On April 22, 2017, the Constitutional Commission voted on and approved the draft text of constitutional amendments. The draft constitution includes some positive changes, but also a number of significant shortcomings.

The following is an assessment of the main provisions proposed by the draft constitution.

1. Fundamental Human Rights

We welcome the fact that the initiatives proposed by IDFI (adding Good Administration and Freedom of Internet as a separate article) have been included in the draft as amendments to the Human Rights Chapter of the Constitution. The draft also includes a provision on disclosure of personal information in case of high public interest. The inclusion of good administration in the Constitution empowers citizens to request fair and timely processing of their cases from administrative authorities, and obligates the state to create relevant legislation and practice. Raising the constitutional standard on freedom of information should also facilitate further elimination of existing shortcomings in this area and ensure increased accountability of public institutions. Even though internet freedom is already incorporated in the existing constitutional rights in Georgia, emphasizing this right in the Constitution is nevertheless significant due to the internet’s global importance and the growing threats related to it. Other changes in the draft constitution include:

The draft removes all norms from the Human Rights Chapter that are declaratory in nature and do not contain obligations for the state, the fulfillment of which citizens could request in court (e.g. promotion of employment, education, science, culture and sport). Such norms were moved to the first chapter of the Constitution, which contains the general principles of the Georgian state. The draft project also removes Article 39 of the Constitution, which protects the universally recognized rights and freedoms of a person and a citizen that were not directly referred to in the Constitution but were naturally derived from its principles.

Assessment: The above approach is justified in terms of the structure of the Constitution; the Human Rights Chapter should include only those norms on the basis of which a person can request the court to require the state to carry out or refrain from a specific action. As for the removal of Article 39, this change will not reduce the Constitutional Court’s ability to invoke human rights that are not directly referred to in the Constitution. The Court will retain this ability through the right to personal development recognized by the Georgian Constitution, which includes all freedoms that are not directly referred to in the Constitution, but derive from the general principle of freedom.

According to the draft, the Constitution will define marriage as a union between a man and a woman for the purpose of starting a family.

Assessment: During the pre-election period in 2016, this issue was often used by political groups for populist purposes, included provoking of anti-Western sentiments in the Georgian public.

The Georgian legislation already defines marriage as a union of a man and a woman; therefore, the necessity for this change is unsubstantiated. It is regrettable that this change appears to be serving political purposes, rather than the interests of human rights in the country.

2. Election and operation of the Georgian Parliament

The draft constitution abolishes the majoritarian election system, meaning that all 150 MPs will be elected through the proportional system. It also prohibits the creation of election blocs by political parties, and retains the election threshold at 5%, while granting all mandates gathered by parties that fail to cross the threshold to the party with the most votes.

Assessment: Changing the election system to a fully proportional one is a definite step forward; however, this positive change is overshadowed by the disproportionate distribution of unassigned mandates, which is made even worse with the election threshold remaining unchanged and political parties no longer being allowed to form election blocs. Such a system places the party with the most number of votes in a privileged position, regardless of the performance of its runner-ups.

The draft constitution decreases the quorum required to create a temporary investigative commission in the Parliament. Creating such a commission will require the support of 50 instead of 76 MPs. In addition, the Prime Minister will be obligated to report to the Parliament once a year.

Assessment: The reduction of quorum required for creating an investigative commission is a positive step that enhances the oversight function of the parliamentary minority. The Prime Minister’s obligation to report to the Parliament is also a welcome change that will serve as a mechanism increasing the government’s accountability to the Parliament.

The draft constitution simplifies the procedure for holding a vote of no confidence towards the government. In particular, it shortens the constitutional terms and removes the President as an actor from the vote of no confidence procedure. According to existing regulations, if the President fails to present a candidate for Prime Minister that is supported by more than half of all MPs, the government is no longer approved with a simple majority and requires three fifth of the votes in Parliament.

Assessment: In a Parliamentary Republic the Parliament is the main body of public legitimacy. Therefore, ensuring the government’s accountability to the Parliament is especially important. A part of this is the Parliament having an effective and flexible mechanism of holding a vote of no confidence. For this reason, the changes proposed by the draft are to be welcomed, since they strengthen Parliament oversight and simplify the procedure for holding the government accountable.

3. Rules for electing the President

According to the draft constitution, the Georgian President will no longer be elected directly, and instead will be elected by an electoral college. The electoral college will be composed of 300 electors, including 150 MPs, all members of the highest representative bodies of the autonomous republics and members proposed by local government representative bodies.

Assessment: Indirect election of the President is not uncommon for Parliamentary Republics and does not necessarily contradict the basic principles of constitutionalism. However, in Georgia’s case it is important to consider the whole constitutional system. The proposed draft constitution does not include proper mechanisms to balance the power of the Parliamentary majority. Only a simple majority is required to elect members of independent bodies (Constitutional and Supreme Court judges, members of the High Council of Justice, the Ombudsman, the Auditor General, etc.), without a need for political groups to reach a consensus. There is also no institutional experience of how a system of checks and balances works among different branches of government.

In these circumstances, maintaining a Presidency with direct public legitimation might be a better choice, since this will allow the President upon necessity to use this legitimacy to challenge unhealthy aspirations of the parliamentary majority.

4. The Judiciary

According to the draft constitution, the President will no longer take part in the process of selecting candidates for Supreme Court judges. Instead, candidates will be nominated to the Parliament by the High Council of Justice.

Assessment: Participation of the High Council of Justice in the process of selecting Supreme Court judges is in line with the recommendations of the Venice Commission; however, this change must be accompanied with the reform of the High Council of Justice itself. The transfer of such important powers to the Council highlights the need to improve its decision-making and member election procedures.

The draft constitution restricts the powers of the Constitutional Court regarding election disputes. The Constitutional Court will no longer have the authority to consider the constitutionality of elections that have already been conducted. The Court will also no longer be able to declare an election regulation unconstitutional during a period of one year before any election, unless this regulation was adopted within this one year period.

Assessment: Such restriction of the functions of the Constitutional Court in relation to election disputes is inadmissible. With this change, certain legal norms that could determine the outcome of future elections may fall outside the scope of constitutional oversight.

The change also does not correct for the following threats it creates:

1) During the period of one year before elections, the Constitutional Court is prohibited from making decisions on election related cases that were launched long, perhaps years before the start of this period.

2) Certain legislative norms may at any time become unconstitutional based on a specific interpretation by an administrative body, which cannot be predicted by potential claimants.

3) The Parliament will theoretically be able to adopt legislative norms that are clearly unconstitutional a year before the elections. Due to the above restriction, the Constitutional Court will not be able to declare these norms unconstitutional, meaning that the country will not have a legal mechanism for abolishing clearly unconstitutional norms.

The exclusion of the Constitutional Court’s competence in considering the constitutionality of concluded elections is also a step backwards. In order to ensure the legitimacy of elections, it is important to have a legal mechanism for neutralizing possible unconstitutional actions.

5. Independence of the Prosecution

According to the draft constitution, the Prosecutor's Office will no longer be part of the executive government and will be established as an independent institution. The Prosecutor’s Office will be headed by a Prosecutor General, who will be elected by the Parliament for a 6 year term.

Assessment: Separation of the Prosecution from the executive government and its transformation into an independent institution is a positive step. Parallel to this constitutional provision, however, legislative guarantees of institutional independence will also have to be created. In accordance with the recommendations of the Venice Commission, the procedure for selecting the Prosecutor General must also be revised to balance the political component.

6. Increasing institutional guarantees of local government

According to the draft constitution, the separation of powers between the central and local government is based on the principle of subsidiarity, which expands the competence of local government. A local government unit may make decisions on all issues that are not explicitly excluded from its competence by law and that are not part of the special authority of the central government or the autonomous republic. In addition, local government may independently determine its organizational arrangement.

Assessment: The principle of separation of power is important not only between different branches of central government but also between central and local levels of government. In this regard, the above proposed change is positive, since it enhances the competence of local government units and strengthens their independence.

7. Euro-Atlantic Course

According to the draft constitution, transitional provisions of the Constitution will specify that constitutional authorities must take all measures within the scope of their authority to ensure the full integration of Georgia into the European Union and NATO.

Assessment: Inclusion of the European and Euro-Atlantic course in the Constitution is not only declaratory and symbolic in nature, but also has legal significance. If at any point the political group in power decides for Georgia to join an organization that is incompatible with Euro-Atlantic aspirations, the above constitutional norm can be used a legal basis for the Constitutional Court to abolish the decision.

We believe that the above change is to be welcomes, since it elevates the country’s foreign policy priorities to the constitutional level and creates additional legal mechanisms for their protection.

Conclusion

Despite some positive initiatives of the draft constitution elaborated by the Constitutional Commission, the document contains significant negative changes that do not serve the interests of strengthening democratic institutions and principles in the country. Therefore, we call on the government to take into account the recommendations given by local community groups during the General Public Discussions and, later, during parliamentary discussions on the draft constitution. The government must also take into account the recommendations given by international experts. It is essential for the constitutional amendments to be based on broad public consensus and not the views and interests of any one political group.