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present Azerbaijani leadership has in theory rejected the foreign and security policy formula of local “calls for empire” adopted by other Caucasus states—or, the linkage of national consolidation and survival to the aid and intervention of external powers.75
C o n c l u s i o n
This article has sought to present an alternative conceptual and theoretical model for analyzing Azerbaijan’s foreign and defense policies according to the situation of the republic within the structure of the international system. This is tentatively intended as an alternative to the prevalence of the Western theoretical discourse of realist geopolitics and strategy in contemporary studies of the Caucasus region. Because qualitative changes in foreign and security policies are likely to occur over time, an extension of this approach would be to develop a means of
1) directly measuring the strength of Azerbaijani foreign policy vectors toward the regional and global powers based on the historical record of diplomatic instruments, and
2) empirically testing the relationship of these indicators with the evolution of the national security concept from the date of independence to the present day.
’ See: A. Jafalian, op. cit., p. 1.
Ramil ALIEV
Post-graduate student at the Institute of Philosophy and Political Legal Studies, Azerbaijani National Academy of Sciences (Baku, Azerbaijan).
THE PARLIAMENT IN AZERBAIJAN’S POWER DIVISION SYSTEM
Abstract
This article discusses issues typical of the current stage in state-building in Azerbaijan, that is, the place and functions of the Milli Mejlis (national parliament) in the context of balancing the different
branches of power. Based on an analysis of extensive theoretical data and national law-making practice, the author gives several recommendations for further developing parliamentary activity in Azerbaijan.
I n t r o d u c t i o n
The Constitution of the Azerbaijan Republic, like the constitutions of most contemporary states, enforces the fundamental principle of the democratic organization of state power—the division of power. In developing this principle, the country’s Constitution sets forth that these power branches should interact among themselves while at the same time be independent as far as exercising their own powers. Moreover, in a law-based state independence of all its structures, primarily the executive power structures, cannot be absolute but is limited to the regulations of the country’s legislative base.
Representation of Azerbaijan’s Parliament Today
As is known, the theory of state and law envisages two main ways for the people to exercise their power:
1) direct implementation of power functions (direct democracy) and
2) exercising powers by means of representation (representative democracy).
Jean Jacques Rousseau, who regarded direct democracy as the political ideal, was the most consistent supporter of the first method of executing power by the people. In so doing, legislative power, according to his theory, should belong directly to the people’s assembly, in which all citizens should participate, and all the other power structures should be entirely subordinate and amenable to it. Asserting the “indivisibility, inalienability, and supremacy”1 of national sovereignty, Jean Jacques Rousseau essentially denied the representative form of rule and upheld the view that deputies cannot be representatives of the people, they are merely plenipotentiaries, commissars, who simply do not have the right to make any final decisions. Correspondingly, a law cannot become such until it is directly approved by the people.2
In support of representative democracy, Charles Montesquieu believed that since it was impossible for the people to directly exercise power in large states and very difficult in small ones, national representation was necessary. It was elected representatives, in his opinion, who were best able to discuss state issues. He believed that a representative assembly should be elected not for making active decisions, a task it was not capable of fulfilling, but to create laws or ensure that those laws they had already created were being observed.. .3
Representation of the people and law-making are two qualities of legislative power that are integral and functionally insoluble. Several researchers add budget and control functions to this list.4 But the parliament’s key role in the state power structure system is based on the fact that it is the only universal representative structure among all the state power structures that determines both the principles of its formation and its functioning.
The parliament as a whole is formed with the participation of all the country’s citizens (incidentally, not all of them, for certain objective reasons, realize this right) based on the universal right of suffrage by secret ballot, which predetermines its designation as a mechanism representing the interests of the entire nation. It is called upon to express the will of the people in ruling the state,
1 J.J. Rousseau, The Social Contract, Penguin Classics, 1968, pp. 70-71.
2 See: Ibid., p. 222.
3 See: Ch. Montesquieu, Izbrannye proizvedeniia, Moscow, 1955, p. 293.
4 See, for example: M.V. Baglai, Konstitutsionnoe pravo Rossiiskoi Federatsii, Moscow, 1998, p. 472; Konstitut-sionnoe (gosudarstvennoe) pravo zarubezhnykh stran, Vols. 1-2, ed. by B.A. Strashun, Moscow, 1996, p. 402.
this is its representative function. As V. Shevtsov notes, legislative power, its formation, and its execution are traditionally associated with the activity of the parliament as a state representative structure. It is precisely the fact that the parliament is a representative structure that makes it a legislative structure.5
As Part II, Art 2 of the Azerbaijan Constitution reads: “The people of Azerbaijan exercise their sovereign right directly by means of universal voting—referendum—and through their representatives.” Execution of legislative power in Azerbaijan is possible only through the Milli Mejlis—the one-house parliament and the republic’s highest representative structure. In correspondence with the current legislation, the Milli Mejlis consists of 125 deputies who are elected on the basis of the majority system and universal, equal, and direct elections by free, personal, and secret ballot. The parliament serves for a 5-year term. Azerbaijan’s election legislation is sufficiently liberal and provides a legal foundation for forming the representative deputy corps. Political parties, blocs of political parties, and citizen initiative groups with the right to vote and permanently residing in the corresponding voting district have the right to nominate candidates as deputies to the Milli Mejlis of the Azerbaijan Republic; citizens also have the right to nominate themselves.
Figure 1
Professional Composition of the Third Milli Mejlis
Social workers
Journalists 6%
7% "I
Medical workers
Teachers ' 5%
Businessmen
10%
Creative workers
^ 4%
Farmers
2%
Servicemen
2%
Scientific
workers
13%
Others
2%
Bank employees 1%
Engineers
14%
5 See: V.S. Shevtsov, Razdelenie vlastei v Rossiiskoi Federatsii, Moscow, 2004, p. 191.
According to the election results of Milli Mejlis deputies held on 6 October, 2005, the candidates nominated by the Yeni Azerbaijan (New Azerbaijan) Party received 63 mandates (the party had 74 mandates in the previous parliament), those nominated by the Musavat Party acquired 4 mandates, by the Civilian Solidarity Party and Ana Veten 2 mandates each, and by the People’s Front of Azerbaijan Party, Umid, and another four parties one mandate each. Independent candidates won in 40 voting districts. Fourteen women (currently 11.48%) are deputies in the Milli Mejlis, who, as observations show, actively participate in the law-making process, in creating legal conditions for gender equality, and in protecting women’s individual rights.
Experts have different assessments of the representation of the third Azerbaijani parliament. In our view, the representative nature of the Azerbaijani parliament is associated not only with its external, formal characteristics, but also with the contents of its activity, which is mainly manifested in the structure’s designation and competence. However, given the low authority of the political opposition in Azerbaijani society, the fact that one of the structure’s representative characteristics is incomplete should not, in our opinion, be justification for disqualifying the representative nature of the structure as a whole.
Control Functions of the Milli Mejlis
Azerbaijan traveled a long road before it became a republic with a presidential form of rule in which it became possible to exercise, albeit limited, parliamentary control. During almost its entire history, strong executive power has been characteristic of our state. As a result of the reforms after the collapse of the Soviet Union which have continued over the last two decades, the balance between the legislative and executive power branches has undergone perceptible changes. The reason for the reforms was primarily withdrawal from the Soviet legal system, which was class-oriented and expressed the interests of specific social groups. Keeping in mind the democratic requirements of the new times, Art 7 of the Constitution enforces the provision on organizing state power in Azerbaijan on the basis of the principle of the division of power by means of its division into legislative, executive, and judicial branches.
It is well-known that the executive branch has always striven to extend its powers and is not interested in being controlled. So there has to be an institution of parliamentary control over the government’s activity which could become an efficient mechanism for preventing uncontrolled and unpunished actions on the part of the government. It should be kept in mind that parliamentary control is an efficient tool only if it can force the government to answer for its actions, on the one hand, and will not prevent this power structure from carrying out its tasks, on the other.
In the contemporary legal literature, the authors, while listing and describing in detail the different forms of parliamentary control (questions addressed to the higher state structures and highest-ranking officials, interpellation, raising the question of a vote of no confidence or introducing a resolution on reprehension of the government, issuing a vote of no confidence in the government, reports of the government and ministers on their activity, parliamentary hearings, parliamentary investigations, the activity of parliamentary ombudsmen and other structures under the parliament, impeachment, participation in the formation of executive state power structures, control over the execution of the state budget, ratification and denunciation of international agreements, and so on), fail to give a definition of parliamentary control. But some works do in fact give such a definition. M.M. Utiashev and A.A. Kornilaeva give the following definition of parliamentary control—it is a set of different measures implemented by the highest legislative (representative) state power structure to ensure permanent supervision over and auditing of the system’s
THE CAUCASUS & GLOBALIZATION
activity, as well as for removing the violations revealed as the result of such auditing and preventing possible discrepancies.6
Parliamentary Control—
An Inalienable Attribute of Democracy and Guarantee Against Usurpation of Power and Bureaucratic Tyranny
E.V. Kovriakova defines parliamentary control as a system of regulations that monitor the established procedure for supervising and auditing the activity of the executive power structures, executed both by the parliamentary majority and opposition and by the auxiliary structures of the highest legislative structure and aimed at assessing this activity with the possible use of sanctions (vote of no confidence, impeachment, and so on).7
Based on the definitions of parliamentary control presented, it can be concluded that its entities are, as a rule, the parliament (or parliamentarians) and the government (in some countries also the president, in the event the parliament initiates the procedure of impeachment or brings the president to criminal account, as, for example, in the U.S. and France). In addition to this, we should mention the activity of auxiliary parliamentary structures in some countries, which carry out so-called indirect parliamentary control. Parliamentary control is aimed at revealing illegal and unauthorized actions on the part of the executive power structures as well as officials. In some cases, the inaction of officials can fall under investigation.
The constitutional acts of various countries (Austria, Brazil, Rumania, and Turkey) present a relatively complete list of the different forms of parliamentary control. Art 98 of the Constitution of Turkey, for example, not only presents a detailed list of forms of parliamentary control but also reveals the contents of the deputy or parliamentary inquiry, and general discussion, and regulates the procedures of parliamentary investigation.
The Constitution of the Azerbaijan Republic of 1995 makes two direct mentions of control with respect to the activity of the parliament. These are Art 95.5 “on the basis of representation of the President of the Azerbaijan Republic, approval of the state budget of the Azerbaijan Republic, and control over its execution” and Art 144.2, “The legislative and executive powers may transfer additional powers to the municipalities... Execution of such powers is controlled by the legislative and executive powers, respectively.” But in addition to the mentioned articles, several constitutional powers of the Milli Mejlis based on the particular forms of parliamentary control discussed above are directly or indirectly classified among the control powers. They include almost all of the powers envisaged in Art 95 of the Constitution of the Azerbaijan Republic.
Several of them refer to the implementation of sanctioned control since they are carried out by the parliament’s elaboration of a certain position on a particular issue or by the adoption of a decision based on the obtained information. In addition to the listed constitutional control powers, there are several others enforced in different legal acts. One of them is Art 44, “In-House Charter of the Milli Mejlis.” This article envisages, in compliance with Art 92 of the Constitution, the creation of an Accounts Chamber that will be a permanent structure subordinate to the Milli Mejlis for supervising the state budget.
6 See: M.M. Utiashev, A.A. Kornilaeva, “Kontrolnye funktsii regionalnykh parlamentov: sravnitenlnyi analiz,” in:
Pravo i politika, No. 1, 2001, p. 30.
7 See: K.V. Kovriakova, Parlamentskiy kontrol: Zarubezhnyi opyt i rossiiskaiapraktika, Moscow, 2005, p. 12.
The activity of the ombudsman is also viewed as a form of parliamentary control over the activity of the executive power structures and, primarily, its actkvity relating to the observation of human rights. In his activity, the ombudsman relies on the authority of the delegated collegial legislative structure that appointed him. The provision on granting the ombudsman the right, in compliance with the law, to appeal to the Constitutional Court of the Azerbaijan Republic regarding the violation of human rights and freedoms by means of regulctory acts of the legislative and executive power structures and acts of municipalities and courts is of particular significance.
An important element of parliamentary control—the deputy inquiry—is enforced in Art 4 of the Law of the Azerbaijan Republic “On the Status of a Deputy of the Milli Mejlis of the Azerbaijan Republic.” A deputy inquiry is an appeal by a deputy of the representative structure to a state administration structure or to an official asking for information or an explanation regarding issues relating to the competence of the particular representative institution.8
Decision-making on a vote of confidence in the Cabinet of Ministers is an important control function of the parliament in correspondence with Art 95.14 of the Constitution. In execution of this provision, the Constitutional Law of the Azerbaijan Republic on Additional Guarantees of the Right to Make Decisions on a Vote of Confidence by the Milli Mejlis of the Azerbaijan Republic in the Cabinet of Ministers of the Azerbaijan Republic was adopted. It was after adoption of this law that the Milli Mejlis obtained the right to appeal to the Cabinet of Ministers for interpellation on issues relating to its powers, whereby “the highest executive power body, the President of the Azerbaijan Republic, shall give a response in the Parliament no later than within a month.” But there are certain limitations on the implementation of this function. For example, the question of a vote of confidence in the Cabinet of Ministers cannot be brought up less than 6 months before a presidential election of the Azerbaijan Republic and may be brought up again only 6 months after the first discussion of this question. Nor are there any legal consequences if the Cabinet of Ministers has already been given a vote of no confidence.
Clear delimitation in the law on control powers of the legislative and executive state power structures, as well as a detailed procedure for executing these powers with enforcement of mutual rights and obligations in this process for both sides are important prerequisites for the effective use of control. The existing election system is also very important, which determines the number of parties running for power, and this also means the degree of their influence on the political system.
Thus, in order to achieve the most effective model of parliamentary control there should be legislative regulation of the control powers of the representative bodies. In so doing, it should be kept in mind that:
a) formal enforcement of control powers in the legislative body far from always means their actual use;
b) the effectiveness of the parliament’s control powers largely depends on real responsibility for the non-execution of laws;
c) the mechanism of interaction between the legislative (representative) and executive state power bodies, on the one hand, and the public prosecutor and court structures, on the other, in control over law execution must be improved.
It is presumed that at the present stage of development such a form of control as parliamentary inquiry should be used more frequently, particularly in the execution of laws. In addition to this, world parliamentary practice shows that the most efficient mechanism for exercising parliamentary control is quasi-judicial parliamentary investigation, which can be followed by retirement of the gov-
8 See: Entsiklopedicheskiy iuridicheskiy slovar, Moscow, 1998, p. 109.
THE CAUCASUS & GLOBALIZATION
emment or individual officials if court proceedings can then be instigated against them. Endowing the Milli Mejlis with such a right by means of introducing a corresponding amendment to the Constitution will be a pertinent and timely step aimed at strengthening and expanding the control function of the national parliament.
The Mechanism of Checks and Balances in Azerbaijan’s Reality
The representative nature of the parliament depends not only on the way it is formed or the distinctive features of the election system, but also on the level of interaction in the system of division of power and the system of checks and balances. It is traditionally believed that there should be a balance of powers between the legislative and executive branches that excludes shifting the center of adoption of all power decisions and particularly entire power to one of them.9 The real procedure of the functioning and interaction of the higher state power structures, that is, the state regime, is manifested most graphically in legislative practice. The country’s Constitution determines the legal, juridical model of interrelations between them. In so doing, how realistically the procedure corresponds to the constitutional model largely depends on the methods and ways the main institutions of political (including state) power, which characterize the political regime ruling in the country, function.
In order to ensure political stability of the functioning and interaction of the highest state power bodies, the Constitution of the Azerbaijan Republic, along with endowing the national parliament with the listed control powers, also endows the country’s president with such constitutional powers as the right to veto, disbandment of the government, and scheduling a referendum. In this way, the Constitution implements a so-called system of checks and balances in interaction with the highest state power structures.
In this system, the president’s right to issue decrees, including of a regulatory nature, as well as the right of the Cabinet of Ministers to issue resolutions and instructions on the basis of and in execution of the Constitution, laws, and regulatory decrees of the president, correlate to the functions of the Milli Mejlis regarding the adoption of laws. In turn, the president is endowed with constitutional powers to cancel the resolutions and instructions of the Cabinet of Ministers of the Azerbaijan Republic and Cabinet of Ministers of the Nakhchivan Autonomous Republic, as well as acts of the central and local executive power structures (Art 109 of the Constitution of the AR). As Sh. Aliev notes, with respect to the right to issue decrees, it proceeds from the constitutional status of the president as the head of state and executive administrative acts issued by him are related to the inevitable endowment of the executive power structures with discretion powers (the right of discretion when making decisions in correspondence with the law). The reality of the law is manifested in its execution and the efficiency of state management depends on the successful use of the regulation of the law (general rule) to specific circumstances.10
Under such state regimes to which the Azerbaijan Republic’s belongs, this system is implemented not only for organizing interaction between the branches of power and the president, but also for legislative activity by endowing the president and highest executive and judicial power structures with certain legislative powers. These powers, which are established by the country’s
9 See: M.V. Baglai, V.A. Tumanov, Malaia entsiklopedia konstitutsionnogo prava, BEK Publishers, Moscow, 1998, pp. 392-393.
10 See: Sh. Aliev, Nauchno-prakticheskiy kommentariy k Konstitutsii Azerbaidzhanskoi Respubliki, Baku, 2000, p. 30.
constitution, can include the president’s right to place a suspensive veto on laws adopted by the parliament, the removal of which requires a qualified majority of votes; the right of legislative initiative, which belongs to the president, Supreme Court, and prosecutor’s office of the Azerbaijan Republic.
An independent judicial power branch was called upon to play a key role in the system of checks and balances, which, in addition to the function of administrating justice, is endowed with the function of judicial control over the activity of all the power branches and structures, the execution of which is necessary for ensuring the practical implementation of the principle of division of power in a democratic law-based state. The Constitution of the Azerbaijan Republic sets forth that courts and judges are independent and act independently of the legislative and executive power branches.
Within the framework of legislative activity, in compliance with Part I, Art 96 of the Constitution of the Azerbaijan Republic, in addition to the Milli Mejlis deputies, the President of the Azerbaijan Republic, the Supreme Court, and Public Prosecutor’s Office of the Azerbaijan Republic, and the Ali Mejlis of the Nakhchyvan Autonomous Republic are endowed with the right of legislative initiative. As can be seen from this list, the Constitutional Court of the Azerbaijan Republic is not included among the entities with the right of legislative initiative. And although some researches believe that this right should be granted to the Constitutional Court, justifying this by its activity, direct relation to the Constitution, laws, and regulation-making material,11 in general we think this limitation is very justified. It is the Constitutional Court that has the right to make decisions on cases relating to the compliance of the adopted legislative and other regulatory acts with the Constitution of the Azerbaijan Republic, whereby any non-constitutional provisions revealed lose their juridical force by a decision of the Court. This situation places the Constitutional Court in a special position, while giving it the role of arbitrator in legislation issues and the opportunity to come forward with a legislative initiative and initiate the adoption of laws, albeit in a limited way, within the limits of its narrow competence would disrupt the balance and interfere with its ability to be an impartial arbitrator that is not involved in the legislative process and not subject to the influence of political competition.
It is not the right of legislative initiative, but the function of judicial control that should be a defining factor in the interrelations not only with the legislative, but also with the executive power branches. The Constitution of the AR also shows this in Part III, Art 130.9, by giving the Constitutional Court the right to resolve disputes relating to the delimitation of powers among the legislative, executive, and judicial branches.
In order to execute efficient judicial control over the practical realization of the principle of the division of power, judicial power, the only power branch that is essentially apolitical, should be beyond all the political competition processes, including among the state power bodies. And it should act, in the system of checks and balances, as an independent, politically neutral arbitrator, subordinate in its action exclusively to the Constitution and law, not subject to any influence or, particularly, direct impact from other state institutions or any political or elite groups.
In order to ensure the parity and equal participation of the Milli Mejlis and executive power branches in legislative activity on the basis of the democratic principle of the division of power, it seems expedient to create a legal base of this type of state activity in the form of a system of laws on interaction among the highest state power bodies in the legislative process, keeping in mind the system of checks and balances set forth by the Constitution of the Azerbaijan Republic. This could help to eliminate collisions between them and create legal obstacles to anti-democratic trends in their relations related to the striving of different ruling groups for political domination in legislative activity. This circumstance should also promote an increase in the quality of
11 See: Z.M. Kasumov, Razdelenie vlastei, Baku, 2007, p. 99.
THE CAUCASUS & GLOBALIZATION
national legislation with respect to its orientation toward observing and protecting, in particular, human and citizen rights and freedoms, and expression in legislative form of the important interests and objectives of society and state development, and not the private interests of the ruling elite groups.
Without this, even in a democratic system of power division, the objectively existing competition between the various branches and structures of state power is a significant factor of political influence on legislative activity. In so doing, we should also keep in mind the fact that the legislator, in turn, when carrying out the functions inherent of him “interferes in power activity at the very moment it appears and during its establishment, as well as throughout its entire functioning.”12
The Constitution of the Azerbaijan Republic envisages a sufficiently privileged regime for draft laws submitted to the Milli Mejlis for examination in the legislative initiative procedure. In compliance with Part II, Art 96, such draft laws are submitted for discussion and put to the vote in the established way. In addition, amendments to such draft laws or resolutions are introduced with the consent of the structure executing the right of legislative initiative (Part III, Art 96 of the Constitution of the AR). It is presumed that these provisions will restrict the freedom of action of the Milli Mejlis in law-making and place certain limitations on it, which is impermissible. Moreover, as Z. Kasumov points out, the question remains open of whether the Milli Mejlis can overrule the right of legislative initiative of a draft law submitted by the indicated entities or not. Despite the fact that there are no examples of this in the practice of national law-making at present, the researcher concludes that a draft law introduced in this way cannot be overruled.13 It is difficult to agree with this conclusion.
■ First, Part IV, Art 7 of the Constitution of the Azerbaijan Republic guarantees and legally ensures at the highest level the independence of the legislative just like the other branches of state power from each other. “In correlation with the provisions of this Constitution, the legislative, executive, and juridical power branches interact and are independent within the framework of their own powers.”
■ Second, by expressing its will and adopting the Constitution of the Azerbaijan Republic by means of universal voting—referendum, the people of Azerbaijan, being the only source of power in the Azerbaijan Republic (Part I, Art 1 of the Constitution of the AR) in instituting state power in the country on the basis of the principle of the division of power in Part III, Art 7 of the Constitution of AR, primarily determine the status of the legislative power branch and only then of the executive and judicial branches.
C o n c l u s i o n
As the current parliamentary practice in Azerbaijan shows, the procedure for forming the Milli Mejlis and organizing its activity is still in the making and looking for an appropriate historical analogy, while certain institutions of the legislative power branch are in need of further improvement.
In our opinion, in order for this power branch to undergo advanced development it is necessary to:
—give more attention to forming a mechanism of quasi-judicial parliamentary investigation, which could help the national parliament to further strengthen its position in the balance of powers that has developed among the power branches in the Azerbaijan Republic;
12 M.A. Nagornaia, “Rol prava v osushchestvlenii vlastnykh polnomochiy,” in: Vestnik nizhegorodskogo univer-siteta im. N.I. Lobachevskogo, Law Series, No. 2, 2003, p. 80.
13
See: Z.M. Kasumov, op. cit., p. 111.
—make active use of the right granted by the law to deputy inquiry in order to efficiently react to social challenges;
—give greater attention to the processing and legislative enforcement of the parliament’s control powers as a whole and of the institution of the government’s responsibility to the parliament in particular.
Here it is also appropriate to note that the unsophisticated electoral culture is greatly hindering the intelligent delegation of rights to the voters. The multi-party system that exists in present-day Azerbaijan reflects not so much the diversity of citizens’ social and political interests, as the unsystematic and chaotic nature of political relations. It is no accident that some political parties, including those delegated to the third Milli Mejlis, are not very well organized and represent the interests of small groups. Educational and organizational efforts by the state in this direction would help to increase political pluralism and develop healthy competition among the political parties in the country.
