Constitution of Georgia has been amended twice since the Rose Revolution. If in 2004, the amendment maximally satisfied President’s ambitions and gave him practically indefinite power considering his authorities in making legislative initiatives, dismissing Parliament, appointing and dismissing PM and government members, according to 2010 amendment, more power is concentrated under PM’s authority such as “counterassignation” of presidential decrees, his leading role in the sphere of foreign relations, appointing and dismissing government officials, presenting state budget to parliament without consenting with President; President will no longer have a right of legislative initiative, his main function is reflected in the role of a neutral arbiter between the Parliament and Government in times of a crisis; Parliament will take leading role in government’s formation… Thus, Georgian legislation is moving towards the mixed system of governance, “where we tried to reach balance between legislative, executive and judicial branches,” states the secretary of state constitutional commission Tengiz Sharmanashvili and adds “parliament will be in complete control of government, government – accountable to parliament, but if parliament is not able to form the executive authority, it can be dismissed.”
Whether parliament will “be in complete control of government” is under question. According to Venice Commission, Council of Europe’s advisory body on constitutional matters, the interrelation between parliament and government envisaged by the draft of constitution needs to be revised and it asks the parliament not to vote on project until the publication of the final inference by the Commission on October 15-16.
“The strong rights of PM can be justified whilst he remains under control of parliament and if parliament has an opportunity to declare non-confidence and easily elect new PM. In the offered draft of constitution, this is very complicated. If President refuses the dismissal of PM, the consent of 60% of parliament members is needed and this article should be reconsidered,” – states the head of the Venice Commission Delegation, the secretary Thomas Markert to the magazine Resonance.
The need of reconsideration of the corresponding article is crucial considering principles and standards of constitutional law. The fact that consent of 3/5 (60 %) of MPs is needed for overcoming the veto of President and declare confidence to new government, gives possibility for creating a situation where there is a PM in charge of government not supported, say 51 % of Parliament, but well liked by President, in fact, liked so much that the opinion of Parliament majority is neglected.
Thomas Markret recommended changing of the corresponding provision stating to “if the offered amendment concerning the declaration of non-confidence is changed, the level of government’s accountability towards parliament will be raised more. Consequently, this is one of our most significant recommendations.” Venice Commission states following regarding this issue in its first preliminary opinion: “Also in this case, the Constitution leaves a great deal of time for negotiations between the political parties and the follow up of possible negative effects. The underlying reasoning is not very clear, particularly in the light of the fact that, notwithstanding that the vote of no confidence and the presentation of the new Prime Minister are supported by the required majority of more than half of the deputies, the President can choose between the nomination of the candidate (should this not be an appointment?) or the dissolution of the Parliament and the following call of the new election. It is not very easy to explain this choice.”
As for the right of parliament to form the government, which, at a glance, seems to be the most important innovation and democratic step in the draft, it is extremely collaborated and protracted by the formation procedure. Civil constitutional commission raises concern regarding the proposal of PM by the political group with the best results arguing that if the coalition majority is formed after the election, it won’t be able to nominate a MP candidate. Also, the second vote of confidence on the same composition of government after one month seems to be making no sense to the Commission. Government’s argument that this time is needed for consultations and establishment of political spectrum is not shared by the Civil Commission. In this case 7 days for nominating a candidate in the beginning could have been expanded to 14 days, states Commission. Venice Commission also questions the goal of second vote of confidence on the same composition of government: “It is difficult to explain the provision of a second vote of confidence on the same composition of government (as this appears to be the case) after one month from the first vote. Such reiteration risks creating an occasion for inappropriate negotiations between the political parties.”
The existence of Parliament as an independent legislative branch is further threatened by the article 67 and 811 of the draft which, obliges the Parliament to hear any draft law on a special session in case of government’s request, but if it doesn’t accept it, government is authorized to raise the question of confidence of Parliament concerning this law, and if the Parliament doesn’t pass the draft law in a single hearing in term of 14 days, it’s considered that Parliament started the procedure of declaring non-confidence to government. According to Civil Commission, the Parliament faces dilemma in this case – either to pass the proposed draft law and obey the will of government or reject the draft law thus start the procedure of declaring non-confidence that might result in its dismissal.
Further concerns regarding the lack of independence of Parliament are concentrated on the following issues: consent of government for making changes in the draft of budget and the provision according to which the draft law which increases the states expenses can be passed only by the government’s consent. Both of these provisions are deemed intrusions in the legislative function of Parliament, states Georgian Young Lawyers Association (GYLA). Civil Constitutional Commission considers that the provision concerning the state budget endangers the historic authority of parliament to determine the budget since government will be able to force Parliament adopt the budget under the fear of dismissal by raising the issue of confidence in regards with the law of budget.
Another problematic provision that can endanger the balance of governmental branches, namely, the independence of judicial branch, is named to be 3 year examination period of judges. According to GYLA, the life appointment of judges is a positive change that can ensure the independence of judges but the burden of 3 year examination period undermines its objective. GYLA states that the paragraph about 3 year examination period was omitted in the version of draft presented to the Venice Commission by Georgian government.
Right of parliamentary minority to create temporal investigative commissions is practically abolished since the consent of parliament majority is needed after 1/5 of MPs raise the issue. “The obligation of creation of temporal investigative commissions is effective means for ensuring parliamentary control, which, as usual, is used by parliamentary minority. Presented Draft abolishes such right,” – states Civil Constitutional Commission.
All the above mentioned provisions have been passed unaltered on the first and second hearings of Parliament. Only the timeframe of entire procedure of constructive vote of non- confidence was cut by 20 days but the complications of the whole procedure remain the same. Georgian Parliament decided not to wait on the final inference of Venice Commission and conducted the special sessions to hear the draft in an expedited way on September 24th and October 1st. The final hearing is planned to be held for October5. On the request of opposition leaders to wait on the final inference of Venice Commission and start the Parliamentary hearings afterwards, Petre Tsiskarishvili, the leader of parliamentary majority stated that “the constitution is adopted for Georgian people and not for foreign experts.” Thus, according to his consideration, consulting with foreign experts would have undermined adoption of constitution for Georgian people?! Considering that the draft is planned to go into force on December 1st of 2013, waiting on the Venice Commission’s final inference for three weeks would have made nothing but a contribution to the development of constitution of Georgian people.
The second preliminary opinion of Venice Commission issued on the draft of constitution revised after 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.” Unfortunately, Georgian mainstream media concentrated on those recommendations that were taken into account but neglected the ones that were neglected by the Parliament.
It should be noted that the public hearing on the draft were conducted in the hot days of July and August, the dead season for the political activity. Obviously, the participation and contribution by ordinary citizens would have been higher if the hearings took place when the people came home from the vacations. No reasonable argument is presented for such a hurry. The Draft of Constitution certainly doesn’t reach balance between legislative, executive and judicial branches of government.
It chose a Parliament which can’t decide whether to be bold and dismissed or compliant and in the office in other words unstable Parliament;
It chose to raise the risks of government’s dictate over Parliament in other words uncontrolled government;
It chose not to present the constitutional guarantees for independence of judicial branch;
It chose to deprive parliamentary minority of vital right of minimum parliamentary control;
Unbalanced branches of government best describes the choice that Georgian government made once again.