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Venice Commission on Revised Draft of Constitution
Civil Georgia, Tbilisi / 9 Oct.'10 / 17:43

  • ‘Wait for final recommendations before approval’;
  • ‘Reduced timeframe of non-confidence vote insufficient’;
  • Commission welcomes some changes in the draft;
  • Concerns remain over president/gov’t foreign policy roles;
  • ‘Further strengthening of Parliament’s role desirable’

Council of Europe’s advisory body for legal affairs, Venice Commission, has called on the Georgian authorities to wait for its final recommendations and to take them “into careful consideration” before finalizing adoption of constitutional amendments.

The Parliament is scheduled to vote with third and final reading the draft amendment, which will significantly cut next president’s powers in favor of PM and government, at a session on October 12 – just few days before the Venice Commission is expected to adopt its final opinion on the draft.

Meanwhile, the commission released its second preliminary opinion (the first one was released on the very initial draft of constitutional amendments in July) on the draft on October 8, which is based on changes the draft underwent when it was approved by the Parliament with its second reading on October 1.

“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,” the Venice Commission said in its second preliminary opinion.

It welcomed some of those changes, which were made during the second reading, including stripping the president of the right of legislative initiative, need for PM’s agreement on appointment of chief of staff of the armed forces and other military commanders by president, as well as in cases of declaring or revocation of the state of emergency. The Commission also welcomed the change through which president will lose the power to call for a referendum on his own initiative.

One of the changes, made during the second reading, involved a provision under which president will require the government’s consent to hold international talks and to conclude international agreements. This amendment was made by the lawmakers in an attempt to further reduce the presidential powers in the foreign policy affairs so that to avoid conflict between president and the government. The Venice Commission said in its first preliminary opinion that such risk existed under the initial draft.

In its second preliminary opinion the commission said that this amendment, made during the second reading, does not eliminate concerns. 

“The need for the Government’s consent will not eliminate, and instead is likely to increase the risk of conflicts between the government and the President, if the latter has a say in the matter,” the Commission said.

Major source of criticism still remains the rule of initiation of motion of non-confidence and consequent process through which this motion is implemented. The Commission said that this rule should be “reconsidered and revised.”

One source of criticism is related to the fact that the entire process of constructive non-confidence vote (a method when two-fifth of lawmakers pick a candidate for new PM’s post and vote the incumbent out and his or her  successor in) is “lengthy and complex”.

The process may take 50-60 days, or in case of the presidential veto on prime ministerial nominee, even 70-80 days.

This timeframe was even longer, but during the second reading it was reduced by 20 days, which the Venice Commission said was “a positive development although an insufficient one.”

Another source of criticism is related to president’s role in this process.

According to the draft, president will have the right to intervene in the process by refusing to appoint new PM approved by the Parliament. In case of veto, 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.
 
“This gives too much power to the President and diminishes not only the power of parliament, but also the political responsibility of the Prime Minister that should be a corner stone in the new system,” the Venice Commission said.

In other recommendations, the Venice Commission welcomed provision on appointing judges of lower courts, but called on the Georgian authorities to extend this provision on judges of Supreme Court as well. The Commission also called to remove a provision, which introduces a probationary period of not more than three years to newly appointed judges in lower courts.

The Venice Commission also said that it considered that the level of interference of the central government in the choice of the executive of the Autonomous Republic of Adjara “is excessive.” Under the current draft, the president, with the agreement of the government, will nominate candidate for head of Adjara government and the candidate will require approval from the local legislative body of the Autonomous Republic.

In its second preliminary opinion the Venice Commission also addresses the issue of allegations voiced by the opponents of the Georgian authorities that the proposed constitutional reform is motivated by desire of President Saakashvili to remain in power in a role of PM after his second and final term in office expires in autumn, 2013.

“It is not the task of the Venice Commission to speculate on the motivation for these changes. In its view, at any rate, in the light of the developments in the process of constitutional reform, it would seem unjustified to dismiss the draft as a mere attempt to circumvent the limitations of power under the present Constitution,” the Commission said.

The Commission also reiterated its position voiced in the first preliminary opinion that the proposed draft provides for “several important improvements and significant steps in the right direction” compared to the existing system, which was introduced in 2004.

“The Commission considers nevertheless that it would be desirable to further strengthen the powers of parliament. In this respect, the provisions on the formation of the government and especially those on the motion of non-confidence, as well as those about the parliament’s powers in budget matters, should be reconsidered,” the Commission said.

The issue of constitutional reform in Georgia was raised by U.S. Secretary of State, Hillary Clinton, in he opening remarks at a session of U.S.-Georgia strategic partnership commission in Washington on October 6.

She said that it was “the most important reform challenge facing Georgia today” and added that the U.S. “supports the recommendations of the Venice Commission as put forward for strengthening Georgia’s system of checks and balances.”

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