Venice Commission, the Council of Europe’s advisory body for legal and constitutional affairs, released on December 1 its recommendations on Georgia’s draft of new electoral code, which the ruling party unveiled in September.
The draft of electoral code, expected to be approved before the end of this year, was sent for a legal expertise to the Venice Commission by the Georgian authorities in September and the Commission’s opinion is expected to be formally approved at its session in mid-December.
While noting that in overall, the draft of new electoral code “is conducive to the conduct of democratic elections and has many positive features”, the Venice Commission said “a number of provisions in the draft code are of concern or raise questions.”
One of the major focuses in the recommendations is made on wide disparity between the single-mandate constituencies involving variance in number of voters in various districts, which the Commission said “undermines the principle of equality of suffrage.” The same concern was raised by the Venice Commission for number of times in its recommendations in the past.
The draft of new code envisages keeping mix system wherein part of lawmakers will be elected through party-list, proportional system and another part – in single-mandate, majoritarian constituencies (for more details visit this link).
The Venice Commission notes that the choice of an electoral system is the sovereign decision of a state, provided that it is in line with international standards, including the Venice Commission’s Code of Good Practice in Electoral Matters.
“The mixed electoral system chosen in Georgia, as such, is in line with international standards. However, it has hitherto not been possible to provide for constituencies of an approximately equal size in Georgia and, thus, to guarantee the equality of the vote within the framework of the mixed system,” the Venice Commission said.
During the 2008 parliamentary elections variance was ranging from less than 6,000 voters in the smallest constituency to over 150,000 voters in the largest one.
That wide disparity between the constituencies will be partially addressed by the authorities as they intend to divide the ten largest constituencies with over 100,000 registered voters into two, thus increasing number of majoritarian seats in the Parliament from current 75 to 83.
Variance, however, will still remain; after dividing those ten largest constituencies, size of newly created ones will vary from about 52,000 to over 80,000 voters; in addition there will still remain five constituencies with less than 10,000 voters and there will be between 10,000 and 50,000 voters in 42 other constituencies.
The Venice Commission recommends amending the draft of election code “to require single-mandate electoral districts to be of equal or similar voting populations.”
The boundaries of majoritarian constituencies mainly coincide with those of municipalities and the Venice Commission representatives were told by the authorities when they visited Georgia in October, that it would be too difficult politically to carry out a complete redistricting and to move away from the confluence of district and municipal boundaries.
“If, as stated, it is not possible to ensure this relative equality of vote weight in the single-mandate districts, a revision of the electoral system could be envisaged,” the Venice Commission said in its recommendations.
Use of Administrative Resources
The draft of election code, like the existing one, allows the use of administrative resources – state-funded buildings, communication means, vehicles – for campaign purposes provided that equal access is given to all the candidates and parties.
“On the face of it, this provision appears to adhere to the equal opportunity principle. However, in practice such equality may quickly be undermined as political parties in government have easier access to such resources,” the Venice Commission said.
Misuse of administrative resources has always been one of the concerns pointed out by local and international observers during the elections held in Georgia.
“This problem is due in part to the lack of clarity and specificity in the legislation, as reproduced in the draft [of new election] code,” the Venice Commission said. “The draft code provisions blur the line between the state and political parties and fall short of OSCE commitments.”
Unlike the existing code, the draft of new election code does not contain a provision, which obliges the Central Election Commission to announce a total number of voters before the election day. It, however, will still have to indicate total number of voters in a final vote tally.
The Venice Commission recommends that voter lists be posted publicly and not merely made available for inspection in the premises of the district election commission.
The Commission said that setting up of a state-funded commission in charge of verification of voter list ahead of the next year’s parliamentary election was a positive development in terms of involving political parties and civil society in the process. It, however, also said that the impact of this commission in practice had yet to be assessed.
Right of Foreign Citizens to Campaign
One of the recommendations refers to a provision of the draft, which bans foreign citizens to participate in an electoral campaign. This provision is not a new one; it is part of the existing electoral code as well. The provision, however, gained more political importance in connection to circumstances surrounding billionaire-turned-politician Bidzina Ivanishvili, who has lost his Georgian citizenship.
The Venice Commission, which in the past has already called on Georgia to annul this ban, again recommends that “this prohibition be deleted.”
“Even if non-citizens (stateless and alien residents) do not have the right to vote, they do have the right to freely express their opinion, associate and participate in political debates during election campaigns. Such a clause limits fundamental rights of non-citizens residing in Georgia and conflicts with the basic human rights,” the Venice Commission said.
The Venice Commission, like in its previous recommendations, has again called to allow independent candidates to run for a parliamentary seat in the single-mandate majoritarian constituencies. Currently only a candidate nominated by a political party or an electoral bloc can run for the majoritarian MP seat.
The Commission has also reiterated its previous recommendation to remove a blanket ban on the voting right of prisoners. It has recommended that only prisoners convicted for serious criminal offences may be barred from voting.
The Venice Commission recommends prohibiting “any type of campaign activity” during the last 24 hours prior to elections.
The Commission also said that provisions dealing with electoral complaints and appeals “must be improved” by adopting “simple, understandable, and transparent procedures.”
The recommendations also address provisions of the draft code related to party funding and donations; but after the draft was sent to the Venice Commission, the Georgian authorities drafted amendments to the law on political parties, which introduce some new regulations in this regard. The draft of amendments is currently under the review of the Venice Commission.
The Venice Commission recommends to implement measures to make information about party funding timely available for the public. It said that financial reports should be submitted to the Central Election Commission’s Financial Monitoring Group in advance of election day. This provision should also include an obligation to report on expenditures (not only contributions) in both the pre-election and post-election periods, the Commission said. It also called for increasing now limited authority of the CEC’s Financial Monitoring Group in auditing political parties’ electoral campaign funds.