Constitutional referendums undermining checks and balances...

Analysis

Via Decree of President Ilham Aliyev dated December 28, 2024, 2025 was declared the "Year of the Constitution and Sovereignty". The decree noted that this decision was made on the occasion of the 30th anniversary of the adoption of the Constitution and the 5th anniversary of the Patriotic War.

The Constitution, adopted in a nationwide election (referendum) on November 12, 1995, and entering into force on the 27th of the same month, has been amended several times to date.

According to Article 3.3 of the Basic Law (Constitution), the adoption and amendment of the Constitution are issues that are resolved by a nationwide election, a referendum.

The amendments, which have been adopted by referendum three times till now - in 2002, 2009, and 2016 - have led to significant changes in the Constitution and the socio-political life of the country.

And what are these amendments?

The amendments proposed in the first referendum held in 2002 were passed by an overwhelming majority, incorporated into the Constitution and entered into force.

One of the changes was the list of issues that are not allowed to be subject to referendums. These are taxes and the state budget; amnesty and pardon; election, appointment or approval of officials assigned to the powers of legislative and (or) executive bodies, respectively.

The referendum introduced the concept of alternative service as opposed to alternative military service, for citizens whose beliefs do not allow them to be engaged in active military service. However, despite the passage of 23 years, the legislative framework for the implementation of alternative service has not yet been developed.

Additonally, the electoral system was changed from semi-majoritarian to full majoritarian.

The qualified majority requirement (two-thirds) for election of the president was replaced by a simple majority. Similarly, in the event of the president's permanent incapacity, the prime minister, rather than the speaker of parliament, was to be an acting president.

The authorities of the Constitutional Court were expanded - the courts and the Ombudsman were given the right to appeal to the Constitutional Court and make inquiries regarding the violation of constitutional rights and freedoms, and to file individual complaints with this court regarding the interpretation of the Constitution and laws.

Until 2002, neither the president nor the parliament had the right to propose amendments to sections 5 and 6 of the Constitution, which deal with executive and legislative power; in the new edition, this moratorium applied only to the first section, people's power.

Furthermore, the amendment included the provision that if a deputy's party is dissolved, his mandate will not be revoked, the establishment of the Ombudsman institution, the granting of the right of legislative initiative to the prosecutor's office, the abolition of economic courts and the establishment and determination of the authorities of an appeals court.

The 2002 amendments to the Basic Law, along with certain positive trends stemming from Azerbaijan's accession to the Council of Europe, also included initial steps towards consolidation of the executive branch’s authorities.

A second amendment to the constitution was proposed in 2008, and a referendum was held on March 18, 2009.

The essence of this referendum consisted mainly of certain cosmetic changes, rather than fateful constitutional amendments. Such shifts include changing the name of the Executive Office of the President to the Presidential Administration or transforming the National Bank into the Central Bank. In a certain way, these constitutional changes created the impression that they were carried out to emphasize the state's socially oriented policy. Such changes include "the supreme goal of the state is to ensure, in addition to ensuring the rights and freedoms of man and citizen, a decent standard of living for citizens", "creation of conditions for the development of the state's socially oriented economy", "expansion of the state's obligations in the field of children's rights", "determination of the state's responsibilities in the field of the environment and ecological balance" and the like.

As a result, citizens were granted the right of legislative initiative (a threshold of 40,000 signatures was set for this), and it was determined that presidential and parliamentary elections would be postponed until the end of the military activities, unless impossible.

The most momentous modification was the abolition of the two-terms limit for president. Until 2009, the Constitution allowed a person to be elected president only twice, but this amendment abolished the existing limit. This abolition has gained criticism.

The existence of term limits is one of the main guarantees for pluralism in political power, preventing the concentration of executive power in the hands of one individual. The inclusion of this adjustment in the 2009 referendum created an interesting situation. Because Ilham Aliyev's two-term term, which began in 2003, ended in 2013, and his re-nomination for the presidency was not possible due to the restrictions in the Constitution. The Venice Commission of the Council of Europe (VC), which prepared an opinion on the term limits for the election of presidents, stated that it considered such limits to be necessary in accordance with international practice. In political systems where the president has broad powers, the abolition of such limits leads to an imbalance in the separation of powers. The established limits are important to prevent the negative consequences for democracy of the same individual being President for a long time.

VC has expressed its opinion that the amendment to abolish the restriction on the number of presidential terms for a person has a negative impact on the balance of powers, and that in countries such as Azerbaijan, where “democratic institutions and cultural prerequisites have not yet been formed”, such an amendment is a “serious step backwards in the path of consolidated democracy”. In presidential republics such as Azerbaijan, the legislative and judicial branches are weak in relation to the head of state. Therefore, VC believes that the existence of a limit on presidential elections prevents the long-term concentration of power in the hands of one individual in robust presidential republics (see, paragraph 10).

The last referendum on constitutional amendments was held in 2016. This referendum was similar in essence to the previous ones. It was characterized by proposing changes whose significance and relevance were not very clear, and by the inclusion of revisions that would create instability in the separation of powers. The second type of amendments includes extending the President's term of office from 5 to 7 years, granting the President the authority to announce early presidential elections, granting the President the authority to dissolve the Milli Majlis (the Parliament, National Assembly), establishing the institution of the Vice President, loss of the mandate of a deputy in the event of a gross violation of the ethical conduct rules established by law, and eliminating the lower age limit (which was 35) for deputies, presidents, vice presidents, prime ministers, deputy prime ministers, and heads of other central executive bodies.

The changes that expanded the powers of the executive branch and its use were notable for the separation of powers and the violation of checks and balances. There were no guarantees that would prevent the president from calling early elections creating a parity in relation to such power. According to Article 8 of the Constitution, the president “embodies the unity of the Azerbaijani people and ensures the continuity of the Azerbaijani statehood.” VC noted in its opinion that the power to call early elections could turn presidential elections from a competitive election into a plebiscite on loyalty to the government (see, paragraph 55).

The power of the President to dissolve the Milli Majlis is absolute for the parliament and neither the legislature nor the judiciary has the feasibility to challenge such a decision. In its opinion, VC expressed its concern about the violation of the separation of powers in this regard. Hence, the vote of no confidence in the government, which is a counterweight to the power of the President to dissolve the parliament, is not binding on the head of state and he may simply ignore such a decision by not dismissing the government (see, paragraph 63).

Another problematic detail was related to the institution of the vice-president. The powers of this position, the number of vice-presidents and the responsibilities included in the new version were not clear. VC noted that such gaps were a “rare, even unique” innovation in terms of the vice-presidential institution, since vice-presidents are usually considered to be elected positions. Likewise, the fact that the newly introduced position would become a second person to exercise the powers of the president in the case of incapability, creates the danger of transformation of the potential head of government into a person who is not accountable in terms of elections. Prior to this amendment, the person to exercise the powers was up to the speaker of the parliament, who was a representative of the elected body (see, paragraph 72).

At large, the common result of the Constitutional referendums can be summarized as follows - in the end, the separation of powers, checks and balances shifted towards the executive branch, disrupting the parity. The shift in the parliamentary election system in 2002 affected the political conjuncture of the period, making it difficult, and then impossible, for the parliament to be pluralistic in subsequent periods. The change of sections prohibited from being changed in the Constitution in the same referendum would have resulted in an increase in the authorities of the executive branch of government in the future. The same trends apply to the subsequent referendums of 2009 and 2016.

Although amendments were added to the Constitution to expand civil, social rights and their guarantees, in general, in terms of the separation of powers, the powers of the executive branch increased significantly compared to the judiciary and the legislative branch. The Constitution, which established a semi-presidential political system in 1995, became the guarantor of a super-presidential political system by increasing the authority of the executive branch. The surge in the powers of the president reduced decentralization in governance, significantly weakened the independent decision-making capabilities of local government bodies, and jeopardized the system of checks and balances between the branches of government.

On the other hand, the revisions in the field of civil and social rights did not lead to better protection of these rights, but on the contrary, in some situations it led to abuse by state bodies. For instance, the amendment of private property entailing social obligations led to the expansion of already existing issues in the protection of property rights. The lack of clarity of these social obligations created the danger that the restrictions created during the exercise of property rights would be disproportionate. Such problems can be observed in the decisions of the European Court of Human Rights against Azerbaijan in private property related cases.