The State Constitutional Commission, which was established on December 15, 2016, will hold its final session by the end of this week. The non-governmental organizations that are members of the Commission would like to briefly summarize the draft constitutional amendments proposed so far. We would like to note that the Constitution as the supreme law of the state should be based on a broad public and political consensus that rules out disregard of clearly negative opinions of the members of the Commission and other public representatives about important issues.
Noteworthy that as a result of discussions, the government included several important issues in the draft constitution:
The provision on integration into European and Euro-Atlantic structures has been added to the draft – the constitutional bodies within their competences commit themselves to take all necessary measures to ensure full integration of Georgia into the European Union and the North Atlantic Treaty Organization.
A number of human rights safeguards have been strengthened and improved – most important is the provision on the substantive equality under which the state assumes the responsibility to implement special measures to ensure essential equality between men and women and to eliminate inequality; in addition, the right to access to the Internet has emerged in the Constitution.
Guarantees of constitutional independence for a number of institutions have increased/emerged; among them are:
Georgian Public Broadcaster – The law will guarantee the independence of the Georgian Public Broadcaster from the state agencies as well as its freedom from political and substantial commercial influences.
Prosecutor’s Office – The Prosecutor’s Office has been defined as a body independent from the executive authorities.
Judiciary – It has been determined that a judge will be selected based on a substantiated decision of the High Council of Justice through open ballot, based on judge’s honesty and competence.
The fundamental direction of the activities of the High Council of Justice has been determined – ensuring the independence and efficiency of courts; in addition, it has been specified that the rule of its activities shall be determined by an organic law.
The parliamentary oversight mechanism has strengthened relatively, in particular:
Investigative Commission – Unlike the current legislation, low quorum required for the establishment of an investigative commission has been determined, in particular the decision will be made by one third of the Parliament’s sitting members.
Despite a number of positive changes, the draft constitutional amendments also involve a number of negative initiatives. Among them are:
Unfair rule of parliamentary elections, in particular:
Rule of distribution of mandates – The draft constitutional amendments propose granting all undistributed mandates to only one political party that takes the first place. Under conditions where the number of undistributed mandates may amount to 10% or more, granting these mandates to only one party will significantly increase the disproportion between the votes and mandates garnered by the party. This approach will greatly weaken the purpose of abolishing the majoritarian electoral system and will question the principle of fair distribution of mandates. We believe that along with the transition to the proportional system, the undistributed mandates should be distributed among the parties in proportion to the votes garnered by them.
Abolition of blocs – The proposed amendments envisage the abolition of election blocs based on the necessity for developing and strengthening the parties. We suppose that this amendment represents a radical measure and is not justified by the legitimate interest.
These amendments will be especially unfavorable if the 5% threshold is maintained.
Abolition of direct presidential elections – the proposed version abolishes direct election of the President, who will be elected indirectly by the Parliament. Considering the quality of democratic development in Georgia and the interests of voters, we believe that the President should be elected directly, especially under conditions when the abolition of direct presidential elections is not necessitated by the parliamentary model.
A number of steps backwards in the sphere of human rights, especially the provision on the right to a marriage – according to the proposed version, a marriage is a union of a man and a woman with the purpose of creating a family. Under conditions when the same sex marriage is not allowed by Georgian legislation, and LGBT groups have never demanded marriage equality, such initiative may be considered populist, which is aimed at gaining political scores through raising this issue artificially.
Increased risks for judicial independence, in particular:
Amending the rule of composition of the Supreme Court of Georgia – According to the proposed version, Supreme Court judges are elected for lifetime tenure by the Parliament’s simple majority, upon nomination of the High Council of Justice. Taking into account a multi-year faulty practice of electing the first and second instance judges by the High Council of Justice, as well as the shortcomings in the rule of composition of the Council itself and a number of other problems typical for this institution, we believe that at this stage, transfer of these powers to the Council will grant it full authority to compose the judiciary that will ultimately jeopardize the judicial independence and making it free from the influence of powerful groups.
Probationary period – According to the draft constitutional amendments, the probationary period for judges has been maintained that has been assessed by both local and international experts as bearing a significant risk for judicial independence.
Considering the above mentioned issues, we suppose that a number of issues envisaged by the constitutional reform require further improvement in order to ensure the adoption of the Constitution that will be in line with international standards and principles of democracy.
With respect to all problematic issues raised above, we will present our alternative proposals at the session of the State Constitutional Commission.
We hope that the above mentioned faulty provisions will be amended during the final session of the Commission and subsequent parliamentary discussions, while all the improvements assessed by the civil society positively will be maintained.
Georgian Young Lawyers Association
International Society for Fair Elections and Democracy
Open Society – Georgia Foundation
Transparency International – Georgia
