Opinion on constitutional reform - Tamar Chugoshvili
In total, 33 amendments have been made to the Constitution of Georgia, adopted in 1995, however, only two rounds of these amendments have been of fundamental importance – amendments of February 2004, where, together with the enhancement of Presidential governance, the institute of Prime-Minister was introduced; and amendments of October 2010, when the choice was made in favor of the Parliamentary Republic, significantly reducing President’s powers at the expenses of extension of the Prime-Minister’s rights.
At the end of the 2016, the newly elected Parliament started working on the Constitutional Reform, aiming to improve and strengthen Parliamentary system of the country, existence of strong Parliament, effective government and independent court.
The reform was initiated due to numerous gaps of the current Constitution, in particular:
- Number of Constitutional norms contradict with the principles of Constitutional Law, inter alia, the principle of distribution of power, which is explicitly mentioned in the relevant conclusion of Venice Commission of 2010;
- The existing Constitution includes number of controversies from the viewpoint of the clear distribution of power among Constitutional bodies, which has repeatedly caused complications in practice.
For the purpose of filling the gaps in the existing Constitution of Georgia and developing the refined wording of the Constitution, State Constitutional Commission has been established on the basis of the Resolution of the Parliament of Georgia. Two goals have been set to the Commission by The Parliament:
- Ensuring full compliance of the Constitution with fundamental principles of the Constitutional Law;
- Formation of Constitutional system, complying with the principle of long-term democratic development of the country.
The Parliament has set up widely representative Constitutional Commission with 73 members; together with the deputies of the ruling party and oppositional parties, the Commission consisted of the representatives of non-Parliamentary oppositional parties, NGOs and experts.
In the draft version developed by the Commission, major part of the amendments are based on opinions of NGOs and experts. During the final voting, the Commission supported the draft of Revision of the Constitution with 43 votes against 8.
The developed draft Revision of the Constitution ensured full compliance of the Constitution with legal principles and is in accordance with the best European practices, establishing refined Parliamentary system.
Governance system, established according to the new wording of the Constitution, is based on the following principles:
- Strong Parliament – capable government – independent court – non-partisan president.
Existence of the Strong Parliament is being ensured by the following key amendments:
- In accordance with the principle of distribution of power, relations between the Parliament and the Government will be regulated. The level of accountability and responsibility of the Government to the Parliament increases qualitatively (the procedure of Prime-Minister’s regular reporting to the Parliament will be established, the procedure of the vote of no confidence to the Government will be adjusted to democratic principles, etc.);
- Transition from the mixed system to proportional election system will ensure strengthening the role of the political parties in Parliamentary life, which will be positively reflected on the general role of the Parliament in the system of Constitutional bodies. The existing mixed system, with high probability, gives the winner party the possibility to obtain Constitutional majority, which was abused by the two previous authorities in the recent history of Georgia. This is the first time in the history of independent Georgia, when change of electoral system, contradicting to subjective interests of ruling party is being introduced. Proportional electoral system will be introduced with three reservations:
• The institute of electoral block, creating major obstacles to formation of party system in Georgia for years, is being abolished;
• The 5% electoral threshold remains valid (establishment of 5% threshold for parties is a legitimate practice in EU countries);
• The winner party gets the undistributed mandates. According to the last five elections, such bonus constitutes an average of 5%, and according to the last four elections – 3.1%. The above-mentioned small “bonus” will ensure relatively high degree of stability in the Parliamentary life and political system.
- The rights of Parliamentary opposition increases (e.g., it will be possible to set up a investigation Commission on the basis of decision of Parliamentary opposition, etc.).
Effective Government is being ensured by the following key amendments:
- In compliance with the recommendations of Venice Commission, powers between Constitutional bodies is clearly delimitated in the sphere of foreign policy, defense, etc. Government will operate as highest body of executive power, implementing domestic and foreign policy of the country.
Independent court is being ensured by the following key amendments:
- The norms, determining the power of the Constitutional Court is refined;
- In compliance with the recommendations of Venice Commission, the Council of Justice is granted the authority of nomination of judges of the Supreme Court;
- Minimum number of judges of the Supreme Court is determined by 28 members (presently, the court is represented by 13 judges);
- The Principle of irreplaceability of judges and the relevant guarantees is established (e.g. the Constitution provides, that reorganization or liquidation of the court cannot serve as the ground of the dismissal of the judge);
- The procedure of making decision with regards to the appointment of judges by the Highest Council of Justice becomes more stringent; the relevant decisions will be made by the Highest Council of Justice by the majority of the two-thirds of the votes;
- The composition of the Highest Council of Justice is strictly defined;
- The principle of accountability of the Highest Council of Justice to the Conference of Judges is established, etc.
Non-partisan President is being ensured by the following key amendments:
- The powers of the President and the Government is delimitated in compliance with the best practices of European Parliamentary democracies;
- The procedure of indirect election of the President is being introduced, excluding disproportion between the degree of legitimacy and power of the President.
In addition, the Constitution establishes number of new progressive provisions:
- The Constitution determines new fundamental rights, which, up to present, were either missing or not directly guaranteed by the Constitution: the right to physical integrity, gender equality, rights of disabled persons, independence of Public Broadcaster, availability of the Internet, freedom of entrepreneurship, right to good governance, etc. Besides, the rights of equality, integrity of the personal space and communication, availability of public information, health protection, environment protection and other fundamental rights will be protected at relatively higher standards;
- New guarantees of local self-governance is established;
- Prosecutor’s Office is formed as a Constitutional body, independent from executive power;
- Foreign policy priority will be defined at the level of the Constitution. In particular, the Constitution establishes the obligation of Constitutional bodies to take all measures to ensure full integration of Georgia into the EU and NATO.
Despite the fact that it is hard to achieve full consensus in such difficult course and considering that working on Constitutional amendments was a complex and loud process, all agree on the most important part - these amendments represent significant step forward, which is the product of the open and transparent process. It is proven by the last voting of the Constitutional Commission, where none of the members of the Commission voted for leaving the existing Constitution unchanged.
Debates, discussions, expert assessments, perhaps, certain changes, related to these amendments still await us in the coming months. Time will show the most important thing proved by these amendments - we have turned our country into more European-type state and made a step forward in the right direction on the path to Constitutional evolution.