Review on the draft Referendum Act on amendments to the Constitution
These days, the important event related to the future development of our country took place in its social and political life of Azerbaijan. The President of the Azerbaijan Republic signed a decree on sending the draft Referendum Act “On Amendments to the Constitution of the Republic of Azerbaijan” to the Constitutional Court of the Azerbaijan Republic. The proposals on amendments to the Constitution are of progressive nature and meet the contemporary requirements and comply with the interests of the society. The proposals are mainly made in two directions: Strengthening protection of human rights and freedoms and improvement of the State governance.
The Analytical Group of the Legal Analysis and Research Public Unionanalyzed these amendments and made the following conclusions:
It is stated in the part I of the Article 9 of the present Constitution that, in order to provide its safety and defend itself the Azerbaijan Republic establishes Military forces and other military troops.
However, amendment to this article about the Azerbaijan Army being a part of the Military Forces fully reveals the essence of the Article and removes the existing gap. Thus, it is stated in the proposed new edition of the part I of the Article 9 that:
“In order to provide its safety and defend itself the Azerbaijan Republic establishes Military forces. The Military forces consist of the Azerbaijan Army and other military troops.”
The fundamental human and civil rights and freedoms
Special attention is paid to human rights issues in the proposed draft Referendum Act. Several important amendments to the existing provisions on human rights have been proposed. It was proposed to add the expression “Human dignity is protected and it is respected.”to the Article 24 of the Constitution. At the same time, an important addition regarding inadmissibility of abuse of the rights was made to the Article.
Right for equality
The innovation proposed for the Constitution regarding the Right for Equality, which is an important element of Human Rights is related to the various categories of population. It is proposed to replace the word “nationality” with the word “ethnicity” in the first sentence and the word “national” with the word “ethnic” in the second sentence. If this proposal will be supported during Referendum, then the Article 25 will sound as follows. Besides, the following sentence is added to this article:
People with disabilities, except for the rights and freedoms, implementation of which is difficult due to their disabilities, have all the rights and bear the obligations provided for by this Constitution.
In the Convention on Elimination of All Forms of Racial Discrimination to which Azerbaijan is party the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
As we can see, replacement of the word nationality with the word ethnicity in the Constitution is not occasional and complies with the Convention.
As you know, in the recent times, a range of progressive changes related to the property right have been made to the local legislative acts. However, there is already a need for making such changes in the Constitution. Particularly, the issue of the property right complying with the principles of social justice is reflected in the proposed amendments. It is proposed to add the following sentences to the Article 29 of the Constitution:
“Private property implies social obligations. Private property rights to land can be limited for social justice and the efficient use of land.”
According to the Article 1 of the Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms to which Azerbaijan Republic is party “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.”
However, it doesn’t mean that the property right has an absolute force. The conditions of limitations on the property right are provided in the part 2 of this article of the European Convention:
“The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
As we can see, although the proposed changes to the Constitution regarding Property right are of limiting nature, they fully comply with the European Convention on Human Rights.
Protection of personal information
One more amendment regarding human rights is related to the right to personal immunity. Thus, the proposed changes provide for even more strengthening the immunity rights of the individuals. With the purpose of strengthening protection of the personal information, it is proposed to add the following standards to the Article 32 of the Constitution:
“Except for the cases stipulated by law, it is not allowed to intervene in the information resources in the electronic media and paper in order to obtain information about third parties.
Information technologies will not be used for the disclosure of information about private life, including those related to beliefs, religion and ethnicity, with the exception of the personal consent of the person to whom the information relates, as well as statistical processing of the anonymous nature of these and other cases prescribed by law.
The terms of the personal data, the conditions of their processing, gathering, transmission, use and protection are determined by law.”
The right to protection of the personal information is provided in the Article 8 of the European Convention. Thus, according to this Article, Everyone has the right to respect for his private and family life, his home and his correspondence. According to the part 2 of the Article, these rights may be limited. Thus, There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, 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.
The last amendment proposed regarding the Human Rights is in the Article 36 (Right to Strike) about prohibition of lockout, except of the cases provided by the legislation.
In general, the Labor Code of the Azerbaijan Republic regulates the issue of lockout.
Lockout — When a labor dispute begins, if the employer is incapable of meeting the demands of the striking employees on production, economic or financial ground, such a strike shall be deemed without basis and illegally motivated in order to infringe on the rights and interests of the employer, and a lockout may be declared to shut down the entity. However, taking into account that the rights of the employees may be violated when the lockout is applied against the employees, stipulation of the provision related to lockout in theConstitution will contribute to more effective protection of the human rights and freedoms.
According to the recommendations No 92 adopted by the International Labor Organization on June 29, 1951, if a dispute has been submitted to conciliation procedure with the consent of all the parties concerned, the latter should be encouraged to abstain from strikes and lockouts while conciliation is in progress. As we can see, the proposed amendments comply with the recommendations of the International Labor Organization and offer to abstain from practicing the lockout.
Right for joining
Limiting amendment to the article 59 of the Constitution related to the right for joining is planned. Thus, it is proposed that the first sentence of the article would be as follows:
“Activity of unions intended for forcible overthrow of legal state power on the whole territory of the Azerbaijan Republic or on a part thereof, pursuing other goals, which considered a crime or the unions using the criminal methods are prohibited
Although, this amendment provides for certain limitation of the right for joining as we already mentioned above, this provision is fully compatible with the European Convention on Human Rights. Thus, although the Article 11 of the Convention provides opportunity to the people to widely realize their right to assembly, the part 2 of the article is about limitations on the use of the right to assembly and association. It is stated there that, 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.
The Rights Protection Mechanisms
Besides, proposal of the Article 60 of the Constitution in the draft Referendum Act in the following edition is aimed at improvement of the citizens’ rights protection mechanisms:
“Article 60. Administrative and judicial guarantee of rights and freedoms
- Administrative and judicialprotection of the rights and freedoms of everybody is ensured.
- Everyone has right to have unbiased approach to his/her case and consideration of the case in the administrative and court proceeding in a reasonable time.
III. Everyone has the right to be heard in administrative proceedings and court proceedings.
- Everyone may appeal in administrative procedure or to the law court regarding activity and inactivity of the state bodies, political parties, legal entities, municipalities, and officials.”.
The amendments proposed to the Article 68 of the Constitution are aimed at protection of the citizens from and prevention arbitrariness of the representatives of the state bodies in relation to them. Thus, the following changes to the article are proposed:
“To provide the title of the Article 68 in the following edition:
“The right to protection from arbitrariness and conscientious conduct”;
15.2. the part I and II to be considered the part II and III respectively;
15.3. to add the part I and IV in the following content:
“I. Everyone has right to a conscientious conduct by the state bodies excluding the arbitrariness.”;
“IV. The State together with the state servants bear civil responsibility for the damage to human rights and freedoms and for violation of their provision as a result of unlawful actions and inaction of the state servants.”.
The State Power
A range of essential changes related to the state power are provided in the proposed amendments to the Constitution. Some of them are related to the age qualification. It was proposed that for being elected to the Milli Mejlis or for the Presidency the age qualification would be replaced with the phrase expressing general right to participate in the elections.
The changes regarding age qualification are as follows:
To replace the words “not younger than 25” with the words “having right to participate in elections” in the part I of the Article 85
To remove “not younger than 35” in the Article 100.
To replace the words “not younger than 30 in the elections” with the words “in the elections”.
Dissolution of Milli Mejlis
According to the amendment provided in the Referendum Act, it is proposed to add the Article 98 with the following content:
“If the same convocation ofMilli Majlis of the Azerbaijan Republic for one year twice makes a vote of no confidence to the Cabinet of Ministers of the Azerbaijan Republic or twice does not approve after the submission by the President of the Azerbaijan Republic thecandidates for the Constitutional Court of the Azerbaijan Republic, Supreme Court of the Azerbaijan Republic and the Board of the Central Bank of the Azerbaijan Republic in a number of members necessary for the activities of these bodies in a period provided by the law, besides, when it is unable to implement its duties provided in the articles 94 and 95, parts II, III, IV and V of the Article 96 and the Article 97 of the Constitution for the reasons it cannot eliminate, President of the Azerbaijan Republic dissolves Milli Mejlis of the Azerbaijan Republic.”
In general, the issue regarding head of states possessing the authority to dissolve the parliament is stipulated in the legislation of a range of countries. In the recent years, heads of some neighboring countries applied this practice. For example, in 1993, the president of Russia Yeltsin, in 2007 and 2008, Yushenko signed a decree on dissolving of the Verkhovnaya Rada twice. In 2009, Vladimir Voronin dissolved the Parliament of Moldova, in2007, Bakiyev dissolved the Parliament of Kirgizstan, in 2009, Nazarbayev dissolved the Parliament of Kazakhstan, and in 2014, Poroshenko dissolved the Parliament of Ukraine. The legislation of Georgia also provides procedure for dissolution of the Parlament. The procedures of dissolving the parliament are possible in the European countries as well. Thus, according to the legislation of Germany, only in the exceptional cases the Federal President may dissolve the legislative body. The same rule exists in France as well. In 1972, Charles de Gaulle, President of France adopted the decision on dissolving the Lower Chamber.
The term of presidency
According to the proposal, it is planned to replace the figure “5” with “7” in the part I of the article 101 and add the second sentence as follows:
“Azerbaijan’s president can declare extraordinary election of Azerbaijan’s president.”We should mention that that 7 years presidential term is applied in Israel, Irland, and Italy.
To add the article 103 with the following content:
“Article 103. The vice-presidents of the Azerbaijan Republic
- The First vice-president and the vice presidents of the Azerbaijan Republic are appointed and dismissed by the President of the Azerbaijan Republic.
- The citizen of the Azerbaijan Republic having voting right, higher education, having no liabilities in other states is appointed to the position of the vice-president of the Azerbaijan Republic.”
In the Article 105:
In the 1st sentence of the partI to replace “within three months” with “during the period of 60 days” and in the second sentencereplace “prime minister” with “first vice-president”;
To replace “prime minister” with “first vice-president in the part II of this article and replace “Chairman of Milli Majlis of Azerbaijan Republic will carry out powers” with “vice-president of Azerbaijan gets the status of the first vice-president and carries out duties of the president”;
The part III should be provided in the following edition:
“III. If the First Vice-President is unable to carrying out powers of the President of the Azerbaijan Republic for the reasons provided in the part II of this article, the Prime Minister of Azerbaijan Republic will carry out powers of the President of the Azerbaijan Republic.”;
The part IV should be added in the following edition:
“IV. If the Prime Minister of the Azerbaijan Republic is unable to carrying out powers of the President of the Azerbaijan Republic for the reasons provided in the part II of this article, Chairman of Milli Majlis of Azerbaijan Republic will carry out powers of the President of the Azerbaijan Republic. If Chairman of Milli Majlis of Azerbaijan Republic is unable to carrying out powers of the President of the Azerbaijan Republic for the same reasons, Milli Majlis of Azerbaijan Republic will make a decision on appointment of other official for carrying out powers of the President of the Azerbaijan Republic.”There is an institution of vice-presidency existing in many foreign countries. The United States of America is the best example for that.
The Analytical Group of the Legal Analysis and Research Public Union