2017 Constitutional Reform in Georgia: another misguided quest or genuine opportunity?
The Launch of 2017 Constitutional Reform
The Parliament of Georgia, by the resolution of December 15 2016, established the State Constitutional Commission and adopted its charter. On December 23 2016, the Chairman of the Parliament also serving as the Chairman of the Commission, appointed its members by decree. The commission’s mandate is to elaborate constitutional reform proposals and produce draft constitutional amendments by April 30 2017. The draft then should be submitted to the Parliament which will launch national public debates. The draft amendment must then be passed by a supermajority of three-quarters in parliament. The Constitution requires passage on two consecutive sessions, with at least three months’ break. Assuming that deadlines are strictly followed, it would be possible to pass the amendments in first and second reading by the end of the Spring session in June, and in third reading in the Fall session, by the end of December.
The establishment of the commission marks the first major step towards the realization of the agenda of comprehensive constitutional reform that was part of the electoral program that swept the Georgian Dream party (GD) to control Parliament with more than three-quarters of the seats as a result of the October 2016 general elections. Then minority United National Movement (UNM) ran an unsuccessful campaign for the second ballots in nearly 50 single member majoritarian districts, with the message of highlighting the dangers of concentrating constitution-amending authority under a single political party falling on deaf ears.
The Georgian constitution in force is mainly the inheritance of the UNM’s own constitution-making exercises, most notably, the 2010 constitutional reform which created a hybrid regime, leaning to a parliamentary system, allowing simple democratic majorities to govern comfortably. Under 2010 Constitutional arrangements, it is virtually impossible to hold the government and prime minister accountable due to the additional complication of a constructive vote of no confidence. Most importantly, the combined-independent electoral system, a relic from the 1995 Presidential constitution, generates power premiums for the party wining a simple majority and catapults supermajorities to the Parliament. The results of 2016 general elections strikingly illustrate the majority-aggrandizing effect of the electoral system. With 48.68 % of the proportional party list votes, GD amassed total 115 seats in 150-member Parliament, by adding 71 majoritarian district mandates to 44 party list seats.
Disproportionate power of the parliamentary majority party is insufficiently checked by the popularly elected President and the judiciary including the constitutional court. During GD majority’s first term in office (2012-2016), both Presidents, Saakashvili and Margvelashvili, and most notably the Constitutional court, resisted an apparent onslaught by the governing majority against independent public and media institutions and human rights. However, constitutional review and presidential veto were effective enough hurdles against the unilateral exercise of power by a cohesive political majority. Nevertheless, political frictions involving the GD majority against the president and the constitutional court brought serious institutional damage to the court and cultivated inclinations to weaken the Office of the President within the GD.
The constitutional system engineered by the previous government, which many suspected was designed to preserve the UNM’s hold on power, has ironically fallen in the service of their political foes, the GD. From the viewpoint of a self-interested rational actor, the current constitutional majority has the least interest to fundamentally alter existing constitutional architecture, already working to its benefit. The major desire, rather, appears to be the removal or weakening of the existing feeble checks to the almost plenary authority of the simple majority winner of general elections, and realization of major GD campaign promise concerning the constitutional prohibition of gay marriage.
Challenges to the Constitutional Commission
The commission is supposed to remedy the problems related to the concentration of constitution-amending majority under a single party, dispelling the image of arbitrariness and contributing to the appearance of rational deliberation and democratic inclusion. The composition of the 73-member body reflects this aspiration of broad inclusion. Parliamentary minority – the “European Georgia” formed by the former senior UNM leaders, who left UNM in January 2017, have seven MPs in the commission out of eight original UNM commission members. As a result of the split, UNM’s parliamentary faction shrank to six MPs and they have only a single MP in the commission. “The Alliance of Patriots”- right-wing populist parliamentary faction has two MPs in the commission. Four political parties who failed to pass the 5% electoral threshold in the last general elections, but got more than 3% electoral support, were each awarded single seat in the commission, giving commission representation to pro-Russian “Democratic Movement”, “State for the People”- formerly headed by a famous Georgian opera singer, “Georgian Labor Party”, and “Free Democrats” - GD’s former coalition partner in 2012 elections.
Despite the considerable presence of political opposition, GD is expected to enjoy comfortable majority support within the commission, counting on the votes of the members representing public institutions (e.g. government, legislative and executive bodies of autonomous republics) and experts sympathetic to GD.
The President, who has no party affiliation, has refused to send his representatives, citing disagreement with the parliamentary majority over his status within the commission, it’s composition and procedure. Certainly, the President’s absence affects the commission’s ability to claim inclusion. However, the GD majority was willing to pay this price as it could not risk presidential hindrance of the process in the early stages of reform.
However, the President retains significant constitutional powers to influence the process, not least his power to veto the amendments passed by the parliament. How this institutional rivalry will play out and whether it will have any beneficial effect on the process is still open to speculation. The stakes remain high for the president, as GD’s plans to make the Presidential office indirectly elected and weaken its powers are on top of reform agenda.
Georgian Constitution-making Project- a Misguided Quest
After a quarter century of incessant amendments, the current Parliamentary resolution launching the reform still states the basic aim of producing a constitutional text “cohering with the fundamental principles of constitutionalism”. While the rhetoric of all constitution-making efforts has raised expectations of a quest for an ideal blueprint of constitutional government, the forces driving constitutional reforms were always focused on their own political self-interest. Resultant frustrations with the process produced the mantra that every constitution-amending majority repeats: condemning their predecessors for abusing the constitution for their personal political objectives, and pledging to remedy the damage by rejecting narrow sighted political-instrumentalist approaches.
These solemn pledges have traditionally failed and are destined for further frustrations so far as there are no real incentives or structural constraints orienting constitution-amending majorities towards taming their appetite in harvesting short-term political benefits from constitutional reform. In 2011, the authors of the three-quarters supermajority requirement for passing constitutional amendments mistakenly assumed achieving this threshold would be impossible under the conditions of Georgian electoral system. Also erroneous was the assumption that the same rule discouraged logrolling and short-sighted compromises.
Indirect Election of the President- a Step towards the “Pure” Parliamentary System?
The prevailing argument among GD affiliates for the indirect election of the head of state is that it is a mandatory feature of a parliamentary regime. This argument overlooks that classification of constitutional regimes is mostly descriptive and acquires normative significance only in light of fundamental constitutional principles. These principles support concerns that taking away the president’s popular legitimacy will result in weakening his powers to check parliamentary majorities/government.
Abolishing constitutional safeguards which are already insufficient actually seems to be counter-productive for the governing majority. While the constitutional powers of the currently popularly-elected president are not weighty enough to pose any actual effective threat to the parliamentary majority, the existence of the directly-elected President as a supposed counter-weight to the parliament brings legitimacy through the appearance of institutional constrains, competition and separation of powers.
To remain in line with the declared commitment to constitutionalism, the amendment of the presidential election rule will necessarily be accompanied by substitute mechanisms of constitutional constraint. Any such substitute will be subject to rigorous scrutiny. Due to special concerns of concentration of power in a single chamber, unicameral parliamentary systems often complement the system with other effective checks against the Parliament’s power. Without those safeguards, such systems would fail the test of normative conformity with fundamental constitutional principles, while they might still formally satisfy the descriptive criteria for parliamentary regimes.
In constitutional regimes like Georgia’s, where the control of single representative chamber gives to the winner almost complete political power, mandatory checks should include extensive rights of political, especially parliamentary opposition, and competitive electoral system that does not generate supermajorities. The major challenge for GD’s constitutional majority is whether it overcomes the temptation of the power premiums and reforms the electoral system.
Due to the comfortable supermajority that the electoral system awards to the winners, no holder of the constitution-amending power has sufficient incentive to promote change. Despite previous GD support for the introduction of a new electoral system by 2020, after the elections several GD lawmakers have expressed opposition to the change of electoral system, especially against the repeal of single member majoritarian districts. Currently, the commission is examining several reform proposals including the allocation of 75 seats by closed national party lists and 75 seats by multi-member proportional districts created on a regional basis, or the allocation of all 150 seats by multi-member proportional districts (with a 4% threshold, and allocation of seats based on the quota and greatest remainder rule).
The only proposal which includes the indirect presidential election rule proposes electing the President through a three-fifths vote of the Electoral College (which could be reduced to a simple majority in the second or third ballots), comprised of the members of parliament and delegates from the representative bodies of autonomous republics and regions, or alternatively, delegates elected by the regional groups of the representative bodies of local self-government.
The same proposal abolishes two major presidential powers, namely the powers of Commander in Chief and representation in foreign relations. The proposal completely removes the President from the exercise of foreign affairs, including his powers to appoint the ambassadors upon the recommendation of government and accreditation of foreign diplomats. In matters of defense and security, the proposal leaves limited powers with the President – mainly the power to declare and lift a state of war, and appoint and remove military chief of staffs upon the recommendation of National Security Council.
Several proposals distributed to the commission members additionally include the right of the parliamentary minority to form investigative or other temporary parliamentary commissions without majority consent, where the parliamentary majority would not enjoy a majority presence. Another proposal gives to a minority of one-fifth of MPs (lowering the current requirement of two-fifths) the power to initiate a constructive vote of no confidence. According to the proposal, each minority group of thirty MPs will have the right to use this tool once during a single parliamentary session. However, without electoral reform, these additional checks given to parliamentary opposition will clearly be insufficient to act as a counterweight the power of the parliamentary majority in the presence of a weakened President and Constitutional Court.
It remains unclear how far reaching GD’s efforts to upgrade constitutional safeguards will be, and whether any or all the above listed proposals will be adopted. The working group of the commission on Parliament voted to reject bicameralism, one of the alternative arrangements. Until the commission adopts the final draft amendment, any evaluation remains incomplete and premature, considering that within the Constitutional architecture the smallest details matter.
The Georgian constitution-making process has previous negative experience of adopting half-solutions and façade constitutional constraints. It is also customary for Georgian constitution-making that the document adopted by the commission emerges last minute, through back channels, and substantially differs from the drafts discussed within the commission. Despite this experience-inspired skepticism, there still remains hope that the commission will deviate from the previous constitution-making practices.
Empowering the Most Vulnerable Branch
Institutional legitimacy of the judiciary is formally and qualitatively distinct from the legitimacy of political branches and it is considerably more difficult to build. Judicial legitimacy is built upon actual and perceived institutional independence and impartiality, and more importantly, through a long process of giving reasoned decisions, and cultivating a public perception of judicial fidelity to law.
It is a sad commentary upon the state of the Georgian judiciary that it has largely failed to generate the institutional legitimacy that would enable it to resist hostile pressures naturally coming from the political branches. Current reforms might attempt to remedy the damage to the constitutional court by expanding its current jurisdiction of individual constitutional complaints on the conformity of statutory law and delegated legislation with constitutional rights, to include constitutional challenges to judicial decisions and alternatively all legal acts of the public authorities. This will be a welcome development, though it will not meaningfully affect the court’s standing vis a vis legislature, considering the current institutional state of affairs in the court. Upon the expiration of the terms of the former President of the constitutional court and two other justices defiant to political pressures, the institutional conflict between the Court and the GD ended. This year, the GD Parliamentary majority will make appointments of two constitutional judges. GD has already nominated its MP and former Vice Speaker to fill the pending vacancy. GD parliamentary majority will have another vacancy to fill by December 2017, when the mandate of the current Vice-President of the court expires. Additionally, proposals submitted to the commission include increasing the number of constitutional judges from nine to twelve, further packing constitutional court with judges sympathetic to GD.
Expanding the Court’s existing jurisdiction, would also be part of the GD majority’s attempt to rectifying the damage that constitutional ban on gay marriage would bring to its human rights record. Proposals submitted to the constitutional commission additionally raise other human rights related alarms. It seems, the GD majority intends to overrule through constitutional amendment those decisions of the Constitutional court it fiercely disagrees with. Constitutional prohibition of the sale of agricultural land to foreign nationals will overturn the constitutional judgments repeatedly striking down legislation to this effect. Alternatively, the GD majority will reach the same objective by circumscribing the protected sphere of the constitutional right to property and expanding public power to regulate property by introducing the German constitutional concept of the “social obligation of property”. The proposal to add “national security” and “public welfare” as legitimate aims for the restriction of the right to privacy (Article 20 of the constitution) together with the relaxation of strict constitutional requirements of judicial supervision, likely aim to facilitate the repeal of a constitutional judgment striking down the direct access of security services to the channels of electronic communication. In case the GD carries out these plans, expanding the constitutional court’s jurisdiction clearly will help little in improving its human rights record.
It appears from the commission deliberations and submitted proposals that the GD majority also plans to restrict structural constitutional guarantees of economic freedom. The constitutional requirement of a mandatory referendum to introduce a new tax or to increase the existing tax rate is the primary target of repeal. With the restriction of the scope of economic freedom, the GD may agree on the extension of social welfare rights in the constitution, the measure enjoying considerable support with commission members, who may reciprocate with deference on the GD’s controversial human rights reform plans.
The GD constitutional majority has a limited though not insignificant burden, to live up to its declared aspirations of producing a constitution fully consistent with fundamental constitutional principles. There might be limited incentives for GD to go beyond mere appearances and engage in genuine constitutionalist business of limitations of its own power. The current political power of GD does not rest on the strength of its grip of institutionalized power, even though it has managed to establish control over all major public institutions, including judiciary.
The bases of GD’s power are mainly social - the immense wealth of its founder, Bidzina Ivanishvili, and the implicit pact with the major social institutions not to overburden them with the revolutionary social changes imposed from above, as practiced by the Rose revolution governments. UNM’s post-revolutionary governing style, especially in the first term of President Saakashvili, included radical institutional and economic reforms with far-reaching social consequences. Reforms like drastic cuts to the bureaucracy, disbanding and rebuilding of entire institutions, for example the firing of the entire traffic police force to create a new patrol police, left thousands of people face to face with market forces unleashed by the liberal economic reforms. Despite double-digit economic growth during those years, not all were ready to adapt the pace of transformations. The sense of being left behind was felt not only in the lower segments of society, but also in some elites, especially by the Soviet-era “intelligentsia”. UNM’s tendency to act through unilateral executive action, and concentration of power in the law-enforcement and security apparatuses which implemented strict criminal disciplinary measures to achieve pubic order, also resulted in systemic abuses of power and further alienated entire segments of the society, causing critical social sentiment against the UNM and its governing style which reached its heights during UNM’s 2012 electoral defeat. The GD have since been using the “heavy hand” of UNM as a spectre, feeding old fears and even implicitly presenting itself as the lesser of two evils. Its current societal support largely rests on the fragile public perception that it has not yet fully taken the path of UNM-like excesses.
Thus, it makes sense for GD to protect the social bases of its power by bolstering constitutional architecture against the concentrated political power. As experience should teach them, their grip on concentrated political power may slip at any moment, and nothing could be more lethal for their social power base, than arbitrary and constitutionally unchecked power in the hands of their rivals.
Davit Zedelashvili is Assistant Professor at Free University of Tbilisi, his research and teaching covers Comparative Constitutional Law, Philosophy of law and Political Philosophy. He has studied at Central European University (LL.M in Human Rights and SJD in Comparative Constitutional Law). He regularly publishes both in English and in Georgian. Recently, he has served as an editor of interdisciplinary volume dedicated to the 20-th anniversary of 1995 Georgian Constitution and worked for the Constitutional Court of Georgia as a senior legal expert under the EU funded institutional support project.