The Plenipotentiary Representative of the President and the Chairman of the Supreme Majlis in Nakhchivan are two different Management Institutes

The Plenipotentiary Representation of the President of Azerbaijan has been established in the Nakhchivan Autonomous Republic (NAR). President Ilham Aliyev signed a decree on this on December 22.

Ilham Aliyev signed a decree on the appointment of Fuad Najafli as the Plenipotentiary Representative of the President of Azerbaijan to the NAR. Fuad Najafli was a member of the Supervisory Board of Sumgait Technology Park LLC (STP) and also worked for PASHA Holding. A 47-year-old Fuad Najafli is from the village of Kolani, Shahbuz region of the NAR. Chairman of the Supreme Majlis of the NAR Vasif Talybov was still called "khan", "khan of Nakhchivan" in the country. He resigned on December 21st.

According to the law, the NAR must be headed by the chairman of the Supreme Majlis. The establishment of the institution of plenipotentiary representation and the appointment of an plenipotentiary now raises a number of questions. So, after the resignation of the chairman, the Supreme Majlis must elect a new head. In this case,  who will reign government, the chairman of the Supreme Majlis or the plenipotentiary?

ASTNA asked the lawyer, head of the Public Association for Law and Development, Hafiz Hasanov to clarify these issues.

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Question: The President appointed his plenipotentiary to the NAR. He issued a Decree on the establishment of a representative office, and then appointed a representative. Does legislation, the Constitution allow this?

Answer: The President issued this Decree in accordance with paragraph 32 of Article 109 of the Constitution, which determines the powers of the President. This paragraph provides for the decision by the president, in the manner of execution, of other issues that are not within the competence of the legislative and judicial authorities. In this case, not all the issues provided for in the said resolution can be resolved by executive order. Here are the issues that contradict the powers and functions of the highest official of the Nakhchivan Autonomous Republic. And these are not the issues that should be resolved in the manner of executing other issues that are not within the competence of the legislative and judicial authorities, provided for in Article 32 of Article 109.

In addition, the Constitution does not provide for such a form of government as the institution of plenipotentiary representation. According to the Constitution, the system of separation of executive powers provides for a hierarchy - the supreme executive power, the upper executive power, the central executive power and local executive bodies. That is, the Constitution does not provide for either a regional executive authority or a regional governing body. This presidential decree created not a regional executive power, not provided for by the Constitution, but a regional governing body (structure). Thus, the plenipotentiary representation in terms of its powers and functions is a regional governing body (and not a regional executive body).

On the other hand, according to the Regulations on Plenipotentiary Representation, this structure is a structural subdivision of the Administration of the President of the Republic of Azerbaijan. The direct implementation of regional management by the supreme body of executive power cannot be considered consistent with the Constitution.

However, the absence in the Constitution of norms relating to plenipotentiary representation does not mean at all that he cannot create such a structure or perform actions that are not prohibited by law.

However, such an approach can hardly be considered legitimate. Because the principle reflected in Part 9 of Article 71 of the Constitution, according to which “everyone can perform actions not prohibited by law” applies to citizens, not state bodies. At the same time, part 10 of this Article states that public authorities can act only on the basis of this Constitution, in the manner and within the limits established by law. At present, the powers and functions of the plenipotentiary representation consist not only of the powers and functions of the executive branch.

In addition, the Constitution of the Nakhchivan Autonomous Republic was approved by the Constitutional Law of the Republic of Azerbaijan. This puts on the agenda the question of the compliance of the above-mentioned Decree with the Constitution of the NAR, approved by the Constitutional Law of the Republic of Azerbaijan.

I also note that according to the Constitution, disputes about the division of powers between state authorities should be resolved by the Constitutional Court. I think that the Constitutional Court should express its attitude to such issues.

Question: According to the Constitution, the person heading Nakhchivan is the highest official of the Autonomous Republic, and this is the chairman of the Supreme Majlis of Nakhchivan. However, this post is currently vacant. But, will there be confusion in management after the new elections to this position? That is, will not the presence of two institutions of management cause disorder in management?

Answer: The course of the processes does not give grounds to say that the post of the highest official of the Nakhchivan Autonomous Republic will be occupied in the near future. However, in any case, this post is enshrined in both the Constitution of the Republic of Azerbaijan and the Constitution of the NAR, and sooner or later must be filled. Naturally, if this position is taken, certain confusion will arise in the exercise of the powers and functions of the highest official and authorized representative.

Question: Approximately at the beginning of last year, we witnessed the creation of the institution of a special plenipotentiary representation of the president. Then there was an opinion that constitutional changes would take place in the near future, as a result of which reforms would be carried out. The Executive Power, which was considered the old institution of government, will be abolished, and this new method of government will be introduced. However, its application to NAR raises questions. Because the administration of Nakhchivan is regulated by two Constitutions - both the Republic of Azerbaijan and the Autonomous Republic. What will happen now? Can the government change the Constitution in the near future in order to change the administration?

Answer: First of all, I will note that the structures created earlier in the regions are special representative offices of the President. At present, the structure created in the NAR is not a special representation, but a plenipotentiary representation of the president. The plenipotentiary representation has a greater status than special representations in terms of powers and functions. The course of processes shows that at present management is built to a greater extent on the principle of centralization. That is, regional administration, and in some cases local administration, is carried out by the supreme executive power. This does not correspond to the principle of decentralization of administration, which is one of the principles of a democratic constitutional state. This trend allows us to say that in the future serious reforms can be carried out in management. However, in this case it is impossible to predict how this will be done.

Question: Can this change bring any positive results in management? What does experience say? Are there any positive glimpses of the new institution of governance applied to the areas liberated from occupation?

Answer: As a positive experience, I can point to the efficiency of management. That is, such control provides more flexible and direct control, and this allows you to solve problems faster. However, the ability of this type of governance to lead to sustainable, progressive and democratic governance is questionable. In this situation, no public statements have been made about the effectiveness of the special institutions of representation, which have already been applied for a certain period of time.

Question: What do you offer?

Answer: First of all, I will note that in connection with the administration in the NAR and the relations of the central government with this region, changes should be made both to the Constitution of the Republic of Azerbaijan and to the Constitution of the NAR.

At the same time, I believe that profound reforms should be carried out in the country's governance. It is necessary to eliminate parallelism in management, to carry out serious reductions in the executive structures. The institutions of executive power should cover the region, and local government as a whole should be transferred to local governments that are much closer to the people. Accountability in management should be more accountable to the people, and personnel should be selected on the basis of fair competition in accordance with their abilities. But above all, the rule of law and the equality of all before the law must be ensured.