Azerbaijan's Constitution: Drafting and Institutional Transition in 1995

The 1995 Constitution addressed the institutional construction of an independent state. After independence in 1991, the Soviet-era Constitution of 1978 remained applicable insofar as it did not conflict with the independence act. On 2 May 1995, the Milli Majlis approved the membership of a new constitutional commission, drawing members from the legislative, executive and judicial branches and the legal profession. President Heydar Aliyev chaired its work.

The commission submitted a complete draft constitution. Under the procedure established by the 1991 independence act, a new constitution had to be decided by a nationwide referendum. On 3 October, the Milli Majlis set the referendum for 12 November, linking drafting, parliamentary selection of the voting date and the electorate's decision as three successive steps.

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The constitutional referendum took place on 12 November 1995, on the same day as parliamentary elections. The Central Election Commission subsequently announced a turnout of 86 percent, with 91.9 percent of participants voting in favor, exceeding the required 75 percent approval threshold. These were the officially announced results recorded in the report of the joint OSCE/UN observation mission.

The new Constitution entered into force on 27 November. Its transitional provisions fixed commencement at the date of official publication following approval by referendum and repealed the 1978 Constitution. Thus 12 November was the date of popular approval, while 27 November was the date on which the new fundamental law replaced the old one.

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Article 7 defined the state as a democratic, law-governed, secular, unitary republic, assigning legislative power to the Milli Majlis, executive power to the President and judicial power to the courts. The original version provided for 125 parliamentary deputies serving five-year terms, elected through a combination of majoritarian and proportional representation systems. The President was also directly elected, with the original Article 101 prescribing a five-year term.

Within this structure, the President held extensive executive appointment powers: appointing and dismissing cabinet members, submitting the budget to parliament, nominating judges of the Constitutional Court and other higher courts, and appointing and dismissing heads of local executive bodies. The President appointed the Prime Minister with parliamentary consent; if parliament violated the decision-making procedure or rejected candidates three times consecutively, the President could make the appointment independently. The Cabinet was accountable to the President, giving central and local administration a clear relationship of presidential leadership.

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The Constitution's rights provisions covered equality before the law, equality of women and men, freedom of speech and belief, peaceful assembly and freedom of information. Article 50 expressly guaranteed freedom of the mass media and prohibited state censorship. Article 60 allowed individuals to challenge decisions, actions or omissions of state bodies and officials in court, while Article 61 established the right to legal assistance. The presumption of innocence and exclusion of illegally obtained evidence were also written into criminal-justice safeguards.

These provisions also assigned obligations to state institutions. Article 71 required the legislative, executive and judicial branches to respect and protect constitutional rights, and Article 147 gave the Constitution supreme and direct legal force. Under Article 130, a nine-judge Constitutional Court could, at the request of the President, parliament and other specified bodies, review the constitutionality of laws and administrative norms and resolve disputes over powers among state institutions.

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The transitional provisions did not require every institution to be reconstituted on the day the Constitution entered into force. The previously elected President continued to exercise the powers granted by the new Constitution, and the Cabinet likewise acted under the new provisions. The former parliament's powers ended at the first meeting of the new parliament. Existing laws remained valid insofar as they did not contradict the new Constitution, while existing courts heard cases according to the new constitutional principles.

The powers of local Soviets of People's Deputies ended when the new Constitution entered into force, and their former functions passed temporarily to local executive bodies. The text required legislation on local self-government and municipal elections within two years, as well as a law on the Constitutional Court and establishment of that court within one year. Until the court was established, most of its constitutional powers would not be exercised. These explicit transitional arrangements show that legislation, appointments and institution-building remained to be completed after entry into force; the periods in the text were the deadlines prescribed at the time.

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The joint observation mission sharply criticized the parliamentary elections held on the same day, concluding that campaigning, voting and counting failed to meet international standards in many respects and recording interference by administrators, multiple voting and disorderly counting. The Constitution's promises of freedoms and judicial remedies therefore faced practical problems in election administration from the outset. These observational findings concerned the specific electoral process, while the official referendum figures are presented as the Election Commission results quoted in the report.

The Constitution also established procedures for future changes: amendments to its text required a referendum, and proposals from the President or parliament first required an opinion from the Constitutional Court. Constitutional referendums followed in 2002, 2009 and 2016, producing different consolidated versions. The mixed parliamentary electoral system, presidential term and transitional provisions of 1995 should be understood as part of the original institutional arrangements.

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