in the government, or rejects his proposed nominees to the Constitutional Court, the Supreme Court, or the Board of the Central Bank.

The minimum age for presidential candidates (currently 35) would be abolished, and the age for election to parliament would be lowered from 25 to 18.

Other proposed changes impose restrictions on certain rights, including: the right to free assembly, which would be contingent on the non-violation on “public order and morality”; and the right to ownership of land, which could be restricted in the interests of “social justice and effective land use.” In addition, Azerbaijani citizenship could be withdrawn “in accordance with the law.”

Although the authorities claim that the constitutional reform procedure has been carried out in compliance with national electoral law, the pace of the process, from the submission of the draft referendum act on 18 July 2016, to its approval by the Constitutional Court on 25 July 2016 and its submission to national referendum on 26 September 2016, seems unduly rapid given the issues at stake and the need to ensure that voters are fully acquainted with the various implications of the reforms.

2009 CONSTITUTIONAL REFORM

The 2009 referendum on constitutional amendments abolished presidential term limits, allowing for President Ilham Aliyev to remain in office indefinitely.

In March 2009 the Council of Europe’s Venice Commission, the advisory body on constitutional matters, criticized the amendments, stating that they distort the balance of power and contradict European practice1. The main concerns related to the abolition of the two-term limit to the office of President and to the President’s position.

“Azerbaijan, the Constitution of which provides for a Presidential system of Government, is undoubtedly a country where the President concentrates extensive powers in his hands, given the few checks and balances which exist. It was therefore logical that the original text of the Constitution of Azerbaijan provided for a two-term limit. … As a rule, it can be said that the abolition of existing limits preventing the unlimited re-election of a President is a step back, in terms of democratic achievements. … Explicit constitutional limitations on the successive terms of a president are particularly important in countries where democratic structures and their cultural presuppositions have not yet been consolidated.”2

Under the European Convention on Human Rights, all citizens of Council of Europe member states have a right to democratic governance. The removal of a presidential term limit in Azerbaijan (Article 101, V)3 violates the European Convention of Human Rights4 and constitutes a breach of international law.5

SUMMARY OF PROPOSED AMENDMENTS

Below is a brief analysis of the 29 proposed amendments to Azerbaijan’s current constitution.
Article 29. Right to Ownership

Proposed change:

Paragraphs 5 and 6 would be added to Article 29 (Right to Ownership) of the Constitution. These paragraphs read as follows

“V. Private property entails social obligations.

VI. The right to own land may be restricted by law for the purpose of social justice and efficient use of land.”

IRFS analysis:

This proposal could lead to violations of the right to property enshrined in Article 1 of Protocol 1 to the ECHR.

These amendments are intended to restrict property rights. If, as envisaged, the government has the constitutional the right to limit private property, it will automatically create the impression that the principle of inviolability of property does not exist under national law. As a result, businesses will flee the country, and the economic crisis will deepen.

Article 49. Freedom of assembly

Proposed change:

The provision on freedom of assembly, envisaged in Article 49 of the Constitution, is also subject to amendment. According to the present wording of this provision, Everyone has the right, having notified respective governmental bodies in advance, peacefully and without arms, meet with other people, organize meetings, demonstrations, processions, place pickets.

However, the proposed amendment inserts a restrictive new clause: Everyone has the right, having notified respective governmental bodies in advance and provided that public order or public morality is not violated, peacefully and without arms, meet with other people, organize meetings, demonstrations, processions, place pickets.

IRFS analysis:

The term public morality is subject to multiple different interpretations. In other words, relevant executive authorities may prohibit public rallies on this vague basis. For instance, if during a public rally organised by an organisation or individuals, someone swears for the purposes of provocation, the executive authority may ban future rallies on the grounds of a public morality violation.

This amendment is contrary to the European Convention on the Protection of Human Rights and Fundamental Freedoms. According to Article 11 of the Convention, Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. However, the proposed amendments are not motivated by genuine concerns about national security and prevention of disorder or other interests. These amendments arise purely from the determination of the authorities to silence independent NGOs.

Article 53 Guarantee of the right to citizenship

Proposed change:

Article 53 of the present Constitution reads, In no circumstances may a citizen of the Azerbaijan Republic be deprived of citizenship of the Azerbaijan Republic.

However, the proposed amendment suggests the removal of the words ‘in no circumstances’. The bill also proposes adding the clause, ‘cannot be denaturalised except in the cases of loss of citizenship provided for in law’.

IRFS analysis:

This amendment will enable the President to legally deprive anyone of their citizenship. Presumably, the intention behind this change is to denaturalise individuals critical of the government. President Ilham Aliyev has decided he should have the right to strip a person of their citizenship regardless of the current constitutional protection for the inalienable right to citizenship. The Law on Citizenship was in violation of the consitution, and the proposed amendements would bring the constitution into line with the statutory legislation.

On 9 June 2015, the Azerbaijani President violated the Consitution by revoking the citizenship of IRFS Chairman and human rights defender Emin Huseynov. In doing so, President Ilham Aliyev exceeded his legal powers and transgressed the Constitution.

Emin Huseynov’s treatment was a clear breach of the European Convention on Human Rights. By arbitrarily stripping him of his citizenship and rendering him stateless, Azerbaijan is also in breach of its commitments under the 1961 UN Convention on the Reduction of Statelessness, which forbids rendering anyone stateless by such means and on political grounds.

Article 56. Electoral right

Proposed change:

According to the proposed amendment to Article 56, The right to be elected of military personnel, judges, state employees, religious officials, persons imprisoned by decision of law court, other persons specified in the present Constitution and laws could be restricted.

The present Constitution, however, would limit the right of those people to participate in elections.

IRFS analysis:

This means that the government wants these people to participate in elections and cast their vote, without the right to be elected.

Article 58. The right to (freedom of) association

Proposed change:

The following amendment is proposed to Article 58 of the Constitution: “Activity of unions intended for forcible overthrow of legal state power on the whole territory of the Azerbaijan Republic or on a part thereof or other purposes considered a crime or using criminal methods is prohibited.”

The corresponding provision of the present Constitution reads as follows: Activity of unions intended to forcibly overthrow legal state power on the whole territory of the Azerbaijan Republic or on a part thereof is prohibited. Activity of unions which violates the Constitution and laws might be stopped by decision of a court of law.

IRFS analysis:

The main motivation behind this amendment is the removal of the clause stating that the activity of unions may be terminated only by judicial means. This amendment will also be used to eliminate independent NGOs. The government has already restricted activities of independent NGOs through repressive amendments to NGO laws.

Article 59. Right to business activity

Proposed change:

The bill proposes to remove “according to existing legislation” from the first paragraph of Article 59 of the Constitution. The current wording of this Constitutional provision is: Everyone may, using his/her possibilities, abilities and property, according to existing legislation, individually or together with other citizens, carry out business activity or other kinds of economic activity not prohibited by the law.

A second paragraph would also be added, reading:

“II. In the field of business activity, the state implements regulation only associated with the protection of state interests and human life and health.”

IRFS analysis:

This provision implies that the state may interfere with the business sector in order to protect state interests, human life and health. This indicates the scope of state control over anyone involved in commercial activity.
Article 60. Guarantee of rights and liberties by law court

Proposed change:

The wording of Article 60 would be changed, as below:

“Article 60. Administrative and judicial guarantee of rights and liberties

I. Administrative and judicial protection of rights and liberties of every citizen is ensured.

II. Everyone is entitled to impartial treatment of his/her case and to have that case heard in administrative or court proceedings within a reasonable time.

III. Everyone has the right to be heard in administrative or court proceedings.

IV. Everyone may appeal administratively or to law court regarding acts and omissions of state bodies, political parties, legal entities, municipalities and officials.”

IRFS analysis:

The present Constitution has only two of the four paragraphs mentioned above, the first and the fourth. In fact, this amendment is the only one that will benefit citizens. At present, courts arbtitrarily delay hearings and fail to examine them within a reasonable timeframe. Even in administrative cases, with no time limit contained in the Code, proceedings go on for years. In this regard, this amendment can be deemed positive.

Article 68. v Right to compensation of losses.

Proposed change:

Article 68 of the Constitution would be renamed as “The right to honest behavior and protection from arbitrariness.” Currently, the title of this Article is “Right to compensation of losses.”

The text of this Article in the current Constitution is as follows:

I. Rights of the person suffered from crime and also from usurpation of power are protected by law. Suffered person has the right to take part in administration of justice and demand for compensation of losses.
II. Everyone has the right for compensation by the state of losses borne as a result of illegal actions or non-action of state bodies or their officials.

The proposed amendment reads:

Paragraphs I and II of the Article shall be considered Paragraphs II and III respectively;

Paragraphs I and IV shall include the following wording:

“I. Everyone has the right to honest behavior which precludes the arbitrariness of state bodies in relation to him”;

“IV. The state, along with public servants, shall bear civil liability for prejudice to human rights and liberties and violation of the guarantees thereof resulting from illegal actions or omissions of public servants.”

IRFS analysis:

Only civil liability of public servants is mentioned here; this will likely lead to an increase in illegal actions by public servants.

Article 71. Protection of rights and liberties of a human being and citizen
The bill proposes an additional sentence to Paragraph II of Article 71:
“The restriction of rights and freedoms should be proportionate to the result expected by the state.”

IRFS analysis

This provision serves to give a semblance of legitimacy to the restriction of rights and freedoms, based on the notion that the state will apply restrictions proportionately to the results that it expects. The scope and meaning of the results expected by the state remains an open question.

Article 85. Requirements for candidates for the position of deputies of the Milli Majlis of the Azerbaijan Republic

Proposed change:

Another notable amendment is the one relating to the minimum age of members of parliament. Paragraph I of Article 85 of the Constitution reads: Every citizen of the Azerbaijan Republic not younger than 25 may be elected the deputy of Milli Majlis of the Azerbaijan Republic in an established order.
However, under the proposed amendment, the words “not younger than 25” in Paragraph I of Article 85 would be replaced with “having the right to participate in elections.”

IRFS analysis:

According to the Electoral Code, the right to participate in elections is acquired at the age of 18. Once this amendment is passed, any person of 18 or older will have the right to be elected to parliament. Individuals who are 18 years old and have just finished school will be entrusted with resolving issues that affect millions of people. The minimum age for a member of a municipality (ed: local councilor), which does not have significant powers, is 21. Having a national legislature consisting of teenagers will have negative consequences.

“Article 981 Dissolution of the Milli Majlis of the Azerbaijan Republic

Proposed change:

The bill proposes adding a new Article to the Constitution, which gives the President the power to dissolve the Milli Majlis (Parliament).

Article 98. “The Milli Majlis of Azerbaijan Republic shall be dissolved by the President of Azerbaijan Republic, if the same convocation of Milli Majlis makes a vote of no confidence in the Cabinet of Ministers of Azerbaijan Republic twice within one year; fails to appoint, on recommendation by the President of Azerbaijan Republic, the candidates for the membership of Constitutional Court of Azerbaijan Republic, Supreme Court of Azerbaijan Republic and Board of Management of Central Bank of Azerbaijan Republic in numbers required for their activities within the term prescribed by law after two submissions; or fails to perform its duties specified in Articles 94 and 95, Article 96 § II, III, IV and V, and Article 97 of the present Constitution for reasons that cannot be overcome.”

IRFS analysis:

Giving the President the power to dissolve the Parliament will reduce the independence of the Parliament, whose role is to approve laws. According to the principle of separation of powers, the legislature and the executive are separate, independent institutions. However, this amendment grants more power to the executive branch, making the legislature dependent on the former.

Article 100. Requirements for candidates for the post of the President of the Azerbaijan Republic

Proposed change:

The main change would see the removal of the minimum age requirement.
According to the current wording of Article 100 of the Constitution, “Citizen of the Azerbaijan Republic not younger than 35, permanently living on the territory of the Azerbaijan Republic longer than 10 years, possessing voting right, without previous conviction, having no liabilities in other states, with university degree, not having double citizenship may be elected the President of the Azerbaijan Republic.”
The proposed amendment removes the words “not younger than 35”.

IRFS analysis:

This means that every person who has the right to vote, i.e. anyone who has reached the age of 18, can run for president. However, this provision contradicts itself. Presidential candidates are also legally required to hold a university degree, which is nearly impossible for an 18-year-old to have achieved. Therefore, the minimum age should be at least 25 to remove this contradiction.

Article 101. Procedure for elections of the President of the Azerbaijan Republic

Proposed change:

Article 101 of the Constitution specifies the president’s term of office as 5 years. However, the new draft amendment proposes to extend the term of office to 7 years, and to add a sentence that reads “the President of Azerbaijan Republic may announce early presidential elections of the Azerbaijan Republic.”

IRFS analysis:

This means that the President may announce early presidential elections at any time.
The cornerstone of the rule of law is the principel of the separation of powers. In a country with a presidential system, power tends to be concentrated in the presidency, while that of the Legislature or the Judiciary is relatively weaker. Therefore, regular regime change through elections is precisely what prevents a concentration of powers in the hands of the President.

While presidential terms are being reduced in many countries, Azerbaijan is seeking to extend this. Another amendment passed in 2009 read: If the conduct of military operations does not allow holding Presidential Elections of Azerbaijan Republic, the term of office of the President of Azerbaijan Republic is extended until the end of the military operations. The decision on this matter is adopted by the Constitutional Court of Azerbaijan Republic at the request of the state body ensuring the conduct of elections (referendum).

Article 1031 Vice-Presidents of the Republic of Azerbaijan

Proposed change:

A new article establishing the institute of vice-presidency has been proposed. In addition, several other articles discussed below will be added or revised in regard to the powers and duties of Vice-Presidents.
Article 103.

I. First Vice-President and Vice-Presidents of the Republic of Azerbaijan are appointed and dismissed by the President of the Republic of Azerbaijan.
II. Vice-President of Azerbaijan Republic is appointed from among citizens of the Azerbaijan Republic possessing voting right, with university degree, and having no liabilities in other states.”

IRFS analysis:

The President shall appoint Vice-Presidents independently. The establishment of the posts of First Vice-President and Vice-Presidents of Azerbaijan Republic must be justified and this justification must be reasonable. This is a direct requirement of national legislation. According to Article 40 of the Constitutional Law on Normative Legal Acts, the process of developing norms should be carried out in a planned manner. According to Article 41 of the same Law, the planning of drafting normative legal acts includes the approval of the following by norm-making agencies: 1) state programs containing provisions on drafting normative legal acts; 2) annual plans on drafting bills and other plans on drafting normative legal acts.

In addition, according to Clause 1 of Annex 1 of the Constitutional Law on Normative Legal Acts, the status of normative regulation (analysis of the specific normative legal acts which are in force) pertaining to the scope of regulation of the draft normative legal act (law) must be made public.

The necessity of establishing the vice-presidency is not explained. Also, the legislature’s involvement in appointments to important state posts is considered a sign of democratic governance, while autonomous decisions made by the executive are considered a sign of an absolutist regime. Consulting parliament suggests that the public confidence is taken into account, which is important in regard to the tradition of statehood.

Article 105. Implementation of powers of the President of the Azerbaijan Republic on his resignation

Proposed change:

According to the proposed amendment to Article 105, in the event of the early resignation of the President of Azerbaijan Republic, extraordinary presidential elections of Azerbaijan Republic shall be held within 60 days. In this case, until the new President of Azerbaijan Republic is elected, the powers of the President of the Republic of Azerbaijan shall be exercised by First Vice-President of Azerbaijan Republic.

In Paragraph II, the words “Prime Minister” shall be replaced with “First Vice-President”, and the words “Chairman of Milli Majlis of Azerbaijan Republic … … … powers” shall be replaced with “in the prescribed sequence, the Vice-President of Azerbaijan Republic shall receive the status of First Vice-President and … … … powers of the President of the Republic of Azerbaijan”;

Paragraph III shall be reworded as follows:
“III. If for the reasons specified in Paragraph II of this Article, First Vice-President of Azerbaijan Republic cannot carry out the powers of the President of Azerbaijan Republic, the Prime Minister of Azerbaijan Republic shall exercise the powers of the President of Azerbaijan Republic.”

The following section shall be added to Paragraph IV:
“IV. If for the reasons specified in Paragraph II of this Article, the Prime Minister of Azerbaijan Republic cannot carry out the powers of the President of Azerbaijan Republic, the Chairperson of Milli Majlis of Azerbaijan Republic shall exercise the powers of the President of Azerbaijan Republic. If for the same reasons, the Chairperson of Milli Majlis of Azerbaijan Republic cannot carry out the powers of the President of Azerbaijan Republic, Milli Majlis of Azerbaijan Republic shall decide on the exercise of the powers of the President of Azerbaijan Republic by another official.”

IRFS analysis:

As described above, when the president is unable to carry out his duties, authority will be delegated to first vice-president, who is most likely to be from the ruling family. IRFS believes that the clear purpose behind this amendment is to legalize the running of the state as a family.

Article 1061. Immunity of Vice-Presidents of Azerbaijan Republic

Proposed change:

I. Vice-President of the Republic of Azerbaijan enjoys immunity during the term of office.
II. Vice-President of Azerbaijan Republic may not be arrested, called to criminal responsibility except cases when he has been caught in the act of crime, disciplinary measures may not be applied to him by law court, he may not be searched.
III. Vice-President of the Azerbaijan Republic may be arrested if he has been caught in the act of crime. In such case, the body that has arrested him must immediately notify the General Procurator of the Azerbaijan Republic about the fact.

The immunity of Vice-President of the Azerbaijan Republic can only be limited by the President of the Azerbaijan Republic, based on application to General Procurator of the Azerbaijan Republic.”

IRFS analysis:

Thus, the vice-president will enjoy immunity in the same manner as the Prime Minister does as present.

Article 1081. Provisions for First Vice-President of Azerbaijan Republic

Proposed change:

Article 1081 shall include the following addition:

“The First Vice-President of the Azerbaijan Republic and his family are provided for by the state. Security of the First Vice-President of the Azerbaijan Republic and his family is ensured by special security teams.”

IRFS analysis:

The security of the Vice-President and his family will be ensured by special services, a privilege that even the current Prime Minister does not enjoy.

Article 1101. Delegation of the right to conclude interstate and intergovernmental international agreements

Proposed change:

Article 1101 shall include the following addition:

“The President of Azerbaijan Republic may transfer the right to conclude interstate and intergovernmental international agreements to the Vice-President, members of the Cabinet of Ministers of Azerbaijan Republic and other persons designated by the President of Azerbaijan Republic.”

IRFS analysis:

Article 109 §17 of the current Constitution states that the President, inter alia, concludes interstate and intergovernmental agreements; presents interstate agreements to the Milli Majlis of the Azerbaijan Republic for ratification; and signs decrees on ratification of international agreements.

According to the proposed amendment, the President of Azerbaijan Republic may delegate his right to conclude interstate and intergovernmental agreements to the Vice-President, members of the Cabinet of Ministers, and other people designated by the President of Azerbaijan Republic. However, logic and normal practice suggest that it is the prerogative of the President to present even the interstate agreements that are concluded by other authorized persons to conclude such agreements according to the decision of the President of Azerbaijan Republic to Milli Majlis of the Azerbaijan Republic for ratification and denunciation; and to sign decrees on ratification of such international agreements after their ratification by Milli Majlis of Azerbaijan Republic.

Article 121. Requirements for candidates for posts in the Cabinet of Ministers of the Azerbaijan Republic

Proposed change:

Article 121 shall be reworded as follows:

“Prime Minister of the Azerbaijan Republic, Deputy Prime Minister, minister, head of other central body of executive power shall be a citizen of the Azerbaijan Republic having the right to vote, a university degree, having no liabilities in other states.”

IRFS analysis:

Under the current Constitution, there is a minimum age requirement for election to the posts of Prime Minister, Deputy Prime Minister, minister and heads of other central executive power bodies. However, the draft amendment removes this age limit. This change will enable the concentration of power in the hands of inexperienced persons with limited political knowledge. The Prime Minister is one of the officials representing the country. If a 21-year-old were to be elected to this post, imagine what could happen and how someone so young might govern. In general, the government has not presented any justification for lowering the age limits. The Referendum Act should have been presented to the public before being adopted, and the reasons for all these amendments should have been clarified . However, the government did not consider it necessary to do so, which has led to speculation about the motivation for the amendments. One view is that the changes will enable even greater concentration of power in the hands of the Aliyev family.

Article 126. Requirements for judicial appointments

Proposed change:

In Paragraph I of Article 126, the words “not younger than 30, … voting” shall be replaced with “… voting”.

IRFS analysis:

According to the corresponding Article of the Constitution currently in force, judges shall be citizens of the Azerbaijan Republic not younger than 30, with the right to vote, higher legal education, and at least 5 years of professional legal experience. The proposed amendment, envisages the removal of the minimum age. The rationale behind this amendment is unclear, because while the age limit is removed, the education and work experience requirements remain in place. A candidate would likely graduate from university at the age of 22, following which they would need to work for at least 5 years, making him/her 28 or 29. It makes little sense to change this Article on the basis of one or two years. We believe that these very minor changes are there to distract the attention from the removal of the age limit for the presidency.

Article 1461 Liability of municipalities

Proposed change:

An article on municipalities has also been added.
Article 146. “Municipalities, along with municipal servants, shall bear civil liability for prejudice to human rights and liberties and violation of the guarantees thereof resulting from illegal actions or omissions of municipal servants.”

IRFS analysis:

Even municipal servants shall bear civil liability for human rights violations. The necessity of adding such an article has not been explained by officials.

[1] http://bit.ly/1fTqx7b
[2] http://bit.ly/14HuXZU
[3] See the Constitution of Republic of Azerbaijan, available at http://bit.ly/Uy7NQd
[4] http://bit.ly/ZsNzNM
[5] http://bit.ly/1dXqDhs