Sunday, March 8, 2009

Democratic Constitutional Change?

Azerbaijan's Trend News reported that Michael Hancock, a British MP from the Liberal Democratic Party and a representative to the Parliamentary Assembly of the Council of Europe, supported the democratic credentials of the upcoming constitutional referendum, stating:

"If the nation wants to scrap limits on presidential terms, then this is democratic... I monitored the elections in Azerbaijan and they took place very normally... I do not blame the government, but rather the opposition in this case because they are not playing an active role in the elections. There were some problems during the elections in my country, as well." (Quotes from the March 6, 2009 Trend News article.)

The newly re-opened Day.az (for different treatments of the closure of Day.az see APA and Eurasianet) presented the comments in a slightly different manner, noting that Hancock called constitutional changes "normal and logical." Specifically, Hancock is quoted as stating:

«После распада Советского Союза в бывших союзных республиках были приняты новые Конституции, которые, несомненно, носили временный характер. Поэтому внесение изменений в эти законодательные акты нормально и логично» ["After the dissolution of the Soviet Union, new constitutions were ratified in the former Soviet republics that, undoubtedly, were temporary. Therefore, carrying out changes in these legislative acts is normal and logical."]

Azadliq has raised questions about the Western voices supporting the referendum. Without parsing every word that Hancock reportedly said, or possible reasons for his comments, it is worth assessing the issue of "democratic" constitutional change through referendums.

The requirements for changing constitutions vary cross-nationally; holding a national referendum is not unreasonable. In Hancock's own country, changes to the basic laws (the UK has no formal constitution) are within the purview of parliament. In other countries, constitutional changes must obtain legislative approval and pass another barrier (e.g., in the United States, barring a constitutional convention, national legislative approval (2/3 votes in both houses) is accompanied by approval in state legislatures (in 3/4 of states)). Azerbaijan's parliament approved the referendum, and it is scheduled to take place in ten days. In terms of formal institutional procedures, the process falls within democratic norms.

Hancock's comments about the opposition's failure to engage ignores important contextual issues. While Azerbaijan's opposition is fragmented and was disengaged from the last presidential election in October, past repression of protests undermines mobilization efforts (see the BBC documentary: 1, 2, 3, 4, 5). Opposition groups have challenged the referendum, but most referendums in the post-Soviet region (including those in Azerbaijan) tend to favor the sitting regime and tend to succeed.

Election day procedures in Azerbaijan may also appear to be normal. On election day in October, I observed a dozen polling sites in Baku and in most cases, the procedure was straightforward and orderly. However, government influence over the media, the dominant position of pro-government forces in electoral commissions and other critical choke points, and the lack of political diversity in formal political institutions renders the process suspect. Most of the problems with elections are not manifested on election day, but rather in the process that undermines competition long before ballots are cast.

The general principle of a legislature initiating a nationwide referendum for constitutional change falls within democratic norms. Codifying constitutions during the transition may confer a temporary character on them; it is not unreasonable to modify basic laws. But, for the constitutional change to be democratic, the institutions initiating change should be selected via free and fair processes, procedures should be open and transparent, and citizens (and political actors) should have access to alternate sources of information.

UPDATE (3/09/09): I neglected to note in yesterday's post that the Council of Europe has recommended a delay to the referendum. The CoE indicated that an upcoming Venice Commission report (due on March 13) will address questions about changes to local government authority. Some elements of the constitutional reform may contradict the European Charter for Local Self-Government.

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