New Amendments to the Nakhchivan Constitution: Nominal Autonomy and the Consolidation of Super-Presidential Rule.

Analysis

On June 21 of this year, the Milli Majlis approved the draft Constitutional Law on Amendments to the Constitution of the Nakhchivan Autonomous Republic in the first session. Given that the lack of objection and discussion upon draft in the parliament, it can be assumed that the document will successfully pass other readings and enter into force.

“Tribunat” reviewed the planned amendments to the Nakhchivanian Constitution and analyzed their impact on the status of the autonomous republic.

The draft law contains modifications that bear significant implications for the governance of the autonomous republic. These changes can be divided into several groups:

The essence of the Constitution:

1. The Constitution omits information about the Treaty of Moscow of March 16, 1921, and the Treaty of Kars of October 13, 1921. These treaties define the modern territory of Nakhchivan and create an obligation for the Azerbaijani government to establish an autonomy in Nakhchivan.
2. Amendments to the Constitution will be implemented by Law, as opposed to Constitutional Statute. It is implied that amendments will be decided by a simple majority vote, not a qualified majority, and makes it easier to modify the Constitution.

Executive authority:

1. The Human Rights Commissioner (Ombudsman) of Nakhchivan and the Central Election Commission are being abolished. It can be assumed that these authorities, like other bodies, will be merged into the central executive bodies of republican level.
2. The institution of the President's Special Representative is included in the Basic Law of the autonomous republic. The Special Representative in the Nakhchivan Autonomous Republic, which was established after the resignation of the Chairman of the Supreme Assembly of the Nakhchivan Autonomous Republic Vasif Talibov and, according to its Statute, is a structural unit of the Presidential Administration, is receiving constitutional status.
3. The status of a supreme official is abolished. According to the Constitution of NAR (Nakchivan Autonomous Republic), the supreme official, as the chairperson of the Supreme Assembly, ensures the succession of statehood, enjoys vast powers in both the legislative and executive branches. Some of the authorities arising from the abolition of this status are transferred to the President.
4. The acts adopted by the Chairperson of the Supreme Assembly will be qualified as ordinances as opposed to decisions. This change implies that the Chairperson will be able to adopt not a normative-legal act reflecting the rules of conduct mandatory for all, intended for an indefinite range of subjects and repeated application, but only a non-normative act for the purpose of implementing specific (one-time) organizational, control or administrative measures. This amendment significantly reduces the role of the Chairperson of the Supreme Assembly in the governance of NAR. The Chairperson of the Supreme Assembly is deprived of both the role of the head of the executive branch and his role in norm-setting activities is minimized. The Chairperson of the Supreme Assembly will be limited to administrative issues only as the speaker of the local parliament.

Expansion of the President's authorities over the governance of the Autonomous Republic:

1. The President calls elections to the Supreme Assembly. 
2. The President may demand holding private sessions of the Supreme Assembly.
3. The Cabinet of Ministers (CM) of the Nakhchivan Autonomous Republic may resign only with the consent of the President.
4. The President may dissolve the Supreme Assembly.
5. The rules of procedure of the CM are determined with the consent of the President.
6. The CM can establish new central executive bodies only with the consent of the President.
7. Judges of the Supreme Court of the Nakhchivan Autonomous Republic are appointed by the National Assembly directly upon the proposal of the President.
8. Judges to the courts of first instance are directly appointed by the President.
9. The Prosecutor of the Nakhchivan Autonomous Republic is directly appointed and dismissed by the President.

Downgrading of the powers of the Supreme Assembly and its chairperson:

1. In times of war, the term of office of the Supreme Assembly is extended until elections can be held.
2. The Chairperson of the Supreme Assembly cannot call an extraordinary session or demand private sessions.
3. The Supreme Assembly can be dissolved at the request of 31 deputies.
4. The Chairperson of the Supreme Assembly loses the power to deprive deputies of their mandates.
5. The subordination of the Cabinet of Ministers to the Supreme Assembly is abolished. This is due to the abolition of the status of a supreme official.

The proposal for such amendments is associated with administrative reforms carried out or planned to be carried out after the Second Karabakh War. The appointment of special representatives of the President in the administrative districts of Karabakh in 2021 began to raise questions in government circles about the effectiveness of the existing administrative structure. Special representatives, in their form and authority, resemble authorized representations and perform inspection and advisory functions. The wider scope of authority of local executive authorities and the existence of subordination relations, although not a structural unit of the Presidential Administration, raise doubts about the necessity of creating the institution of representatives.

However, two facts should be underlined: in administrative management, the role of representatives is more popular than that of the heads of local executive authorities, and such modifications are accompanied by discussions of administrative reforms in the country. In the case of Nakhchivan, administrative reforms have led to polemics about either altering the status of autonomy or abolishing it altogether.

According to Article 50 of the Constitution of the NAR, prior to the submission to the Milli Majlis, constitutional amendments must be approved twice in the Supreme Assembly by a majority of 35 out of 45 deputies. Although the discussions in the Supreme Assembly were not covered by local and republican media, it is feasible to notice from the agenda that the draft law underwent two votes in accordance with constitutional requirements. During the discussion of the draft law in the Milli Majlis, the deputies justified this step by increasing the efficiency of governance and the possibility of reforms in Nakhchivan. Article 50 of the Nakhchivanian Constitution puts forward that there should be a 3-month gap between two votes on amendments, resultantly it can be argued that discussions have been held at an official level since at least February of this year. The fact that the media reported on this only when the draft Constitutional Law was sent to the Milli Majlis gives reason to imply that there was no public discussion and that the amendments were carried out in a closed regime. It can be argued that the main message that the deputies wanted to convey through their implicit speeches was the centralization of the executive power.

The proposed amendments can be summarized as follows:

1. The withdrawal of international guarantees regarding the autonomy of Nakhchivan and the further simplification of the rules for its amendment create expectations that the autonomous status of Nakhchivan will remain as a formality and will be subject to alteration in the future. The Constitution of Nakhchivan is approved by the Constitutional Law of the Republic of Azerbaijan. Amending a document approved by the Constitutional Law by Law is contrary to the principle of proportionality promulgated for norm-setting via the Law “On Normative Legal Acts”.
2. The tendency to reduce the powers of the executive branch arising from the sovereignty of the Autonomous Republic is apparent. This is noticeable both in the abolition of the status of the autonomous executive bodies mentioned in the Constitution, the expansion of the powers of the President for reasons arising from the abolition of the status of the supreme official, and the constitutional character of the status of a special representative. The executive apparatus of the autonomous republic has been subjected to centralization, losing a vast number of features of its sovereignty, and in certain aspects, it resembles other administrative divisions of the country in terms of its administrative management.
3. Another blow to the autonomy's sovereignty is the amendments in the powers of the Supreme Assembly, the legislative body. This is also affected by the abolition of the status of the chairperson of the Supreme Assembly, a supreme official. The subordination of the Cabinet of Ministers to the Supreme Assembly is removed from the Constitution, and the Supreme Assembly can be dissolved by the President.

According to Article 7 of the Constitution of the Republic, even though Azerbaijan is a unitary republic, the existence of an autonomous state within its borders is not a unique practice and such examples can be found in the experience of many states. Chapter 8 of the Constitution is entirely devoted to the status of Nakhchivan and the issues arising from it, defining the framework of autonomy.

Unlike Nakhchivan, autonomous structures in unitary republics in many cases arise from the protection of the rights and interests of ethnic and national minorities living in that territory. Examples of such cases include Gagauzia in Moldova, the Aland Islands in Finland, and Zanzibar in Tanzania. Nakhchivan's autonomy was one of the guarantees intended to eliminate the chaos that existed between Turkey and Russia at the beginning of the 20th century. Article 5 of the Kars Treaty signed between Turkey and the Transcaucasian Soviet republics in 1921 provides autonomy for Nakhchivan. Contrasting to the autonomous regions mentioned above, Nakhchivan has a homogeneous demographic structure and its status arises from the historical and political context. Accordingly, for comparison, we can look at the example of Adjara, whose fate was decided by the same treaty.

Adjara is an autonomous republic located in the territory of the Republic of Georgia. The Adjara people, a sub-ethnic group of Georgians, live on its territory. According to Article 7.2 of the Constitution of the Republic of Georgia, the status of Adjara is determined by the Constitutional Law of the Republic of Georgia. Prior to the adoption of the Constitutional Law of the Republic of Georgia “On the Status of the Autonomous Republic of Adjara” in 2004, the draft law was sent to the European Commission for Democracy through Law (Venice Commission) for an opinion. Nevertheless the reviewers’ overall opinion on the draft law was positive, some of the points highlighted in the opinion are also applicable to the proposed amendments in Nakhchivan.

The opinion criticized the prohibition on the establishment of central executive bodies not specified in the Law in the draft Constitutional Law, and the practice of subordination of such bodies to the central executive bodies at the republican level. The Commission stated that the determination of the structure of executive bodies and their activities should be entrusted to the autonomous region itself (see §9, 27-28). Accordingly, the proposed amendments to the Nakhchivanian Constitution, which include a reduction in the sovereignty - the abolition of central executive bodies and the expansion of the powers of the President – is in contradiction with the principle of autonomy.

Another issue highlighted in the opinion concerns the regulation of the Supreme Council, the legislative body of Adjara. The Commission called the provision that includes the President’s power to call elections to the Supreme Council “surprising” (see §19). The Commission also stated that “there is no basis” for granting the President the power to dissolve the Supreme Council without the consent of the Republic’s parliament in order to ensure “legislative efficiency” (§30). The powers of the President to call elections to the Supreme Council and dissolve the Assembly in the proposed amendments to the Nakhchivanian Constitution should also be considered as an unjustified interference in the autonomy of the region.

It is interesting that, although the Milli Majlis is required to send this draft law to the Commission for its opinion, based on the mandate of the Venice Commission, there is no information in available sources about the status of the submission to the Commission.

Another region similar to Nakhchivan, whose autonomous status was determined by international agreement, is the Aland Islands, located in the Republic of Finland. The Aland Islands are an autonomous region in Finland, where the Swedes are composing the majority. This status of the islands was determined on the basis of a treaty agreed upon by the League of Nations, the predecessor of the United Nations, in 1921. This treaty, unlike the Treaty of Kars, regulated autonomy more broadly and noted the guarantees arising. The legislative act that ensures the implementation of the treaty - the Act on the Autonomy of Aland - includes comprehensive authorities in the fields of executive, legislative and judicial power for the autonomous region. Adopted in 1920, this Act has been revised only twice, in 1951 and 1993. For comparison, the text of the Nakhchivanian Constitution has been amended exactly 5 times, in 2005, 2006, 2010, 2011 and 2018. These revisions, unlike the currently proposed amendments, were aimed at expanding autonomy, such as constitutional appeals to the Supreme Court of the Autonomous Republic, the establishment of a local human rights commissioner (ombudsman) and a Central Election Commission, and in hand with several cosmetic alterations.

The documents that first indicated the current borders and status of Nakhchivan were the Moscow and Kars treaties. Until the restoration of independence, Nakhchivan had the status of an autonomous republic based on these international documents. Despite the fact that the Republic of Azerbaijan was the successor of the Azerbaijan Democratic Republic that existed in 1918-1920 in the Declaration “On the Restoration of the State Independence of the Republic of Azerbaijan” and the Constitutional Act “On the State Independence of the Republic of Azerbaijan”, which were the basis for the establishment of the modern Republic of Azerbaijan, these international treaties were binding on the Republic of Azerbaijan. Removing references to these treaties in the current edition also leads to the “loss” of the basis for the existence of autonomy.

Upon visiting the official website of the Supreme Assembly, you can see a quote from former President Heydar Aliyev: “Nakhchivan’s autonomy is a historical achievement, we must preserve it.” Nonetheless, it seems that Nakhchivan’s autonomy will remain only on paper after the adoption of these amendments. The proposed changes undermine Nakhchivan’s sovereignty as an autonomous republic and lead to a serious reduction in the powers entrusted.

The amendments to the Constitution of the Republic (more about this in one of our previous analyses) have shifted the balance of authorities in Azerbaijan in favor of the executive branch, leading to the creation of a super-presidential institution. The proposed amendments to the Constitution of Nakhchivan should be interpreted as a continuation of the rigid centralization of the executive branch, reducing the sovereignty of the autonomous republic. The opinions of the deputies participating in the discussion of the draft law directly confirm this conclusion.

Conversely, if these reforms really stem from the historical and political demands of the time, as the deputies claim, they still seem like an incomplete solution to the issue of determining the autonomous status of Nakhchivan. The autonomy of Nakhchivan stems from international law and the Constitution of the Republic. A broad public debate and constitutional referendum are required to resolve the future status of the autonomy, that is, whether it should remain or be abolished. However, the proposed amendments neither abolish Nakhchivan's autonomy nor establish real guarantees to maintain this autonomy and enjoy sovereignty. This step may lead to conflicts in the future.

“Tribunat” concludes that the amendments to the Constitution of the Nakhchivan Autonomous Republic contradict the principles of sovereignty arising from the status of autonomy and eliminate vital guarantees. These amendments further increase the rather extensive powers of the President as the head of the executive branch within the framework of the already damaged principles of the separation of powers and have an irreversible negative impact on the checks and balances. The proposed amendments lack sufficient justification and are contrary to the best practice of regulation of autonomous regions in unitary states.

P.S. Today, the Law was adopted in the parliament in its final, third reading.