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Georgia's politicians chip away at constitution

Today, 15 October, the latest amendment to Georgia’s Constitution is being rushed through with indecent haste. It is passing into law without even waiting for the recommendations of the Venice Commission. It weakens parliamentary control over government and fails to enshrine the independence of the judiciary. Yet again Georgian’s leaders are denying their people democratic accountability.
Nino Tsagareishvili
15 October 2010

Georgia’s constitution has been amended twice since the Rose Revolution. The 2004 amendment reflected the President’s ambitions:  it gave him virtually unlimited powers of legislative initiative; the power to dissolve Parliament, appoint and dismiss the Prime Minister and members of the government. The most recent amendment this year has concentrated power in the hands of the Prime Minister. 

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New amendments to the constitution concentrate vast powers in the hands of the Prime Minister. (cc) Aivis Freidenfelds, Valsts kanceleja

The Prime Minister can now countersign presidential decrees; his authority over foreign affairs has been increased.  He has a freer hand and dismissal of government members and he can present the state budget to Parliament without prior consultation with the President. The President no longer has the right of legislative initiative. His main role is to act as a neutral arbiter between Parliament and the Government in times of crisis. 

The latest amendments give Parliament a leading role in the formation of a government. Georgia can, therefore, be said to be moving towards a system of mixed governance.  As Tengis Sharmanashvili, Secretary of the State Constitutional Commission, has said “we have tried to achieve a balance between the legislative, executive and judicial branches,” adding that “Parliament will be in complete control of the government and the government will be accountable to parliament. But if Parliament is not able to form the executive authority, it can be dissolved.”

Whether Parliament will “be in complete control of the government” is questionable. The Council of Europe’s advisory body on constitutional matters, the Venice Commission, considers that the relationship between parliament and government envisaged in the draft constitution needs revision.  Parliament was therefore asked not to vote on the project until the publication of the Commission’s final conclusions on October 15-16.

“The power of the Prime Minister can be justified as long as he is accountable to Parliament and as long Parliament is free to propose a vote of no confidence and elect a new Prime Minister”, as the head of the Venice Commission, Thomas Markert, put it to the magazine Resonance.  “In the current draft constitution this is a very complicated procedure. In the event of the President countermanding the dismissal of the Prime Minister, the support of 60% of Parliament Members would be needed and this article should be reconsidered.”

As it stands, the Prime Minister could survive a vote of no confidence by 51% of Parliament because of the President’s veto, which can only be overturned by 60% of parliamentarians.  In practice, it would be virtually impossible for members of parliament to pass a vote of no confidence in the Prime Minister.  For even if they went through all the steps required, the President could still exercise his veto to prevent the government being dismissed.  He could also veto the choice of new prime minister, although it had been approved by a majority vote.  According to Irakli Kobakhidze, a scholar of constitutional law, this provision has “no analogy in the constitutional practice of Western countries”.

For a vote of no confidence the unconditional guaranteed support of 60% of Parliament would be needed.  Otherwise, if the vote of no confidence were unsuccessful, the President could dissolve Parliament, according to the Civil Constitutional Commission.

In the view of Thomas Markert “if the proposed amendment concerning the declaration of no confidence is changed, the level of government accountability towards Parliament will be increased. This is one of our most significant recommendations.”

The Venice Commsission concluded its second preliminary findings with the following statement:  

“There does not appear to be any need for an initial vote to ‘launch’ the procedure of non-confidence; there should be only one vote. The requirement under Article 81 paragraph 4 (second proposal by parliament of the same candidate with three-fifths of the votes) does not really fit into the general scheme of distribution of power. It is not logical to require the support of two fifths of the MPs for the Prime Minister, but to demand three fifths in order to overcome a Presidential veto raised in the no-confidence procedure. This gives too much power to the President and diminishes not only the power of parliament, but also the political responsibility of the Prime Minister that should be a corner stone in the new system.” 

The right of Parliament to form a government would appear to be the draft’s most important innovation and democratic step.  But in fact Parliament’s increased authority is restricted.  For not only does the procedure proposed for forming a government not entitle the majority is not entitled to nominate the Prime Minister.  A second vote of confidence in the government is also required after one month has elapsed.

The Civil Constitutional Commission has also raised concerns about the right of the largest political grouping to put forward its candidate for Prime Minister. The commission argued that if a coalition is formed after the election, it will be unable to nominate a member of parliament as candidate. It sees no sense in a second vote of confidence in the same government after one month. The government maintains that this time is needed for consultations and the establishment of the political spectrum.  The Commission disagrees, arguing that the initial 7-day period for nominating a candidate could have been expanded to 14.  The Venice Commission also questions the purpose of a second vote of confidence in the composition of government:

“the possibility for a repeated vote, possibly on the same composition of the government, after as long a period as one month risks prolonging unduly the negotiations – including non transparent ones - between the political parties”.

The existence of Parliament as an independent legislative body is further threatened by articles 67 and 81of the draft constitution.   These stipulate that Parliament is obliged at the request of the government to consider any draft law in a special session.  Should Parliament refuse a draft law, the government can propose a vote of confidence on it.  If Parliament does not pass the draft law at a single hearing during a 14-day period, the procedure of declaring no confidence in the government will be deemed to have been initiated. According to the State Commission, this presents Parliament with a dilemma: to pass the proposed draft law and comply with government wishes or reject the draft law, thus initiating a procedure likely to result in its dissolution.

Concern for Parliament’s independence is also raised by two other issues: i) the consent of government would be required in order to make amendments to a draft budget; ii) it will not be possible to pass a law that increases government expenditure without the government’s consent. In the view of the Georgian Young Lawyer’s Association (GYLA) both these provisions impinge on the legislative function of Parliament. The Civil Constitutional Commission asserts that provision i) infringes Parliament’s historic role in determining the budget, because Parliament’s fear of a confidence vote and eventual dissolution will enable the government to force through its budget. 

The independence of the judiciary is also threatened by a proposal to introduce a 3-year probationary period for judges.  This would completely undermine their independence, in the view of the GYLA.  If, on the other hand, they were appointed for life, their independence would be guaranteed. It is perhaps significant that the 3-year probationary period was omitted in the draft submitted by the Georgian government to the Venice Commission.

The right of a parliamentary minority to set up a temporary investigative commission has also been effectively abolished, for any such decision, even if raised by 20% of members of parliament, would require the consent of a parliamentary majority. “Temporary investigative commissions are an effective means of ensuring parliamentary control for parliamentary minorities.  This right is abolished by the current draft,” says the Civil Constitutional Commission

All the above-mentioned provisions have been passed unaltered at their first or second parliamentary hearings. The timeframe within which a vote of no confidence can be raised has been cut by 20 days, but the procedural complexities remain the same.

It is a matter of extreme concern that the Georgian Parliament decided not to wait for the final conclusions of the Venice Commission.  The hearings took place in extraordinary sessions on 24 September and 1 October. The third and final hearing is planned for 15 October, but it can make only editorial, not substantive or contextual changes. So even if the Venice Commission’s final conclusions are published before this date, they can have no impact on the third hearing.  This is in spite of the fact that on 9 September the Deputy Chairman of Parliament stated that Parliament would consider the draft at the second reading only after the publication of the Venice Commission’s final conclusions. Opposition leaders asked that the Parliamentary hearings should wait for publication, but they were told by Petre Tsiskarishvili, the leader of parliamentary majority, that “the constitution is adopted for the Georgian people and not for foreign experts.”  So he considers that consultations with foreign experts would have undermined the adoption of the constitution for the Georgian people?!  Given that the draft is only planned to come into effect on 1 December 2013, waiting 3 weeks for the Venice Commission’s final conclusions could only have contributed to the development of the Georgian people’s constitution.

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Tbilisi's Supreme Court: the new constitution sees judges appointed on the basis of a three year probation. Critics say this will threaten the Court's independence. From www.iwpr.net

The second preliminary opinion of the Venice Commission on the draft of the constitution, revised after its first and second hearings, reads: “Although several preliminary recommendations made by Venice Commission have been taken into account by the Georgian authorities, the Georgian parliament should await the final opinion of the Venice Commission and take it into careful consideration before proceeding with the final adoption of the constitutional amendments under consideration.” It is unfortunate that Georgian mainstream news channels should have chosen to concentrate on those recommendations that were taken into account, while ignore those neglected by the Parliament.  ‘Wait for final recommendations before approval’; ‘Further strengthening of Parliament’s role desirable’ ‘Reduced timeframe of non-confidence vote insufficient’.  These are just some of the key phrases from Venice Commission’s second preliminary opinion that were not highlighted by the leading news channels. 

It should be noted that the public hearings of the draft were held in the hot days of July and August, the dead season for political activity. There would obviously have been a greater degree of participation and contribution by ordinary citizens if the hearings had taken place after the end of the holidays. No reasonable argument has been given for such haste.

The Draft Constitution certainly doesn’t achieve a balance between the legislative, executive and judicial branches of the state.  In reality the government has once again tailored Georgia’s supreme law to its personal ambitions. But the constitution is not intended for this purpose. The Georgian government had a chance to take a historic step towards democratic governance, but has chosen instead the path of regression:

  • it has chosen to embrace the concept of an unstable Parliament, one which can only remain in office if it is compliant;
  • by increasing government control over Parliament, Georgians risk being saddled with a government that is unaccountable and uncontrolled;
  • it has made no constitutional guarantees for the independence of the judiciary;
  • it has deprived the parliamentary minority of its right to parliamentary control.

The Georgian government has once again failed to grasp the nettle of democratic accountability.

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