Research Article: 2018 Vol: 21 Issue: 3
Oruj Jamil O Mammadov, Azerbaijan State University of Economics (UNEC)
This article analyses theoretical and practical issues of modern development trends in constitutional and legal support of work relations in the legislature. Relations that arise due to civil service in the legislature are one of the components of legal relationship. In science terms, specific features of civil service, its theoretical and practical issues are relevant in the legislature. Necessary prerequisites for modern state development involve scientific justification of legal means and methods designed to eliminate problems arising in the course of state power realization and reality check of scientific views. This article also analyses the legal framework, distinguishing features of the civil service in the bodies of legislative power and proposed scientific views on improving legislation in this area. Our proposals and generalized conclusions can be useful to improve and apply legislation regulating civil service relations in the legislature.
Legislature, Legislative Branch of Government, Civil Service, Civil Service Relations, Constitutional and Legal Support.
JEL Classification: K10, K15, K19
In modern Republic of Azerbaijan, constitutionally-based reform model was formed by the national leader Heydar Aliyev and applied in accordance with national peculiarities and international best practice (Blum, 2014; Cornel, 2015; Pozhitkov, 2015). These reforms are being successfully developed. In the Republic of Azerbaijan, reforms, focused on sustainable and stable state development, on building a law-governed state, developing human and civil rights and freedoms, are conditioned by the constitution implementation. The Azerbaijani model of comprehensive law-governed state development has already been formed due to on-going effective reforms. This model can serve as an example for the post-Soviet states (Shaw, 2013; Laitila, 2016; Van-Gils, 2017).
In modern Republic of Azerbaijan, successful state building process is based on the rule of law principle (Bartsits, 2011; Alekperov, 2012; Grazhdan, 2015). Law has a special status in society and state management. In this regard, modern legal science is characterized by some topical issues of great importance both from theoretical and practical points of view.
In our opinion, improving legal institution of civil service is one of the major factors determining modern state development. State official legal rules regulate social relations that arise between subjects with different statuses. Relations that arise due to civil service in the legislature are one of the components of legal relationship. In science terms, specific features of civil service, its theoretical and practical issues are relevant in the legislature (Ivanov, 2004; Jafarov, 2010; Kostruba, 2017). In this regard, some theoretical and practical problems in constitutional and legal support of civil service relations in the legislature are one of the topical issues that require scientific analysis (Melikova, 1988; Melekhin, 2007; Mamedov, 2015).
The main purpose of analysing theoretical and practical problems in constitutional and legal support of civil service relations in the legislature is to determine the distinctive features and legal framework of the civil service in the bodies of legislative power, and to bring forward the legislation improvement proposals.
As information sources, we have used the laws of the Republic of Azerbaijan and generalized material provided by domestic and foreign researchers.
Necessary prerequisites for modern state development involve scientific justification of legal means and methods designed to eliminate problems arising in the course of state power realization, and reality check of scientific views, as one gives rise to another. Based on the lines of state authority’s activity, public affairs effective organization and their purposeful management are one of the tasks assigned to state authority as a major indicator of its activity. In this case, we are drawing attention to the goals, functions, tasks and performance of all state authorities. According to Melikova (1988)
“The State is a complex mechanism consisting of interacting parts that are tied together.”
Khutinayev (2011) believes that specific features of a particular institutional system are manifested in activities performed by state authorities and public associations, in the behaviour of social groups and the nature of their interaction. According to the rules of international law, state's obligations to its citizens are the substantive side of official’s rights and duties. Thereby, they determine the public affairs functions of the civil service (Bartsits, 2011).
In the sphere of state power management, legislature has the greatest responsibilities. Time-appropriate legislative activity is one of the necessary prerequisites for modern development. Laws adopted by the legislative body should be focused on real, most popular social relations. Thus, the legislative branch of government will ensure the realization of legislative tasks and functions of the State Thus, effective laws are an important part of public policy implementation through the legal rules, legal policy formation and positive attitude of citizens to the law-making activities of the state. This directly depends on the consequences predicted for the adopted laws. In our opinion, such an approach is one of the major means improving the quality of legal regulation of public relations. Its first goal is to forecast and analyse both the planned and unplanned results of proposed bills. This, in turn, can lead to social, political, economic, material and moral life of society; optimize the legal system, methods and forms of impact that rights have on international and other social relations.
The idea of popular representation, put forward by John Locke, Charles-Louis de Montesquieu, Jean-Jacques Rousseau and other thinkers, is expressed in various constitutional and legal forms in different countries depending on specific conditions. According to J. Locke (1985),
“Legislative government must be supreme and all other authorities must flow out of it and obey it”.
In many countries, there are statutory or constitutional provisions concerning the status and performance of public administration and civil servants. For example, in France, Germany and other EU member states, there are legislative acts regulating the legal status of civil servants based on the specific features and scope of their powers (Kulakov, 2015). The legislative body is formed through elections, acts on behalf of people and is responsible to them. Its function is exercised by the Parliament as the highest representative body of the state. In this case, legal literature represents the parliament as an institution of democracy, one of the important branches of state power derived from population through elections. Parliamentary government is a result of professionalization and specialization of political life and state ruling. In modern time, requirements to the level of legislator’s professionalism have also increased. Professional activity of Parliament Members also depends on the increase in law-making volume (Gadimaliev, 2013).
The Parliament has a decisive influence on public relations through the adapted regulatory laws. The Parliament should be understood as the supreme, elected legislative body, which occupies an important place in the system of three independent interacting branches of government. According to the legal literature, the Parliament, first of all, is a representative body. Thus, it expresses the will and interests of all citizens (Seidov, 2008). Modern parliamentary government is a public authority management system based on the constitutional principle that ensures the independence of governmental departments (Gadimaliev, 2013). Legislative functions are exercised by the highest representative bodies of the state. The legislative body occupies a dominant position in the state’s mechanism, since the legislative government is the most important one according to the principle of separation of powers. It establishes statutory requirements for the executive department to enforce that serve as a legislative basis for judicial government (Melekhin, 2007). The scientific views that we have studied cover the status of the legislative government, its activity and place in the governmental system.
Foreign experience in implementing legislation with clearly defined specific features of the status of civil servants in the legislative bodies, their participation in the legislative process, as well as their role, tasks and functions when it comes to professional support of deputies and the Parliament, is of particular importance. Thus, in France, the status, tasks and functions of Parliament Members are determined by the respective chambers independently in accordance with the general provisions on civil service. As a result, civil service in the legislature is under the scrutiny of parliamentarians. In France, civil service is the most prestigious one. Many countries, have adopted special legislative acts that regulate the status, structure and functions of the Parliament, as well as the civil service procedure. In the USA, the Legislative Reorganization Act of 1970 is the major normative act in this sphere, in Sweden-the 1974 Riksdag Act, in Britain-the House of Commons (Administration) Act 1978 (Kulakov, 2015). Recorded changes in civil service organization did not take place immediately, not simultaneously, but during a long period. In Western Europe, this process began in the XV-XVI centuries, in Russia and America-in the XVIII century. In the majority of Western countries and in Russia, the process of national bureaucratic structure formation has ended in the second half of the XIX century (Vasilenko, 2001).
In the political life of each country, Parliament’s role is determined by how the social forces reflected in the clash of public interests with parliamentary function are distributed: political parties and other mass associations. At the same time, it is determined by the degree of parliamentary government development, the strength and influence of parliamentary institutions. This directly depends on the features of historical development and political traditions of most countries.
As for historical development, we should note that the statehood history of Azerbaijan covers different forms of governance, including the emergence and development of civil service relations. In the Azerbaijan Democratic Republic (ADR)-the first democratic law-governed state of the East-has been one of the major factors of governance for 23 months (28.05.1918-27.04.1920) (Mamedov, 2013).
One part of historical development of modern civil service relations of the Republic of Azerbaijan coincides with the beginning of the twentieth century-ADR period. This period has a special status, during which the Parliament was one of the subjects of civil service relations (Mamedov, 2013). The ADR Parliament was established by the Law of the Azerbaijani National Council on the Establishment of the Parliament of the Azerbaijan Democratic Republic (November 20, 1918) (1998). The Parliament as the highest representative legislative body of the ADR was performing from December 7, 1918 to April 27, 1920. The supreme representative legislative body of the ADR was headed by the chairman of the Parliament. Since the ADR was a parliamentary republic, the chairman of the Parliament exercised the functions of a head of state:
“The Parliament of the Republic of Azerbaijan.”
The book written by O. Asadov and Milli Mejlis chairman is of great importance from the social, historical and legal points of view. They have analysed the place of the ADR Parliament in governing a state. This work draws our attention to the fact that the Parliament has already managed to achieve a situation, when its performance was not limited only to legislative business, but it has exercised the supreme control function over the executive body-the Cabinet of Ministers. The Parliament was able to create a parliamentary government tradition in the Azerbaijani system of state construction through the adoption of government reports. The Parliament has determined the boundaries of power as a participant in the process of power separation (Asadov, 2008).
Azerbaijani statehood formation and development are linked with the division of powers, parliamentary government practice and tradition. The Republic of Azerbaijan has created an effective mechanism for governing a state based on constitutional provisions-principles. Separation of powers is one of these principles enshrined in Article 7 of the Constitution of the Republic of Azerbaijan. According to this Article,
"The Azerbaijan State is a democratic, legal, secular, unitary republic. In the Republic of Azerbaijan, state power is limited in internal matters only by law, in external matters only by provisions deriving from international treaties to which the Republic of Azerbaijan is a party. In the Republic of Azerbaijan, state power is based on the principle of separation of powers: legislative power is exercised by the Milli Mejlis; executive power belongs-by the President of the Republic of Azerbaijan; judicial power-by the courts of the Republic of Azerbaijan. According to the provisions of current Constitution, the legislative, executive and judicial branches of government must interact while they are independent within their powers" (The Constitution of the Republic of Azerbaijan, 2009).
According to the Article 8 of the Law of the Republic of Azerbaijan on Civil Service (2001):
“State bodies were classified by 5 categories based on the status, hierarchy and jurisdiction (state, regional and local levels). According to this Article, superior authorities are bodies, which powers are determined by Part III of the Article 7 of the Constitution of the Republic of Azerbaijan, crucial branches (legislative, executive and judicial) of government, as well as superior executive bodies-the Milli Mejlis of the Azerbaijan Republic and the Constitutional Court of the Republic of Azerbaijan as the supreme body of constitutional justice.”
According to constitutional provisions, the Milli Mejlis of the Azerbaijan Republic is part of the system of superior authorities.
According to the principle of separation of powers, legislative government is of great importance. Therefore, the legislature occupies one of the major places in the government mechanism. It defines statutory requirements as a legal basis for executive and judicial authorities. In democratic states, the Parliament, as a supreme representative and legislative body, represents popular sovereignty and has the power to express the will of people in the form of law. "Parliament" is a commonly used term. In England, Finland, Canada and a number of other countries, the legislature is directly called the Parliament. In other countries, it is called differently: in Poland-the Seimas, in the USA-the Congress, in Azerbaijan-the Milli Majlis, in Ukraine-the Verkhovna Rada, etc. (Shukyurov, 2012).
According to the Articles 7 ("Azerbaijan State") and 81 ("Legislative Power"),
“In the Republic of Azerbaijan, legislative power is exercised by the Milli Majlis of the Republic of Azerbaijan."
According to Article 94 of the Constitution of the Republic of Azerbaijan, “the Milli Majlis establishes general rules while the issues related to its powers are determined by Part 1 of Article 95 of the Constitution” (The Constitution of the Republic of Azerbaijan, 2009). These constitutional provisions determine the place of the Milli Majlis of the Republic of Azerbaijan in the system of public authorities, and thus, it acts as a subject of civil service relations. The legislative body determines the regulatory framework for legal relations and performance of public authorities, enterprises, institutions and organizations, natural and legal entities, public associations, civil society institutions, local governments, etc. The legislature acts as a spokesman for the will of people, their desires and sovereignty. In comparison with other branches of government (executive and judicial), legislative government has a supreme legal power and advantage. Legislative bodies have the supremacy features, since they determine the legal principles of state and public life, the main directions of country's national and foreign policies, legal organizations and forms of executive and judicial governments through the laws. In the government mechanism, their superiority determines the supreme legal force of adopted laws and makes the legal rules expressed in these laws compulsory in nature. Legislative body’s performance (impact) boundaries are limited by legal principles, natural human rights, ideas of freedom and justice. However, their performance is based on constitutional provisions. Thus, adopted laws are constitutional (Shukyurov, 2012).
The legislator considers power as an expresser of people’s will, their interests and sovereignty. Therefore, laws have the highest legal force and advantage in comparison with state acts adopted by the executive and judicial governments. Acts adopted by the President, Government and Courts cannot contradict the law. On the contrary, they rely on laws and apply them. Only the bodies of constitutional control (for example, the Constitutional Court) can suspend the law (if not reverse it from a legal point of view) if it contradicts the Constitution (Gandilov, 2010).
Okhotsky has allocated one of the features of the civil service in the Parliament as follows:
"It is focused not on administrative-managerial control-and-distribution functions (although they are involved at some point), but on a comprehensive, accurate, timely and effective performance of the Parliament in accordance with its constitutionally defined powers. Such a kind of mega-function is differentiated into particular functions and tasks" (Okhotskiy, 2002).
Civil service in the legislative bodies is
"An enforcement institution regulating the legislative process procedure, its overall support, rights protection and management" (Okhotskiy, 2002).
Civil servants holding administrative and auxiliary posts in legislative bodies do not participate in law creation, modification and termination. In the legislative bodies, they realize administrative and legal functions. Civil service has the regulatory, coordination and control functions.
One of the features of the civil service in the legislative bodies is that civil servants must be professionals with comprehensive theoretical and practical knowledge. Comprehensive knowledge and professionalism include social, political, legal, managerial, organizational and other spheres necessary for governing a state.
Alekperov U.K. belives that in order to achieve the goals set for modernized Azerbaijan, first of all, the State has to train highly professional managers and civil servants. In reality, when the "Human Capital" principle is widely used throughout the world, there is a need to properly manage human resources and recognize professional human potential, especially in public administration (Alekperov, 2012). Professor Abdullaev A.Z. belives that training civil servants, professionally improving them, learning management and administration theory and practice, namely-preparing careerists is one of the necessary prerequisites for effective civil service and its authority improvement (Gandilov, 2010). Professor Rzayev A.G. Believes that professionally improving and retraining civil servants are particularly relevant measures in the context of wide sweeping reforms made in the field of civil service (Rzaev, 2011). In the Republic of Azerbaijan, the set of professional civil servants was specially formed, and the need in creating professionally-oriented higher educational establishments was substantiated (Mamedov, 2013).
The Academy of Public Administration under the President of the Republic of Azerbaijan was established by Heydar Aliyev, in January 3, 1999. The Academy of Public Administration is a higher educational institution implementing the programs of higher and further education and conducting fundamental and applied research. It is the leading scientific and analytical information centre training specialists in public administration and executive authority (The Decree of the President of the Republic of Azerbaijan, 1999). Authors of the Financial Security Rules. Types, Forms and Terms of Extended Vocational Education for Civil Servants note that vocational education programs for civil servants should involve innovations in the areas in which they will work, as well as existing and ambitious spheres of technology, law, policy, economics and other spheres of science. They should be based on the national practice and advanced world experience in preparing and conducting practical studies (The Decree of the Cabinet of Ministers, 2009). The legislative government establishes and controls the state bodies by adopting laws on public administration and other legal acts.
According to the Article 2.1 (1999) of the Law of the Republic of Azerbaijan on Civil Service:
“The latter should be understood as fulfilling official’s duties in achieving set goals and realizing state’s functions in accordance with the Constitution and other acts of the Republic of Azerbaijan.”
Based this definition, it would be expedient to introduce the concept of civil service in the bodies of legislative power as professional activity of a civil servant focused on achieving set goals and realizing state’s functions within the Constitution of the Republic of Azerbaijan and other legal acts, as well as means of ensuring state sovereignty, constitutional system based on the principle of protecting rights and freedoms of a man and a citizen, as means of adopting new laws and improving the existing legislation.
Civil service as a kind of professional activity is possible only in the system of public administration, which uses not only political, legal, but also moral regulators. In particular, moral standards are widely used in civil service. Based on the above, we can state that civil service is not only a public-legal, but also a public-moral institution (Grazhdan, 2015). Civil service is usually considered in three interrelated meanings: (1) as a state-legal, organizational and social institution; (2) as a public-legal relationship between the state body and its apparatus; (3) as professional activity of state power and administration agencies (Bartsits, 2011). Admission to the civil service and the very service must depend on the professional level and business qualities of a person, not on supervisor’s personal attitude. Thus, perfect legislation must by created together with a recruitment policy focused on forming professional human resources for state bodies spirited with civil service ideas and able to fulfil the duties assigned to them in good faith (Pozhitkov, 2015).
There is a complete classification of civil servants, who are the major subjects of civil service relations in the bodies of legislative power. According to the Article 2.2 of the Law of the Azerbaijan Republic on Civil Service:
“This Law applies to officials, who serve in the executive, legislative and judicial branches.”
According to the Article 2.4:
“It does not apply to deputies of the Milli Majlis of the Azerbaijan Republic, the chairman, deputy chairman and auditors of the Chamber of Accounts of the Republic of Azerbaijan, deputies of the Supreme Majlis of Nakhchivan Autonomous Republic, unless otherwise provided for by current Law (2001).”
The significance of this legal rule is that persons belonging to this category hold political offices. They fulfil their official duties and carry out civil service activities in accordance with the Constitution and other legal acts of the Republic of Azerbaijan. This feature is one of the specific ones when it comes to civil service in the legislative bodies.
In would be expedient to expand the Law of the Republic of Azerbaijan on Civil Service with the concept of civil service in the bodies of legislative power as public relations in regards to within-the-remit professional activity based on principle of separation of state power performed in order to achieve legislative objectives and realize state’s functions in accordance with the Constitution of the Republic of Azerbaijan and other legal acts.
The idea of a public status for a civil servant means that the civil service is a subject of public law, and a civil servant is not a regular employee with a legal status anymore (Ivanov, 2004). We can state that subjects of civil service relations have a special status among the bodies of legislative power. In our opinion, civil service can be represented as an organizational and legal institution created to implement the goals and functions of a state. General and special provisions on civil service enshrined in the Constitution of the Republic of Azerbaijan cover both the public and private legal features of civil service relations (Mamedov, 2015).
Legal framework for the Milli Majlis of the Republic of Azerbaijan is determined by the Constitution of the Republic of Azerbaijan and the Internal Regulations of the Milli Mejlis of the Republic of Azerbaijan. Constitutional framework for the Milli Majlis of the Republic of Azerbaijan (2009) involves the following aspects:
“legislative power is exercised by the Milli Majlis of the Republic of Azerbaijan (Article 81), Milli Majlis consists of 125 deputies (Article 82), Milli Majlis deputies are elected by FPTP voting, general and popular-vote elections, free, personal and secret ballot voting (Article 83), the term limit for each convocation is 5 years, the term limit for deputies is limited by the term limit for each convocation (Article 84).”
According to the Part IV of the Article 7 of the Constitution of the Republic of Azerbaijan:
The Milli Majlis of the Republic of Azerbaijan is independent in resolving the issues attributed to its powers by the Constitution of the Republic of Azerbaijan. The basic principles of activity of the Milli Majlis are openness, political pluralism and multi-party system, free discussion of issues and independent problem-solving.”
The Law of the Republic of Azerbaijan (1997) approved the Internal Regulations of the Milli Mejlis of the Republic of Azerbaijan (May 17, 1996). This law was adopted according to the first paragraph of Part 1 of the Article 96 of the Constitution of the Republic of Azerbaijan in order to organize the work of the Milli Mejlis.
In the parliamentary government of different countries, various bodies established according to constitutional rules are organized in superior representative bodies as auxiliary agencies ensuring Parliament’s performance or agencies dealing with a its specific area, carrying out Parliament’s tasks and reporting to it. The Parliament can update or change the composition of these bodies, their members or officials. Some of them are created for an established period, which means that there are certain guarantees for them. In general, there are the following parliamentary bodies: internal parliamentary bodies; agencies under the parliament; parliament apparatus (Suleymanov, 2014).
In Azerbaijan, internal legislative bodies involve the Milli Majlis of the Republic of Azerbaijan (125 deputies) and the governing bodies of the Azerbaijani Parliament (the chairman and his deputies). The Milli Mejlis carries out its activities through the committees created at the beginning of the first session of the convocation.
The Law of the Republic of Azerbaijan on Committees of the Milli Majlis of the Republic of Azerbaijan was adopted on July 10, 1998 (The Law of the Azerbaijan Republic, 1998). According to the Article 92 of the Constitution of the Azerbaijan Republic:
"The Milli Mejlis of the Republic of Azerbaijan organizes the Committees that organize preliminary consideration of laws and drafts submitted to the Milli Majlis and carry out activities for the purpose of fulfilling other positions provided for in this Law".
According to the Article 92 of the Constitution of the Azerbaijan Republic, the Milli Majlis establishes the Chamber of Accounts. The Law of the Azerbaijan Republic on the Chamber of Accounts was adopted on July 2, 1999 (The Law of the Azerbaijan Republic, 1999). According to this Law:
“The Chamber of Accounts is a standing financial management body accountable to the Milli Majlis.”
The Chamber of Accounts is organizationally and functionally independent. It consists of a chairman, deputy chairman and 7 auditors.
Based on the above, we can conclude that civil service in the legislature is complex in nature and covers the classification of all posts existing in the state bodies. This gives an idea of both multi-functionality and universality of legislative bodies.
In the Republic of Azerbaijan, legislative government has the following characteristic features of the civil service. Firstly, it is part of the regulatory legal framework formation for the civil service. Secondly, civil service is the activities performed by the subjects of legislative power. Thirdly, persons holding political posts in the legislative bodies are independent within the legislation.
Civil service relations are the basis for each person holding an elective or appointed office in the legislative bodies. Regulations governing these relations by consolidating constitutional, administrative, labour legal rules and rules of social security law are combined in the system of civil service legislation. Civil service in the bodies of legislative power is based on the principles of function fulfilment, constitutional system and consideration of existing laws, new bill preparation, state sovereignty, protection of human rights and freedoms, as well as such important issues as the implementation of existing legislation.
The results of scientific analyses can be expressed as follows. In the legislative bodies, civil service is comprehensive in nature. Professional activity of all persons holding a public office in the legislative bodies is characterized as multi-functional and universal throughout the entire classification of offices-political, administrative and auxiliary.
the system of public authorities, legislative bodies have a special role and status. The major factors that determine the features typical for the legislative bodies are the following: (1) citizen’s will expression directly through elections; (2) direct expression of citizen’s interests; (3) special rule of formation; (4) collegiate body; (5) constitutional restrictions when passing bills; (6) the right of legislative initiative; (7) the right to adopt laws; (8) the right to form a legal basis for the remaining branches of government based on adopted laws; (9) the right to form a legal basis regulating the relations between a person, society and the state, etc.
In the Republic of Azerbaijan, legislative government covers the following features related to civil service: (1) it is part of the regulatory legal framework formation for the civil service; (2) civil service is the activity performed by the subjects of legislative power; (3) persons holding political office in the legislative bodies are independent within the legislation.
Civil service in the legislative bodies has the following distinctive features: (1) civil service relations are of a dual nature; (2) legislature is part of the regulatory legal framework formation for the civil service; (3) legislative bodies and structural units are managed through the civil service; (4) civil service is independent; (5) Azerbaijani governance is based on the principle of separation of powers, and the legislative branch of government interacts with the executive and judicial branches according to the provisions of the Constitution of the Republic of Azerbaijan staying independent within its powers; (6) individuals carrying out activities in the field of civil service must have comprehensive theoretical and practical knowledge and sufficient professionalism.
Civil service relations are the basis for each person holding an elective or appointed office in the legislative bodies.
In would be expedient to expand the Law of the Republic of Azerbaijan on Civil Service with the concept of civil service in the bodies of legislative power as:
1. Professional activity of a civil servant focused on achieving set goals and realizing state’s functions within the Constitution of the Republic of Azerbaijan and other legal acts, as well as means of ensuring state sovereignty, constitutional system based on the principle of protecting rights and freedoms of a man and a citizen, as means of adopting new laws and improving the existing legislation.
2. Public relations in regards to within-the-remit professional activity based on principle of separation of state power performed in order to achieve legislative objectives and realize state’s functions in accordance with the Constitution of the Republic of Azerbaijan and other legal acts.