Constitutional Amendments in Georgia: Towards Parliamentarism

—Malkhaz Nakashidze, Fulbright Visiting Scholar, Boston College Law School; Assocoate Professor, Batumi Shota Rustaveli State University School of Law

On December 15, 2016, the Parliament of Georgia created the State Constitutional Commission.[1] The aim of the Commission was to elaborate the Draft law on revision of the Constitution of Georgia in the interest of the long-term democratic development of the country.[2] On April 22, 2017, the Commission adopted the Draft of Revision of the Constitution.[3] In this post, I review some of the main features of the Draft, both its content and the process that led to its writing.

Inclusion and Transparency of the Constitutional Commission

The State Constitutional Commission consists of 72 members including Members of Parliament, experts, representatives of NGOs and political parties; the ruling the party holds the majority in the commission. The president of Georgia[4] refused to participate in the work of the commission because of concerns about how the Commission was set-up to begin with.[5] Two days before the vote on the Draft, the opposition parties left the Commission. The fifteen opposition parties objected that the ruling majority had not considered any of their proposals.

The Venice Commission of the Council of Europe is an observer in the State Constitutional Commission. The president of the Venice Commission, Gianni Buquicchio, remarked during his visit to Georgia that a good constitution should be based on the widest consensus possible among all political parties and interests in society.[6] Recent events suggest that the Draft falls short of this goal.

Presidential Powers and Election

The State Constitutional Commission hopes to introduce pure parliamentarism in Georgia and in turn, abolish direct presidential elections. The president of Georgia will instead be elected by the Electoral College for a term of five years. The Electoral College will consist of 300 members, including all members of the Parliament, Supreme Councils of the Autonomous Republics, as well as individuals named by political parties from local self-government councils.

This will undermine the possibility of fair elections.  As a result of the electoral system, the ruling party usually has a majority in the parliaments of the Autonomous Republics and local self-government bodies. The self-governments are financially dependent on government support, there is still a Soviet territorial organization, Governors are appointed by the government^[7] and Georgia has a unicameral Parliament. The majority of citizens and political parties support the president’s direct election.^[8] In addition, the amendment does not indicate a date when the first indirect presidential election will enter into force. Although criticizing the president, Georgia’s Parliamentary Head has declared that indirect presidential elections could be introduced in 2018.[9]

The Draft restricts presidential powers. The president exercises most of his/the powers in agreement with the cabinet. The president has to be nonpartisan and the age of the candidate has been increased to 40. The National Security Council is abolished and the Council of Defense will be created only during martial law. The president remains the Commander in Chief of the Armed Forces, but can only appoint and dismiss the Head of the Military Forces with the recommendation of the cabinet.

Powers of the Parliament and Parliamentary Elections

With the abolition of presidential elections, there are still many questionable points regarding the parliament. The majoritarian election is abolished though the 5 percent threshold is maintained. The unallocated seats will be controlled by the political party that takes first place. Electoral blocs will be banned, thus this system will likely create a strong one-party majority in the future. Independent constitutional bodies (Public Defender, General Auditor, members of the High Council of Justice, General Prosecutor, Judges of the Supreme Court) will be elected by simple party majority and could be loyal to the ruling party.

Human Rights and Judiciary

One of the more durable chapters in the Constitution of Georgia is the second chapter, although most of the articles on human rights and freedoms have been changed. The Draft now states that Georgia is a social state; that the free market economy, social justice, social equality and social solidarity are central principles; that the right of land ownership has special importance; and that marriage is defined as a union between man and women. The Public Defender will be elected once for a five-year term and judges will be appointed for the first three-year probationary period. Judges of the Supreme Court are nominated by the Council of Justice instead of the president. The Constitutional Court’s power to declare the results of the elections unconstitutional based on unconstitutional law was restricted.

Amendments to the Constitutional Amendment Rules

The Draft has also changed the constitutional amendment rules. Amendments will be adopted by a two-thirds majority of MPs and approved by the next elected parliament. The amendment will be signed by the president if it is supported by no less than three-fourths of the parliament.  The president does not have the right to veto the constitutional amendments.

Conclusion

In conclusion, there are some positive changes in the Draft. It improves the procedures of confidence and non-confidence in the cabinet; it removes the prosecutor’s office from the Ministry of Justice; it affords equality rights for women and men; it defines Internet freedom; it lowers the quorum for the establishment of an investigative commission; and it provides for the country’s integration in the European Union and the North Atlantic Treaty Organization.

Despite some positive changes, there are questions about the mechanisms of the democratic functioning of power. The constitutional reform confirmed the perils of holding supermajority power in the hands of a single-party majority. Unilateral adoption of such important amendments may be a threat to the long-term democratic development of the country. The Draft creates a high risk of establishing a strong one-party majority system.

Suggested Citation: Malkhaz Nakashidze, Constitutional Amendments in Georgia: Towards Parliamentarism, Int’l J. Const. L. Blog, May 12, 2017, at http://www.iconnectblog.com/2017/05/constitutional-amendments-in-georgia

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[1] http://constitution.parliament.ge/en-54.

[2] http://constitution.parliament.ge/en-52.

[3] http://constitution.parliament.ge/en-88.

[4] In May, 2013 Giorgi Margvelashvili was named as the Presidential candidate by the coalition “Georgian Dream” but he is non-partisan and there is a strong disagreement between president and ruling party since presidential election.

[5] http://civil.ge/eng/article.php?id=29687.

[6] http://www.interpressnews.ge/en/politicss/44180-gianni-buquicchio–constitution-should-not-be-the-result-of-consensus-between-the-party-or-current-majority.html?ar=A.

[7] https://matsne.gov.ge/en/document/view/30346.

[8] http://www.civil.ge/eng/article.php?id=29995.

[9] http://www.interpressnews.ge/en/politicss/86638-parliamentary-speaker–it-seems-no-direct-presidential-elections-will-be-held-in-2018.html?ar=A.