Research was carried out on the initiative IDI. Autor Alasgar Mammadli
Part I
Research Paper
on Improvement of Electoral System in the Republic of Azerbaijan
After the Republic of Azerbaijan declared
its independence, a new political system was determined under Constitution of
1995. According to this system, state is the only source of power in the
Republic of Azerbaijan. The people is entitled to free and independent
self-determination and sovereignly selecting form of self-government. The
Azerbaijani people exercises their sovereign right via universal elections – referendum
and via their representatives elected on the basis of universal, equal and
direct elections by free, secret and individual ballot.
The Constitution provides division of power.
The legislative branch of power – Milli Majlis (National Assembly), the head of
Executive Power, the president, as well as local self-governing bodies – municipalities
are formed via elections and carry out functions within limited periods. Every
5 years, elections to these bodies should be re-arranged, representatives of
these bodies should receive mandate from people by democratic and free
elections. The constitution-defined fateful issues of the people and the state should
be submitted to all-nation vote via referendum and should be accepted only by
nation.
Within 20 years since 1995 Constitiution
was adopted, the following elections were held: 3 elections to Milli Majlis,
held every 5 years (November 5, 2000; November 6, 2005; November 7, 2010), 4
presidential elections (October 11, 1998; October 15, 2003; October 15, 2008
and October 9, 2013), 4 municipal elections (1999, 2004, 2009, 2014) and 3
referendums including the one which adopted the Constitution (November 12, 1995;
August 24, 2002; March 18, 2009). Generally, within 4 years, from declaration
of Independence on October 18 to adoption of Constitution, there were held 2
referendums (adoption of Independence Act on Otober 29, 1991 and taking away
President Elchibey's power on August 29, 1993), 2 presidential (June 8, 1992
and October 3, 1993) and 1 parliamentary (November 12, 1995) elections. So, a
total of 21 elections and referendums were held by 16 times since independent
Republic of Azerbaijan adopted Constituion.
Except for the outcome of 1992
presidential elections (59.4%), the average votes supporting president equaled
85.5% in next 5 elections, the votes for the government-supported issue equaled
89.76% in recent 5 referendums and balance in National Asenbly was also formed
in favor of the government at approximately this percentage.
An outcome of 85-90% is never registered in
free and fair elections in democratic and pluralistic societies. Fot this
reason, outcome of any election, referendum in our country is not accepted unambiguously
and is criticized by local and international election professionals, observation
missions, free media bodies. Consequently, the election party introducing
itself as mainstream opposition, local political players being against
government policy and neutral international observation missions, have not taken
election results unambiguously and unconditionally.
Through objective evaluation, some right
arguments of this approach are apparent. In free and democratic countries, one
side has not enjoiyed crushing superiority for the recent 20-30 years. Taking
into consideration recent 5 parliamentary and other elections in Turkey, the
vote sustained by the majority- gaining and government- establishing side does
not pass an average of 42%. The vote gained by presidents who have won recent 5
presidential elections in USA does not pass 53.22%. During recent 3 elections
in France, persons elected as president in the first round gained only 41.56%
of the vote. Even in Russian Federation, where democratic institutions have not
been fully formed and is evaluated as authoritarian regime, persons elected as president
in recent 5 years, gained an average of 62.26% of votes.
Before and after every elections, this
scene underlines the problem the electoral system, election legislation, its
injustice and non-compliance with democratic principles, non-conduct of
democratic elections.
We should be able to come to common
grounds, should demonstrate a new view on our criticized election system and
its legislative basis, should be able to formalize an election system and
legislation accepted and agreed to by everybody, being fair, balanced,
respecting democratic principles, minimalizing extra interferences, should be
able to conduct elections and referendums being fair, in compliance with law
and enabling all political sides to participate. To this end, our election
system and legislation should be open to innovation, political sides should be
ready to improve and renovate.
Problems connected
with constitutional election system
The amendent made to Constitution on August
24, 2002 introduced first change to election system. The majority-prioritized mixed election system combining
majority and proportional systems resulted in full transfer to majority system.
Prevously, 100 out of 125 members of National Assembly were elected by majority
rule, one person from one constituency, the remaining 25 seats were elected
from single election constituency by proportionate rule. This proportion was eliminated and replaced by
majority election of each deputy seat from one constituency.
The introduction of this system can be evaluated
as a heavy damage to the newly-independent country's democracy. Political
organization has undeniable role in establishement of democratic political
system. Political organization is possible via political parties. Political
parties have exclusive role in preparing political staff for a bigger
organization – the state. Political preparation at political parties is the beginning
of preparation for state governing system. In case political parties do not
have place in politcial system, then inclination for collective political activity disappears and personal
initiatives come to the forefront. Not accidentally, sympathy for and tendency
of joining political parties in Azerbaijan rapidly decreased after election
system change in 2002 and elimination of proportional system, carrying
significance for political parties. Today, political parties are lagging behind
the society's political life. In today's election system, there is no
difference among political parties and any individual initiative group. Both
can nominate candidates, express support for some candidates, send observers. But
they cannot participate in elections as a representative of passive voting
right. Thus it is impossible for them to present political platform to society,
convince voters to vote for their political course, to their loyalty to implement
its political course. Because it has no place in the current system. An elector
votes for not any political party, but particular candidate. Individual has no
political affiliation. In case he refuses any political course, there is no
political and legal supposition about possible political responsibility. There
is no legal outcome of political connection with political party. In this case,
political party's attractiveness, charm is sentenced to disappear. It's not
occasional that no former faction, block, or group remained in the parliament after
system change. The parliament is only a non-political gathering of individuals.
Non-political because some one third of the parliamentarians declare themselves
to be politically nonpartisan and allege they are not linked to any political
party, political ideology and organization. Even though parliament is the place
of discussion of political views, a significant number of deputies call
themselves nonpartisan and claim they are not engaged in political activity.
World democratic practice does not and cannot include such an absurd approach
as representation of a person without political affiliation in parliament.
Actually, one of the problems is connected
with the fact that Constitution adopted in 1995 has no article indicating place
of political parties in political system and this is the source of legal
problem regarding formation of political parties in society, their activity and
place in government. For instance, Article 68 of Turkey's Constitution widely
describes establishment of political parties, membership in parties and
withdrawal from membership. It points out that political parties are main
components of democratic society. Parties are established without getting
advance permission and function within Constitution and laws. Separately, the
article indicates that it is not acceptable for political parties to encourage
change of democrtic society, republican regime, inciting people to crime, discrimination.
The Constititution also describes those who cannot become a political party
member due to profession. Political parties' receiving necessary financial aid
from state is also settled as a constitutional norm.
In a legal system with politically - isolated
parties, multi-party pluralist democracy has no chance to be established. Only
an election system with active role of political parties can instigate
organization of political parties, individuals' engagement in political
activity. And only electoral system can encourage multi-partiness, increase
parties' political role in society. In a unitary state like Azerbaijan, there
is no urgency for majority system to be applied and maintained. There is no
disbalance necessitating protection for ethno-national or religious
discrimination in disticts. There is no objective case to claim that a
Naxcivan-born will not represent Baku or a Kurdamir-born will work against
benefits of Sheki population.
In case of proportionate system, there are
equal chances for people from all districts like their representation in one
political party. The only criterion will be competition in political activity. Political
figures and political team being in the forefront and capable to lead the
society will have more chance to get votes and to be elected. Thus, political
parties will prefer competitive methods rather than some subjective criteria
and will form its display during elections in accordance with fully objective
criteria. Certainly, one more significant method of its formation will be
conduct of inter-party primaries and determine party display in election list.
One of the constitutional interferences in
electoral system is the amendment made on referendum dated March 18, 2009. Provision
stipulating "No person can be
elected President of the Republic of Azerbaijan more than twice" of Section
VI of Article 101 of Constitution was excluded from Constitution via the most
recent referendum. It paved "legal way" for one person to remain in
power for longer term. One person's remaining in power for long term creates
inclination for authoritarism in regimes where democratic institutions are
under formation and is evaluated as an impediment on the way of forming
democratic society. Not accidentally, Vladimir Putin, who has played a
significant role in political life of the Russian Federattion, did not nominate
for presidential post on 2008, as he had already served for 2 terms and enabled
Medvedev to become president. However, his political power, superiority in Duma
and public prestige enabled him to amend the Constitution to abolish 2-term
limit and occupy presidential post. Not to damage the government's democratic
image, he did not choose the way of amending legislation and the existing
Constitutional norm was followed.
Changing this norm of the Constitution is
one of the factors seriously restricting power transformation via democratic
way. Undoubtedly, persons who have long been in power are sometimes undeniably
stronger than rivals. For instance, Clinton who was elected US president in
1992, could probably have gathered more votes than George Bush in 2000. But a
democratic system obligating power transformation did not considered legitimate in. Not accidentally, the Council of
Europe Venice Commission (Commission for Democrary via Law) has declared that
"Constitutional restrictions
ensuring change of presidents in subsequent terms are of particular
significance for countries with not very strong democratic structures and
relevant cultural perceptions. According to the opinion of the Venice
Commission, the elimination of the restriction means serious setback in the way
of Azerbaijan's establishing strong democracy".
Abolishment of constitutional impediments
for democratization of electoral system, conduct of new constitutional reform
can only add positive values to building democratic society in near future. To
eliminate these constitutional obstacles, some very simple steps should be
taken:
1. A new provision "political
parties" should be added to Constitution, constitutional guarantees should
be ensured for political parties' role and place in political system, their establishment
and finance for their activity.
2. The existing electoral system to
the National Assembly in Azerbaijan should be changed completely, the majority
system should be absolutely rejected, proportional system should be introduced.
During its implementation, staged transfer can also be taken into
consideration.
a. In this case, 125 constituencies should be abolished, a unique pond- constituency should be established,
votes given to registered and legally- working parties should be collected,
divided by deputy seats and a system defining seats for parties should be
introduced.
b. Taking into consideration the parliament's
functioning, the seats in National Assembly can be increased to 200 persons.
c. The party lists can also include independent
candidates.
3. The previously existing norm of the Constitution
should be re-introduced, the new form of the provision should ban one person's
repeated candidacy excluding 2 term election irrelevant its consequency.
4. To encourage democratic habits in society,
participation in elections should be determined not only as a right but also a
duty. With exception of political parties’ boycot decisions, those refusing
participation should be punished with administrative fine.
General view
at Election Code of the Republic of Azerbaijan
Election Code was approved and enforced by
the Law of the Republic of Azerbaijan dated 27 May, 2003, N 461-IIQ "On
approval and enforcement of the Election Code of the Republic of
Azerbaijan". Over the past 12 years, the National Assembly has changed and
amended the Election Code by 17 times. They were realized at following dates:
1. The Law of the Republic of
Azerbaijan "On making change to the Election Code of the Republic of
Azerbaijan" dated November 11, 2003, N 516-IIQD;
2. The Law of the Republic of
Azerbaijan "On amending the Election Code of the Republic of
Azerbaijan" dated June 8, 2004, N 685-IIQD;
3. The
Law of the Republic of Azerbaijan "On amending the Election Code of the
Republic of Azerbaijan" dated October 12, 2004, N 771-IIQD;
4. The Law of the Republic of
Azerbaijan "On making amendments and changes to some legislative acts of
the Republic of Azerbaijan" dated December 30, 2004, N 819-IIQD;
5. The Law of the Republic of
Azerbaijan "On making amendments and changes to some legislative acts of
the Republic of Azerbaijan and some legislative acts losing validity "
dated March 4, 2004, N 856- IIQD;
6. The Law of the Republic of
Azerbaijan "On making changes and amendments to some legislative acts of
the Republic of Azerbaijan" dated June 14, 2005, N 938-IIQD;
7. The Law of the Republic of
Azerbaijan "On Making changes and amendments to the Election Code of the
Republic of Azerbaijan" dated June 28, 2005, N 957-IIQD;
8. The Law of the Republic of
Azerbaijan dated December 23, 2005 N 35-IIIQD;
9. The Law of the Republic of
Azerbaijan dated June 16, 2007, N 385-IIIQD;
10. The Law of the Republic of Azerbaijan dated June
2, 2008, N 611-IIIQD ;
11. The Law of the Republic of Azerbaijan dated
December 16, 2008, N 739-IIIQD ;
12. The Law of the Republic of Azerbaijan dated
March 5, 2010, N 972-IIIQD ;
13. The Law of the Republic of Azerbaijan dated June
18, 2010, N 1035-IIIQD;
14. The Law of the Republic of Azerbaijan dated
February 1, 2011,, N 55-IVQD;
15. The Law of the Republic of Azerbaijan dated
April 20, 2012, N 327-IVQD;
16. The Law of the Republic of Azerbaijan dated
April 30, 2013, N 632-IVQD;
17. The Law of the Republic of Azerbaijan dated April 3, 2015,
N, 1243-IVQD ;
Even though some of these changes were carried
out in coordination with different legislative acts, some were broader and more
comprehensive. For instance, before 2005 parliamentary elections, changes and
amendments were made to 58 provisions by Law dated June 28, 2005, N 957-IIQD.
Prior to 2008 presidential elections, 91 amendments and changes, more than
those in 2005, were made to the Election Code, through the Law of the Republic
of Azerbaijan dated June 2, 2008, N 611-IIIQD. The 3rd significant change was
introduced ahead of 2010 parliamentary elections, by Law dated June 18, 2010, N
1035-IIIQD. Then 33 different
provisions were changed or amended, or provisions were excluded from the Code.
More than 10 corrections, amendments and changes were made to the Code in 2011
and 2012, terms were reduced in particular. Prior to municipal elections of
2014 municipal elections, 4 different changes were made to provisions on
municipal elections by Law dated April 30, 2013, N 632-IVQD. Generally, over the past 12 years, amendments, changes
and corrections were made to some 200 provisions of the Election Code, or
provision was absolutely taken from the Code. However, opinions of political
parties, alternative political view carriers, public bodies specialized in
electoral sphere, political blocs, international election missions were not
taken into consideration before these steps were taken, no public consensus was
sought for the changes made. However, within 12 years after the Code was
adopted, different political strata, public institutions, associations,
lawyers, as well as international and regional organizations, their professional
bodies and experts in electoral sphere put forth effective proposals to improve
electoral system, to seriously update Election Code, to create socio-political
consensus and eliminate public disbelief in elections and its outcome, projects
were worked out, put into public discussion, recommendations were introduced.
But the side maintaining political will remained closed to these proposals and
researches, did not go to serious changes which could create confidence in
political sides. The changes to the Code made the existing ones more
antidemocratic, restricted opportunities, maneuvers, freedoms, or they were
included into legislation for concrete persons. (As it was in the case of Rasul
Guliyev). Some of such changes stipulated reduction of election period from 120
to 75 days in 2008, to 60 days in 2010. Correspondingly, term for signature
collecting was reduced twice, term of political campaigning from 60 to 22 days,
the place for free assembling was reduced to one in each constituency. Campaigning
opportunities in state media, elimination of voluntary financial deposit were
excluded from the Code.
Generally, there are many objective
reasons to revise the Election Code. Main factors necessitating it are establishment
of public consensus and political confidence in the society, as well as among
political sides, restoration of confidence in free and fair elections
considered basis of democracy.
Terms in
Election Code
Reducing the 120-day term to 75 days
considered for starting elections and referendums in 2008, to 60 days in 2010,
shortening of all electoral procedures accordingly, particularly, reduction of
the campaign period to 22 days are the main factors negatively impacting
formation of democratic election environment, voters' getting introduced with candidates,
their contacts with voters. Separately, shortening of terms is also restricting
ways of effective use of vote right, chances of restoring rights by investigating
complaints. The OSCE Organization for Democratic Institutions and Human Righs (ODIHR)
Election Observation Mission also criticized this point in its December 24,
2013 Final Report. The report reads: "The
general term considered in the Electoral Code for conduct of elections has been
shortened and at some moments, no sufficient opportunities were provided for
conduct of preparation work and use of opportunites envisaged by law... The
term for conduct of elections should be increased to provide broader chances
for participation of potential candidates and to provide efficiency for
management of elections. Particularly, changes should be made to deadlines for
effective use of opportunities envisaged by law in certain cases".
To resolve the problem, the terms which
existed when the Election Code was adopted should be reinstated. Particularly,
the campaign period should not be less than 45 days.
Formation of the election commissions
According to the Election Code, elections
and referendums in Azerbaijan are conducted by three-tier election commissions.
These Commissions consist of Central Election Commission with 18 members, 125 Constituency
Election Commissions (ConECs) with 1125 members and 5,273 Precinct Election
Commissions with 31,638 members. The total number of commission members is
32781. One third of all commission members each are proposed
by the parliamentary majority, minority, and by independent deputies. By law, all commission chairs are nominees of the
parliamentary majority.
In practice, representatives of both the
parliament majority and independent deputies, as well as representatives of
parties being ruling party's "satellite", but seen as
"minority" in parliament, support the same political view, take side with not justice, but the
political side they represent during adoption of decisions and this deepens disbeleif
in elections and their results.
Actually, election commissions conduct not
only parliamentary elections, but also all presidential, municipal elections
and referendums. In this case, there is no political or legal explanation to
give place in commissions for balancing purposes to nonpartisans who do not
represent any political side, do not participate in presidential or municipal
elections, as well as do not constitute a concrete side in issues taken to
referendum. Non-party deputies have supported authorities' candidate in all
presidential elections, some have even acted as lawyer of government candidate.
At the same time, at March 18, 2009 referendum, they have fully supported the
issue the government had put to referendum. In practice, nonpartisans have
always been on one side and this side has been beside the government.
As "nonpartisans" do not have
concrete structure, organization and representation in constituencies, it's
impossible fot them to nominate candidate for representation in ConECs and PECs.
Central Election Commission manual on formation of lower commissions explicitly
indicates this factor. The instructions read that nonpartisans nominate
representatives for ConECs and PECs at meeting of non-partisan citizens’
initiative groups. However, it's practically impossible and this process is
implemented directly via executive structures.
This approach has not been limited to only
nonpartisans. During the latest referendum, some opposition party leaders
represented in CEC, led the groups supporting government's position in
referendum, imposed on audience via their TV speeches the necessity of supporting
government position. That same referendum included elimination of term limit
for president, which paved way for getting away from democratic principles.
This scene is clear indication of the
urgency of re- composing election commissions by new principle. No democratic,
transparent and fair elections are held without society's and political sides'
full confidence in commissions – these claims will always exist. To eliminate
the claims once for all, commissions should be re-composed with balanced participation
of real political sides. The OSCE ODIHR also mentioned this issue in its December
24, 2013 Final Report: "To increase
impartialiy and increase public confidence in the work of election bodies,
composition of election commissions should be reviewed at all levels with
participation of all interested sides and relevant changes should be made to
Election Code".
Also, let's have a look at Joint Opinion
of OSCE/ODIHR and Venice Commission given in 2004
(#.
286/2004):“Commissions should gain confidence of main interested sides in
electoral sphere. To achieve this goal, pro-government forces should not have
priority in their composition. Existing conditions and laws do not allow to
ensure this”. See: http://www.osce.org/odihr/elections/azerbaijan/41715
All the past elections and
referendums have shown that election commissions formed on the basis of
existing principles have worked under the monopoly of ruling party, under the control
of executive power. The persons assigned for membership in commissions mainly
work in government budget-funded sectors – education, health, culture, and subordinated
to executive structures. It would be naive to think that they are independent
during election period and are subordinated other times.
The European Court of Human Rights has
recognized violation of voting right in more than 12 election constituencies,
by current election commissions and the Central Election Commission which
approves these commissions' decisions. Separately, there are plenty of cases
when no decision was adopted, but the government accepted violations and gave
compensation. International and independent local organizations conducting
monitoring of the past elections, considered none of the elections conducted by
these commissions to be in complaince with international standards, fair and
objective. Not accidentally, OSCE, which observed 2013 elections, declared that
58% of votes was counted badly or very badly. In general, after every election,
independent local institutions and international missions propose re-composing
election commisions, in a form that could create confidence in sides.
This fact shows that existence of
commissions in the Code-situpaled form has lost legitimacy. Further existence
of this nonlegitimate structure will always signify legal and political
non-confidence, deepen political non-confidence and polarization in society.
Taking this into consideration,
composition of all election commissions at all levels and positions in election
commissions (chair, deputy chair, secretary) should be re-organized in a
balanced way, on the basis of equal representation of all political parties
(between the government and its supporter and the opposition being in front of
government during all political processes or its union). Then the issue of
quorum in adopton of decisions could be revised and be adopted by simple
majority of vote.
VOTER
REGISTRATION
All citizens of the Republic of Azerbaijan over 18
years of age have the right to vote, except those recognized as incapable by a
court decision. Voter registration and voter lists
are composed on the basis of voters permanent register maintained by CEC.
On the eve of 2013 presidential elections,
according to CEC information disclosed in September, 5.016.365 voters were
registered. The figure later reached 5.145.592 including those on military
service. To the election date in 2013, voter number made 5.214.787, including
those on supplementary lists, who specified their names and included into the
list. According to the information OSCE/ODIHR Election Monitoring Mission
received from State Statistics Committee, the number of population over 18 years
of age made 6.800.000 to January 1, 2013.
The difference in numbers provided by two
state bodies made 1.600.000. Regretfully, there is no logical explanation to
this big difference. This scene underlines the problem of voter registration
and its impact on elections. The voter number taking part in the recent presidential
elections was 3.735.374. It means, some 42.8% voters against those
participating in elections remained undetermined. CEC established site (https://www.infocenter.gov.az/default.aspx)
had a search menu for voter list. Voters could search their names in this list.
The site management also conducts a poll on the site. They ask a question:
"Did you find your name in the list?" Interestingly, 46.55% of the
respondents answered "no", 48% answered "yes". This poll
also indicates that there is a serious problem with registration of names in
the voter list.
A good deal of work has been carried out
in Azerbaijan for the recent years in connection with transfer to electronic administration,
electronic unique register has been created, legislation has been updated. The
site www.e-gov.az is
functional. Majority of state bodies have been integrated to this system. The
state bodies intensively working with population have been integrated to this
system. These bodies are the Interior Ministry, Health Ministry, Education
Ministry, State Social Protection Fund, Taxes Ministry, Justuce Ministry,
Military Comissariat and others. The information of these bodies is united in
unique pool – in e-gov system. The difference between the State Statistics
Committee and CEC is surprising against the existence of such infrastructure.
Taking into consideration the state's all
opportunities, new amendments should be made to Election Code in connection
with voter registration, CEC should automaticaly use citizens unique electronic
registration register. This way, the inter-body difference can be eliminated
and no voter name will be absent from the voter list.
Free expression of those on real military
service in elections is a seriously disputable issue. Practice shows that vote
results in polling stations estblished in military units and closed
institutions is always 95% in favor of one side. As real military servicemen
factually act under orders, there are certain problems in their free expression
of themselves. Besides, it's not clear why temporary military servicemen and
prisoners should participate in election of a municipality member who carries
out function of local self-government or a deputy elected through majority
system.
To overcome the problem, relevant changes
should be made to legislation, voting right for real military servicemen should
be limited while on military service. Separately, prisoners should not be
included into voter lists and their participation in elections should be
temporarily limited. Shortly, establishment of temporary polling stations in
closed institutions should be eliminated.
Voter turnout of 50%+1 should be obligatory
in a referendum to be considered valid.
A requirement of 50% voter turnout
should be set for presidential, parliamentary and municipal elections.
Nomination and
registration process of candidates
According to Election Code, political
party or bloc of political parties should adopt a separate decision on candidate
nomination for every election constituency in parliamentary and municipal
elections, should submit all necesary documents for every constituency. This
procedure complicates to a greater extent nomination of candidates by those
bodies, makes it difficult and causes extra expenses, increases documentation.
As the working group checking voter
signatures supporting candidates and other documents, is not composed of
independent experts, registration of potential candidates is illegally
rejected. Simultaneously, general character of some provisions on basis of
refusing candidate registration, enables gorundless rejection of registration.
In practice, no objective unit of measurement is applied while checking the
signatures. Those checking randomly declare any signature to be
"false" on suppositions, declare several signatures to be false and
cross "undesirable" candidates. According to CEC information in 2010,
a total of 1412 people over 125 election constituencies took signature sheets for
nomination, some 297 of them did not return them, 1115 persons (80%) submitted
necessary signatures for registration to Constituency Election Commisions. Some
721 of them (50%) were registered for deputy seat, 394 were rejected. Thus,
every 2 out of 3 candidates nominated mainly by political parties were rejected
registration. 346 persons out of 394 rejected were participants of 5 political
blocs. While 113 out of 115 candidates of ruling party were registred, only 35
of 92 candidates representing "APFP-Musavat" bloc, 33 out of 99
candidates of "Garabagh" bloc and 17 out of 101 candidates of
"Democracy" bloc were registered. The registration percent of ruling
party was 98.26%, that of blocs was only 28%.
Strict conditions for collecting voter
signatures supporting candidate in presidential elections is also one of
serious problems. Candidates should collect at least 40.000 signatures, at
least 50 from every 60 election constituencies.
The provisions on financial deposit for
registration when signatures are not sufficient were excluded from the Code. Consequently,
in recent parliamentary elections, 72% candidates of political parties and
blocs were not registered and were artificially removed from political
competition. However, a high number submitted signature lists to constituency
commissions during 2005 parliamentary elections, only 8% of candidates was
registered.
One voter giving only one signature also causes
serious problem at elections. Competition of candidates ensures democracy in
elections. Big number of alternatives increases chance of right choice. Thus,
one person's supporting more than one candidate impacts democratic environment
only positively. Separately, supporting contestants is an issue not included in
voting process and not impacting it. In case you support more than one contestant,
you will finally vote for one candidate. But supporting democratic election environment,
more than one contestant will only contribute to promotion of developing
democracy.
To eliminate the above-mentioned problems,
registration of candidates nominated by political parties and bloc of political
parties in parliamentary and municipal elections, should be conducted on the
basis of candidates list approved by political parties and bloc of political
parties. The names of candidates on constituencies included in the decision
should be submitted to CEC when elections start. ConECs should not demand an
additional decision from political parties and party blocs. Separately, CEC
should be able to directly use register information of political parties at
Ministry of Justice, no registration document should be required from the
sides.
Voter signatures supporting candidate at
presidential candidates shold be collected without any quorum, voters should
have right to give signature for more than one candidate. Registered political
parties with organizations in at least 20% of ditsricts and their blocs should
have right to put forth candidates.
The working group checking accuracy of
candidate registration documents should be composed of independent experts,
basis for refusing registration should be concrete and registration deposit
should be applied for an alternative variant to registration. Checking accuracy
of voter signatures should be excluded from the Code for being absurd.
A voter supporting a candidate should
simply submit ID number instead of signature, and it should be enough as a
person's consent. Separately, opportunites for applying electronic signature
should be expanded, platform for online support for a candidate should be
created within www.e-gov.az system.
Pre-election campaign
Pre-election
campaign, right to freely assemble and media participation in campaigning
Pre-election campaign is one of the significant phases
of election process in elections and referendums. In this phase, candidates
explain to their voters economic, social and political programs they will
realize in case of election and try to gain their votes. From this viewpoint,
campaiging process is the most colorful phase of elections. But as OSCE/ODIHR
Election Observation Mission indicated in 2013 report "the concept of pre-election campaigning and
its description by election bodies should not restrict political actors'
engagement in political activity aside of official campaining period, or press
should not impose restrictions on covering ordinary election processes".
Campaiging is conducted via different means during
elections. The first one can be called physical contact, assemblying freely in
the same place. In this case, candidates are meeting with voters, organize
meetings, prepare and distribute ads and calendars, prepare and distribute to
voters booklets, discs, or personally meet every voter and declare purposes.
The second and most important method during
campaigning is delivering goals to voters via means of mass media. There are
serious problems in the use of both campaigning ways.
Use of the
right of freedom of assembly
The Election Code's setting only 22 days
for pre-election campaign does not physically enable to conduct wthin this
period all forms of campaiging (meetings with voters, mass gatherings,
campaigning in print and electronic media). Chances to use the right to freely
assemble and establish direct contacts with voters are restricted taking into
consideration 70 district centers and cities, over 4.500 villages and
settlements in the country. Particularly, it is more difficult during presidential
elections and referendums when campaigning should be conducted all over the
country. This aspect also restricts political parties' chance to show respect
for the country population and meet them during parliamentary elections. The election
period being very short term, along with recent general and abstract provisions
included into the "Law on Freedom of Assembly" and Election Code,
have excluded freedom of assembly as a right and has introduced this right as an
exception and opportunity subject to restrictive permission system.
The biggest obstacle on the way of
implementation of freedom of assembly is the Law "On Freedom of
Assembly" adopted on November 13, 1998 and later decorated with
restrictice norms. The law creates clear impression that its goal is to restrict
the right not to regulate it. As if this law is considered for preventing from
implementing the right to freely assemble envisaged in Constitution. The
Constitution Law of the Republic of Azerbaijan on regulating human rights and
freedoms in the Republic of Azerbaijan was not adopted in 1998, the date when
this law was adopted. Generally, it was not possible then to impose
restrictions by any law except for the cases envisaged in the Constitution
itself –war, military situation, emergency situation, as well as mobilisation.
Despite this, the law includes several restrictions and most of them are
contrary to Constitution and article 11 of the Convention.
Article 6 of the Law bans foreigners and
persons without citizenship to be organizer of peaceful gatherings with
political purposes. However, Constitution has recognized the right "for
everybody" and has not implied restriction for anybody.
According to Article 8 (IV) of this Law,
"holding a peaceful
assembly of political content can be prohibited by the decision of the relevant
body of executive power on the eve and during the period of carrying out
international events of state importance on the territories of cities and
regions where they are conducted”. This norm also directly contradicts Constitution and article 11 of the
Convention. The concept of preparation period is generally an elastic notion
and is an artificial way to restrict human rights.
Article 9 of the Law is absolutely against
Constitution and Article 11 of the Convention. Section III of the article
reads: "Conducting gatherings, meetings, demonstrations
and street processions can be prohibited in a radius of 200 meters around
buildings housing legislative, executive and court power of the Republic of
Azerbaijan". The restriction here does not
include any urgency for democratic society, or protection of any other right
and freedom. People's constituional rights have been brutally restricted
without any grounds.
The non-allowance to use freedom of
assembly envisaged in Section VI of Article 9 in places other than the
specified, the hour restriction norms in section VII for gatherings also
contradict Constitution and Article 11 of Convention. Particularly, Law has
charged relevant executive body to approve places for free gatherings and directly
authorized it to interfere in place and targets of citizens' ability to
exercise this right. In practice, every constituency has one pre-approved place
for assembly during election period and regretfully, places not suitable for
social gatherings are more remarkable in list. For years, the right to freely assemble
has been brought to the form of
right used simply during elections, absolutely forbidden or seriously
restricted in later periods. Most of political parties cannot exercise this
right in post-election period and remain subject to relevant executive body’s
"generosity". Exercizing this right without prior consent is absolutely
banned.
Evaluation of legislation gives grounds to
note that even though the Constitutional norm regulating freedom of assembly
was satisfactory, the Constitutional Law of the Republic of Azerbaijan "On
regulation of implementation of human rights and freedoms in the Republic of
Azerbaijan" adopted by the National Assembly on December 24, 2002, contradicted
the Constitution, carrying the same legal force with the Constitution, and created
conditions to restrict several moments connected with human rights, further
restricted these rights. The Law "On Freedom of Assembly" adopted
November 13, 1998, does not generally meet the requirements of either the
Constitution, or the Constitutional law adopted in 2002, or Article 11 of the
European Convention "On protection of human rights and main freedoms"
ratified by National Assembly in 2001. There is great urgency to revise the law
to include provisions protecting essence of freedom.
Article 49 of the Constitution of
the Republic of Azerbaijan regulates freedom of assembly. The Constitution stipulates
freedom of assembly for everybody. It says "everybody", and the
notion should be accepted as including not only Azerbaijani citizens, but also
everybody living in the country irrelevant of citizenship, as well as the
persons without citizenship. Section 2 of the Article reads: "Everybody is entitled to live peacefully,
armlessly, hold gatherings, meetings, demonstrations, street processions,
pickets". The article has directly indicated forms and directions of
realization of the freedom of assembly. It has openly stipulated that everybody
wishing to freely assemble, is entittled to peacefully and freely assemble by
advance warning of the relevant state body. Apparently, "warning relevant
state body" does not necessiate "getting permission" for free
assembly, it simply enables state bodies to conduct security measures. The side
wishing to freely assemble should be able to hold gathering in the place it
determines by warning. It shouldn't wait for days for reaction of the relevant
executive power to that warning. From this viewpoint, demanding permission from
those entitled to freely assemble is contradicting Constitution. The methods
and essence of free assembling are also directly indicated in the Constitution.
Forms of gatherings have been separately pointed out. Those who wish to freely
assemble, can arrange gatherings, meetings, demonstrations, street processions,
or pickets. But in all cases, these gatherings should be held in peaceful and
armless form.
Separately, Article 11 of the European
Convention on Protection of Human Rights and Main Freedoms, ratified by
Azerbaijan in 2001, has legally guaranteed the right to Free Assembly and Right
to Association. This article specifies:
1.
Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions
for the protection of his interests.
2. No
restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a democratic society in the interests
of national security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the rights and
freedoms of others. This Article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of the armed forces, of
the police or of the administration of the State.
Apparently, the first part of the article
describes freedom of assembly and association and the second part discloses on
which basis and terms can this freedom be restricted.
The most serious problem in exercising the
right to freedom of assembly and association is that legal grounds behind the
restrictions are sometimes used for obstructing freedoms. Official bodies' sometimes
try to eliminate freedom by referring in practice to restriction not freedom itself.
Article 11 of the Convention is expressing
in limited form the cases when states can limit the specified freedom. Limited
because the cases are concrete and cannot be expanded through interpretation. It
should be particularly realized correctly. Azerbaijan is a state which adopted
the Convention and applies jurisdiction of the European Court of Human Rights, and
should properly refer this practice together with legislative bodies, also the
executive bodies which have to apply these laws and international law rulings.
Like any other country which has joined the Convention, Azerbaijan should not
refer to other reasons than indicated here while restricting free assembly and
should not expand these reasons. Because it had undertaken this as national
obligation.
Freedom of association and assembly can be
restricted only on the basis of Section 2 of Article 11 of the Constitution.
They are:
for the
sake of national secutiry and public order;
prevention from disorder and
crime;
for protection of health and
morality;
for
protection of rights and freedoms of other people;
The last sentence of section 2 of Article
11 of the Convention reads that "this Article shall not prevent the imposition of
lawful restrictions on the exercise of these rights by members of the armed
forces, of the police or of the administration of the State " and has indicated for member countries which
professions can have restrictions on
freedom of assembly and association.
The logic behind this restriction is that
persons involved in armed forces, police and administrative state bodies are administering
state bodies and their joining with other purposes would not be in complaince
with state administration and protection.
It's impossible to restrict persons' right
to freedom of assembly and association in cases other than those indicated
above. For instance, it's unacceptable to legally introduce the restriction by
state bodies’ workload, insufficiency of sources, proximity of official
buildings, others’ right to leisure, arrangement of events and other reasons
not indicated separately in Section 2 of Article 11. Because Article 11 of the
Convention does not allow bringing such additional reasons and determines a
very clear framework.
As clearly see from all the mentioned,
restrictive norms in both the Election Code and the Law on Freedom of Assembly
which the Code refers to, has brought the right to freely assemble to
self-damaging role and is direct violation of constitutional rights, Article 11
of the European Convention, as well as voting rights.
This point is also being criticized in OSCE/ODIHR
final Report dated December 24, 2013: "This
approach means unnecessary restriction on citizen's right to free assembly. Given that political contestants have limited opportunity to campaign
outside of the formal 22-day campaign period, this interpretation further
restricted their ability to reach out to voters. Furthermore, contradictions in
legal requirements caused confusion among contestants as to the applicable
procedures.
In
order to further an open campaign environment and in line with previous
OSCE/ODIHR recommendations, the restrictive approach of the executive
authorities regarding the allocation of official venues for the conduct of the
campaign should be reviewed. Contradictions between the Election Code and the
Law on Freedom of Assembly on the notification or application for holding a
public gathering should be eliminated and candidates should only be required to
notify executive authorities of their intent to hold a gathering”.
By recent amendments, the Election Code is
limiting the circle of places for election campaign placards during election
and referendum campaigning. In pracice, such placards are placed in front of
each polling station. As polling stations are mainly located in schools, these
campaign placards can be glued only onto boards situated in schoolyards.
Entrance to schoolyards is limited
everywhere and school gates are closed at the end of lesson hour, as well as on
weekends. Not only voters, but also the persons wishing to stick the campaign
materials on these boards during the campaigning, face serious obstacles.
Besides, such placards are prohibited to be stick on buildings, facilities and
rooms belonging to state, included into state register and considered
historical or cultural monuments. Election campaign materials contradicting
requirements of the Civic Code of the Republic of Azerbaijan are also prohibited
to be glued to buildings and other faciities. The expression
"contradicting requirements of Civic Code" is also absolutely
indefinite. Because the Civic Code does not include a special requirement on
placement of campaign materials.
Distribution and
placement of election campaign materials should be absolutely free, technical
regulations should not limit or eliminate fundamental voting right. Restricting
norms in the Code should be eliminated.
Administrative
punishment for right to freedom of assembly
Allongside restricting use of right to
free assembly, heavy punishments have been imposed on those exercising this
right. Article 298 of the Administrative Offences Code lost its validity by the
Law of the Republic of Azerbaijan N 462-IVQD dated November 2, 2012 and new
regulatory article was added. The article's essence was as follows:
“Article 298.Violation of the
regulations to organize and hold gatherings, meetings, demonstrations, street processions
and pickets
warning is issued and a fine from seven to
thirteen manats is imposed for violating legislative regulations for holding gatherings, meetings,
demonstarions, street processions and pickets".
The new article introduced on November 2,
2012 read as follows:
“Article
298. Violation of regulations of organizing and holding gatherings
298.1. For the gathering organizer's
violating the norm defined by law for holding gatherings, meetings,
demonstrations, street processions and pickets -
physical persons are fined from one thousand and five hundred manats to
three thousand manats, or according to situation of cases, taking into
consideration personality of the violator, community
service from two hundred hours to two hundred forty hours or administrative detention of up to two
months is applied, official persons are fined from three thousand manats to
six thousand manats, legal entities from fifteen thousand manats to thirty thousand manats.
298.2. For participating in
gathering, meetings, demonstraton, street procession or picket organized not in
compliance with regulations specified by law –
fine from three undred manats to six hindred manats,
or depending on conditions of the cases, taking into consideration the
personality of violator, community service
from one hundred and sixty hours to
two hundred hours or administrative
detention of up to two months is applied.
The most remarkable point here is that
while the maximum level of fine was 13 manats in 2012, now the amount has been
increased to 30 thousand manats. It has updated the record of all periods and
has increased sanction for one article by 2.307 times. They did not сonfine
themselves to such a rise of fine, have reinforced the article sanction by community service of up to two
hundred and forty hours or administrative sentence of up to two months. The
legislators did not confine to this and added a note: "Note: In case actions stipulated in articles
298.1 and 298.2 of this Code include criminal signs, those actions result in
criminal responsibility under relevant articles of the Criminal Code of the
Republic of Azerbaijan" – thus stipulating execise of right to freedom
of assembly as the most dangerous case and criminal action.
For elections to be held free and
democratic, for voters to feel themselves comfortable, the way to the right to
free assmebly should be open. Whilst people assemble peacefully and do not endanger
society, imposition of high amount of fine on them, involving them in
obligatory work and limiting their freedoms should be unacceptable. The
sanction of this article should immediately be reduced to the level that
existed in 2012.
The way of using administrative resources
should be unambigiously closed during campaigning, candidates should be
deprived of their legally recognized priviledges and opportunities irrelevant
of their posts, equality of all candidates should be ensured.
From the start of elections, all
reconstruction, construction works, refurbishment of facilities affecting
citizen votes, should be banned. Except for cases of accidents, the period of
expenditures pre-stipulated in state and local budgets, should be banned from
the start day of elections to the day the results are declared.
Means of mass
media in elections
Legal framework
Constitution stipulates freedom of expression, press
freedom and freedom to obtain information. However, libel remains to be a
criminal act with criminal responsibility of imprisonment of up to three years.
Article 106 of the Constitution and Article 323 of the Criminal Code prohibits
dishonoring or humilating President's honor and dignity and imposes an
unnecessary restriction on freedom of expression contrary to international
standards. See the following:
Article
19 of the International Covenant on Civil and Political Rights, dated 1996 and
Sections 13 and 47 of the General Comments of the UN Human Rights Commitee,
dated 2011.
Makhmudov and Aghazadeh vs. Azerbaijan, Application
No. 35877/04, Rulings of the European Court of Human Rights
(ECHR), December 18, 2008, Lingens vs Austria, Application No. 9815/82, ECHR rulings and other cases
taken July 8, 1986.
Besides, civic defamation charges accompanied with disproportional
financial sanctions result in de facto
shutdown of media outlets. Due to web-pages remaining open and lack of direct
censorship, Internet is mostly accepted as free space. However, detentions and
persecution of online active persons are on the rise. The recent changes made
to the Criminal Code on June 4, 2013, factually applied defamation provisions on
Internet information resources. The above changes were adopted even though in
September, 2012, the Presidential Administration asked the Venice Commission
for help to write the Law on Defamation within the National Action Plan to
increase efficiency of protection of human rights and freedoms in Azerbaijan.
See: "Opinion on the Legislation pertaining to the Protection against
Defamation of the Republic of Azerbaijan" posted on: http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2013)024-e
Besides, on June 12, 2012, the Parliament
adopted amendments to laws on "Obtaining
information", "State
registration and state register of legal entities" and "On commercial secret". The
mentioned changes applied within legal framework, imposed unnecessary
restrictions on Constitutional rights to obtain information.
OSCE/ODIHR Election Observation Mission
also mentioned the issue in its Final Report, December 24, 2013: Consideration
should be given to repealing criminal defamation provisions in favour of civil
sanctions designed to restore the reputation harmed, rather than compensate the
plaintiff or punish the defendant; sanctions should be strictly proportionate
to the actual harm caused and the law should prioritize the use of
non-pecuniary remedies.
Campaigning in media
Means of mass media have always been the
most significant way of campaigning during elections and referendum. Through
these means, candidates, political parties and referendum campaigning groups
have chance to reach to a major election audience within a short period of time
and with less energy, introduce themselves and explain their program and goal.
In comparision with 2003 Election Code, the
amendment made June 2, 2008 to the Code further restricted opportunities, media
platforms to be allocated for candidates and campaigning groups were limited to
public broadcasting. Article 77.1 of the Code in previous edition read that all
broadcasters and press outlets established by state bodies, organizations and
institutions, financed through state budget, were obligated to allocate equal
place for all candidates and referendum campaigning groups. The word
"broadcasters" was replaced by "public broadcasters" in
2008 and brought into an absurd form and a seriously significant media platform
was seized from the side using passive voting right.
There are a number of broadcasters and
media outlets established and funded by state in Azerbaijan. Upon acceptance to
the Council of Europe in 2001, Azerbaijan undertook an obligation to abolish
Azerbaijan State Television and turn it into Public Television. However, the
obligation was not carried out. The State Television and radio was protected, maintained
and even expanded. Particularly, after 2008, two more state televisions (Idman
Azerbaijan (Sports Azerbaijan) and Medeniyyet Azerbaijan (Culture Azerbaijan))
and two regional TV and radios (Naxcivan State Television and Kanal 35 in
Naxcivan) and two regional radios (in Naxcivan) received license and began
operating. So the number of state TVs and radios reached 8. Today, ten TV and
radios including Public televisions are funded through state budget. Besides,
the state is annually allocating soap-operas-assigned millions of manats to
private televisions from state budget. These donations are regretfully not
spent on publicly- important issues, public contribution to political pluralism.
The government's annual financial aid to
media is rising. In 2001, 65.5 million manats was expended on state media from
state budget. This sum equaled 76.8 million dollars in 2012, 82.9 million
dollars in 2013, 84.2 million in 2014 and 84.8 million dollars in 2015. Even
though millions are spent on state media every year, regretfully, these
televisions and radios simply serve the government as a means of propaganda.
Ways for other political sides to use this opportunity are absolutely closed.
There is legal opportunity to campaign only on Public TV and radio. But in
practice, the legislative requirement to use this media outlet is used in a
limited way. During 2010 parliamentary elections pre-election campaign, curious
situation evolved as no party or political bloc other than ruling party had
registered candidates from 60 constituencies. In case the requirement of the
law was applied, besides 8 state TV and radios in government hands, public
televisions and radio should also be given to their disposal. The situation
clearly described the injustice of the regulation brought by legislation.
Having noticed that no political side except for ruling party was entitled to
campaign in public television and radio, ruling YAP refused to campaign alone
in public television and radio. CEC put aside requirement of the law, allocated
4- minute broadcast time to all individual candidates, without any legal
basis.
Legislative requirement was again brutally
violated when the 4-minute time was allocated. The requirement of article 80.5
of the Election Code "Free broadcasting time should be allocated at a time
when broader audience can watch" was violated through CEC joint collaboration
with Public TV and Radio management. The campaigning time in television was set
at 18:00. It is not "the time when broader audience can watch"
televisions. The prime-time for televisions around the world covers from 19:30
to 20:00. Curiously, the end of working time is considered the most listened for
radios as radio listeners are mainly in cars. 18:00-20:00 is the most listened
time for radios. The legislative requirement for radios was also violated at
recent elections and 21:00 was allocated for radio campaiging. So, radio
campaign period was set at prime time for TVs and at televisions- at prime time
for radios, the purpose was to have as little as possible audience to benefit
from campaign process.
Another problem was the volume of weekly campaign
time being set at 3 hours. The daily norm did not exceed 25 minutes. Daily use
of 25 minutes during 3 weeks makes only a total of 540 minutes. In 2015, the
broadcast time Public TV should allocate will makes only 540 minutes. Dividing
this figure by the number of registered candidates, one candidate receives only
1 minute within 22 days. In 2010, 540 minutes divided by 741 persons resulted
only by 43 seconds for each candidate. In 2005, 2063 candidates had only 15.7
seconds each. Allocating seconds of free broadcasting time to individuals is
not effective.
One of the serious problems in pre-election
campaign in media is campaiging in private televisions and radios. Legislation
allows private televisions and radios to act freely as campaiging platform. As televisions
cannot operate freely, they are not interested in election campaigning process.
They mainly reject participation in the process. Those participating set
abnormal price policy. During the recent elections, televisions set 3000-3500
manat for one minute broadcasting. Even the Public TV price for one minute was
not less than 3000 AZN. Official paper "Azerbaijan" set 12.000-20.000
AZN for one election banner. The prices were several times higher than
commercial ads prices.
The reason was due to Election Code
not differentiating political campaiginig material from commercial ads for their
public significance. Democratic states have very clear norm in this regard. For
instance, in USA, political ads should not be higher than the cheapest ads
within 24-hour broadcasting. If at 3 A.M., one minute ads costs USD 200, then
political ads at prime-time should not cost higher than USD 200. Analysing
taxes given by TVs in Azerbaijan, we can witness that commercial ads are bought
at very low prices. But political ads are set at extremely high prices. The
Election Code should urgently include such a regulation.
The Election Code does not entitle media to express
position in connection with elections. Namely this provision restricts
televisions' news and other programs to freely inform about campaiging.
Besides, Election Code recognizes media as a means in pre-election campaign and
as a result, coverage of any campaign is de-facto
identified with campaiging in favor of any candidate. It contradicts the Council
of Europe relevant recommendations. CE recommendations note that particularly
during election period, media and private broadcaster serving public interests,
should ensure fair, balanced and impatial coverage of election campaign through
discussions, interviews and debates, as well as news and other programs devoted
to daily developments. See the Committe of Ministers Recommendations
(CM/REC(2007)15) to member states on media coverage of election campaigns:
OSCE election observation mission report read:
"The Election Code should address
the right of voters to receive comprehensive and diverse information about
political alternatives through the media. Public service media and private
broadcasters should be legally obliged to provide fair, balanced and impartial
coverage of the election campaign in their news and current affairs programs.
Such provisions should be overseen by an independent body competent to conduct
media monitoring".
Generally, OSCE/ODIHR Election Observation
Mission's monitoring of recent presidential elections also mentioned that
candidates did not have enough access to press, and there was lack of balanced
and open exchange of views for political opportunities. Restrictive legal
framework and openly disproportional coverage of the incumbent President's activity
within campaign period further deepened the inequal conditions for candidates. It
contradicts Section 7.8 of 1990 Copenhagen Document of the OSCE and limits
voters' opportunity to make informed choice. Section 7.8 of the document
requires that "participating states
should provide that no legal or administrative
obstacle stands in the way of unimpeded access to the media on a
non-discriminatory basis for all political groupings and individuals wishing to
participate in the electoral process".
Section 7.7 of
OSCE 1990 Copenhagen Document also declares the following on campaign period: “Member countries should ensure ensure that law and public policy work to permit political campaigning
to be conducted in a fair and free atmosphere in which neither administrative
action, violence nor intimidation bars the parties and the candidates from
freely presenting their views and qualifications, or prevents the voters from
learning and discussing them or from casting their vote free of fear of
retribution”.
As a result,
the following changes should be made to the Code:
- provisions requiring
registration of candidate in 60 constituencies and provision imposing other limitations
should be eliminated;
- all televisons and radios
funded through state budget should allocate broadcast time in election process
in an obligatory way;
- This time should not be
less than 1 hour a day for every television and radio and should be only at
prime-time;
- Paid broadcast time
at private televisions, as well as public and state broadcasters should have
minimum limit, campaign hours should be at prime-time, the highest level of the
price should be set lower than the cheapest commecial ad within latest month;
- The highest price set at
periodical press outlets, online resources, sites and other media should be set
less than the cheapest commercial ad;
- From the start day of
electons, "election period" regulations should be applied in all TVs
and radios, periodicals, other media resources' news policy, both government
and opposition should be given equal coverage in news;
- Balance should be ensured, a press group with
equal participation of sides should conduct controlling function;
- Media bodies violating
regulations should receive high fines and in case they do not follow the rules
after fines, their broadcasting or publication should be temporarily ceased
till the end of the voting day.
REGISTRATION AND WORK OF OBSERVERS IN ELECTIONS
Institute of observation is very
significant during elections in terms of realizing elections' transparency
principle. Regretfully, observation is impossible without passing through a
bureaucratic system via the current Election Code. Actually, only a
non-governmental organization wishing to carry out observation mission in
elections, should be accredited at the Central Election Commission (CEC). To
this end, it should be enough for NGO to submit relevant application and copy
of state registration certificate to CEC. CEC should itself be able to have a
look at the document’s original through the Justice Ministry electronic
registry. NGO itself should determine dispatch of its observers for concrete polling
stations and giving them relevant cards. The same regulation should be set for
political parties not participating in elections, but wishing to conduct
observation.
The Election Code requirement for
observers to get registered at relevant election commissions should be applied only
to persons who want to observe elections at their own initiatives. Such a rule
opens major opportunities for organizations implementing observation mission to
express themselves before relevant instances (election commissions, courts,
etc.).
Observers of political parties
participating in elections and wishing to conduct observation (bloc of
political parties) and candidates should not at all get registered at election
commissions. The observers appointed by these subjects should conduct
observation only with cards given by these subjects. Because those subjects
actually get registered at election commissions and re-registration of their
observers at election commissions is a repeated procedure.
Requring photo for observation card should
be eliminated, because the card is considered valid when submitted together
with ID card and for this reason, there is no need for photos.
Observers' rights should be indicated
concretely and clearly in legislation, their rights should be expanded, they
should be authorised to obtain copies of voter lists, check lists, as well as
parallel count of votes.
Legislation should unambiguously specify
as obligation reception of opinions and acts compiled on elecion day by
observers and submitted to relevant election commissions. Facts indicated in
these documents should be checked during the process of determining election
results, urgent measures should be taken in case of any grounds, should be
referred to as basis in determination of election results.
During voting day, observer should use
his/her right to be in voting room of election station at any time of the day,
use dictophone and video cameras, as well as other means of modern technology.
The material observers obtain during observaton via those technical means should
be considered as evidence obtained via legal way, relevant changes should be
made to Civic Procedural Code and Criminal Procedural Code. Records of
observation cameras should also be unconditionally considered legally obtained
evidence for courts, these records should be critical at any dispute. Legal force of the
act compiled by observer should not be linked to other persons' will and should
be evaluated as one of direct evidences.
All norms on conduct of exit poll should
be excluded from the Code, any public body should freely conduct exit poll in
any polling station and constituency. As it carries public control character over
election process, getting CEC consent is of absurd nature.
-Siyasi baxımdan Yeni Azərbaycan Partiyasının proqramını həyata keçirmək üçün hansısa addımlar atması təbiidir və mümkündür. Hüquqi baxımdan bu, mübahisələndirilə bilməz. Bu, siyasi konyektur, ehtiyac baxımından qiymətləndirilə bilər. YAP belə bir siyasi çıxış edə bilər ki, o, tutalım ki, parlamentdə mövcud olan millət vəkillərini yeniləmək istəyir. Amma istənilən siyasi çıxış nəticə etibarı ilə bir arqumentə söykənməlidir. Həmin arqument əsaslı olmalıdır. YAP-ın “prezident islahat aparır, parlament bu addımlarla ayaqlaşmır” arqumenti kifayət qədər inandırıcı bir iddia deyil və cəmiyyət bu iddiaları qəbul etmir. Normalda hər kəs görür ki, parlamentin, ümumiyyətlə, fəaliyyəti prezidentinkindən daha sürətlidir. Yəni, prezidentdən gələn bütün qərarlar heç bir sorğu olmadan, əleyhinə kimsə çıxmadan, hətta 100 faiz səslə parlamentdə qəbul olunur. Hətta həmin 100 faizə əsasən özünə bitərəf deyənlər də daxil olur. Eyni zamanda hətta müxalif partiya kimi və ya digər partiya kimi parlamentdə qeydiyyatdan keçmişlər də həmin qərarların əleyhinə çıxmayıblar və ya bitərəf qalmayıblar. Dolayısı ilə belə bir siyasi qərara ehtiyac yox idi və əsaslandırılmamışdı. Amma, ümumiyyətlə, əgər belə bir ehtiyac hiss edirdilərsə, bunun yolu ilk növbədə bir siyasi partiya kimi özünün qurultayında və ya səlahiyyətli orqanında qərar qəbul etmək idi. Sonra həmin qərarı öz üzvləri olan millət vəkillərinə təqdim etmək idi. Həmin üzv millət vəkilləri parlamentin erkən seçkiyə getmək mühitini hüquqi baxımdan formalaşdırmaq üçün bir hissəsi və ya hamısı fərdi olaraq istefa verə bilərdi. Həmin istefa ərizələri Milli Məclisdə qiymətləndirilib, Mərkəzi Seçki Komissiyasına təqdim olunandan sonra MSK-nın qərarı ilə onların millət vəkilliyi statusu ləğv olunardı. Beləliklə də parlamentdə 83 və daha yüksək səs çoxluğu ilə qərar qəbul etmə və parlamentin, ümumiyyətlə, yetərsay olma baxımından lazım olan millət vəkili sayı azalmış olardı. Bu halda prezidentə parlamenti buraxma hüququ verən Konstitusiyanın 98-1-ci maddəsinin şərti formalaşardı. Və bu proses Konstitusiyaya uyğun şəkildə baş verərdi.
