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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.
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:
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:
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: