The “LEGIS”lation legislative amendment project is being implemented within the framework of the “LEGIS Legal Forum” organized by “Pasha Holding”, one of the largest holdings in the country and known for its political connections. Via reports, the aim of the project is to identify areas in which changes in legislation are necessary, to collect and systematize proposals from lawyers, researchers and young specialists on legislative amendments, and to form a list of proposals to be submitted to relevant state bodies.
Pasha Holding is a huge conglomerate that concentrates assets in the fields of banking, construction, real estate, insurance, technology, and investment. According to journalistic investigations, it is unofficially controlled by the country's first family.
Even though the technical side of potential legislative projects being submitted to the competent authorities and the effectiveness of the initiative beg the question, this news creates a basis for discussion of the institution of legislative initiative in Azerbaijan.
“Tribunat” has analyzed the institute of legislative initiative and its problems in Azerbaijan.
In accordance with Article 81 of the Constitution, the legislative power in the country is exercised by the parliament - the Milli Majlis. According to Article 96, the right of legislative initiative (the right to submit draft laws and other issues for discussion by the Milli Majlis) belongs to the deputies of the Milli Majlis, the President of Azerbaijan, the Supreme Court, the Prosecutor's Office of the Republic of Azerbaijan and the Supreme Majlis of the Nakhchivan Autonomous Republic. As a result of the 2009 referendum, this right was also recognized for 40 thousand citizens of the country who have the right to vote. The procedure for this initiative is regulated by a separate Law. The document lists certain frameworks for citizens' initiatives. According to Article 3 of the Law, a draft law submitted at the initiative of citizens cannot cover the following issues:
· state budget, state duty, taxes and customs affairs;
· the amount of wages and the procedure for their payment;
· criminal or administrative offenses;
· family relations;
· territorial structure and administrative-territorial division;
· approval and termination of interstate and intergovernmental agreements providing for rules different from the laws of the Republic of Azerbaijan;
· elections and referendums;
· confidence in the Cabinet of Ministers of the Republic of Azerbaijan;
· amnesty;
· election, appointment or approval of officials, the selection, appointment or approval of which is attributed to the powers of legislative and (or) executive bodies, respectively.
This is broader than the list of issues that are not allowed to be subject to referendums, which are essentially similar (taxes and the state budget; amnesty and pardon; election, appointment or approval of officials, the election, appointment or approval of which is attributed to the powers of the legislative and (or) executive bodies, respectively). Article 6 of the Law sets the requirement to cover the territory of at least 60 electoral districts in relation to the 40 thousand signatures and to collect at least 500 signatures from the territory of each electoral district. According to Article 4 of the Law, individuals wishing to submit a project to parliament must create an initiative group of at least 300 people and register the group with the Central Election Commission (hereinafter, the CEC). The group is authorized to submit only one project for parliamentary discussion during its term.
The preparation and submission of the project comprises of several stages. The initiative group prepares the legislative draft, justification of the need to adopt the project, and expert opinions on the project. The documents are submitted to the CEC, and within two months the project is either registered or rejected. Followingly, the CEC submits the project to the Ministries of Justice and Finance. Following successfully passing these stages, the initiative group is responsible for collecting 40 thousand signatures. The signatures are checked by the CEC. If no defects are found in the signatures, the CEC sends the project to the Milli Majlis within a month. Within two months after submission, the project is submitted to the Milli Majlis for discussion and voting.
The aforementioned procedural difficulties have led to a minimal number of citizens' legislative initiatives. First, even though the aforementioned amendment to the Constitution was adopted in 2009, the legislation regulating only entered into force 10 years later, in 2019. The only citizen legislative initiative attempt known to the public up to this point was carried out by the Republican Alternative (ReAl) Party in 2019. The projects included amendments to the state budget for that year and the establishment of an elected mayor in the capital. While the party managed to collect the required 40,000 signatures, the CEC refused to send the project to parliament, claiming that there were flaws in the signatures. There is no information about ReAl challenging this decision in court. Granting the fact that the right of initiative was unsuccessfully used only once in 7 years is not considered a satisfactory result, it has not become a point of concern for state bodies.
Is this practice in line with leading practice?
Commenting on the amendment added to the Constitution as a result of the 2009 referendum, the European (Venice) Commission for Democracy through Law listed the relevant modification among the innovations of the referendum and noted that it would be a positive step to encourage more active political participation of citizens. Nonetheless, there are a number of points in the rules for implementing the citizens' initiative procedure that do not comply with international standards. Accordingly, it is feasible to refer to the 2008 Venice Commission Report on the Legislative Initiative and the 2018 Joint Opinion on the Law on the Legislative Initiative of the Citizens in Albania. Based on the Report and the Joint Opinion, it is possible to summarize the shortcomings of the current legislation as follows:
1. Citizens' legislative initiatives should include, in addition to the submission of a draft normative-legal act, the right to apply for amendments to an existing law. This procedure should not be difficult and bureaucratic in terms of implementation;
2. The procedure for submission of a citizen's initiative to parliament should not be unnecessarily time-consuming. Since the right of initiative includes not only the submission of a normative-legal act, but also the discussion of an issue or case in parliament;
3. Regulation of the activity of the initiative group should ensure that there are no bureaucratic obstacles for the individuals. Making the activity of the initiative group conditional on registration, limiting the circle of individuals who can participate in it, and the presence of a certain number of students are not considered appropriate practices. It is also recommended that the body supervising the legality of the activity of the initiative group (CEC) exercise its discretionary powers only after the collection of signatures;
4. Even though the results of the signature collection procedure fall within the discretionary powers of the local authority, the powers here are not unlimited. The most glaring deficiency in the domestic legislation in this regard is the adoption of a decision by the CEC to refuse to accept signature sheets. In the event of such a decision, international practice recommends that the initiative group be given a reasonable period of time to eliminate the shortcomings. Nevertheless, the domestic legislation recognizes the possibility for the initiative group to challenge this decision only in the appellate instance;
5. Domestic legislation does not provide any privileges in terms of promotion and financing of citizens' initiatives. It is only noted that funds from foreign states, international organizations, foreign legal entities, foreigners and stateless persons, as well as legal entities whose founder is a foreign state, international organization, foreign legal entity, foreigner or stateless person, cannot be used to finance any event of the initiative. However, best practice encourages regulations such as the possibility of free use of social media resources for the initiative, the circulation of information on the eligibility of the initiative for signature collection, and mandatory financial reporting to ensure the transparency of the signature collection procedure.
The procedure for citizens to initiate legislation in Azerbaijan can be compared with similar arrangements in other states. For instance, the case of Georgia demonstrates a more pragmatic approach to citizens’ initiatives in the region. Unlike Azerbaijan, in this country, five individuals are enough to register an initiative, and the registration is carried out not in the executive branch, but in the parliament. Following registration, the initiative group is provided with a certificate, after which the initiative group must collect 25,000 signatures. If approved, the representative appointed by the initiative group has the right to present the draft legislation at the plenary session. Another example is Austria. Article 41 of the Austrian Constitution grants the right of legislative initiative to 100,000 citizens. Here, the geographical element is used not to be restrictive, as in local legislation, but to expand the rights of citizens. Thus, according to the same article, the signatures of one third of the voters of one of the three federal states out of 100,000 citizens may be sufficient. Another difference is that Austrian voters are not only obliged to submit a legislative bill in a normative manner, but also a petition containing a detailed description of the proposed legislative change to parliament can be used to exercise the right of initiative.
While highlighting the problems of citizen initiatives, it is also important to note the shortcomings in the legislative activity. In domestic practice, a significant part of the draft laws and resolutions submitted to the Milli Majlis (for instance, in 2022 this figure was 93 percent) is submitted by the President. The participation of deputies in normative activity is quite limited, for the same period only 7 percent of the projects were submitted for discussion by them. On average, the discussion of a draft law in a plenary session takes 2 hours and 45 minutes, and the discussion in one reading takes only 19 minutes. Overwhelming unanimity prevails in parliamentary discussions, 99.13% of the decisions made are “in favor”. The dominance of the Presidential Office (Administration) in this sphere calls into question and causes criticism of the activities of other state bodies that have the right of legislative initiative. Since data on the use of the right of legislative initiative by other subjects are not available in open sources, it is impossible to form a clear impression on this topic. However, given the superiority of the executive branch over other branches of government, it is likely to assume that the level of bias of other subjects is low.
Such dominance leads to the adoption of draft laws not based on socio-economic needs and challenges, but to the strengthening of power. In light of the per se acceptability of draft laws submitted by the executive branch, it reduces discussions to zero. For instance, the Law “On Lawyers and Legal Activities”, analyzed by “Tribunat”, took only 21 days to be adopted in the first and third readings. Or the amendments to the Nakhchivan Constitution were submitted to the Milli Majlis without discussion in the parliament of the autonomous republic, and at a later stage, media resources revealed with reference information that the adoption of the amendments in the country’s parliament also took place without discussion. All this goes hand in hand with the suppression of civil society in the country. The Laws “On Media” and “On Political Parties”, which are considered restrictive practices in recent years, have been adopted without exception despite protests.
The initiative presented by “Pasha Holding”, against the background of the above, can be characterized as a new stage in the “codified authoritarianism” of norm-setting activity in the country - a technocratic turn. Such a trend could also be seen in the “Yukselish” competition, which was established in 2019 “to ensure the identification and support of promising leaders with high intellectual level and managerial qualities and the creation of a personnel reserve bank in the country.” In this configuration, norm-setting activity is not out of necessity for the regulation of social relations from the bottom up, but rather aims to strengthen the interests of the government by technocrats elected by the executive branch.
“Tribunat” concludes that the “LEGİS” initiative, founded by “Pasha Holding”, should be considered a logical continuation of the established line of norm-setting activity in Azerbaijan. Even though the legislation recognizes certain mechanisms for broad public participation in legislative activity, the lack of compliance of their procedures with international standards and practices makes the implementation of initiatives impossible. The weakness and indifference of the legislative body create conditions for the dominance of the executive apparatus and actually disrupt the balance in the division of powers. In this sense, the competition of draft laws should be characterized as the next step towards the monopolization and centralization of normative activity.
