How to be? 

The concept of “the Rule of Law” has two similar meanings:

In political theory, the rule of law is defined as a moral concept. Here, “the rule of law” refers to the grounding of public administration/government on abstract legal principles and the formation of fair rules and institutions against the arbitrariness of governments. The rule of law as a political and moral concept is regarded as a extension of the principle of justice and is considered one of the fundamental principles for establishing fair governance. 

• Another concept of the rule of law belongs to the purely legal sphere. Here, the “rule of law” is understood as the establishment and enforcement of legal norms, legal processes and mechanisms in a stable, clear and obvious manner. According to this concept, the rule of law in the political sense is a value of governance and in the purely legal sense it specifically refers to the legal system.

Thus, “the rule of law” in the first sense refers to the establishment of political governance, and in the second sense to the formation of a legal system that is part of political governance. In short, these two meanings are close to each other. Therefore, in this paper both meanings of the rule of law will be used harmoniously.

In theoretical discussions, the rule of law is reviewed in three aspects: formal, procedural and substantive.

The formal aspect of the rule of law is related to the nature of the rules applied to govern a society. All legal rules must have five characteristics: generality, clarity, publicity, stability and certainty.

If the legal norms do not meet any of these characteristics, then these rules contradict the principle of the rule of law.

The procedural aspect of the rule of law encompasses the quality of the process of enforcing rules and the institutions applying those rules. The procedural aspect determines the fundamental fairness of the processes of making, applying and debating rules for stakeholders, the accessibility, impartiality of institutions and the implementation of activities/actions in a reasonable manner. Failure to comply with these requirements would contradict the procedural and institutional aspects of the rule of law. 

The substantive aspect of the rule of law determines what substantive values the concept contains. Such values consist of different and sometimes contradictory to political and moral goals, such as the presumption of liberty, human rights and social justice.

The problem of whether the concept of the rule of law, along with its formal and procedural aspects, encompasses certain political ideals, is controversial in the philosophy of politics and law. Some authors defend the rule of law only in a formal and procedural sense. Others argue that the rule of law also includes some political and moral values and argue about what these values are.

Such controversies are not discussed in this paper. This article puts forward theses on the formal and procedural aspects of the rule of law on which there is a consensus.

Based on the foregoing, we propose the following theses regarding the formal and procedural aspects of the rule of law. These theses are developed on the basis of the Rule of Law Checklist (2016) of the European Commission for Democracy through Law (commonly known as the Venice Commission) and in agreement with those criteria: 

• The principle of legality: this principle includes the following criteria:

1. Establishing the rule of law directly and indirectly through the Constitution and its corresponding legislative framework, acts of the executive power and its protection through effective judicial review;
2. The emergence of the powers of public authorities from the existing legislative framework and the implementation of their powers in accordance with the rules established in this framework;
3. Adaptation of the national legal system to international obligations that are binding and assumed under international law;
4. Prioritizing the legislative body and non-deviation from the essence of the legislative framework of legal regulations adopted by the executive body;
5. Transparent, accountable, inclusive and democratic implementation of the law-making process;
6. Provision for exceptions to the general rule in extraordinary cases by law (legislative framework);
7. Identification of effective measures for the implementation of laws by public authorities. 

• The principle of legal certainty: this principle includes the following criteria:

1. Accessibility of the legislative framework – availability of all laws;
2. Accessibility of judicial decisions - availability of judicial decisions and clarity of exceptions to accessibility;
3. Predictability of the impacts of laws on stakeholders;
4. Stability of laws and their consistent enforcement;
5. Ensuring respect to the principle of legitimate expectation;
6. Defining the prohibition of retroactivity with respect to a particular criminal law and clearly identifying exceptions to the general prohibition of retroactivity;
7. Applying the principles of the prohibition of unlawful criminal liability - nullum crimen sine lege and the prohibition of unlawful punishment - nullum poena sine lege;
8. Application of the principles of prohibition of retrial (ne bis in idem) and the finality of judicial acts (res judicata).

• The principle of existence of legal guarantees against abuse of power and arbitrariness (injustice) of public authorities;
• The principle of equality and prohibition of discrimination before law: this principle includes the following criteria:

1. Clear identification of the prohibition of discrimination in the Constitution and the legislative framework; 
2. Determination of equality in law by the Constitution and legislative framework; 
3. Identification of equality before law by the Constitution and the legislative framework; 

• The principle of accessibility of justice: this principle includes the following criteria: 

1. The availability of sufficient constitutional and legal safeguards to ensure the independence and impartiality of the judicial institution; 
2. The availability of adequate constitutional and legal safeguards to ensure the individual independence of judges;
3. The availability of adequate constitutional and legal safeguards to ensure the autonomy of the institution of the prosecutor's office and reasonable control over that institution;
4. The availability of adequate constitutional and legal safeguards to ensure the autonomy of the advocacy institute; 
5. Ensuring effective access of persons to courts; 
6. Ensuring the presumption of innocence;
7. Provision and effective practical implementation of fair judicial standards in the Constitution and legislative framework;
8. Effective execution of court (judicial) decisions;
9. Establishing a system of Judicial Constitutional Review and ensuring its effective work.

What to change? 

In fact, the rule of law does not exist in Azerbaijan. Instead of the rule of law, the current government applies the following mechanisms:

1. Dry legalism;
2. Procedural injustice;
3. Total arbitrariness of public authorities.

Dry legalism is the legacy of Soviet totalitarianism to the current government. Dry legalism is the adoption and enforcement of laws that do not meet the formal and procedural requirements of the rule of law, are developed in the spirit of atheist and do not count to human rights standards.  

Dry legalism refers to the availability of certain rules in a particular area and their compliance with the qualitative characteristics of the rule of law is of no significance.

The current government also applies dry legalism in law enforcement. The people of the country are bound by the rules as part of the legalism. The substance and essence of these rules are not disclosed. Even when these rules are not followed, people are punished harshly and unfairly.

The people of the country have to resort to corrupt means to avoid being subjected to such unfairness and injustices under such legalism and try to ensure their security through corrupt means. This situation not only sets the stage for widespread corruption in the country but also deteriorates the civic ethics. At the same time, such a situation makes the population dependent on public authorities. Thus, entrepreneurs, employees, intellectuals, people of art (artists), individual professionals and others fall victim to the concept of dry legalism, as a result of which they avoid socio-political participation due to their dependence on the corruption of public authorities. As a result, they are unable to effectively influence the decisions of public authorities on their fate. 

The second mechanism of the current government against the rule of law is procedural injustice. No free and fair elections have been held to any organization in Azerbaijan since 1995. That is, the people involved in the process of decision-making and implementation of decisions have not been formed by the active will of people. Therefore, elected officials in state bodies do not consider themselves dependent on citizens. Instead, they become dependent on the current government. As a result, the governance in Azerbaijan today contradicts the will of the people, i.e. the governed. The current government runs the country according to the collective interests of the ruling political elite rather than the common interests of the people.

In addition, the current government is trying to limit any form of public participation. In most cases, public opinion is not able to exert its influence on the government. Thus, citizens are under no circumstances able to participate consistently in the decision-making process. 

Since political positions are not formed by the will of citizens, appointed officials do not reckon with the will and needs of the citizens. For example, the judicial institution is completely under the control of the present government. There is a justified perception in the public opinion of the country on the injustice of the courts. Therefore, the population of the country tries to solve its legal problems by extrajudicial means. And this situation leads to “underground justice”, which, in turn, destroys the culture of law in the country.

Another mechanism of the current government against the rule of law is the total arbitrariness of public authorities. Public authorities apply laws as they please. They abuse the laws to secure their personal interests mostly through corrupt means.

Moreover, the current government and its power structures abuse criminal laws and related legal instruments to make people feel fearful as part of the total political repression in the country. As a result, such situations contribute to the expansion of arbitrariness and create an atmosphere of illegality. People try to protect themselves by various means in an atmosphere of illegality. This destroys the foundation of Azerbaijan as a society. For this reason, the arbitrariness of public authorities poses a serious threat to Azerbaijani society. 

How to change it? 

Achieving the rule of law is difficult because it requires a long and consistent effort. Serious efforts shall be made to address the consequences of the degradation caused by the absence of the rule of law. 

The Third Republic Platform has the will and experience to make serious efforts to achieve the rule of law. To this end, we aim to take the following actions for the transition from the current regime of arbitrariness to the system of the rule of law:

1. Adoption of a new Constitution (constitutionalism):

• The prerequisite for achieving the rule of law is the adoption of a new Constitution. For this purpose, we shall get rid of the 1995 Aliyev Constitution, as well as the constitutional traditions of the Soviet and post-Soviet Russian, which formed the basis for the Aliyev Constitution. The new Constitution should be in the spirit of advanced world values. However, in order to ensure the mobility of constitutionalist practice, the new Constitution shall be developed in a laconic content and structure. Two fundamental aspects of state-individual relations - the structure of state administration and guarantees of human rights - shall be clearly and precisely reflected in the new Constitution. The transition from the existing Aliyev Constitution to the new Constitution shall be carried out in accordance with the legal criteria (criteria of the formal aspect of the rule of law). Drafts of the New Constitution shall be continuously introduced to for public discussions.  

1. Adoption of a new legislative framework (codification):  

• Replacing the Aliyev Constitution with a new one is not sufficient to really ensure the rule of law. Meantime, a new legal framework shall be created. Accordingly, it is necessary to conduct a thorough examination of all major legislative acts and replace this legislation with new legislation based on new principles and rules. Legislative acts that allow excessive regulation shall be abolished. In order to eliminate and update the existing legislative framework, new draft laws/bills shall be continuously introduced for discussions. 

1. Reconciliation of national law with international law (international implementation):

• All necessary measures shall be taken to reconcile national law with international law. At the same time, the international legal obligations that the Republic of Azerbaijan is unable to fulfill shall be reviewed and necessary reservations (provisos) shall be added to the international treaties, which we have acceded based on the principles of goodwill. To achieve these goals, it is necessary to establish mediation institutions separate from international law.

1. Elimination of arbitrariness of public authorities (administrative reform):  

• Public authorities shall be reformed, unnecessary public authorities and staffs shall be permanently abolished, public authorities shall act according to clear instructions and guidelines. It is necessary to enact a new administrative law on the status of employees in public authorities. Judicial safeguards against arbitrariness shall be strengthened.

1. Ensuring the independence of the judicial institution (judicial reform): 

• It is necessary to completely renew the staff of the judicial institution, to activate the mechanism for ensuring the independence of the Judicial Council, to provide the transition to a unified judicial system for optimizing new appointments, as well as to increase the efficiency of the provision of the Constitutional Court. Justice reform shall also aim at eliminating the institutional dependence of the prosecutor's office on the executive power and achieving the autonomy of the prosecutor's office under judicial control.

1. To achieve the above objectives, a new parliament shall be formed through free and fair elections based on a fully proportional and reasonable electoral threshold.
2. A fair and reasonable transitional regime shall be ensured until the above objectives are achieved.