Dynasty and Democracy in Azerbaijan
The Referendum Abolishing Presidential Term Limits
Speech at Columbia University , by Emin Milli
15 April, 2009
Dear professor Mitchel, I would like to thank you, Columbia University and Harriman Institute for showing interest in the latest developments in Azerbaijan. In January when I have organized and participated in protest against this referendum in front of UN, one of the closest members of my family was fired from his job. He was told that he is relative of the enemy of the state.
This is the mildest form of punishment if you refuse to sign loyalty act to this regime or express your disagreement with their policies. I hope that nobody who participates at our event will have to face any kind of punishment and their relatives will not loose their jobs for listening to alternative voices.
1. From first democratic Republic in the Moslem world to ordinary monarchial dictatorship
Azerbaijan has celebrated last year 90th anniversary of ADR, establishment of the first democratic republic in the Moslem world. The day when we celebrate this historic day is 28th of May. 90 years later Azerbaijan is the country where we have endless number of monuments to Heydar Aliyev, ex-president and the father of the current president – Ilham Aliyev. Aliyev Senior, former KGB general ran the country for much of the late Soviet time and came to power again in 1993, but never left the power even after his death in 2003. Thousands of his portraits, billboards and monuments all over the country remind everyone about omnipresent “nationwide leader” as official propaganda likes to call him.
Aliyev Junior succeeded position of his father in 2003 in rigged elections marked with extensive use of violence by police and special security forces. It was first political dynasty established on the territory of the former Soviet Union. Some of the posters in the country show Heydar Aliyev, Ilham Aliyev and Heydar Aliyev Junior (little son of Ilham Aliyev) standing behind each other with the slogan: “Yesterday, today and future of independent Azerbaijan”.
Traditional opposition parties have been weakened in a very dramatic way during the last decade by attacks and repressions of the regime on its activists and supporters. In 2008 opposition has boycotted the controversial presidential elections where Ilham Aliyev won a landslide 89 percent of the vote according to the official results. The same year when we celebrated 90th anniversary of first democratic republic Azerbaijani authorities decided to turn off BBC, Radio Liberty and Voice of America broadcasting services on short waves. It restricted significantly access of Azerbaijanis to sources of objective information and popular platforms for debates on issues of public concern.
2. Referendum abolishing presidential term limits
The recent referendum held on 18th of March was a culmination of the power consolidation of the ruling regime. In my opinion, the whole referendum was not legitimate and it was neither fair, nor legal. Azerbaijani authorities decided to follow the path of Chad, Uganda, Zimbabwe, Cameroon, Algeria, Belarus, Uzbekistan and Venezuela in terms of opening the constitutional doors for lifelong presidency.
The referendum proposed amending 29 articles of the Constitution altogether. But everyone understood that the main aim was elimination of the restriction regarding the number of presidential terms to pave way for lifelong presidency of Ilham Aliyev. Article 101.5 initially prohibited the same person to be a president more than 2 times in a row. The proposed amendment was meant to abolish that. The Constitutional Court gave its “legal approval” on the birthday of the President (24 December, 2008) spending only 35 minutes to discuss and approve 29 changes to the constitution. It took Parliament only couple of hours to discuss all proposed changes and to appoint the day for holding the referendum. This case shows to what degree current regime controls judicial and legislative powers. Similar degree of control restricts radios and TV stations to hold serious and deep public debates on issues of public concern including the discussion of constitutional changes.
During the election campaign in 2008 neither Ilham Aliyev, nor his representatives mentioned possible referendum. So, those who allegedly voted for Ilham Aliyev were unaware about his plan to amend the constitution. One month after the recent presidential elections it was said that the ruling party (YAP) decided to initiate the referendum. However, the ruling party did not hold any party meeting. Not even a press-conference. It was unclear who decided and how.
3. European practice or confusion between parliamentary and presidential regimes?
In an interview given to Reuters at the World Economic Forum in Davos, President Ilham Aliyev justified his initiative to abolish term limits by referring to European democratic practices. He said, “You will not find any member of the European Union whose leader cannot be elected as many times as the people want him to be in this position. Is it democratic? Yes. So the same should be applied to Azerbaijan”. Main argument of the ruling party – not limiting the democratic right of the people to elect the same person as many times as they wish – have been turned down in the legal opinion of the Venice Commission of the Council of Europe (March 13-14, 2009).Here is the piece of legal opinion from which President Ilham Aliyev and his lawyers can get some information about modern European legal thinking and governance practice:
“….The constitutional limitations on successive terms are therefore meant to limit the risk of negative consequences for democracy arising from the fact that a same person has the possibility of occupying the presidency for an excessive period of time.
It has also been argued that there exists no term limit to the appointment of the Prime Minister. This is, however, a different legal situation, which is hardly comparable to that of the presidential (or semi-presidential) regime. In a parliamentary regime, the Prime Minister must constantly enjoy the support from a parliamentary majority, which is not the case for the president in a presidential regime. The personal factor is therefore much stronger in the latter system. Furthermore, the Prime Minister is not the Head of State. His powers are therefore limited, although to a varying extent, by the existence of the Head of State. The temptation of a personal concentration of powers in the hands of the Prime Minister acting in a parliamentary system is consequently much smaller. In sum, it can be said that parliamentary mechanisms usually secure democratic rotation in the office of the Prime Minister, but these mechanisms obviously do not extend their influence on the presidency.
Explicit constitutional limitations on the successive terms of a president are particularly important in countries where democratic structures and their cultural presuppositions have not yet been consolidated. In the opinion of the Venice Commission, the elimination of the present limitation in Article 101(V) of the Constitution may therefore appear as a serious set-back on Azerbaijan’s road to a consolidated democracy…”
4. Oath of the President
Ironically, despite the officially declared results of the referendum, Ilham Aliyev cannot be re-elected. The newly amended article should apply starting from the next presidential election. Ilham Aliyev has already been elected 2 times. At the time when he was elected for the second term the Constitution contained the above-mentioned restriction. Ilham Aliyev took an oath, thus making public promise to obey that restriction. Allowing him to be re-elected again would amount to retroactive application of the newly amended text. That would contradict both, the well established principle of non-retroactivity of law, and the drafting history of the constitution.
When the constitution was first adopted in 1995, it contained the provisional clauses. Provisional clause 3 provided that the restriction of the number of presidential terms would apply to the president elected after the entry of the constitution into force. That is why the factually first term of Heydar Aliyev (1993-1998) was not considered as constitutionally first. It means that the drafters clearly had in mind the principle of non-retroactivity. Again, Ilham Aliyev is now serving his second term of presidency and the new provision can not apply to him from legal point of view.
5. Perspectives of democratic changes in Azerbaijan
Most of the experts are very pessimistic about prospects of any political change in Azerbaijan in the nearest future before the end of oil and gas era. Aggression of Armenia and occupation of Azerbaijani lands add even more complexity and pessimism concerning democratic development in the country.
Monopolization of economy and one of the highest corruption levels in the world prevent the possibility of building up any kind of diversified and sustainable economic system. The regime is using the system of corruption (allowing corruption, not punishing for corruption) to buy loyalty of clans supporting the regime and to bind majority of the citizens who are forced to be corrupt in order to survive in such environment where corruption is the basis of the system and the rule of the game. The regime expands and strengthens its repressive apparatus to intimidate opposition forces and to prevent formation of independent social groups. As a result we have demobilized society with very limited spaces to present alternative political views capable to challenge the current status quo.
Stability of the current political regime depends among others on high prices for oil and gas. Azerbaijan has become one of the fastest growing economies in the world thanks to the increasing oil revenues (GDP growth reached record rate of 34.5% in 2006), but it is also one of the most corrupt countries in the world: Transparency International’s 2008 Corruption Perception Index ranked Azerbaijan 158th among 180 countries. Experts consider Azerbaijan as a country afflicted with the “resource curse” experiencing now all its negative effects.
About 90% of export revenues are coming to the budget of Azerbaijan from export of natural mineral resources or from infrastructure connected to oil and gas. There is no sustainable and diversified economic system behind the current political regime. It makes the system vulnerable and pregnant for all kind of unexpected changes. Similar cases have been observed in the history of the “safest political regimes” in Africa, Latin America (also Indonesia, Iran, etc.). History of “Big Man” politics can tell us a lot about the nature of the current regime in Azerbaijan and its potential destiny in the future.
There is certain correlation between increasing incomes from oil and gas exports and weakening of democratic institutions and forces in the country. If this is true, then we can also assume that the less oil and gas revenues we get the more are chances for democratic development in the years to come after the peak production years. It is important to understand this trend and to shape new discourse of democratic change in the era of decreasing oil and gas production.
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