As part of the Unidem seminar, "Constitutional developments in the Caucasian states: the division of power", this report, dealing with governmental structure and relations within the executive, is a first attempt at comparative analysis of the three political systems in the Caucasian states, political systems in the EU states and those in the member states of the Council of Europe.

The three Caucasian states have adopted the values of the Council of Europe: pluralist democracy, the rule of law and human rights. All three are candidates for membership of the Council. Each adopted a new constitution in 1995: Armenia on 5 July 1995 by referendum, Georgia on 24 August 1995 and Azerbaijan on 12 November 1995, also by referendum.

But it is three different political systems which have been established, each set against different political backgrounds.

The three states have each chosen a president elected by universal suffrage. However, in Georgia and Azerbaijan the first president elected by universal suffrage quickly lost power in a crisis situation close to civil war, and in both countries the former first secretary of the party from the Brezhnev era was called upon to take over. In contrast, in Armenia the President elected by universal suffrage in 1991 and re-elected in 1996, following the entry into force of the new constitution, resigned in 1998 and there was a first orderly power transfer to the opposition with the election of a new president.

Three years on from the adoption of the constitutions, we are able to make an initial assessment of how they are operating and to give some thought, in the light of practice, to what changes could be made.

The constitutions adopted in 1995 were aimed at moving away from the Soviet model of a society governed by a single party to which all state organs were subordinate. A president elected by universal suffrage was a means of giving legitimacy to the new authorities, but the transition made choosing a system of government very complicated. A president elected by universal suffrage embodies the unity of the state and should therefore be a highly stable institution. But, at the same time, the president must ensure that the policy which he put to the electorate and on which he was elected is implemented, and somehow show this to be so. He must choose those with whom he is going to work, but in a democratic state they must be answerable not only to the president who appoints them, but also to the people and their representatives. Government structures cannot be entirely new and original. The past retains some influence over ideas and attitudes. To save time, it makes sense to borrow institutions and procedures from foreign models, but very often using such models distorts the institutions, which have to operate in an entirely different political context.

The choice of government structure and the organisation of relations within the executive raises two closely connected problems: first, the nature of the relationship between the president and the government; second, the president’s and the government’s legal acts and the accountability procedures applicable to them.

Because of the political needs of transition, particularly for states in which there are major conflicts over their statehood (Nagorno-Karabakh, Abkhazia) and because of the influences of the former institutions and attitudes (the leading role of the party and the apparatus of the party’s central committee Secretariat and of the national security authorities) in the three Caucasian states, as in the other countries of the CIS (Commonwealth of Independent States), the functions of government cannot be summed up merely by the term "the government".

This is different in each of the three states.

In Armenia, the President of the Republic ensures the upholding of the Constitution and the normal functioning of the legislative, executive and judiciary (Article 49.1 of the Constitution).

In Georgia, the President is the Head of the Georgian State and head of the executive (Article 69.1 of the Constitution).

In Azerbaijan, the executive power belongs to the President of the Republic (Article 99 of the Constitution).

However, in all three countries the President is elected by universal suffrage.

In Armenia the executive power is exercised by the government, comprising the Prime Minister and ministers (Article 85 of the Constitution). The President may form consultative bodies (Article 55.6).

In Azerbaijan, for exercise of the executive power, the President forms the Cabinet of Ministers, which is the "supreme executive body" of the President of the Azerbaijan Republic. He appoints and dismisses the members of the Cabinet. In addition, he forms the President’s administration and appoints its head (Article 109.13).

Georgia does not have a Prime Minister, but rather a State Minister who is part of the Government, directs chancellery and, under the direction of the President, fulfils certain of the latter’s tasks (Article 81.3 of the Constitution).

In Armenia, the President has the authority to appoint and dismiss the Prime Minister. The Government submits its programme to the National Assembly which can pass a vote of no confidence (Article 74 of the Constitution). Government meetings are convened and chaired by the President of the Republic or, on the latter’s authority, the Prime Minister. The Prime Minister oversees the government’s day-to-day activities and co-ordinates the work of the ministers.

In Azerbaijan, the President appoints and dismisses the Prime Minister with the agreement of the Milli Mejlis. Article 121 of the Constitution states that a candidate for Prime Minister must be at least 30 years of age and have a university degree. The Prime Minister chairs the meetings of the Cabinet of Ministers (Article 117).

In Georgia, the state minister, like all the other ministers, is appointed by the President with the consent of Parliament.

In Armenia, the organisation and rules of operation of the Government are determined by decree of the President of the Republic upon the recommendation of the Prime Minister.

In Azerbaijan, the functioning of the Cabinet of Ministers is determined by the President (Article 114).

In contrast, in Georgia, the structure and operation of the executive are endorsed by Parliament on a proposal from the President (Article 78.1).

The Constitution of Azerbaijan provides for Deputy Prime Ministers (Article 121).

The Constitution of Armenia is the only constitution among the three Caucasian states which gives the Prime Minister authority over ministers.

In Armenia, the President appoints and removes from office the members of the Government on the recommendation of the Prime Minister.

In Azerbaijan, the President appoints and removes from office the members of the Cabinet of Ministers. The Constitution makes no reference to a Prime Ministerial power of recommendation.

It is in Georgia that the President’s power to appoint ministers is the most restricted: the President appoints members of the government with Parliament’s consent. The procedure for presenting candidates for ministerial posts is specified in Article 77 of the Constitution. However, the President is authorised to remove ministers from office and to accept their resignation (Article 73.1.c and d).

The role of the President’s administration, which, as we have seen, has an explicit constitutional basis in Azerbaijan, is to give the President direct assistance in exercising his constitutional powers. This institution, which exists in all or virtually all countries of the Commonwealth of Independent States, has no equivalent in the countries of western Europe, where the functions of the President’s council are performed by a small number of advisers and where assistance is provided by a small secretariat; the main role of co-ordinating the government’s work being carried out by the government’s secretariat or the Prime Minister’s chancellery.

In contrast, the CIS countries generally have departments employing a large number of civil servants involved both in co-ordinating the drafting of legal rules and in providing legal opinions on bills and draft regulations. The distribution of influential functions and powers within the President’s administration varies considerably from country to country and situation to situation.

Similarly, the security council, as it exists in the CIS, is unknown in western Europe.

In Azerbaijan and Georgia, the security council has a constitutional basis; under the Azerbaijani Constitution, the President forms the security council (Article 109.27). Under the Georgian Constitution, the President appoints the members of the national security council and chairs its sessions (Article 73.4). By contrast, the Armenian Constitution makes no explicit reference to it, but there is no doubt about its political importance; it is well-known that the resignation of President Ter-Petrossian came following a major conflict in the security council.

The role of the executive in drafting legislation is one of the most poorly understood questions in the new democracies, where parliaments have a tendency to want to monopolise legislative power.

In contrast, all countries of western Europe assign a major role to government in the drafting of legislation; only the government is able to give the legal system the unity and cohesion it requires. In western Europe, 70-90% of laws originate with the government and the constitutions and parliamentary rules of procedure bring the government into the legislative process.

Armenia, which in one of the initial versions of the Constitution appeared tempted by the option of enumerating in the Constitution the matters falling within the legislative sphere, decided against this in the final version. In our view such an approach is unsuited to a parliament beginning genuine activity. In contrast, Azerbaijan opted for that approach. Article 94 of the Constitution gives a list of 28 subjects on which the Milli Mejlis must enact general rules.

The question of the executive’s role is made even more complex when, as for example in Russia, legislative initiative within the executive is shared between the President and the Government. The Caucasian states have avoided this difficulty. The constitutions of the three countries assign legislative initiative to either the President (Azerbaijan and Georgia) or the government (Armenia).

Only the Armenian Constitution gives the Government wide scope for influencing the procedure for passing legislation. The Government stipulates the sequence of debate of its proposed draft legislation. It may decide that bills be debated under urgent procedure. It may also request that only amendments acceptable to it be voted on. The Government may put proposed legislation to a vote of confidence.

The Azerbaijani Constitution also allows a bill’s instigator to approve any amendments (Article 96) and the President to declare a bill urgent (Article 97).

The Georgian Constitution does not provide for any of these procedures.

All three Constitutions authorise the president to request a second reading. In Georgia this right is used even where the President has a majority in Parliament.

Presidential decrees are a special case in the political systems of the Commonwealth of Independent States. They are a legacy of the Soviet system which have been retained because of their usefulness in a system where Parliament is faced with the huge task of modifying the whole legislative system and has considerable difficulty doing so with requisite speed.

The Armenian Constitution stipulates that the President may issue orders and decrees, which must conform to the Constitution and the laws. The same applies to the decrees of the President of the Azerbaijan Republic (Article 149), whereas the Georgian Constitution stipulates that the President issues decrees and orders "on the basis" of the Constitution and the law.

In parliamentary systems, Presidential decrees are submitted for the countersignature of the government, which is a means of making the government accountable for the acts of the President. There is no such possibility if Presidential decrees are not countersigned, in which case there is a legal vacuum and democratic deficit which may result in undue use of proceedings to remove the President and a challenge to the stability of the office of President.

The only procedure provided for by the three constitutions is removal of the President from office.

The Armenian and Georgian constitutions authorise Parliament to initiate procedure for removing the President from office for state treason or other serious crimes (in Armenia), violation of the Constitution, high treason or other capital crimes (in Georgia). The Armenian Constitution requires an opinion from the Constitutional Court; the Georgian Constitution requires an opinion from the Constitutional Court where the charge is violation of the Constitution and an opinion from the Supreme Court where the President is charged with high treason or other capital crimes (Article 75).

Dismissal is declared by a two-thirds majority of the National Assembly in Armenia or the Parliament in Georgia.

Under the Azerbaijan Constitution removal of the President for reasons of serious crime is instigated by the Constitutional Court, which must refer the matter to the Milli Mejlis on the recommendation of the Supreme Court. The decision, requiring a majority of 85 votes out of 120, must be taken within 2 months of the matter being referred by the Court, otherwise the procedure is discontinued. In order to enter into force, the decision must be signed by the President of the Constitutional Court after deliberation by the court, which must take place within one week.

In the hierarchy of legal acts, government decrees occupy third place after laws and presidential decrees.

In Armenia, government decisions are signed by the Prime Minister and approved by the President of the Republic. Accordingly, the Prime Minister is directly accountable for them.

The Constitution of Azerbaijan stipulates that the Cabinet of Ministers adopts decrees for determining general rules, and orders for other questions. As we have seen, meetings of the Cabinet of Ministers are chaired by the Prime Minister. The Azerbaijan Constitution gives the President the right to abrogate decrees and orders of the Cabinet of Ministers (Article 109.8), but this right is not exercised in practice.

The Georgian Constitution makes no reference to the nature of regulatory acts and simply states that the President may annul the acts of the bodies of the executive subordinate to him.

Only the constitutions of Armenia and Azerbaijan provide for (collective) accountability of the Government to Parliament.

As we have seen, the Armenian Constitution provides for a vote of confidence on proposed legislation (Article 75). In Azerbaijan, Parliament is competent to take a decision expressing no confidence in the Cabinet of Ministers (Article 95.14) and, for his part, the President "shall take a decision on [the] resignation of the Cabinet of Ministers" (Article 109.6).

By contrast, in Georgia, where members of the government are responsible only to the President of Georgia, the Constitution merely provides for impeachment proceedings against government members for violation of the Constitution, high treason or other capital crimes (Article 64). Such proceedings may nevertheless serve as a signal to the President to remove a minister from office.

Only the Armenian Constitution confers the right on the President of the Republic to dissolve the National Assembly after consulting its president and the Prime Minister. There is no right of dissolution in Azerbaijan or Georgia. This democratic instrument, which enables the President to put a conflict between the government and parliament to the people, is still often thought of, as in France up to the 4^th Republic, as an authoritarian instrument against representation of the people. However, so that this procedure may function effectively as a counterweight to government censure, the conditions of political life must be such that electors are given a clear understanding of what is at stake and also that members of parliament are not afraid of going back to the electorate. Political life in Russia provided a fine example of this when the State Duma gave its consent to the nomination of a prime minister rather than chance the verdict of the electorate.

It can be seen therefore that despite common factors, there are three different political systems in the Caucasian states. Similarly, although there are some factors in common here too, the problems caused by the way these systems operate are not identical. Accordingly, they call for different solutions.