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Comparison of Right Provisions in the Constitutions of Armenia and Azerbaijan

Introduction

A written constitution lays the framework for the subsistence of a nation-state and the foundation of a state government. It has three major functions: 1) It provides for the system of governance, establishing the various branches of the government and lays forth their varying responsibilities and powers, 2) establishes the legal framework of the land, instituting how laws are made and the nature of laws made based within the restrictions placed on the branches of the government, and 3) includes provisions guaranteeing rights to its’ citizens. This analysis will focus primarily on a comparison of the third function of the respective constitutions of the Republics of Armenia and Azerbaijan, post-communist states and former republics of the Soviet Union.

Definition of rights and ideological thought regarding rights

Because both of these republics were subjugated under Soviet Russian control, it is of importance to note the shift in political ideology from Marxist-Leninism to Liberalism since the dissolution of the Soviet Union in 1991. Marxist thought claims that, due to the elimination of socio-economic classes all material needs would be shared by the community, and in practice this was done through the state government (Heywood, 107). In theory, all are entitled to and would have what is necessary because of the distribution of resources throughout the community.

However, in liberal thought, a right, strictly defined, is something to which an individual claims entitlement. Within the discussion of the nature of rights there are two strands of theory, that of classic liberalism and that of modern liberalism. Classic liberalism, based on the writings of John Locke, holds that rights are conferred by nature and the existence of the state is only to ensure the protection of those rights, those being life, liberty, and property (Heywood, 44). Modern liberalism, based on the ideas of T.H. Green, L.T. Hobhouse, and J.A. Hobson, holds that an enabling state that provides the circumstances necessary for freedom must be the purpose of the state (Heywood, 52).

In order to delineate these strands of thought, we may say there is a difference in the provisions for negative rights and positive rights. Negative rights being the rights of the individual conferred by nature and protected by the limited state, that which the individual can do without the coercion and provision of goods and services by the state, and positive rights being what the individual is entitled to be given by the enabling state.

The extreme form of positive rights guaranteed by an enabling state is enshrined in Marxism. With the abolishment of private property, the state provides for all that the individual is deemed entitled. Examples of this are found in the Soviet Constitution of 1918 that states: “The Russian Socialist Federated Soviet Republic, having crushed the economic and political power of the propertied classes … offers assistance, material or other to the workers … in their effort to unite and organize” (Constitution (Fundamental Law) of the Union of Soviet Socialist Republics). Classic liberalism’s negative rights are the other extreme and Modern Liberalism’s positive rights is found between the two extremes, leaning towards the ostensibly enabling Marxist state.

Because these two Republics, Azerbaijan and Armenia, were once beholden to the Marxist state riddled with positive rights, it is of importance to make an inquiry into the shift in provisions for rights. As they have gone from communist with the fall of the Soviet Union to become “a democratic, legal, secular, unitary republic” (Article 7, Constitution of the Republic of Azerbaijan) and a “sovereign, democratic, social state” (Article 1, Armenia – Constitution & Politics). How far have they shifted from complete provisions for positive rights? Based on the statement of the basis of the state, the natural assumption would hold that the Azerbaijani constitution would lean further towards classic liberalism in its provisional rights and Armenia would lean toward comparatively Social-democratic, modern liberal provisions.

Negative Rights

In comparing the two constitutions, the overwhelming majority of rights guaranteed in the constitutions are negative. Roughly 21 and 39 articles are dedicated to the assurance of negative rights in the Armenian and Azerbaijani constitutions, respectively.

Although varying in the language, the ideas are similar in both documents. Among these include the right to the freedom of thought and speech; in Azerbaijan: “everyone may enjoy the freedom of thought and speech” (Article 47) and in Armenia: “Everyone shall have the right to freely express his/her opinion” (Article 27, Armenia – Constitution & Politics).  Similarly expressed, and guaranteeing the same right. Another example includes the right to vote; in Azerbaijan: Citizens of the Azerbaijan Republic have the right to elect and be elected to state bodies and also to take part in referendum” (Article 56). And in Armenia: “Eighteen-year old citizens of the Republic of Armenia have the right to take part in the elections and referenda as well as the right to take part in the public administration and local self-governance through their representatives chosen directly and through the expression of free will” (Article 30, Armenia – Constitution & Politics).

There are freedoms that are guaranteed in both constitutions such as: The right for equality before the law regardless of personal qualities[1], the right for life[2], ownership rights[3], succession rights[4], intellectual property rights[5], the right to privacy[6], right to marriage[7], right to protest or strike[8], freedom of meetings and association[9], freedom to participate in government political life and create political parties[10], and rights for those accused of crimes and facing trial[11], among others. Each of these rights, in essence, ensures the lack of government intervention in the practice of each of these areas, and a prohibition on government coercion to prohibit these actions. Many of these rights (such as property, privacy etc.) are relatively new in the post-soviet world and show a strong shift in the ideology of the provision and protection of negative rights.

Positive Rights

In total, there are 11 positive rights that Armenia guarantees and eight that Azerbaijan promises. All eight of the positive right provisions of the Azerbaijani constitution are shared by its’ Armenian counterpart. These include a right to employment[12], a right for rest[13], a right for “social protection”[14] (social security), right to live in a healthy environment[15], right for protection of health[16] (healthcare), right to education[17] and free higher education[18], right to have a home[19], and a right for legal advice[20].

Armenia, however, has further provisions. These are stipulated as the either additional rights to be provided by government or programs to supplement existing rights. The first is a right to paid maternity leave. The constitution, Chapter 2 Article 35 states “Dismissal for reasons connected with maternity is prohibited. Everyone woman-employee shall, in case of pregnancy and childbirth, have the right to paid maternity leave and parental leave following the birth or adoption of a child.”

This provision is a demand on the employer to provide such assistance, and is demanded through government coercion, thus making it a positive right. Two further supplemental and guaranteed benefactions of government in the Armenian constitution are found in Chapter 2 Section 27 and Section 30.2, providing for state run media and a right to equal access to public service, respectively. In order to supplement the other positive rights guaranteed (existing in the forms of government programs) it is stipulated in these two sections that all citizens will be able to access these programs, and that to further the right to access to information “The state shall guarantee the existence and activities of an independent and public radio and television service offering a variety of informational, cultural and entertaining programs.” (Article 27, Armenia – Constitution & Politics) Finally, in Article 48 of the Armenian constitution 12 functions of the state are listed outlining its’ purpose and what services it will provide the citizens.

Findings

The two constitutions have shifted far from the Soviet standard of government providing for all the needs of the individual. In the Constitution of the Republic of Armenia of 32 total provisions for rights 66% are negative rights and 34% positive. And in Azerbaijan, of the 47 total provisions for rights 83% are negative and 17% positive.  The nature of the rights and the language of the provisions is important as well, Azerbaijan has no provisions supplementing rights through programs and no lists of its’ purpose as a government outlining the specific services that will be offered, while its’ Armenian parallel contains both such elements. The Azerbaijani constitution leans to a more classic liberal view of rights with elements of positive rights throughout, whereas Armenia is amply Modern Liberal in its provisions, remaining closer to the soviet standard. The assumption based on the description of the state system of each constitution held true, Azerbaijan leans closer to a classic liberal ideal than Armenia.

Notes

[1] Armenia: Article 14.1; Azerbaijan: Article 25

[2] Armenia: Article 15 Azerbaijan: Article 27

[3] Armenia: Article 31; Azerbaijan: Article 28

[4] Armenia: Article 31; Azerbaijan: Article 29

[5] Armenia: Article 31; Azerbaijan: Article 30

[6] Armenia: Article 16; Azerbaijan: Article 32

[7] Armenia: Article 35; Azerbaijan: Article 34

[8] Armenia: Article 27; Azerbaijan: Article 36

[9] Armenia: Article 27; Azerbaijan: Article 49

[10] Armenia: Article 27; Azerbaijan: Articles 54 and 55

[11] Armenia: Articles 17, 20, 21, 22, and 23; Azerbaijan: Articles 60, 62, 63, 64, 65, 66, 67, and 68

[12] Armenia: Article 48; Azerbaijan: Article 35

[13] Armenia: Article 33; Azerbaijan: Article 37

[14] Armenia: Article 37; Azerbaijan: Article 38

[15] Armenia: Article 33.2; Azerbaijan: Article 39

[16] Armenia: Article 38; Azerbaijan: Article 41

[17] Free, mandatory lower education

[18] Armenia: Article 39; Azerbaijan: Article 42

[19] Armenia: Article 34; Azerbaijan: Article 43

[20] Armenia: Article 20; Azerbaijan: Article 61

References

“Armenia – Constitution & Politics.” Foreign Law Guide, 1995, doi:10.1163/2213-2996_flg_com_020034.

“Constitution (Fundamental Law) of the Union of Soviet Socialist Republics.” Review of Socialist Law, vol. 16, no. 1, Jan. 1990, pp. 167–224., doi:10.1163/187529890×00100.

“Constitution of the Republic of Azerbaijan.” Foreign Law Guide, 1995, doi:10.1163/2213-2996_flg_c1000046803.

Heywood, Andrew. Political Ideologies: An Introduction. 5th ed. New York: St. Martins, 2012. Print.

 

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