The only Capital in Europe without an Elected Mayor: legal issues based on COE Recommendations

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Introduction

This paper explores the need for an elected mayoral institution in the local governance of Baku and analyses the current legislative setbacks through the recommendations addressed by the Council of Europe’s Congress of Local and Regional Authorities. In terms of the Council of Europe (hereinafter - CoE) members’ practice, the capital cities are managed by democratically elected mayors, and thereby the organization demands all members to have certain standards in the local governance system within an adequate legislative framework. However, unlike other member states' capitals, Baku remains the only capital within the CoE area without an elected mayoral institution. Arguably, such a mechanism contradicts the European standards in local self-governance and impairs the development of overall self-government in Azerbaijan.

Background information

This part provides background information on the CoE and its relevant institution describing the requirements of the European Charter of Local Self-Government (hereinafter - the Charter) relating to self-governance.

Since 2001, Azerbaijan has been a member of the CoE, whose main values are human rights, democracy, and the rule of law. Putting democracy at its heart, in 1957, the organization created the Conference of Local and Regional Authorities which was later named the Congress of Local and Regional Authorities (hereinafter - the Congress). The main mission of the Congress is to keep control over local democracy in the member states of the CoE through its ‘monitoring reports’ (Kleinsorge, 2010, p. 108). The Committee on the Honoring of Obligations and Commitments by the Member States of the European Charter of Local Self-Government (Monitoring Committee) is responsible for monitoring the application of the Charter and its additional Protocol. It thereby drafts the reports and recommendations on the member states every five years. To this end, the reports ensure effective application of the principles of local democracy enshrined in the Charter and the Congress later adopts recommendations and resolutions to the concerning situation based on these reports. The Congress thereby requires the member states which have ratified the Charter to set up standards in line with the principles enshrined therein (CoE, “Congress of Local and Regional Authorities”).

The Charter, signed by Azerbaijan in 2002, demands the CoE member states' recognition of the principle of self-government in their domestic legislation (Kleinsorge, 2010, p. 107). It introduces the main definitions of local self-government and requires local authorities of the member states to regulate and manage a substantial share of public affairs under their responsibility and within the interests of the local population. According to Article 4 of the Charter, powers provided to local bodies shall normally be full and exclusive. This provision limits the powers of any other authority including state or regional, pointing out that it “should not be undermined or limited by another, central or regional authority”. The final aim remains to respect the core principles of the Charter to ensure mentioned guarantees.

According to the CoE reports on local and regional democracy in Azerbaijan, the capital city - Baku - is the only capital within the CoE area without an elected mayoral institution. With an approximately 2.3 million population, Baku is the most populated city in the country (“Administrative - territorial units, number and structure of the population”, 2021). Some experts argue that the real number of people is much bigger than the official statistics provided by the State Statistical Committee of the Republic of Azerbaijan. Consisting of 12 administrative districts, 59 settlements, and 53 municipalities, the city also reserves the first place in the population density with a total 2,200 sq. km area (ibid).

In this regard, the Report on the Status of Capital Cities (2007) attaches great importance to the capital cities and their management, specifying the following provision at the very beginning of the document:

Capital cities play an essential role and have a distinguished place in several member states. They are often political, economic, and cultural centers, and, as the seat of the central government, they frequently bear symbolic meaning. Nevertheless, the capital cities are municipal authorities governed by their elected representatives. All the principles enshrined in the European Charter of Local Self-Government should therefore prevail in them regardless of their actual function in the country.

While some countries introduced directly elected mayoral institutions within the CoE, others still retained the indirectly elected city councils in the capital cities (Fenwick & Johnston, 2020, p. 36). However, Baku is the only capital in the CoE area which has no directly or indirectly elected mayoral institution. Although the CoE has provided several recommendations to the authorities, the government has ignored some of the provisions related to the status of its capital city. With these in mind, the authority has not considered itself bound by some of the Articles of the Charter.

Local Executive authority and self-government in Baku

In this part, the current situation of the local executive authority, as well as its competencies and the municipality as a self-governance institution in Baku, is briefly described.

Constitutionally, the heads of local executive bodies shall exercise local governance function, namely the power of local executive authority. The Constitution also states that the President has the power to appoint and dismiss the heads of local executive bodies and determine their powers. On this account, Baku is currently governed by an appointed head of the executive authority called Baku City Executive Authority (hereinafter - BCEA). The Regulation on Local Executive Authorities that the President approved on June 6, 2012, identifies and regulates the main activities of the executive bodies. It mainly sets out the powers of the head and deputies and determines the structure of local executive bodies, including that of BCEA.

Moreover, another local governance institution - municipality - is not either a state institution or a part of public administration. By the law “on the status of municipalities”, the concept of local self-government is understood as a system of the organization of activity of citizens, which allows them to perform within the limits of the law. While e-municipality applications are also available today as a complementary element of the e-government system, the CoE reports state that their powers are “not full and exclusive” as required by the Charter and the municipalities have no power to fulfill the functions enshrined in the legislation (Sadigova, 2021, p. 491). In addition, these so-called self-governance institutions are wholly dependent on the state budget, which creates additional barriers to performing their duties.

As to the mentioned institution, some reports of the CoE say that the responsibilities of municipalities are more limited than the legislation has provided to them. In practice, they even lack to exercise the functions provided by legislation due to their financial situation. Further, the distribution of the competencies between the BCEA and Baku City Municipality Office and their factual relations are not well-defined (“Local self-government in Azerbaijan”, 2021).

The need for an elected mayoral institution

This part proceeds from the lack of accountability of local self-governance institutions in Baku to the need for an elected mayoral institution taking into account the expert’s opinions and CoE recommendations addressed to the government of Azerbaijan.

The decisions concerning the governance and infrastructure of Baku city are adopted and carried out by the BCEA without taking into account the opinions and views of the citizens. As the heads of the executive authorities are directly accountable to the President in accordance with the Constitution (Art. 124), these institutions perform the tasks determined by the executive body of the state. Therefore, the primary duty of the local executive body in Baku is not to satisfy people according to the principles of good governance but rather to implement state policy at the local level. It reveals that local executive authorities and municipalities highly depend on the state, leaning against the local-self governance principles such as “liberty, independence, responsibility for results of agreed conclusions”. It also endangers the nature of transparent and socially-oriented government mechanisms by leaving the citizens out of the decision-making process of the capital city.

On this account, the Congress of Local and Regional Authorities of Europe (hereinafter - the Congress) has provided several recommendations on local self-government to the Azerbaijani authorities. Recommendation 326 (2012) of the Congress to the authority mentions that Baku is currently governed by an executive body, “accountable only to the president, with no democratic control,” which is not in line with its local-governance principles.

Some local experts also believe that the capital city needs an independent status and a sufficient budget to allocate its expenses. Mr. Erkin Gadirli, one of the MPs and prominent lawyers, sees the participation of residents in solving emerging problems as one of the most important conditions for the management of large cities. In one of his recent interviews, the deputy of Parliament of Azerbaijan and a member of the opposition party, Mr. Gadirli states that the mentioned participation is due to the existence of a body formed by voters ("Baku – 'The Only Capital in Europe Without A Mayor' - Jamnews" 2021). Another member of the opposition Republican Alternative Party, Mr. Natig Jafarli, argues that there is a direct connection between the voters - the residents of the city - and its leadership so that the mayor bears direct responsibility to those who elected him/her. “The mayor is forced to fulfill obligations to the city's population because he needs to be elected for another term after a certain time…But now, the capital is managed chaotically”, Jafarli says ("Baku – 'The Only Capital in Europe without A Mayor' - Jamnews" 2021).

Given the situation in Azerbaijan, the Congress in its Recommendations underlines the lack of understanding of local democracy among the population and the training needs of local elected representatives and staff in the day-to-day exercise of their responsibilities.

In his article, Mr. Samir Aliyev, a prominent civil society activist, and independent researcher states that the establishment of a mayoral institution would not be a novelty for Baku. It is due to a self-government institution that existed in Baku for a long time before reaching the existing situation. The experience of elective bodies in the administration of the capital coincided with the period when the current territory of Azerbaijan was part of the Russian Empire. Eight years after the Russian emperor issued a decree on establishing self-governing city bodies, namely the Duma and the municipality, a city election was held in Baku in 1878. According to the decree, the number of Azerbaijanis could not be more than half of the Duma members. He elaborates his opinions in the following way: “the Baku City Duma remained intact until the establishment of the Soviet government in Azerbaijan. In the following years, the city of Baku was governed by a Soviet-style elected body”.

For example, between 1939 and 1977 this body was called the Executive Committee of the Baku City Council of Deputies, and from 1977 to 1991 it was called the Executive Committee of the Baku City Council of People’s Deputies. Since 1991, the city has been governed by a non-elected body, namely, the Baku City Executive Authority'' (Aliyev 2019). Thus, it would be better The self-government of capital cities is further reflected in two separate Recommendations of the Congress on the management of capital cities. In accordance with Recommendation 133 (2003), capital cities should be provided with the necessary facilities and resources to enable them to carry out their administrative functions independently. Furthermore, the document sees citizen participation as a prerequisite for the legality of the decision-making process in capital cities. Furthermore, Recommendation 219 (2007) of the Congress on the status of capital cities envisages the application of unified local self-governance principles in capital cities. It reads that the central government's control cannot compensate for the activities of local self-government bodies of capital cities. The Recommendations, therefore, appeal to the authorities to fully comply with the provisions of the Charter as to the management of capital cities.

Additionally, Recommendation 126 (2003) of the Congress on local and regional democracy in Azerbaijan also highlights the importance of adopting new comprehensive law that clearly differentiates the powers and responsibilities of the executive bodies and municipalities.

As is clear, the main problem is the lack of a legal framework on the status of Baku as a capital city. Although Baku’s status as the capital is enshrined in the Constitution of the Republic of Azerbaijan, there is no other law to determine the city's status. In accordance with Article 5.9 of the Law on “Territorial structure and administrative-territorial division”, the status of Baku is determined by the relevant Law of the Republic of Azerbaijan. With this provision, the Law states the importance of adopting another law that specifically regulates the status of Baku. The Recommendation 326 (2012) of the CoE on local and regional democracy in Azerbaijan also emphasizes the legislation gap in the following way:

The legislative gap concerning the status of Baku, the capital city, although the law of the Azerbaijan Republic foresees it on “territorial structure and administrative-territorial division”, namely by Article 5.9, which states that a law on Baku city must be adopted.

The law on the status of Baku is yet to be adopted despite the initiatives of adopting such a law by the Parliament in the sessions of the early 2000s. The Parliament had created a standing commission on local self-government to prepare a number of laws in this field prior to such initiatives. The task remained uncompleted, and the issue was not discussed at the government level over the years (Mamedova, Hasanov, Bairamov & Huseinov, p.375). For the last 20-21 years, the Parliament has been reluctant to regulate the status of Baku in a specific law. All in all, there seemed to be an unwillingness of the Azerbaijani authorities to adopt a new law in line with the European standards.

Conclusion

While certain regulatory initiatives have been launched over some years, there is still a lack of dedicated and comprehensive law and institutions as to the status of Baku. As regards, the current research elaborates on the consequences of such a situation referring to Congress's recommendations. The main reasons behind the issue discussed in this paper are included, such as the lack of accountability of BCEA to the population that makes the population left out of the decision-making process, and the lack of legal framework on the status of Baku as a capital city. It also reveals the consequences such as the lack of a transparent, accountable, and socially-oriented mechanism and the adoption of decisions by the BCEA without any democratic control. It is, therefore, crucial to regulating the status of the capital city with the adoption of a law in that connection.

References

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