The Parliament of Georgia passed a new wave of constitutional amendments on October 15, 2010, which have seriously reconfigured the relationship between all three branches of government and have affected their rights and responsibilities. These amendments limit the rights and functions of the President in favor of the growing importance of the Prime Minister and the Parliament. The newly adopted provisions will go into force in two periods.
A series of provisions, including those that reformulate the preamble and certain fundamental rights, define the role, structure, powers of the local government, and the Courts will enter into force as of January 1, 2011. Other provisions that reconfigure the relationship between the executive and the legislature, and affect the new balance of powers between the Parliament, Government and the President shall come into force after Presidential elections of October 2013 as the newly elected President will be sworn in.
These amendments have been passed amid widespread speculation that Georgia’s current President Mikhail Saakashvili will follow the example of Russia’s former President and now Prime Minister Putin. Saakashvili has been serving his second and final term as President. It has been alleged that by diminishing the powers of the President and increasing the authority of the Prime Minister, Saakashvili has been preparing himself to serve as country’s next Prime Minister. The multiplicity of newly emerged websites and social networking sites running the slogan “Saakashvili for the Prime Minister” further exacerbates these suspicions.
As it is impossible to discuss with the due details all the adopted provisions, this post will solely be devoted to the articles that impact the powers of the three branches of government. Firstly, it should be noted that the President remains the Head of the State and the guarantor of Georgia’s integrity and independence. He/she remains to be the Chief of the Georgian army as well as Georgia’s supreme representative in international affairs. The requirements for presidential candidates have been slightly altered. For example, it will be harder for Georgians residing abroad to run for the position. Considering that according to the UN Human Development Index Georgia is at the country with the highest emigrating population in the world, this amendment will exclude a substantial portion of Georgian population residing outside Georgia from contemplating running for the post of the President. According to this amendment, the person running for the President needs to be at least 35 years old, should have Georgian nationality by birth, should have lived in Georgia at a minimum for fifteen years, and should have been residing in Georgia for the last three years leading up to elections. Prior to amendments, all the prerequisites had been the same except the three year residence requirement. Original version required that the candidate resided in the country at the moment of elections, not for three years prior to elections.
Furthermore, the preconditions for serving as presidential candidates were expanded by adopting a restriction on dual nationality of the President, the Prime Minister and the Speaker of the Parliament. Such a restriction is innovative, and runs counter to the direction adopted by Georgia’s recent (2004) steps towards allowing dual nationality in certain cases.
Having said that, it should be noted that powers of the President have been seriously curtailed with great authority delegated to either Prime Minister or the Parliament. The starkest difference is in the increased powers of the Prime Minister in relation to appointing and leading the Government. Prior to these changes, President appointed the Prime Minister and gave consent to appointment of Ministers. Only after appointing the Prime Minister and consenting to candidatures of other Ministers, the President requested the vote of confidence from the Parliament. After adoption of October 2010 amendments, the leadership role of the Prime Minister has changed. The wording in article 79 “[T]he Prime Minister is the Chair of the Government” has been changed to “the Prime Minister is the leader of the Government”, with the specific definition of Prime Minister’s functions having changed as well. According to the new phrasing of article 79, the Prime Minister “defines the areas of activity of government, organizes the work of the Government as well as coordinates and supervises the activity of its members.” Prior to amendments, the article also required that the Prime Minister report to the President on the activity of the Government and underlined that the Prime Minister is accountable before the President and the Parliament. This latter phrase has been removed in the current reading, implying that the Prime Minister’s accountability and reporting obligations before the President have been removed.
Moreover, the Prime Minister is henceforth empowered to appoint unilaterally and dismiss members of the Government.
Changes in the President and Prime Minister’s authority to issue and annul legal acts are sufficient to illustrate the degree of changes in their authority. In February 6, 2004, as newly elected President Saakashvili put forward, and the Parliament adopted a set of sweeping changes to the Georgian Constitution; these amendments included and added power of the President to suspend or annul written legal acts of the government and other executive agencies, if they contradicted the Georgian Constitution, international agreements, laws or Presidential Acts. This new power enshrined under then-article 73(3) was subject to critique from domestic as well as international organizations, as it encompassed a function of judicial review traditionally in the domain of the Constitutional Court of Georgia. Amendments of October 15, 2010 no longer allow for such Presidential power. Moreover, the ability of the President to issue legal acts was further severely constrained with the new institution of “countersignature.”
The phenomenon of countersignature is completely new to the Georgian legal culture. From now on, legal acts of the President will require a ‘countersignature’ by the Prime Minister, except the acts promulgated during martial law. Orders of the President, which, according to the Law on Normative Acts, is issued to regulate individual cases such as e.g. Appointments or dismissals of certain personnel, granting of awards, as well as other acts, which do not have a wide and continuous legal effect, do not require a countersignature. In case of countersignature, responsibility for the act rests with the Prime Minister.
The new Constitution puts forward a clearly defined, supreme role for the Government. Prior to amendments article 78 stated: “The Government of Georgia undertakes implementation of country’s domestic and foreign policy in accordance to law. The Government is accountable before the President and the Parliament of Georgia.” Hence, in practice the Government served as the advisory body to the President, who led and implemented country’s domestic and international policy. The new amendments specifically indicate that the Government is “the highest organ of executive government”, and that it is only accountable for the Parliament. Although the President is still permitted to request an extraordinary session of the Government, no longer is the President allowed to chair Government meetings.
Nowhere the shift to the Parliamentary republic is so evident, as in the new procedure of elections of the Prime Minister. The Government is considered dissolved as soon as the authority of newly elected Parliament is recognized. Yet the President may authorize the old government to continue the fulfillment of its functions until the new government is composed. Then the President appoints the Prime Minister based on the recommendation from the party which has won the majority of seats in the preceding parliamentary election. Within seven days after nomination, the candidate for the Prime Minister chooses the candidacies for the positions of Ministers. Afterward the person nominated for the Prime Minister presents the whole Government together with its Program of Action before the Parliament for the vote of confidence. In the previous version, the President selected the candidacy of the Prime Minister independently of the Parliament. The President himself then presented the Government composition for approval of the Parliament.
The above-mentioned changes are but a few recent amendments to the constitutional system of Georgia. Amendments of October 2010 have introduced important changes to all aspects of Georgia’s constitution, be it in fundamental rights, judiciary system or checks and balances between the three branches of government. All of these changes, only a few of which have been discussed here, could give plenty of food for thought to comparative constitutionalists, human rights scholars and political scientists alike.
–Anna Dolidze, JSD Candidate, Cornell Law School
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