Proposed changes to Georgia’s constitution endanger political pluralism, local NGOs say, as they await the Venice Commission’s decision

NGOs believe that, in case the Parliament approves the current constitutional draft, the country’s political pluralism may face serious danger.

Four influential NGOs have applied to the Venice Commission [an independent consulting body of the Council of Europe on constitutional issues] with their remarks. Representatives of the civil sector consider the Venice Commission the last chance to make amendments to the constitutional draft.

It’s been almost five months now since the special constitutional commission embracing representatives of the government and the opposition, as well as NGOs, has started working on the amendment draft to be introduced in the constitution.

The work of the commission has been quite resonant, with many members quitting as they didn’t agree with the final version of the projects proposed by the government. The process has now entered into the final phase – awaiting the parliamentary approval after the public hearings.

Georgia, meanwhile, awaits the conclusion of the Venice Commission.

According to the Chairman of the Parliament, Irakli Kobakhidze, the Constitutional Commission will fully consider all recommendations of the Venice Commission. Accordingly, representatives of NGOs think that the position of the Venice Commission is probably the most effective mechanism to rectify the problematic provisions of the constitution project.

The document sent to the Venice Commission has been prepared by four organizations: International Society for Fair Elections and Democracy (ISFED), Georgian Young Lawyers’ Organization (GYLA), Transparency International Georgia, and the Open Society – Georgia Foundation. Together with the positive aspects of the constitutional project, the document also stresses four problematic topics: changes in the electoral system, entry on marriage, the rule of the indirect election of the President, and change of the rule for applying to the Constitutional Court.

Changes in the electoral system

The draft constitution envisions the abolishment of the system of election blocs and the retaining of the 5 percent threshold for parties to join the Parliament. Also, if a certain party fails to pass the threshold, all the unallotted mandates will go as a bonus to the party that ranks first, which will place the given party in an advantageous position, thereby endangering political pluralism and promoting the concentration of power in the hands of a single party.

‘This aspect of the electoral system is unfair and significantly detracts from the positive result of the abolition of the majoritarian system. At the same time, the abolition of election blocs, while maintaining a 5% threshold, adds to the heightened probability of the high number of unallotted mandates remaining after the elections,’ – the document reads.

Entry on marriage

The new draft constitution contains an entry that defines marriage as “the union of man and woman”.

Representatives of NGOs suggest the entry being sensitive as it promotes a homophobic attitude, provides grounds for hate crimes and limits the freedom of expression of LGBT groups. This entry bears “a homophobic and populist connotation”, say representatives of the civil sector, considering it as a step back in the protection of LGBT rights in Georgia.

The hypothetical ban of marriage equality is problematic as the Georgian legislation doesn’t provide for the civil partnership for same-sex couples.

‘Based on the practice of the European Court of Human Rights, Georgia’s supposed to provide legal recognition of same-sex couples and ensure that they have the same rights as opposite-sex couples,’ the document reads.

Rule for indirect election of the President

According to the constitutional project, the President’s not supposed to be elected by the people, but the electoral board comprised of representatives of the Parliament of Georgia, local authorities and the Supreme Council of the Autonomous Republics.

NGOs believe that the independence of the President should be guaranteed through direct elections, enhancing the President’s role in the administration of state. The constitution empowers the President to veto legislative acts, appoint judges, dissolve parliament, and select candidates for public agencies. Therefore, the degree of legitimation and influence is very important.

Appeal at the Constitutional Court

Another provision of the constitutional project regards a ban on applying to the Constitutional Court during the election year, with the request to recognize the legislative norms associated with the elections and those adopted a year before as unconstitutional, as well as the normative acts affecting the process of elections.

Representatives of NGOs further suggest that applying to the Constitutional Court is a very important right, and that its restriction at any time is unacceptable. “It’s unclear why it has become necessary to impose that ban and the goals the authors of the legislation are trying to achieve,”- say NGO representatives in the letter to the Venice Commission.