Constitutional reform – To the Venice Commission of the Council of Europe for Democracy Through Law

პოლიტიკა - 00:13, 25 May, 2017

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To the Venice Commission of the Council of Europe for Democracy Through Law

The appeal of political parties and civil society organizations to the Venice Commission:

Distinguished Commission members,

We, the citizens of Georgia, political and civil society organizations, representatives of social and academic circles, address you, the independent experts, supporting local and international democracies, significant partners of our state, representing international independent institution.

As it is known, there is an ongoing process of Constitutional changes in Georgia, conducted by the government of Georgian Dream in unilateral, isolated form from the entire Georgian society. This process is characterized both by one-sided and partisan nature. The consensus supporting the aforementioned changes does not exist. Everyone, except the government, has agreed that the constitutional changes intended and declared by the governing party are undesirable and threatening to the institutional order of Georgian state, Georgian democracy and constitutional ethics, political and legal systems. There is the clear consensus against the project presented by the government.

The main subject of our concern and the cause of the negative attitude of the citizens of Georgia towards the constitutional changes is the constitutional amendment abolishing the direct and universal election of the President of Georgia, restricting and depriving Presidential institution of its rights and discretions, mainly its function of Checks and Balances. According to the proposed amendment the Presidential institution is undermined, disburdened of the content. That has direct link with the political and personal interest of the real and informalruler of Georgian Dream – of Bidzina Ivanishvili.

We would like to present to the Commissionour position, comprising of eight(8) legal arguments and twenty (20) political thesis.

Argument 1: According to the Art. 69 of the constitution of Georgia: “The President of Georgian is the Head of the State of Georgia. He/She ensures the unity and integrity of the country and the activity of the state bodies in accordance with the constitution.” As the Head of State, elected directly by the citizens of Georgia, possessing the highest democratic legitimacy, the President is authorized (obliged) to openly resist every potential or realized transgression of the Prime Minister or government. This should be considered as a quite important deterrent factor in the state with 20% of occupied territories and governed by informal ruler.

Argument 2: According to the same article: “The President is the Supreme Commander-in-Chief of the Armed forces of Georgia.” Therefore, in times of peace or armed conflicts, Georgian armed forces are commanded not only by the Minister of Defense appointed by the Prime Minister, but also the President possessing the highest public legitimacy, elected directly by Georgian people. That ensures the civil and democratic control of the armed forces.

Argument 3: the third paragraph of this article says: “the President of Georgia represents Georgia in international relations”. It means, that the foreign policy of the state will always remain accountable to the people of Georgia, even if the government may decide to change the declared democratic and pro-European course (with what we are dealing now).

Argument 4: Article 73 tells us, that the President

“in the cases determined by Constitution, will nominate a candidate of the Prime Minister and appoint the Prime Minister;” – it means, that the executive government is compelled to act in accordance with the President, that encourages the establishment of culture of compromise and consensus, which is very important for such young democracies like the Georgian democracy.

Argument 5: Article 73 t) in accordance with subparagraph “the President declares the state of emergency - in the conditions of disorder and war, when the government has no opportunity to function normally”. Such power should be exercised only by the President, theperson with the highest democratic mandate.

Argument 6: Article 73 p) in accordance with the subparagraph President has a power to “pardon convicts”. This is a serious leverage for prevention of political persecution and/or illegal imprisonment, since it creates the serious disincentive for Executive government to engage in politically motivated persecutions.

Argument 7: the same article j) the subparagraph tells us that the President “dissolves the Parliament in the cases determined by the Constitution and in accordance with the established procedure”. This is the one legitimate method to resolve either constitutional or budgetary crises, and this power to must be a exercised bythe official with the highest democratic mandate – the president directly elected by the people.

Argument 8: article 74 provides that “The President of Georgia is entitled to call for a referendum on the issues of the Constitution and the law, with the request of not less than 200,000 voters of the Parliament of Georgia, within 30 days after receiving the request”. This right also includes a negative right of the President to deny the referendum if the issue concerns an unconstitutional or undemocratic initiative that is not excluded in young democracies like Georgian democracy.

We also kindly offer you the thesis about the Presidential institution, which shared by majority of Georgian society, political, academic and civil spectrum, against the changes proposed by the government:

✔No one has a legitimacy to take away the one of the major political rights of the citizens - to choose the President of their country;

✔There is no practice of reducing existing political rights in the history of democracies;

✔A weak president (institutionally) creates a fertile ground for the successful emergence of informal management and anti-constitutional political practice;

✔Despite the fact that the executive branch of the government is not separated, the directly elected president is the most important constitutional body for checking and balancing the executive like prime-minister and the cabinet of ministers.

✔The President with the highest democratic legitimacy sets up the Center for Political Stabilization and Stable Political Development;

✔The Presidential institution is already a traditional state institution, whose election is a state-political tradition;the infringement of such tradition is unacceptable;

✔ In case of indirect voting system for President, the usurpation of the authorities, the higher institutions and the constitutional bodies becomes simple and easy;

✔ Direct and universal elections of the President was held in Abkhazia in 1991. The abolition of this right is terribly unjust and illegitimate to our citizens in the occupied territories. We should not deprive them of their right to choose the leader of the united Georgian state;

✔Presidential elections are one of the main mechanisms of political engagement of citizens. It is inadmissible to destroy the mechanism. This will irreparably damage, reduce and eliminate the most important segment of participation in the political process; The abolition of the right to direct presidential election will weaken the status, function and other fundamental considerations of the people as the main source of political power;

✔ President is the symbol of the constitution and state. It is unacceptable that a citizens do not have the opportunity to clearlyindividualize their highest representative;

✔President is a non-partisan, above-party, supreme constitutional body, a state institution that has to stand up to all the narrow political interests. The president elected by the parliamentary majority cannot be such;

✔President should be the embodiment of the unity of the state and the integrity of the society. President elected by the parliamentary majority will not be able to do anything of this kind, and will not be able to perform any kind of consolidating function;

✔ President is the Supreme Commander-in-Chief and should create a common consolidation perspective in citizens; He should be a public authority. The president elected by the ruling majority does not imply such an prospect in nature;

✔ Oppression of the rights of the President in parallel with increasing the Prime Minister's rights will create an autocratic Prime Minister by concentrating his powers. Since it is undesirable to have a President with unlimited rights, the Premier Minister of the indistinct Rights is unacceptable as well.

✔Only the ruling majority benefits from the public legitimization of these amendments;

✔The existing convocation of the Parliament of Georgia does not enjoy this type of legitimation; There is no consensus about the change of the direct presidential election rule.

✔The presidential institution is linked with the highest constitutional provisions. Constitutional changes with short political perspective, or personal intentions are inadmissible;

✔ Approaches to short-term, narrow political interests contributes to destroying the authority of the constitution as a combination of values as a general public contract;

✔ The president's institute largely comprises the identity of the state of Georgia, its history. The Presidential Institute has a high social response. It is inadmissible to reduce this response;

✔Encroachment of President's institutional model damages constitutional ethics and logic, the constitution's soul, its founding character and order.

If it may please the respected commission members while preparing your report take into consideration these arguments, the strong and unshakable positions of Georgian citizens, the importance of the continuation of the Georgian state-political and democratic traditions and the unity of the Georgian society against the proposed constitutional project.

Sincerely
1. United National Movement – Nikoloz Rurua
2. “Movement State for People” – Nika Machutadze
3. Atlantic Council of Georgia – David Sikharulidze, Batu Kutelia
4. European Democrats – Paata Davitaia
5. Civil Aliance for Liberty – Zurab Kharatishvili
6. National Democratic Party – Bachuki Kardava
7. New Georgia – Giorgi Vashadze
8. Liberal Democrats – Mukhran Burchuladze
9. Reformers – Irakli Ghlonti
10. New Unity for Georgia – Nikoloz Vashakidze
11. Public Movement “Iveria” – Lasha Kusikashvili
12. Christian Democratic Party – Giorgi Gogoladze
13. The Christian-Conservative Party of Georgia – Shota Malashkhia
14. Abkhaz Assambly – Malkhaz Pataraia