Venice Commission on Georgia’s New Constitution
Civil Georgia, Tbilisi / 3 Sep.'10 / 19:19

Council of Europe’s (CoE) advisory body for legal affairs, Venice Commission, is expected to adopt its opinion on the planned constitutional reform in Georgia at its session on September 15-16.

It will be followed with a visit of Venice Commission delegation to Georgia on September 16-17 to discuss recommendations with the Georgian authorities.

The Commission, which has been requested by the Georgian authorities to provide its expertise to the draft amendments to the constitution, released its preliminary opinion on the proposed draft in late July.

Although it noted that the proposed draft “provide for several important improvements and significant steps in the good direction”, the Commission also said that “certain amendments” should be made to the draft before its adoption.

The Parliament is expected to start discussion of the draft in September and as Parliamentary Chairman, Davit Bakradze, said it would probably be passed either in late October or early November.

The preliminary opinion by the Venice Commission said that the proposed new constitutional model “paves the way for the shift towards a less presidential system”, where the President’s role “is supposed to be that of a neutral arbitrator between the state institutions.”

“[The new model] aims to move from a rather presidential system of government to a mixed system where the executive power is in the hands of the government, which is accountable to the parliament” and no more before the President, the Commission said.

But it also said that although the government’s powers would be increased, the President still “retains important powers”, including in the field of the international relations, the armed forces and the situations of emergency, as well as in case of situation when government faces vote of no confidence.

The Commission warned that there was a risk of possible scenario, when President could come in conflicts with the other institutions – a scenario “which is enhanced by the fact that the President is directly elected.”

“The government may be the expression of a parliamentary majority different from that which supported the election of the President, with parliamentary elections occurring every four years while presidential elections every five years.”

“In addition, and importantly, the President plays a political role, which is not coherent with the role of impartial guarantor of the continuity of the constitutional order of the State and of its unity,” the Commission said.

It said that proposed model, unlike its initial version, offered “improved” procedure of government formation after parliamentary elections. “In particular, the time-frames have been reduced and better defined, which is to be welcomed even if they remain quite long,” the Commission said.

The Venice Commission, however, criticizes the part of the draft, which deals with motion of non-confidence to the government.

According to the proposed draft, if a motion of non-confidence, which can be initiated by two fifths of the MPs, is accepted by Parliament, “a lengthy – no less than two months - and complex procedures” follows, the Commission said. The motion itself requires at least one-month discussions in Parliament before it is accepted or rejected by lawmakers.

"The Venice Commission finds that the time-frame of the procedure is still excessively long, and opens the way to potentially non transparent negotiations between the political parties. As it is, this procedure risks prolonging a political crisis instead of solving it," it said.

According to the draft, this procedure is done through the method known as "constructive vote of no confidence", when two-fifth of lawmakers pick a new candidate for PM’s post and vote the incumbent out and his successor in.

But the President, according to the draft, will have the right to intervene in the process by refusing to appoint new PM approved by the Parliament.

The Parliament will require at least three-fifth of its members’ support, which is 90 MPs, to override the presidential veto; while in other cases, such as vetoed laws (except of constitutional amendments), the Parliament will need only absolute majority (76 votes) and not three-fifth to override the presidential veto.

If the Parliament fails to override presidential veto on prime ministerial nomination, the President will have the right to dissolve the Parliament within three days and call for early elections.

“Two different approaches appear to have been chosen and currently coexist - with great difficulty - in the draft. On the one hand, it is foreseen to introduce a constructive vote of non-confidence, in order to ensure political stability. On the other hand, it is intended to give the President a substantial role in this procedure,” the Venice Commission said.

“In the Venice Commission’s view, the power of the President to dissolve parliament at this stage is not compatible with the constructive vote of non-confidence and should be removed,” it said.

As far as procedures related to approval of state budget are concerned, the Commission in overall, welcomes strengthening of government’s role in this process, but also notes, that “the role of the parliament in budget matters is quite limited.”

“It would seem appropriate that the parliament be more significantly involved in budget matters,” the Commission said.

It also said that the need for the President’s consent, when it comes to cuts in the presidential expenditures in the state budget, "seems to be at odds with the parliamentary feature of the new constitution."

According to the draft, a category of currently existing “organic law” - a special status in the hierarchy of laws; such laws are less easy to pass or amend as requires special majority.

The Venice Commission said that the decision to remove this category “deserves careful consideration”, as the move would deprive such laws of their reinforced protection. The Commission recommends including a provision in the draft, that would provide such protection to those laws, which are now categorized as “organic”.

The Venice Commission welcomes a provision, envisaging appointment of judges until retirement, but also called to remove a proposal, which introduces a probationary period of not more than three years to newly appointed judges. It said that setting of such probationary periods “can undermine the independence of judges, since they might feel under pressure to decide cases in a particular way.”

According to the draft, PM appoints and dismisses provincial governors, instead of the President as it is under the current constitution. The Venice Commission said that it was “unclear” why the appointment of governors involved only PM without a deliberation of the government.

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