"The new constitution is temporary, and will only last for as long as Georgian Dream remains in power," say experts
Photo: Supporters of ‘Georgian Dream’ after parliamentary elections 08.10.2016 REUTERS/David Mdzinarishvili
At the autumn session, the parliament of the 9th convocation will put to vote a project of a series of constitutional amendments, which will result in Georgia receiving a new constitution. Two readings of the project have already been approved of. No one expects that this new contentious document will make substantial changes.
“This is a historical decision,” says the chairman of parliament, Irakli Kobakhidze. “We are exchanging a rather imperfect constitution for a modern one of the European type.
“In this new constitution there are many changes of which many governments would be proud. For example, in transitional situations, we’ve made it so that the constitutional bodies must do all they can to provide for the integration of Georgia with the European Union and NATO.
“A new article will appear in the constitution which will guarantee the right of every citizen to use the internet. And an article guaranteeing the right to a fair trial.
“The right to quality medical treatment will also be guaranteed. Moreover, there are other changes which in principle do not cause controversy. For example, the minimum age for MP candidates has been raised from 21 to 25, and for candidates to the presidency from 35 – 40.
“In the constitution it will not be indicated that the parliament must be located in Kutaisi. (Kutaisi, in addition to Tbilisi, was announced a parliamentary city during the period of Mikheil Saakashvili’s presidency).
“However, as the opposition asserts, these are smaller issues, which the authorities are using in political debates in order to shift attention from more fundamental amendments to the constitution.
“The main thing which the authorities and other political parties have been unable to come to an agreement on, and something that the Venice Commission has also criticized, is the order and rules for elections to parliament and the presidency.”
The voting system
Today in Georgia there is a mixed-voting system: in parliament there are 150 seats, 77 of which are elected by a proportional representation, and 73 by majoritarian representation.
Political parties and NGOs believe that such a system does not lend itself to the creation of a competitive election atmosphere and often plays into the hands of powers who, in fairness, have nothing to do in parliament.
This was confirmed over the course of the last elections: the reigning ‘Georgian Dream’ party was not supported by even half of the voters (the party gained only 48 percent of the vote), however due to the majoritarian system it received a constitutional majority and of the 150 MPs it received 115.
Political parties and NGOs have already been demanding for a while now the cancellation of the majoritarian system and a complete transition to the proportional system. This was demanded by Georgian Dream itself when it was in opposition, however, after coming to power it changed its approach on the matter. As experience suggests, the majoritarian system is much preferred by the ruling party: majoritarian elections, as a rule, win seats for the ruling party.
The current constitution of Georgia was approved of on 24 August, 1995, and has been changed 33 times. The majority of the changes were made between 2004 – 2010, in the period of Mikheil Saakashvili’s presidency. In 2004, an article was introduced which established the position of Prime Minister. The minimum age for judges was lowered to 28, and for MPs to 21. In 2010, the powers of the president were reduced, and as a counterweight the roles of the parliament and government were strengthened, and the parliament was transferred from Tbilisi to Kutaisi.
Georgian Dream acknowledges the unfairness of the majoritarian system of elections, but is in no hurry to change it: Georgian Dream is ready to hold the next parliamentary elections, which are in 2020 via a mixed system. According to the new constitution, the majoritarian system will only be cancelled in 2024.
Civil society and the political opposition also do not love the proportional system of elections, which has been put forward by Georgian Dream: the new constitution will forbid political parties from forming election blocks, and yet the barrier preventing parties from entering parliament unless they receive 5% of the vote will remain active.
Moreover, votes which are received by parties which do not make it over the 5% threshold, will be transferred to the party in first place.
The opposition points out that the current proportional system of elections is also not fair because of the fact that it does not leave any room for smaller parties to be represented in parliament.
The Venice Commission in its interim conclusion which was published on 16 June, approves of a complete transition to the proportional system of elections, calling it a step forward, but the retention of the article concerning the 5% barrier, the transfer of votes to the party in first place and the ban on party blocks will markedly hamper the smooth functioning of such a voting system.
According to the new constitution, presidential elections will also be subject to legislative changes. The next presidential elections in Georgia are scheduled to take place in autumn of 2018. The elections will be historical as it will be the last time the population will directly vote for the president.
The president’s authority, as an exception, will be extended to a six year term. In 2024, residents of Georgia will be deprived of the right to vote directly for the president: this will be performed by an electoral college instead. The college will consist of 300 individuals, 150 members of parliament, 13 representatives of the Supreme Councils of Abkhazia and South Ossetia, and 124 representatives of self-governing bodies.
Authorities say that the cancellation of the direct presidential elections is as a result of Georgia’s transition to a parliamentary model of government, and in parliamentary republics the president is elected namely through indirect elections.
But here, the opposition sees a sort of double-standard in the actions of the current authorities, because in states where presidents are elected by indirect elections, the parliament consists of multiple parties.
“But the document of the constitution put forward by Georgian Dream does not give any change to the parliament to be multiparty,” says the political secretary of the opposition ‘Republican Party of Georgia’ Tamar Kordzaia.
According to her, Georgian Dream has carved out an election system in which the constitutional majority will be present not only at the next parliamentary elections, but in the future as well.
“Pay attention to who will be entering the electoral college: MPs, the majority of which belong to the ruling party and representatives of local self-governing bodies, a majority of which are also in the Georgian Dream party. We will receive a president appointed by one party and he will be accountable to this party,” says Kordzaia.
In the constitution, a new definition of family will also be added. Currently, the law says that “marriage is the voluntary union of peers”. In the new constitution, the law will say that “marriage is the voluntary and equal union of a man and a woman, conducted with the aim of creating a family”.
Human rights defenders believe that the new definition is discriminatory, because unmarried people and their children will not be considered families.
The Venice Commission has made several remarks on this article. In its conclusion it emphasized that in no case should the constitution define marriage as a union between a man and a woman: “Georgia is a member of the Council of Europe, and it must legally recognize single-sex partners.”
Problems of legitimization
In the process of discussing the project of the constitution, the authorities almost completely ignored the notes and demands of the opposition. This creates yet another serious problem for the constitution of the country.
“We have received the draft of the constitution, and not one political force has agreed to adopt it and respectively, the level of trust in it will be rather low,” says an associate professor of Batumi University who was named after Shota Rustaveli and lawyer Malkhaz Nakashidze.
According to him, the level of trust for a constitution which establishes the superiority of one party over the rest and reflects the views of only one political team cannot be high by definition.
“It’s for that reason that in Georgia, when a party just comes to power, it throws itself at changing the constitution. Unfortunately, these changes will not be based on consensus or agreement.”
Despite the fact that no one expects that the authorities will make compromises on such an issue of principle such as the voting system, the opposition still offers to continue a dialogue and not accept the contentious document in a quick manner.
The Venice Commission has requested the same. However, the ruling team intends to accept the constitution before the elections for local self-governing bodies, which will take place in Georgia on 21 October. Experts think that the government is rushing to accept and pass the constitution before the elections in order to demonstrate its strength to voters.
Moreover, the ruling team is in such a hurry that it does not intend to wait for the final conclusion of the Venice Commission, which will be published on 6 October, because Georgian Dream had formerly requested the commission to present a preliminary conclusion of its examination of the constitution.
“They know that the third hearing and voting is intended to be held at the end of September. The authorities are acting within the framework of the law. We do not expect that the conclusion of the Venice Commission will be negative,” says First Vice Speaker of Parliament Tamar Chugoshvili.
The verdict of the constitutionalists is such: a constitution lacking legitimacy will last only as long as the party itself will remain in power. After this, a new, long period will begin for re-examining the constitution.
What do the people think?
According to sociological surveys conducted in Tbilisi by the American National Democratic Institute from 18 June through to 9 July, only 32 percent of the respondents were in the know about changes to the constitution. Of those, 59% said that there is not enough information about these changes.
According to one survey, only 2 percent of those surveyed had been present at public discussions which were organized across Georgia. Moreover, only 6% believe that constitutional amendments reflect the views of the population: according to the opinion of 47% of respondents, the amendments only partially reflect public opinion, and 32% believe that they do not reflect public opinion at all.