IDFI thinks that while working on the Constitutional changes the Constitutional Commission should take into consideration the issue like Good Governance, freedom of internet and ‘good administration’. In this regards, IDFI prepared the following recommendations:
1. Adding the guiding principle of Good Governance in Article 5 of the Constitution.
Article 5 of the Constitution of Georgia lays out the basic principles for exercising state authority, inter alia separation of power. This principle constitutes the fundamental provision for defining a democratic state and at the same time defines the type of state management.
The type of state management in a democratic system, i.e. good governance is characterized by participation, consensus, accountability, transparency, responsiveness, effectiveness and goal-orientation, impartiality, inclusiveness, and rule of law.
Good (effective, democratic) governance ensures the establishment of systems of public administration where:
Public service aims to achieve common goods and exercise its functions taking into consideration the general public interest;
Open and transparent governance is ensured;
Different branches of government ensure that the principle of checks and balances is followed;
Under the principle of Rule of Law everyone has equal rights and opportunities, and courts as well as law enforcement authorities are independent and unbiased;
Ways of addressing social conflicts are effective.
There is no doubt that when acting within its discretion in the decision-making process the state is bound by human rights and basic principles enshrined in the Constitution. Nonetheless, we find it advisable to add ‘Good Governance’ to Article 5 of the Constitution as a guiding principle of decision-making process.
Paragraph 5 is added to Article 5 of the Constitution of Georgia: “5. State authority is exercised based on the principles of Good Governance.”
2. Integrating the definition of freedom of internet in Article 24 of the Constitution
The need and importance of internet is rapidly growing, having a considerable effect on the sphere of human rights. Although a number of provisions of Georgian legislation regulating basic human rights and freedoms have been interpreted by the Constitutional Court of Georgia as covering Freedom to Internet, this freedom does not constitute a separate human right.
Access to internet has been declared as one of the basic human rights by the Resolution of United Nations Human Rights Council. Based on Paragraph 1 of the Resolution, the same rights that people have offline (e.g. freedom of expression) must also be protected online. The document also calls on signatory states to promote digital literacy and ensure access to information online, which is an important tool to facilitate the promotion of the right to education. Paragraph 10 of the Resolution “condemns unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online in violation of international human rights law and calls on all States to refrain from and cease such measures”.
It is important for the Freedom of Internet to be added as a separate article to the Constitution of Georgia, which will determine the main aspects of this freedom and principles of free access to the Internet.
Paragraph 11 is added after Paragraph 1 of Article 24 of the Constitution. ”11. Everyone has the right to access and freely use the Internet.”
3. New formulation of Article 41 of the Constitution and the right on ‘good administration’; the obligation to regulate topics of access to information by an Organic Law.
The Constitution of Georgia includes important provisions for ensuring the protection of the right to a fair trial. Nonetheless, it does not provide for any procedural guarantees. Naturally, this does not exclude the possibility of interpreting particular rights in the way that would indicate the existence of certain procedural rights. However, we find it crucial to include unambiguous provisions guarantying the protection of this right to the Constitution. More specifically, to integrate this right in Article 41 of the Constitution of Georgia, following the example of Articles 41 and 42 of the Charter of Fundamental Rights of the EU.
Paragraph 9 of Article 42 of the Constitution provides for an important guarantee of good administration (reimbursement of damages inflicted by the State). Taking into consideration that Article 42 of the Constitution mainly regulates issues of fair trial, we find it advisable to move Paragraph 9 from Article 42 to Article 41.
To date, Georgia faces a number of important problems regarding access to information. Emphasizing the right to receive information in Article 41 of the Constitution and the obligation of the state to regulate this area by adopting a relevant Organic Law will significantly facilitate the process of addressing the problem.
Article 41 of the Constitution is formulated in the following way.
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by state institutions;
2. Any person, who has illegally sustained damage inflicted by the State, Autonomous Republics, or self-government bodies and officials, shall be guaranteed by the court to receive full compensation accordingly from the funds of the State, Autonomous Republic, and local self-government.
3. Information contained in official records pertaining to health, finances, or other private matters of an individual shall not be made available to anyone without the prior consent of the individual in question, except as determined by law, when doing so is necessary to safeguard national security or public safety, or the health, rights, and freedoms of others.
4. Every citizen of Georgia shall have the right of access to information as determined by law, as well as to official documents about him/her stored in state institutions, unless they contain state, professional, or commercial secrets.
5. Issues related to access to information held by state authorities is regulated by an Organic Law.”
Removing Paragraph 9 of Article 42 of the Constitution.
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