In the best soap-opera tradition, the ongoing process of constitutional reform in Georgia has yielded drama aplenty over the past week.
Just days after the Council of Europe’s Venice Commission of legal experts made public its final comments on the proposed draft amendments, the 115 lawmakers from the ruling Georgian Dream party unanimously approved a slightly different text in first and second readings at an emergency parliament session on June 22 and 23, ignoring appeals by President Giorgi Margvelashvili and NGOs to resume discussion of the draft with the aim of achieving the “widest possible consensus.”
The last-minute change, which triggered outraged protests from NGOs and opposition parties, reflected the decision taken by Georgian Dream on June 19 behind closed doors to postpone from 2020 until 2024 the proposed transition from the current mixed majoritarian-proportional electoral system to a fully proportional one. Observers attribute that volte-face to a rift within Georgian Dream, with a younger generation amenable to change being effectively held hostage by older majoritarian lawmakers averse to risking the loss of their mandates. One majoritarian, Kakha Okriashvili, is on record as telling the news portal InterpressNews on June 15 that “the mixed system is better for Georgia” and should not be replaced by a fully proportional system.
Prime Minister Giorgi Kvirikashvili and parliament speaker Irakli Kobakhidze, the constitutional lawyer who chaired the state commission tasked with drafting the amendments, have both hailed the parliament vote, which the three opposition parliament factions all boycotted, as a step forward in Georgia’s democratic development.
By contrast, parliamentary and extraparliamentary opposition parties alike have denounced what they perceive as an attempt to codify changes aimed solely at facilitating the preservation indefinitely of Georgian Dream’s constitutional majority. The Alliance of Patriots, which has six mandates in the 150-member parliament, and the extraparliamentary Free Georgia party have threatened to launch street protests, the news portal Caucasian Knot reported.
The planned transition from the current mixed majoritarian-proportional system, in which 73 of the 150 lawmakers are elected from single-mandate constituencies and the remaining 77 under the proportional system, to a fully proportional system is one of the two issues that proved most contentious during the four-month discussion of the proposed amendments that got under way in January. The second is the role of the president, including as head of the National Security Council, and the planned abolition of direct presidential elections.
Those two provisions consequently figured prominently in both the preliminary comments and the more detailed and critical subsequent evaluation of the draft amendments handed down by the Venice Commission. With regard to the electoral system, the Venice Commission expressed overall approval of the planned transition to a proportional system, noting that a mixed system tends to lead to the governing party receiving an “overwhelming” parliamentary majority.
At the same time, it strongly criticized three related provisions that its experts perceived as “deviating from the principles of fair representation and equality of the vote.” Those were the imposition of a ban on electoral blocs, together with the preservation of the existing 5 percent threshold to qualify for parliamentary representation, with the party that polled the largest number of votes being granted an additional “bonus” in the form of those mandates that remain unallocated as a result of votes cast for parties that fail to surmount the 5 percent hurdle. In the five parliamentary ballots between 1999 and 2016, an average of 12.85 percent of votes were cast for parties that failed to qualify for representation; in 2016, the figure was 19.82 percent.
The Venice Commission said that, taken together, those three mechanisms “limit the effects of the proportional system to the detriment of smaller parties and pluralism, and deviate from the principles of fair representation and electoral equality to a larger extent than seems justified by the need to ensure stability.” It further questioned whether the “winner-take-all” model for distributing unallocated mandates serves to guarantee political pluralism.
The commission therefore “strongly recommended” considering other options that would ensure a more equitable division of parliament mandates. Those alternatives included lowering the threshold for representation to 2-3 percent and/or establishing a maximum upper limit for the number of wasted votes allocated to the winning party so that the latter has a workable, but not an overwhelming, parliamentary majority.
Alternatively, the commission suggested, “the constitution could provide that 9/10 of the parliament seats (i.e. 135 out of 150) shall be distributed to the parties that have received more than 5 percent of the votes according to the principles of proportional representation, while the remaining 15 seats will be given to the winning party (or the winning party and the second party) as premium.”
With regard to the election of the president, the Venice Commission expressed approval of the decision to delay the transition from a direct to an indirect ballot from 2018 until 2023. But it also advocated checks and balances to ensure that a ruling party with a large parliamentary majority would not automatically be in a position to engineer the election as president of its preferred candidate, thereby undermining the role of the president as an “impartial arbiter.”
In the event, Georgian Dream tweaked the draft amendments on June 21 to lower the barrier for representation under the proportional system in the 2020 parliamentary election to 3 percent. In line with the Venice Commission recommendations, it agreed on the maximum number of additional parliament mandates the winning party will receive as a result of votes cast for parties that do not qualify for representation. Indirect presidential elections will require a qualified majority in an open vote in the first round. In addition, candidates for the Supreme Justice Council and the Constitutional Court, and for the post of public defender, must receive three-fifths of the vote in parliament.
Sixteen opposition parties from across the political spectrum, including the former ruling United National Movement and European Georgia, which split from it earlier this year, have nonetheless addressed a statement to the Council of Europe secretary-general, the Parliamentary Assembly of the Council of Europe (PACE), the Venice Commission, the Organization for Security and Cooperation in Europe (OSCE), and foreign ambassadors in Tbilisi calling for a halt to parliamentary discussions of the draft (which the three parliamentary opposition parties boycotted last week) and the submission of a revised draft to the Venice Commission, all of whose recommendations would then be incorporated into the final version. They characterized the amended constitution unilaterally endorsed by Georgian Dream as “antidemocratic,” adding that “it does not reflect the will of the Georgian people, and cannot be considered a legitimate document.”
The 16 signatories warned that failure to reopen the discussion and amend the draft could undermine democratization and long-term political stability.
Meanwhile, 16 of the 23 NGOs aligned in the Coalition for a European Georgia launched a parallel appeal to suspend discussion of the proposed amendments in order to enable foreign experts to advise on those provisions, such as the planned abolition of the National Security Council hitherto chaired by the president, that directly affect the country’s defense capacity.
Individual opposition parties and political figures have been even more outspoken in their criticism. European Georgia, which has collected 150,000 signatures in support of its demand that the proposed constitutional amendments be submitted to a nationwide referendum, branded the document approved by Georgian Dream’s parliament faction as “not the constitution of Georgia, but that of constitution of Georgian Dream and [its founder, billionaire] Bidzina Ivanishvili.”
(European Georgia split earlier this year from the former ruling United National Movement, which in 2010 similarly pushed through parliament, disregarding opposition criticism and without the monthlong public debate Georgian Dream conducted, constitutional amendments intended to enable then-President Mikheil Saakashvili to remain in power as prime minister after the end of his second presidential term.)
Opposition claims that the text of the amendments voted on by the Georgian Dream parliament faction last week “was completely different” from that approved by the Venice Commission appear to be a classic example of Georgian hyperbole. Similarly open to question is the opposition parties’ claim that during the discussion of the proposed changes by the state constitutional commission, not a single proposal by the president, the public defender, or opposition parties was taken into consideration.
That assertion is at odds with parliament first deputy speaker Tamar Chugoshvili’s statement that 80 percent of such proposals were taken into account. It also ignores the fact that President Margvelashvili and his staff chose to boycott the work of the commission from the outset, a decision that the Venice Commission deemed “regrettable.”
Among the concessions Georgian Dream made in the course of the discussion were the postponement from 2018 to 2023 of the transition from direct to indirect presidential elections and that beginning in 2023 the president should be elected not by the 150 lawmakers as initially envisaged but by an electoral college that would also include representatives from all of Georgia’s regions, including the breakaway republics of Abkhazia and South Ossetia.
Under the existing constitution, the proposed constitutional amendments will be submitted for a third and final reading at the start of the autumn parliamentary session. The hypothetical possibility thus exists for further revisions to be made. Whether the “widest possible consensus,” which both the Venice Commission and President Margvelashvili have called for, is realistic is questionable, however, in light of the intense animosity that exists between Georgian Dream and the United National Movement on the one hand, and between Margvelashvili and his team and parliament speaker Kobakhidze on the other.
Minister for Internally Displaced Persons Sozar Subari, who in 2009 publicly excoriated then-President Saakashvili for turning a blind eye to corruption and police brutality, summed up the perception that the United National Movement and its offshoot European Georgia systematically challenge and criticize every single statement by Georgian Dream, regardless of its merits.
“Reaching consensus with the United National Movement is impossible...If we announced that tomorrow we shall win back [the breakaway republic of] Abkhazia, they would stand up and walk out of parliament [saying] ‘You shouldn’t do that,’” InterpressNews quoted Subari as saying on June 22.
As for the well-documented hostility between Margvelashvili and Kobakhidze, the two crossed swords yet again last week: When Kobakhidze invited the president to engage in a live televised studio debate about the merits of the proposed constitutional changes, Margvelashvili countered by proposing that a debate be held in the presidential palace in the presence of representatives of all political parties and NGOs, an audience that would be largely on his side. Kobakhidze rejected that format, complaining that the president’s role with regard to amending the constitution “has been destructive from start to finish.” Margvelashvili for his part complained that the only “substantive” constitutional changes “are directed against the president.”
Venice Commission President Gianni Buquicchio is scheduled to travel to Georgia later this week, Caucasus Press reported on June 23, quoting Buquicchio’s spokesperson. Whom he intends to meet with is not clear. Kobakhidze’s credibility may have been damaged by the postponement of the transition to a fully proportional system, given his constant assurances, which the Venice Commission noted “with satisfaction,” that the Georgian authorities would not adopt any proposed amendment that the commission assessed negatively.