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<\/a><\/strong>Introduction<\/strong><\/p>\nAfter careful scrutiny, I defined twenty elements proving that the Council of Europe\u2019s Venice Commission (hereafter VC) preliminary opinion (hereafter PO) is not impartial in its approach towards towards Azerbaijan.<\/p>\n
References and citations from previous VC reports were very selective, entailing extreme criticism.<\/p>\n
Venice Commission is mostly concluding that proposals are \u201cincompatible with democratic standards\u201d, thus making only general normative reflections, and not proving proposals are legally in breach with existing international conventions.<\/p>\n
This biased preliminary opinion is characterized by bad intention, and turns out to be a political pamphlet rather than a legal document, as allegations are slogans not backed up by legal references. <\/strong><\/p>\n \u00a0<\/strong><\/p>\n General remarks and procedure<\/strong><\/p>\n The PO mostly refers to a previous report by VC, \u201cCDL-AD(2010)001\u201d entitled \u201cREPORT ON CONSTITUTIONAL AMENDMENT\u201d, adopted on 11-12 December 2009, to prove that new constitutional provisions are to be heavily criticized.<\/p>\n But several paragraphs of this same report put VC allegations against Azerbaijan into perspective:<\/p>\n \u00a7 17. \u201cThe present report<\/u> is primarily a descriptive<\/u> and analytical text and will not attempt to formulate any new European \u201cbest model\u201d or standards<\/u> for constitutional change. This is neither possible nor desirable<\/u>.<\/strong> Neither will it critically assess the existing national constitutional amendment procedures. The report aims at identifying and analyzing some fundamental characteristics and challenges of constitutional amendment, as well as offering some normative<\/u> reflections.\u201d<\/em><\/p>\n VC is admitting that constitutional model can be very different, from state to state, many factors can influence.<\/p>\n \u00a7 <\/em>107. \u201cIt is neither possible nor desirable to try to formulate in abstracto a best model for constitutional amendment. The point of balance between rigidity and flexibility may be different from state to state<\/u>, depending on the political and social context, the constitutional culture, the age, detail and characteristics of the constitution, and a number of other factors. Also, this balance is not static, but may shift over time<\/u>, reflecting political, economic and social transformations.\u201d<\/em><\/p>\n In \u00a7 13 the PO is saying that the \u201ccurrent constitution does not provide for any formal involvement of Parliament\u2026\u2026 This is highly problematic\u201d and refers to \u00a7 183 of the 2009 Report : \u201cThe Commission is of the opinion that the national parliament is the most appropriate arena for constitutional amendment, in line with a modern idea of democracy.\u201d <\/em><\/p>\n But the VC is turning a blind eye to next \u00a7 184 : \u00a0\u201cAs previously seen, the legitimacy<\/u> of the constitutional amendment may be strengthened<\/u> by direct involvement of the people in the amendment procedure by means of referendum<\/u>\u2026.\u201d<\/em><\/p>\n Why is VC not mentioning this crucial part of their previous report in respect of Azerbaijan, and in support of the Azerbaijani referendum initiative?<\/strong><\/p>\n In \u00a7 15 the PO is saying \u201csuch referendums enable the people only to say yes or to say no to the reform proposed\u201d<\/em>, but isn\u2019t that the essence of a referendum? One can hardly ask the voters to write their own constitutional thesis on their ballot paper.<\/p>\n Moreover, at the Azeri referendum voters are asked to vote yes or no, NOT \u201con the reform proposed<\/em>\u201d, but on EACH proposal (out of 29) separately, to clearly allow voters to differentiate their vote. Why isn\u2019t VC mentioning this very democratic aspect of the Azeri referendum?<\/strong><\/p>\n In \u00a7 17 the PO is advocating \u201ctransparency and openness\u201d<\/em> by referring to a recent report on Kyrgyz Republic, dealing with national minorities. In \u00a7 18 it says that \u201cNGO\u2019s in Azerbaijan have expressed concerns that the launching of the reform has not been preceded by any wide public discussion\u201d<\/em> but in Azerbaijan official documents were sent several weeks ago by regular courier to all postal addresses in the country, informing citizens about upcoming referendum, explaining all 29 proposed changes, one by one, arguing reasons for each reform. Civil society had full opportunity to launch debates on the substance, at local, regional or national level, but did not, and indeed only appealed to traditional international critics of Azerbaijan to attack this initiative.<\/p>\n Why is VC not mentioning<\/u> this exemplary \u201ctransparent and open\u201d<\/em> informative action by the government to all Azerbaijani citizens, without exception?<\/p>\n On the contrary, the PO is concluding in \u00a7 19 that \u201call this undermines the constitutional legitimacy of the reform, and may prevent the people of Azerbaijan from making an informed choice<\/em>\u201d. In this regard it\u2019s worth to note that VC\u2019s constitutional experts are NOT calling the reform illegitimate, but prefer to remain vague \u201cundermines the legitimacy\u2026.\u201d<\/em><\/p>\n In \u00a7 21 the VC continues to make interpretations \u201cthis rule, which may be<\/u> regarded as\u2026..can probably<\/u> be derogated\u2026..but this does not appear to be<\/u> the case in Azerbaijan<\/em>\u201d. Who else than the Azerbaijani people can decide on what appears to be or doesn\u2019t appears to be the case in Azerbaijan?<\/p>\n Human rights<\/strong><\/p>\n In \u00a7 23 the VC is admitting that \u201csome of those modifications expand the scope of protection of the currently recognized human rights<\/em>\u201d, but these are not further elaborated in the PO. Why? <\/strong><\/p>\n About reforms in the field of human rights the VC is very clear in its \u00a7 28 : \u201cThe modifications introduced by the reform into the human rights provisions of the Constitution, taken as such, do NOT directly contradict<\/u> the international obligations of Azerbaijan<\/em>\u201d and VC refers to their previous 2009 report, \u00a7 42. \u201cThe present opinion is based on the text of the constitutional amendments and cannot take into account any future implementing legislation. If appropriate legislation is adopted, some of the concerns expressed in the opinion would lose relevance<\/u><\/em>\u201d thus admitting that their criticism on the Azerbaijan referendum is at least very conditional and premature.<\/strong><\/p>\n VC concludes in \u00a7 32 of the PO that \u201cThe compatibility of the Draft (and of any further implementing legislation) with the international obligations of Azerbaijan should not be assessed solely on the basis of the formal compliance of the text of the Constitution with the texts of the international conventions and treaties to which Azerbaijan is a party\u201d<\/em> which means that VC admits that the Draft is formally complying with Azerbaijan\u2019s international obligations\u2026\u2026!\u00a0 And all further allegations and critics are based on strictly personal interpretation by the authors of the PO.<\/strong><\/p>\n In \u00a7 33 of the PO, VC is clearly recognizing about \u201chuman dignity is protected and respected\u201d,<\/em> that \u201cinclusion of this concept in the Constitution of Azerbaijan is positive<\/u>.<\/em>\u201d<\/p>\n Also \u00a7 35 concludes by \u201cthis development is positive.\u201d<\/em><\/p>\n In \u00a7 36 of the PO the VC also agrees that \u201cthe idea of the non-absolute character of property rights is legitimate.\u201d<\/em><\/p>\n Same formulation in \u00a7 38 \u201cPersonal data protection is a legitimate concern and its elevation as a constitutional matter is a positive development<\/em>\u201d but once again this correct assessment of the reform is commented by warnings of possible abuse of law. Such abuse of law however cannot be predicted, and it\u2019s very regrettable that VC is continuously making similar negative suggestions. It proves that position of VC towards Azerbaijan is unfortunately not neutral but very one-sided.<\/strong><\/p>\n Exactly similar negative suggestion is noted in \u00a7 39 : \u201cNew Section IV of Article 36 prohibits lockouts, except in cases provided by law. This provision appears to give additional protection<\/u> to the workers; however<\/u>, etcetera\u2026..<\/em>\u201d Why is VC not correctly commenting this positive reform exactly as proposed, but always looking for possible negative considerations?<\/p>\n From \u00a7 43 to 47 comments are characterized by \u201c\u2026.this modification is welcome to the extent that\u2026.\u201d, \u201c\u2026.may be problematic\u2026.\u201d, \u201c\u2026..it would be advisable\u2026.\u201d, \u201c\u2026..the proposed wording may be interpreted\u2026.\u201d, \u201c\u2026..it would be legitimate only to the extent that\u2026..\u201d, \u201c\u2026..this clause is legitimate under the condition that\u2026..\u201d, \u201c\u2026..this modification goes in the right direction, however\u2026..\u201d, etc.<\/p>\n Finally, \u00a7 48 on the contrary is clearly very positive<\/u> : \u201cArt 68 guarantees\u2026.. this is a very important principle of good State governance, and, as such, its introduction into the text of the Constitution is welcome\u2026\u2026About Section IV \u2026.. again, this is a very welcome provision: it stresses that\u2026..<\/em>\u201d<\/p>\n Institutional changes<\/strong><\/p>\n About the extension of the presidential term of office, the VC is – as could be expected – heavily critical in \u00a7 49 till 52, but in the PO they nevertheless have to admit in \u00a751 that \u201cSuch reforms may sometimes be explained by the electoral cycles of other State bodies, by a long-lasting political crisis etc.;<\/em>\u201d, but VC has its own opinion about current regional, geopolitical and social situation in Azerbaijan : \u201chowever, neither of these situations seems to apply in Azerbaijan\u201d<\/em>.<\/p>\n The country is at war with neighboring aggressor Armenia, occupying one fifth of its territory since more than 20 years, almost one million IDP\u2019s remain an enormous burden for society, the country is affected by negative foreign influence on fundamentalism entailing possible terrorism, citizens are frightened about terrible developments in Middle East, etcetera. But according VC \u201cneither of these situations seems to apply in Azerbaijan\u201d\u2026.<\/em><\/p>\n In \u00a7 53 VC concludes \u201cArticle 101 which extends the Presidential mandate for longer than is the European practice, coupled with the previous removal of the two-term limitation, concentrates power in the hands of a single person in a manner not compatible with the separation of powers<\/u>.<\/em>\u201d This is clearly a very vague and philosophical allegation, <\/strong>for sure it is NOT a solid legal consideration.<\/strong><\/p>\n In \u00a7 55 the VC is extremely harsh, calling an anticipated election of the president \u201cunacceptable<\/em>\u201d. But when it comes to arguments, they only mention that \u201dit gives an additional prerogative to the outgoing chief of State<\/em>\u201d and\u00a0 \u201cthis provision is therefore incompatible with democratic standards\u2026.\u201d<\/em> Which democratic standards? Defined by whom? Signed by which contracting states and\/or parties?<\/strong><\/p>\n When it comes to the power of the President to dissolve Parliament, assessment is quite positive in \u00a7 56 to 58 : \u201cas such, serves to harmonize Art. 98\u2026..<\/em>\u201d etc. But once again, in \u00a7 59 the VC continues with related negative suggestions and interpretations : \u201chowever, this power should be assessed\u2026..\u201d and \u201c\u2026..this may disturb\u2026..\u201d, etc.<\/p>\n From \u00a7 61 to 64 division of powers in Azerbaijan is explained, and reforms criticized. Eventually VC states that \u201cIt is true that the principle of \u201cdivision of powers\u201d is not immovable; exact limits of the presidential power vis-\u00e0-vis parliament cannot be defined once and for all. However, the reform under consideration is weakening the legislature to the extent that it may deprive<\/u> the foundational principle of \u201cdivision of powers\u201d in the Constitution of Azerbaijan of any practical meaning<\/u><\/em>\u201d. The VC remains very cautious. They don\u2019t blame Azerbaijan that it\u2019s \u201cdepriving\u201d, but they state that \u201cit may deprive\u201d. One will remember that the tone of the consideration is once again negative, even when no negative element was truly assessed, and only a negative possibility was suggested.<\/strong><\/p>\n On the failure to appoint top judges, this is a concern in many democratic countries. The pending appointment of a Supreme Court judge in the US is an example by excellence, well-known over the world. Whereas the reform is proposing an acceptable solution to similar deadlock situations, the VC once again in \u00a7 66 prefers to look at it from a negative angle \u201cthis provision represents a serious threat\u2026.<\/em>\u201d, but VC is NOT claiming that the proposed reform is illegitimate. <\/strong><\/p>\n In next paragraphs VC is continuing its intentional process : \u201c\u2026\u2026this formula is too vague\u2026.\u201d, \u201c\u2026..it may be interpreted as\u2026..\u201d, \u201c\u2026..it is dangerously vague and may be interpreted as\u2026..\u201d<\/em>, so VC in its PO concludes in \u00a7 69 without hesitation that \u201cnew Article 98-1 is therefore incompatible with democratic standards.<\/em>\u201d This kind of simplified deduction by VC is indeed dangerously vague!<\/strong><\/p>\n \u00a7 <\/em>70 to 72 describe critics on the introduction of the figure of the Vice-President. VC is again developing thesis of possibility of abuse of the law, not even trying to understand the reason of this reform. \u201cThe possibility<\/u> for the President\u2026.<\/em>\u201d is enough to declare that \u201cNew Article 103-1 is therefore incompatible with democratic standards.<\/em>\u201d, albeit not clear which precise democratic standards VC has in mind, as no reference to any official legal document is made.<\/strong><\/p>\n VC is criticizing lower age limit, saying that \u201c\u2026..it may affect the overall quality of the State governance in the country\u201d whereas the current general tendency in all European countries is to lower age limits, even till 16 year.<\/strong><\/p>\n Conclusions<\/strong><\/p>\n In the conclusions of the PO, on the procedure, the VC is regretting that Parliament was not consulted. Procedure in the current Constitution is however very clear, and the reform is fully in line with constitutional procedure. Moreover, VC admits in a previous report that legitimacy of reform is strengthened by referendum.<\/strong><\/p>\n VC is quite positive<\/strong> on reform regarding human rights, but is sometimes hesitating, and formulating some conditional interpretation.<\/strong><\/p>\n Most attention of VC goes to institutional reform. This reform is clearly not considered illegitimate, but is assessed as \u201cincompatible with democratic standards\u201d. This is obviously not a legal consideration but a normative reflection, and VC is free to formulate any considerations on political practice. It could be expected from VC however that they would be more precise, by making genuine legal assessments in this PO.<\/p>\n As this PO is addressing an international audience of expert lawyers, it is therefore a public admission of weakness. VC fails to formulate legal critics, and desperately tries to justify its biased criticism on Azerbaijan with \u201cpossibilities and maybe\u2019s\u201d, and eventually with some vague self-declared morality.<\/strong><\/p>\n Elkhan Suleymanov<\/p>\n MP of Azerbaijani Parliament, PACE member<\/p>\n Baku, 22 September 2016.<\/p>\n","protected":false},"excerpt":{"rendered":" Introduction After careful scrutiny, I defined twenty elements proving that the Council of Europe\u2019s Venice Commission (hereafter VC) preliminary opinion (hereafter PO) is not impartial in its approach towards towards Azerbaijan.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1397],"tags":[],"class_list":["post-35175","post","type-post","status-publish","format-standard","hentry","category-slideranons"],"fimg_url":false,"_links":{"self":[{"href":"https:\/\/1905.az\/en\/wp-json\/wp\/v2\/posts\/35175","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/1905.az\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/1905.az\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/1905.az\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/1905.az\/en\/wp-json\/wp\/v2\/comments?post=35175"}],"version-history":[{"count":0,"href":"https:\/\/1905.az\/en\/wp-json\/wp\/v2\/posts\/35175\/revisions"}],"wp:attachment":[{"href":"https:\/\/1905.az\/en\/wp-json\/wp\/v2\/media?parent=35175"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/1905.az\/en\/wp-json\/wp\/v2\/categories?post=35175"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/1905.az\/en\/wp-json\/wp\/v2\/tags?post=35175"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}