Azerbaijan’s unconstitutional future


Azerbaijan’s new draft constitution is due to be passed by a popular referendum this September. If passed, it will only cement the power of the Aliyev regime.


Dominika Bychawska-Siniarska
10 August 2016

Azerbaijan's Neft Dashlari oil field has been active since the 1950s. (c) Sergei Grits / AP / Press Association Images. All rights reserved.Azerbaijan is the little brother of Turkey, culturally and politically speaking. And so, no surprise that while Turkey is undergoing one of the gravest undemocratic turmoils for years, Azerbaijani president Ilham Aliyev is poised to consolidate his hold on power by changing the constitution. 

In late July, Aliyev announced that a referendum on the new constitution would take place on 26 September. Given Aliyev’s track record, we can safely assume that this referendum will be a facade to anaesthetise European observers.

These are the tactics of Europe’s worst regime: lulling possible foreign critics with oil contracts, fancy sport and cultural events, and glossy inflight magazines published as Conde Nast “specials”, Meanwhile, citizens of Azerbaijan are denied fundamental rights, there are no independent media and political prisoners await freedom in deplorable conditions. Azerbaijan’s judiciary seems to be manually steered by the president and the parliament rubber-stamps whatever Aliyev wants. 

The ostensible referendum seems like a bad joke to the population, which does not remember free and fair elections for the president or for the parliament. 

The will of the people 

On social media, concerned Azeris, who worry it may be the last nail in the coffin of a free society, have been discussing the draft of constitutional changes. Take the extension of the presidential mandate from five to seven years, or the new ability to declare extraordinary presidential elections at anytime, which president Aliyev is intending to ratify with what he will call “the will of the people”.

This constitutional change would make Azerbaijan even more authoritarian, strengthening the already substantial position of the president, whose abuse of power has been widely documented by investigative journalists (whom he, of course, has jailed).

“He will ram through the referendum and quickly announce elections before the economic crisis in our country is even more serious; this way, while the world is busy with other matters, he can falsify the referendum and reign undisturbed until 2023,” a lawyer from Baku wrote to us in an encrypted smartphone message. In solidarity with Azeri lawyers, we help defend the rights of victims of Aliyev’s oppressive policies, representing them before the European Court of Human Rights in Strasbourg where they turn when they cannot obtain justice in the national courts.

The proposed amendments signal constitutional restrictions to Azerbaijani citizens’ fundamental rights

The planned changes come at a time when most of Europe’s constitutional democracies — Azerbaijan only wishes it were one of them — have been shortening their presidential terms. For example, in 2000, France shortened the length of the presidential term from seven to five years, doing exactly the opposite of what Aliyev is intending to do. In his explanation to the public, president Jacques Chirac relied on populist, but valid formulations: “seven years is too long”, “five years is more modern”, “the French will vote more often”.

Constitutionalists argue that the give-and-take of the democratic process is the best source of effective democratic power control. A term of seven years, combined with the possibility of lifelong re-election (through a proxy like in Putin’s Russia), releases Aliyev from submitting to electoral contest, thus turning Azerbaijan into his own, private estate. 

The proposed amendments also signal constitutional restrictions to Azerbaijani citizens’ fundamental rights. The constitution stipulates that every citizen from birth enjoys inviolable, undeniable and inalienable rights and freedoms. The new Article 24 introduces a restrictive clause, enabling the limitation of citizens’ freedoms in cases where rights are abused. Such general limitation, without any reference to proportionality or conditions of rights derogations, should raise constitutional concerns. These considerations may be purely academic in the context of Aliyev’s repressive regime, but by introducing the mysterious clause “abuse of the right is not allowed”, Azerbaijan’s new constitution will put the cart before the horse and suffocate those rights.

In all democratic constitutions, human rights always go first and only then certain limitations may follow if some pre-conditions are met (e.g. legality, serving a legitimate aim, necessity). Any prohibition of “abuse of rights” is redundant.

Extraordinary conditions 

Under the proposed constitution, the president will receive new substantial powers, particularly to declare extraordinary presidential elections. In most European constitutional orders, anticipated or snap elections are ordered by parliament or the parliamentary spokesperson. This prerogative in the hands of president Aliyev will only reinforce his powers. 

Thus, it isn’t hard to imagine that Aliyev could use it for political purposes — in case of social tension or decreasing public support, Aliyev could simply order fresh elections. The result of this potential contest seems obvious given previous experience. Meanwhile, the outside world, which may not have the time and interest to check how genuine the whole exercise was, will be convinced that Aliyev still enjoys the Azerbaijani people's trust. 

Azerbaijan’s new draft constitution authorises demonstrations only if they do not “disrupt public order and public morals”. This will legalise the current practice of suppressing assemblies and rallies

At the same time, the draft changes introduce a new article that gives the president the power to appoint and dismiss vice-presidents (a position hitherto non-existent). This vice-president can carry out the functions of the president if the latter is incapacitated due to illness, or if the president wants to take a term “off” only to return later. It seems that as president Aliyev gets older, he is preparing the ground for a handpicked successor. 

Azerbaijan’s new draft constitution authorises demonstrations only if they do not “disrupt public order and public morals”. This will legalise the current practice of suppressing assemblies and rallies. Take the violent dispersion of a demonstration in January 2013, when a Baku crowd of hundreds protested against corruption and injustice. Most of the protesters were detained without legal grounds for several hours, transported to the outskirts of the capital and released.

In a recent judgment in the case of Huseynov v. Azerbaijan, the European Court of Human Rights stated that Azerbaijani authorities need to grant particular protection to demonstrators and should restrain themselves from using excessive force against them. Emin Huseynov, a local journalist now in exile, was seriously beaten while reporting from a gathering in 2008. 

This new condition on the right to assembly (to not “disrupt public order and public morals”) is a general term devoid of legal precision, and it would be an easy ground to prohibit demonstrations or to disperse them in the name of the law.

Know your rights

A similar intent to legitimise current abuses of human rights can be found in the articles relating to property rights and loss of citizenship.

For years now, Baku has witnessed forced evictions, confiscations and demolitions of private houses in the rush to modernise the capital. Mass expropriations are carried out without either adequate compensation or legal proceedings. In these places there emerge new parking lots, boutique stores, boulevards, skyscrapers, shopping centres and even a Formula One race track.

According to the proposed amendments to Azerbaijan’s constitution, “private property causes social responsibility”. Moreover, “property rights over land plots might be limited by law to ensure social justice and effective use of land”. Here too, the authors use superfluous notions, giving a wide margin for the government to pursue unjust evictions. The draft changes pass over fair and proportional compensation — a prerequisite of any eviction according to international law — which should be provided to expropriated citizens. 

One of the main principles of democracy and the rule of law is transparency and openness. Voters should know clearly what legal proposals are submitted to them 

Another set of amendments would enable the withdrawal of an individual’s citizenship in cases “provided by law”. Stripping someone of their citizenship and forcing the person to become stateless is a tool of political repression used by the Aliyev regime towards journalists and human rights defenders. In doing so, Azerbaijan is in breach of its own commitments under the 1961 UN Convention on the Reduction of Statelessness, which forbids rendering anyone stateless by such means and on political grounds.

The manner in which the referendum will be held and what questions should be addressed to the people is essential. One of the main principles of democracy and the rule of law is transparency and openness. Voters should know clearly what legal proposals are submitted to them — particularly important in referenda and plebiscites. 

Back in 2009, president Aliyev changed the country’s constitution, granting himself the opportunity for potentially unlimited re-election. At that time, the ballot form only stated the new text of the constitution, not what was being replaced, and specific changes such as the removal of presidential term limits were buried in the middle of 29 minor and bigger constitutional changes. Thus, it was unclear what was being voted on unless you had a copy of the old constitution in front of you — unlikely for average citizen. 

Knowing the Azerbaijani regime, it would be naïve to expect a different scenario at the upcoming September referendum, which, alas, may be just another smokescreen. It should be seen by the international community for what it is — and vigorously denounced.

Azerbaijan’s post-Soviet memory politics are great at uniting society. Too bad it’s against external enemies. Read more here

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