|
Strasbourg, 21 December 2001
|
CDL-INF (2001) 26
|
OPINION
ON THE DRAFT CONSTITUTIONAL LAW
OF THE REPUBLIC OF AZERBAÏJAN
ON “SAFEGUARDS FOR THEVOTE OF CONFIDENCE
TO THE CABINET OF MINISTERS
BY THE MILLI MALJIS”
Adopted by the Venice Commission
at its 49th Plenary Meeting
(Venice, 14-15 December 2001)
on the basis of comments by:
Mr Aivars ENDZINS (member, Latvia);
Mr James HAMILTON (member, Ireland);
Mr Sergio BARTOLE (substitute member, Italy)
Introduction
1.
In September 2001
the authorities of the Azerbaijan Republic have seized the Venice Commission
with a request for an opinion on the Draft law on Safeguards for the vote of
confidence to the Cabinet of Ministers by the Milli Mejlis
(Parliament). The Commission has designated Messrs Aivars Endzins, James
Hamilton and Sergio Bartole as Rapporteurs.
2.
The Venice Commission examined this
question at its 48th plenary meeting (Venice, 19 – 20 October, 2001)
on the basis of comments provided by the Rapporteurs. As a number issues
remained unclear the Commission’s Rapporteurs and representatives of the
authorities met first in Baku, on 15 November and then in Strasbourg, on 29 –
30 November 2001. Meesrs Khanlar Hadjiyev, Chairman of the Constitutional Court
and Member of the Venice Commission, Safa. Mirzoyev, Head of the Secretariat of
the Milli Majlis, and Messrs Shahin Aliev and Fouad Aleskerov, from the Legal
Department of the Office of the President of the Republic, participated in
these meetings.
3.
The present
opinion was adopted by the Venice Commission at its 49th Plenary
Meeting (Venice, 14-15 December 2001)) on the basis of the draft opinion
presented by the Rapporteurs.
II. The context of the proposed draft constitutional law
4.
Upon accession of Azerbaijan to the Council of Europe,
the Parliamentary Assembly took note of Azerbaijan’s commitment “to continue
reforms aimed at strengthening the independence of the legislature vis-à-vis
the executive, so that the former can exercise the right to put parliamentary
questions to members of the government” (Opinion 222 of the Parliamentary
Assembly of the Council of Europe on Azerbaijan’s application for membership of
the Council of Europe). Moreover, the Committee of Ministers, in their decision
inviting Azerbaijan to become a member of the Council of Europe, invited also
the Venice Commission “to give its assistance to the authorities of Azerbaijan
with a view to reforming the Constitution (…) in conformity with Council of
Europe standards”.
III.
As to the form of the proposed amendment
5.
The
Constitution envisages two different procedures whereby amendments can be
made. According to Article 3 and
Chapter XI (Articles 152-155) of the Constitution changes in the text of
the Constitution may be made only by way of referendum. Chapter XII (Articles 156–158) provide a
second procedure whereby amendments can be made in the form of
Constitutional Laws which then become an integral part of the Constitution but
may not contradict its main text. It
seems clear from this that this procedure can be used only to adopt additional
or supplementary material but cannot be used to make any change in the existing
text or in the existing Constitutional structure. Hereafter, the term
“amendment” should be understood in this sense, i.e. as an addition to the
existing constitutional text.
6.
Amendments
to the Constitution by way of Constitutional Laws can be put forward either by
the President or at least sixty-three Deputies of the Parliament. The present draft is initiated by the President
of the Republic.
7.
Article 158
provides that the President or the Deputies of the Parliament cannot submit
proposals concerning provisions contained “respectively” in Chapters VI and V
of the Constitution. It is clear,
however, following discussions with the authorities in Baku, that the purpose
of Article 158 of the Constitution is to set out that the President may not
propose amendments to Chapter VI (Executive Power) – i.e. to his own powers
- while the Milli Majlis may not
initiate amendments to Chapter V (Legislative Power). This is the significance of the word “respectively” in the
Article. It is true that since the amendment is an addition to the
constitutional text it might be difficult to determine whether it is linked to
a specific provision of Chapter V or Chapter VI of the Constitution. In the
present case for instance, the amendment aims at reinforcing the powers of the
Milli Majlis but it could also be seen as a restriction of the powers of the
President. However, since from a formal point of view the proposal is directly
linked to chapter V it would appear to be within the President’s competence to
propose it.
8.
Article 147 of the Constitution determines that the
Constitution has the highest legal force and shall be the basis of the legal
system of Azerbaijan. In its turn Article 148 ”Acts Constituting the
Legislative System of the Azerbaijan Republic” establishes that the
legislative system consists of the following normative-legal acts:
-
the Constitution;
-
acts accepted by
the referendum;
-
laws;
-
orders etc.
9.
The
Commission concludes that after its adoption the draft law, being an “integral
part of the Constitution” will have highest legal force in the hierarchy of
norms of Azerbaijan.
IV.
As to the content of the proposed amendment
10.
The purpose of the law is to provide for guarantees for the
implementation of the Milli Majlis’ right under Article 95, par.1 point 14, to
take “a decision as to a vote of confidence in the Cabinet of Ministers of the
Azerbaijan Republic”. This is now explicitly indicated in the Preamble of the
law. The draft provides for
-
an annual report by the Cabinet to the Milli Majlis (Article
1);
-
“requests” addressed by the Milli Majlis to the Cabinet and an
obligation to reply within one month (Article 2);
-
the presence of authorised members of the Cabinet at the
sittings of the Milli Majlis to reply to oral or written question by deputies
of the Milli Majlis (Article 3).
11.
The Commission understands that Article 3 of the draft
constitutional law gives the Cabinet the possibility to chose one or several
among its members to represent it at the sittings of the Milli Majlis; it
cannot - and should not - be interpreted as enabling the Cabinet to decide not
be represented at these sittings, as such an interpretation would render the
process of parliamentary questions ineffective. Furthermore, it should be noted
that although the above provision does not expressly introduce a “question
time” in the sittings of the Milli Majlis, it can serve as a basis for such an
institution. The Commission would welcome a development in this direction that
would institutionalise the Milli Majlis right to put questions to the Cabinet.
12.
Having regard to the above, the Commission is of the opinion
that the draft constitutional law sets up procedures whereby the the Parliament
will be informed of the activities of the executive and it is assumed that the
Milli Majlis on these occasions might express its disapproval by a vote of no
confidence.
13.
The Commission notes that this development is in line with the
commitment taken by Azerbaijan when joining the Council of Europe to enable the
Parliament to “to put parliamentary questions to members of the government”.
14.
It further notes the following as regards the legal effects
of such a “vote of no confidence” :
15.
The Constitution provides for a Presidential system of
Government with a very clear separation of powers between the Executive and the
Legislature. Article 7.IV provides that
the executive, legislative and judicial powers are independent within the framework
of their authority. Article 114 of the Constitution, determines that ”the
Cabinet of Ministers of the Azerbaijan Republic is the highest body of
executive power of the President of the Azerbaijan Republic and is subordinate
to the President of the Azerbaijan Republic and reports to him”
.
16.
Article 93.IV provides that the Parliament cannot in its laws
and decrees give specific orders to executive organs and courts. Article 95
(5), however, provides that the Parliament is responsible for approval of the State
budget (on the recommendation of the President) and is responsible for control
over its execution. There are no detailed provisions in the Constitution as to
how this budgetary control is to be exercised. However, the Milli Majlis has an
Account Chamber that controls the budget process and the use of State property.
There are a number of provisions relating to the requirement that the
Parliament consent to various appointments to senior executive positions. The
Parliament must consent to the appointment by the President of the Prime
Minister. However, if they refuse to do so on three occasions the President may
appoint a Prime Minister without their consent in any case. The Parliament’s
consent is also required to the removal of the Prime Minister (Article 109 (4)
and 128 V.). Judges of the
Constitutional Court, the Supreme Court and the Economic Court are appointed by
the Parliament on the proposal of the President (Articles 130.II, 131.II and
132.II) The Parliament can remove the President by impeachment but only on the
recommendation of the Constitutional Court (Article 95 (12)). The Parliament
can remove Judges from holding positions for various reasons on the proposal of
the President (Article 95 (13)). Similarly
the Parliament can appoint and remove members of the National Bank (Article 95
(15)) on the proposal of the President.
The General Procurator is appointed and removed by the President with
the consent of the Parliament (Article 133.III). In all of these cases it may
be noted that the Parliament has no right itself to initiate anything and its
powers extend no further than the giving or withholding of consent.
17.
Article 114 expressly provides that the President forms the
Cabinet of Ministers who are the supreme executive organ, subordinate and
accountable to the President. Article 109 (5) provides that the President
appoints and removes from their position members of the Cabinet of Ministers.
There is no provision requiring the consent of Parliament either to the
appointment or removal of the Cabinet and given that there are many provisions
in the Constitution which expressly require the consent of Parliament for
various appointments or removals no such consent can be implied.
18.
It seems clear from the foregoing that any constitutional
provision which was to provide for a vote of no confidence in a Cabinet Member
or the Cabinet as a whole and which would require the Minister or Ministers to
resign would amount to a clear change in the Constitutional structure and one
which could therefore be implemented only through the Referendum procedure. It
follows that in the absence of a textual amendment of the Constitution by
referendum any procedure providing for a vote of no confidence implemented by
means of Constitutional Laws cannot be other than recommendatory in nature. The authorities in Baku have confirmed that
this is the intention of the law. In
order to avoid any misunderstandings the Commission would suggest that this
“recommendatory” nature of the vote of no confidence be clearly indicated in
the constitutional law.
19.
As to the political effects of the vote of no
confidence, it has been argued that it will be difficult for the President to
ignore the expression of the will of the legislative assembly and that
therefore the vote of no confidence, despite being legally non binding - will have a clear impact in the political
life of the country. In this respect the Commission observes the following:
20.
There are no procedures in the Constitution to resolve
any deadlock between the President and the Parliament. The Parliament is
elected for a fixed term of five years and there are no procedures whereby it
can be dissolved at an earlier date. Similarly, the President is elected for a
fixed term and while he can be removed by a process of impeachment for
misbehaviour he cannot be removed by the Parliament because the Parliament
disapproves of his policy or lawful actions within his sphere of competence.
Because the terms of the President and Parliament are not synchronised there
must be scope in the future for President and Parliament to represent different
political tendencies.
21.
The scheme
of the Constitution is to avoid any such conflicts between the decisions of the
President and the Parliament by assigning to each their respective roles so
that a deadlock in the political system should not occur. In practice this risk
is avoided by granting unusually wide legislative competencies to the President
and by limiting the Parliamentary control over the executive.
22.
In these
circumstances, a procedure for a vote of confidence which is not binding and is
merely recommendatory in nature runs the risk of causing destabilisation
without in fact securing the means to resolve conflict between the executive
and legislative branches. Effectively
it would confer on the Parliament a limited power which could be exercised
without responsibility. If at some
future date President and Parliament are from different political viewpoints
this may present a problem.
23.
Consequently,
while it is clearly desirable to increase the supervisory powers of the
Parliament over the executive, which are very weak under the existing
structure, introducing a recommendatory
(non binding) vote of no confidence may be in practice less adequate than it
would seem from the outset. In any case it should not be regarded as a long
term solution but should rather be the starting point for further reflection on
the balancing of powers in Azerbaijan.
V.
As to the procedure for the vote of no confidence
24.
The draft Law provides now for limitations on the right of the
Milli Majlis to vote no confidence to the Cabinet. Such a voting can only take
place six months after a previous voting on confidence to the Cabinet. No vote
of confidence take place six months prior to Presidential or Parliamentary
elections.
25.
The Draft law does not specify further the procedure for the
vote of no confidence. Admittedly the details of the procedure are regulated in
the Internal Rules of the Milli Majlis as follows:
26.
Any member of the Milli Majlis can initiate a vote of no confidence.
However, in order for the vote to be put on the Milli Majlis’ agenda a majority
of present members is required. As the quorum is 63 members, the inscription on
the agenda would require at least 32 votes. The vote of no confidence is passed
with a majority of members of the Milli Majlis, i.e. 63 votes. It is envisaged
that after the passing of the Constitutional Law a special chapter on the vote
of no confidence will be added to the Internal Rules of the Milli Majlis.
27.
The Commission would first suggest that a reference be made in
the Constitutional Law that details of the procedure should be regulated in the
Internal Rules of the Milli Majlis.
28.
Moreover, the Commission would suggest that the initiative for
a vote of no confidence be a collective rather than an individual initiative.
Moreover, it finds unusual the requirement of a majority of members present to
have the point of no confidence included in the agenda. A less cumbersome
procedure should be envisaged (for example the point must be included in the
agenda upon request by 10 or 20 mebers of the Milli Majlis).
IV. Conclusion
29.
The Commission observes that the draft Constitutional Law does
not introduce any changes to the
political system of Azerbaijan. It aims at providing for a mechanism whereby
the Milli Majlis will be enabled to exercise, by means of a “recommendatory”
vote of no confidence, some control over the executive. Any substantial
strengthening of parliamentary control would however require a revision of the
Constitution by referendum.
30.
The draft Constitutional Law sets out the framework of the
mechanism. However important procedural details, still need to be regulated.
This can be done in the Constitutional Law or, preferably, upon instruction by
the Constitutional Law, in the Internal Rules of the Milli Majlis.
Draft Constitutional Law of the Republic of
Azerbaijan
On Additional Guarantees to the Milli Mejlis
(Parliament) of the Republic of Azerbaijan Right to Decide on Question of
Confidence to the Cabinet of Ministers of the Republic of Azerbaijan
The present
Constitutional Law is aimed at creation of additional guarantees for the
implementation of the right of the Milli Mejlis of the Republic of Azerbaijan
to decide on question of confidence to the Cabinet of Ministers of the Republic
of Azerbaijan, provided for by the item 14, Paragraph 1, Article 95 of the
Constitution of the Republic of Azerbaijan.
Article 1. Report of the Cabinet of Ministers of
the Republic of Azerbaijan to the Milli Mejlis of the Republic of Azerbaijan
Cabinet of Ministers of the Republic of Azerbaijan
shall report on its activities at the fifth sitting of the spring session of
the Milli Mejlis of the Republic of Azerbaijan each year.
Article 2. Request from the Milli Mejlis of the
Republic of Azerbaijan to the Cabinet of Ministers of the Republic of
Azerbaijan
2.1. Milli
Mejlis of the Republic of Azerbaijan might file a request within its
competences to the Cabinet of Ministers of the Republic of Azerbaijan.
2.2. The
reply to the request of the Milli Mejlis of the Republic of Azerbaijan shall be
presented by authorised representative of the Cabinet of Ministers of the
Republic of Azerbaijan at the sitting of the Milli Mejlis within 1 month.
Article 3. Requests from deputies of the Republic of
Azerbaijan to the members of the Cabinet of Ministers of the Republic of
Azerbaijan
Upon consent of the Cabinet of Ministers of the
Republic of Azerbaijan members of the Cabinet of Ministers of the Republic of
Azerbaijan shall be present at the sittings of the Milli Mejlis of the Republic
of Azerbaijan to reply to the oral or written requests of the deputies of the
Republic of Azerbaijan.
Article 4. Limitation on the right of the Milli Mejlis
of the Republic of Azerbaijan to decide on question of confidence to the
Cabinet of Ministers of the Republic of Azerbaijan
4.1. The question of vote of confidence to the
Cabinet of Ministers of the Republic of Azerbaijan by the Milli Mejlis of the
Republic of Azerbaijan might not be introduced for discussions less than 6
months prior to the Presidential or Parliamentary elections.
4.2. The question of vote of confidence by the Milli
Mejlis of the Republic of Azerbaijan to the Cabinet of Ministers of the
Republic of Azerbaijan on the same matter might be reintroduced only 6 months
after the previous discussions.
