THE PRELIMINARY OPINION Of the Central Election Headquarters of Musavat PartyOn 26 September 2016 Referendum

Musavat Party Central Election Headquarters considers that, the 26 September 2016 referendum was held in the atmosphere of absence of explanation of essence, necessity of suggested amendments and changes by the initiators of the draft without presenting it to the Venice Commission of the Council of Europe for its opinion, lack of free political competition, equal campaigning and observation opportunities, absence of legislation meeting international standards.

The Venice Commission of the Council of Europe stated its preliminary opinion with regards to proposal of the Azerbaijani authorities to conduct a referendum and in connection with the issues raised at the referendum.

The preliminary opinion underlines the demonstrations of the Azerbaijani opposition against anti-democratic amendments and its position on reactionary amendments and changes proposed to the referendum.

«Majority of proposed amendments grant president unprecedented powers, which can significantly affect the power balance” – is stated in the Venice Commission opinion.

The wish of the Azerbaijani authorities to conduct the referendum as a secret event with keeping the issues raised at the referendum by the Azerbaijani authorities hidden from the people of Azerbaijan and the international organization, in front of which it has taken obligations.

After announcement of the referendum fundamental human rights and freedoms have been further limited, number of political prisoners have increased.

Due to voters being uninformed about the issues raised at the referendum, lack of confidence in possibility to achieve positive changes through vote, along with absence of belief in election results not to be falsified the referendum did not cause public interest.

The 26 September 2016 referendum failed to meet international standarts set by UN, Council of Europe, OSCE and other influential institutions similar to elections held in our country in previous years (presidential, parliamentary, municipal, referendum) and failed to fulfill the obligations taken in front of these institutions.

Numerous recommendations of the OSCE, EU, CoE, Venice Commission and other respected international organizations for the purpose of free and fair elections in Azerbaijan have not been taken into consideration.

Ilham Aliyev did not adhere to requirement to adopt the amendments to the Constitution through the parliament as a constitutional law. Proposing amendments and additions based on the opinion of the Constitutional Court is contrary to the Constitution and puts the legitimacy of the referendum under suspicion from the beginning.

The Head of State signed a decree on 18 July 2016 on sending the Referendum Act of the Republic of Azerbaijan on Amendments to the Constitution of the Republic of Azerbaijan to the Constitutional Court. According to the Referendum Act, it was envisaged to propose amendments and additions to 23 articles of the Constitution (9, 24, 25, 29, 32, 36, 47, 49, 53, 56, 57, 58, 59, 60, 68, 71, 85, 89, 100, 101, 105, 121, 126), along with amendments to 6 articles (98, 103, 106, 108, 110, 146). Although the name of the decree was on Amendments to the Constitution of the Republic of Azerbaijan, it is evident from the official text that, it is envisaged to add 6 new articles to the Constitution.

The Constitution of the Republic of Azerbaijan envisages the following as an imperative norm of making amendments and additions to the Constitution.

Azərbaycan Respublikası Konstitusiyası, Konstitusiyaya dəyişiklik və əlavələr edilməsi qaydalarını imperativ norma kimi aşağıdakı şəkildə müəyyən edir:

Article 153. Procedure of proposal of amendments to the text of the Constitution of the Republic of Azerbaijan. If proposals about amendments to the text of Constitution of the Azerbaijan Republic are presented by Milli Majlis of the Azerbaijan Republic or the President of the Azerbaijan Republic, then Constitutional Court of the Azerbaijan Republic should give its opinion beforehand.

According to the article 156 of the Constitution of the Republic of Azerbaijan the procedure of adoption of additions to the Constitutions is as follows:

Article 156. Procedure of adoption of additions to the Constitution of the Azerbaijan Republic.

I. Additions to the Constitution of the Azerbaijan Republic are adopted in the form of Constitutional laws in Milli Majlis of the Azerbaijan Republic, by majority of 95 votes.

II. Constitutional laws on additions to the Constitution of the Azerbaijan Republic are proposed for the vote in Milli Majlis of the Azerbaijan Republic twice. The second voting shall be held 6 months after the first one.

 III. Constitutional laws on additions to the Constitution of the Azerbaijan Republic are submitted to the President of the Azerbaijan Republic for signing in an order envisaged in the present Constitution for laws, both after the first and after the second voting.

IV. Constitutional laws on additions to the Constitution of the Azerbaijan Republic become valid after being signed by the President of the Azerbaijan Republic after the second voting

V. Constitutional laws are integral part of Constitution of the Azerbaijan Republic and should not contradict with the main text of Constitution of the Azerbaijan Republic.

It is evident from the aforementioned provisions that, the amendments to the Constitution of the Republic of Azerbaijan can be made by basing on the article 153 of the Constitution of the Republic of Azerbaijan after receipt of opinion of the Constitutional Court of the Republic of Azerbaijan through a referendum. Additions to the Constitution of the Republic of Azerbaijan can be made by basing on the article 156 of the Constitution of the Republic of Azerbaijan in the form of constitutional laws adopted by the Milli Majlis of the Republic of Azerbaijan. Constitutional laws on additions to the Constitution of the Republic of Azerbaijan are adopted in the Milli Majlis of the Republic of Azerbaijan after voting for it twice with 6 month in between.

According to the article 5.2 of the Constitutional Law on Normative Legal Acts of the Republic of Azerbaijan, this law is applied to preparation of referendum acts as well.

a) the preparation of the draft referendum act should be well planned (article 41.1);

b) information about this should be included to the annual plan on preparation of draft laws mutually agreed by the Milli Majlis of the Republic of Azerbaijan and the President of the Republic of Azerbaijan (article 42.1).

c) the expert opinions and list of authors should be included to the draft.

According to the article 49.1 of the Constitutional Law on Normative Legal Acts of the Republic of Azerbaijan, legal examination of the referendum acts is compulsory. But when the draft was sent to the Constitutional Court none of the above compulsory procedures were fulfilled.

On 21 July 2016 Musavat Party appealed to the Constitutional Court with regards to the Referendum Act, which was sent to the Constitutional Court for review and called the Court to state negative opinion with regards to the draft.

Musavat Party underlines the following in its appeal: “Some of these amendments are forbidden by relevant provisions of the Constitution. According to the article 155 of the Constitution, abolition of human rights and freedoms envisaged in the chapter III or their restriction further than envisaged in the international agreements signed by the Republic of Azerbaijan cannot be proposed for referendum.

But the proposals to the articles 29, 32, 42 and 49 restrict human rights and freedoms. The powers of the president were high in the Constitution already. Increase of the president’s powers will further violate the balance between the branches of power, will pass sovereignity of power from people to the president and will transform the legislative branch into sub-branch of the executive branch.

Transformation of the principle of separation of powers in favour of the president so much is more characteric to monarchy rather than republic. On 26 July 2016 the Constitutional Court presented a positive opinion about the referendum draft. On the same day the head of state signed a decree ordering conduct of referendum on 26 September 2016.

Musavat Party decided to establish an initiative group called the Republic to campaign against the referendum. NIDA Civic Movement and D18 Movement actively supported the Republic initiative group and participated in its signature gathering campaign. ReAL Movement decided to create an initiative group as well. Some political parties and organizations have also made statements about inadmissibility of this referendum draft and called people to say “no” to it.

Despite attempts of the public and political organizatons operating in Azerbaijan, the Azerbaijani society in general, along with the international organizations to ensure political reforms for securing of democratic rights and freedoms, the opportunity to launch democratic and economic reforms in the country has not been used.

PRE-ELECTION ENVIRONMENT

The Azerbaijani authorities, which continued its efforts to create a one-party system after the parliamentary elections in 2015, now enhanced its attempts to centralise power in the hands of just one family.

Falsification of the previous parliamentary elections resulted in leading opposition parties not being allowed to the parliament. Obstacles were created to their activity this time prior to the referendum as well.  One of the leaders of ReAL Movement, which created an initiative group prior to the referendum to campaign against it and wanted to start the process of collection of signatures, Natig Jafarli was arrested and fabricated criminal case was launched against him. Only after international intervention Natig Jafarli was released from prison, but the criminal case continues.

Freedom of assembly is not ensured. The requests of the opposition parties, public organizations with regards to rallies, demonstrations and pickets to local and central executive structures have been rejected without showing any serious reason or stating that, holding a demonstration would not be expedient and have been rejected contrary to the law on Freedom of Assembly. Only one place has been assigned for demonstrations in Baku and it has not been allowed to hold rallies or pickets since 2005.

Condition of media:

TV channels in Azerbaijan campaign for the authorities and against the opposition. Instead of ensuring political pluralism in the country the Public TV channel, which was established in accordance with the demands of the Azerbaijani public and the Council of Europe, is busy campaigning for the authorities and against the opposition and is engaged in its commercial activity just all the other channels.

Independent media is under pressure and harrassment. Pro-opposition “bastainfo.com” has been subject to hacker attacks since the beginning of its work on a number of occasions. Due to information on this website its punishment was discussed in the Azerbaijani parliament and it was appealed to the Press Council with regards to that. Azadliq newspaper was fined by a court as a result of a political order due to its criticism of the government. Baku office of the Azadliq radio has been closed. Meydan TV’s leadership and journalists has been under constant pressure. Meydan TV’s journalists has been banned from going abroad. Prominent journalist Seymur Hazi, blogger Abdul Abilov, Fikrat Tahmazoglu and others are in jail.

Despite consistent and long-standing work of political and public organizations, along with international structures operating in Azerbaijan, the political prisoner problem has not been solved in the country.

Number of political prisoners have increased in the country. Deputy chairman of Musavat Faraj Karimov, deputy chairman of PPFA Fuad Gahramanli, director of Azadliq newspaper Faig Amirov, leader of ReAL movement Ilgar Mammadov, members of NIDA Civic Movement – Ilkin Rustamzada, Giyas Ibrahimov, Bayram Mammadov, Elgiz Gahraman, former minister of healthcare Ali Insanov, religious activists Movsum Samadov, Abgul Suleymanov, Taleh Baghirzada, who have been subject to severe torture for being arrested due to Nardaran events and many others arrested for political reasons are currently in prison. Significant number of them have been recognized as prisoners of conscience by Amnesty International.

Law violations on the eve of the referendum: political arrests and persecution

On 12 August 2016 the executive secretary of ReAL Movement, prominent economist Natig Jafarli was arrested and he was accused in connection with a number of provisions of the Criminal Code and 4 month arrest was chosen as a restrictive measure against him by the Nasimi District Court. After the court hearing search was held in his house and jewelry belonging to his wife and documents of the house were taken. A month later restrictive measure was changed, but fabricated criminal case against him continues.

PPFA member Masud Rzali was sentenced for 30 days of arrest on trumped up charges.

Member of NIDA Elgiz Gahraman was arrested on drug charges. He faced severe torture on the first days of his arrest.

Two members of ReAL Movement Togrul Ismayilov and Elshan Gasimov were sentenced to 7 days of arrest.

During the court hearing of NIDA member Elgiz Gahraman at the Baku Appeal Court one of the leaders of NIDA Turgut Gambar was taken to the Baku City Police Department and was illegally held thee for 4 hours. On the same day journalists Aytaj Ahmadova and Ilgar Valiyev were detained.

Director of Azadliq newspaper Faig Amirli was arrested charged with relation to the Fathullah Gulen network, which is accused of the coup d’etat attempt in Turkey.

During the process of signature collection Musavat Party activists were harrassed. During the signature collection campaign obstacles for this process were created by local executive structures in Jalilabad, Masalli, Neftchala, Salyan, Shirvan, Agjabadi, Tartar, Absheron, Gazakh, Ganja and other regions.

Signature collectors and their families were harrassed. Signature lists were stolen.

- local executive authorities took various steps to steal full signature lists. Representatives of local branches of Musavat were harrassed, encouraged, intimidated. Cars, which were thought to have signature lists were searched by police and traffic police.

- Representatives of the State Security Service of Salyan district together with the police harrassed the chairman of the Salyan branch of Musavat Party and tried to take signature lists from him.

- Deputy chairman of the Sumgayit City branch of Musavat Party Sarvan Valiyev faced pressure from the district police officer while collecting signatures.

- Signature lists were stolen during signature collection for the Republic initiative group in Jalilabad, Ganja, Tartar, Absheron and Siyazan.

- Chairman of the Gazakh District branch of Musavat Party Ilgar Mustafayev faced harrassment by representatives of local executive power and police for signature collection.

- In Jalilabad Musavat activists held the person, who stole signature lists and gave him to police, but the police did not take any measure.

- In Gobustan Musavat activists collecting signatures for the Republic initiative group were harrassed, their signature lists were taken away, ripped apart, in general it was not allowed to collect signatures in this region.

- In Masalli Jamila Eynullayeva was summoned to the prosecutor’s office for collecting signatures.

- Member of Majlis of Musavat Party Rufat Bakhishbayli was threatened with arrest by local executive structures for gathering signatures.

 - Council member of the Masalli District branch of Musavat Party Tarlan Abbaszada was summonned to the prosecutor’s office for gathering signatures for the Republic initiative group and he was warned.

Chairman of Musavat Party Arif Hajili was summonned to the Baku City Police Department and the deputy chairman Sakhavat Soltanli was summonned to the Garadagh District Police Department and faced illegal pressure in connection with the protest action held by the party.

Father-in-law of the member of Sumgayit City branch of Musavat Party Parvin Israfil, Rizvan Gurbanov was threatened by local executive authorities for Parvin’s facebook posts and activity during referendum campaign and sentenced to 20 days of arrest.

ELECTION LEGISLATION

Proposals with regards to democratic reforms in the electoral legislation, including recommendations of the Venice Commission were not fulfilled. Formation of electoral commissions, organization of elections and voting, principle of vote counting, development of complaint review procedure have not been carried out, shortcomings with regards to organization of duties and observation of the electoral commissions were not liquidated despite insistence of local political and public organizations, along with international structures. As a result all electoral commissions, including the Central Election Commission is under control of the government with decisive vote majority.

VOTING LISTS

The voting lists for the 26 September 2016 referendum were prepared with a large number of irregularities. It was not possible to determine the polling stations of voters, who were evicted from a territory called the Winter Boulevard of Baku. Hundreds of repetitive voters’ names are seen in the voting lists. A voter’s name is both in the list of the polling station of his registration and in the list of the polling station of the temporary place of his residence in Baku. Voters, who have left their regions and got registered in Baku permanently, find their names in the voting lists of polling stations in accordance with their previous registration. Hundreds of opposition minded voters were not placed in the voting lists.

Difference in the number of voters statistic of the CEC and the State Statistics Committee also prove the attempts of the authorities to falsify elections. According to the CEC, there are currently 5,1 million voters in Azerbaijan, while according to the State Statistics Committee there are 6,6 million voters. Official structures do not make official statements with regards to 1,5 million difference in the number of voters. Decreasing of number of voters by 1,5 million is linked to 25% of necessary turnout for validity of the referendum. Simple math shows that there is a large difference between 25% of 6,6 voters and 25% of 5,1 million voters.

CAMPAIGNING

Musavat Party was the only opposition party, which created preliminary initiative groups in 41 regions to carry out campaign against the referendum within the framework of the electoral legislation. On 2 August 2016 the Republic initiative group was founded with participation of 223 elected representatives from the aforementioned groups and on 4 August 2016 these documents were presented to the CEC. Signature lists were taken from the CEC and within 11 days more than 41000 signatures were gathered together with NIDA Civic Movement and D18 Movement and these signatures were presented to the CEC. But the CEC considered more than 3000 signatures “invalid” and refused to register the only pro-opposition initiative group. Musavat Party complained from this decision of the CEC. These courts controlled by the executive power upheld this illegal decision. As a result it was not allowed to voice alternative thought and especially campaign against the referendum during the campaigning period.

The principle of equal campaigning opportunities was severely violated. CEC’s decision on refusing to register the Republic initiative group created by Musavat Party on absurd pretext served absence of campaigning. After refusal to register the Republic initiative group, already registered Yeni Azerbaijan, Civil Society and Municipality initiative groups gave up their right for free air time. As a result Azerbaijani people were left uninformed about the issues raised at the referendum.

Musavat Party and the National Council have organized protest actions with regards to the referendum. Before, during and after the protests hundreds of opposition activists have been arrested. Journalists, who have been covering the demonstrations were subject to pressure.

Decreasing of pre-election campaigning period from 60 days to 21 led to limiting of interaction with voters and restriction of campaigning and decrease of interest in election process.

The authorities did not organize public discussions on the issues proposed for referendum, on the contrary such discussions were prevented by not allowing such debates and discussion of the referendum topic on TV channels.

Although it was complained from the baseless decision to reject registration of the only initiative group established by the opposition in connection with the referendum, the Republic initiative group of the CEC to the Appeal Court, it upheld the decision of the CEC. This prevented public manifestation of alternative thought with regards to issues raised at the referendum.

ELECTION DAY

The CEC restricted obsevation of the referendum by illegally refusing to accept the requests of more than 250 representatives of the Republic initiative group to become nation-wide observers.

According to the Electoral Code, 125 electoral constituencies and 5415 polling stations were established.

Representatives of the organizations opposing the issues raised at the referendum, who independently participated in observation at polling stations, revealed numerous irregularities and fraud on the election day.

Information about irregularities and fraud was received by voters and independent observers as well. Along with that, detailed information, photographs and videos about such facts was spread by the media in Azerbaijan.

Irregularities took mass character throughout the country and were in favour of the side interested in conduct of the referendum.

Various kinds of irregularities and fraud was observed during the voting:

Information about voter turnout was being aggravated from the beginning. As a result, number of voters turning out to the polling stations were not more than 10-12% of voters in the voting lists throughout the country.

It was observed that, the voters entering the polling stations stayed for a very short period in the voting cabins, which was not long enough for voting on each of the questions, let alone read the proposals.

Ballot counting, their storage and presentation to the voters was not held in accordance with the legal procedure.

Administrative resource was used on mass scale on the election day, the state structures were busy ensuring participation of their employees in the vote. As a result of pressure by the authorities even private business structures were forced to bring their employees to vote under special supervision.

The “carousel” method was used in all electoral constituencies, which means various groups voting in a number of polling stations.

The cases of full ballot boxes being brought to the polling stations even before the start of the voting were observed.

The cases of ballot stuffing by electoral commission members and outside persons were observed.

People without ID documents, people whose names were not on the voting lists and who were registered in other territories and those coming with a number of ID documents were allowed to vote.

A large number of voters have voted through documents allowing to vote outside of their polling stations.

Final (carbonized) election protocols were not filled in the polling stations.

Copies of the election protocols were not hung on relevant boards.

Votes were not counted in a large number of polling stations at all.

Election protocols were filled with figures, which have nothing to with real figures.

The Central Election Headquarters of Musavat Party have gathered information from impartial observers about irregularities and fraud on the election day, along with information from various voters and made them public. Gathering of such information continues.

Thus:

 - there was not a democratic pre-election atmosphere in the country;

- people were not informed about the essence and necessity of issues raised at the referendum;

- the procedure of adoption of additions to the Constitution proposed for referendum was carried with violation of the constitutional provisions;

- a number of political prisoners prior to the referendum was high;

- opposition parties and organizations were not allowed to operate freely;

- there was a lack of atmosphere of political competition in the country;

- freedom of assembly was not ensured;

- legislation base capable of ensuring democratic elections was not established;

- recommendations of the Venice Commission of the Council of Europe on democratization of the Electoral Code was not taken into consideration;

- in all of the electoral commission the ruling party had the majority vote;

- creation of pro-opposition campaigning groups was illegally prevents, equal opportunities for campaigning were not created for the sides;

- numerous irregularities and falsification incidents took place on the election day.

Information, calculation of observers and voters at different stations received by the Central Election Headquarters of Musavat Party allow to confidently claim that, voter turnout was significantly aggravated through numerous falsification and irregularities. Real figures show that, the real voter turnout was not higher than 10-12% of voters in the voting lists.

CONCLUSION

1)      The 26 September 2016 referendum is invalid due to less than 25% of voter turnout.

2)      The referendum was neither free, nor fair.

3)      The official results of the referendum do not reflect the popular will

4) The fact that, vast majority of the voters did not take part in the 26 September 2016 elections once again proves that, the people are against centralisation of power in the hands of the clans of the authorities and are loyal to republican values.

Musavat Party demands cancelling of results of the 26 September 2016 referendum