The Speaker introduced the draft Constitutional Changes to the European Law Students' Association

“The Constitution shall serve as the main guiding document for young lawyers as well. When reading the Constitution, we shall exactly know how to develop the normative or legislative act. Unfortunately, the current Constitution fails to serve the guideline. It is one of the most imperfect legislative acts valid in Georgia”, - the Speaker stated at the XVIII National General Assembly of European Law Students' Association. 

He spoke about the Constitutional changes and noted that the State Constitutional Commission had wide involvement and the document is developed on involvement and considerations basis. The Constitutional reform had two main objectives: compliance of the Constitution with the fundamental principles of the Constitutional Law; improvement of the Parliamentary administration mode.

“In December, Parliament resolved to set up the Constitutional Commission and defined two primary tasks: compliance of the Constitution with the fundamental principles of the Constitutional Law, especially with the checks and balances principle. The current Constitution contradicts with hereof principle as underlined in Venice Commission opinion of 2010. Power separation, inter-balance principles are violated expressed in weak Parliament which shall be the key Constitutional agency; and improvement of the Parliamentary administration system. The current system with its essence is Parliamentary but there is dissent about it. The current system is of Parliamentary nature and we strive not to change but to maintain this model”.

The current Constitution provides the contextual-conceptual and technical-grammatical gaps which shall be eliminated. “The Constitution shall serve as the main guiding document for young lawyers as well. When reading the Constitution, we shall exactly know how to develop the normative or legislative act. Unfortunately, the current Constitution fails to serve the guideline. It is one of the most imperfect legislative acts valid in Georgia”.

The Speaker spoke about main task of the Commission – development of the document on open process basis. “Naturally, the ruling party holding the Constitutional Majority can simply submit the Constitutional initiative and adopt it, though it would be wrong. We know the results of similar practice. Our task was not to develop the unilateral changes but ensure wide involvement in development. Hence, se set up the Constitutional Commission composed of 73 members”.

However, the final number constituted 70 as the President of Georgia expressed boycott to participate. “The President initially offered the format envisaging three co-Chairs of the Constitutional Commission. We offered the Parliamentary format envisaging one Chair. There was conceptual difference between these formats. The President offered the Presidential and we offered the Parliamentary format. As to expediency of Parliamentary format, it was expedient not only for set up of the Commission but it was necessary deriving from the current Constitutional regulations – the only agency eligible to initiate the Constitutional draft is the Parliament. Hence, the Parliamentary format had no other alternative and it was evidenced in the course. Efficiency of the process proved correctness of the format”.

The Speaker noted that about 80% of the initiatives were submitted by the experts, NGOs and political parties. He introduced the context of the draft and stated that the Commission refused to change the Preamble to maintain this historical part of the Constitution. The Chapter I is restructured to guarantee three basic Constitutional principles and to add the fourth – economic freedom. These principles are: democracy, legal state, social state and economic freedom. It is provided in the current Preamble but is somehow lost. We decided to prescribe each principle in separate Article which is of conceptual and practical importance. Besides, the draft provides certain guarantees ensuring realization of principle of state and principle of democracy. The record shall be added envisaging that even on the basis of the Constitutional changes, the term of Parliament or any other Constitutional agency shall not be extended”.

The social state principle envisages social responsibilities. As to the Chapter II, it is completely revised. The Speaker noted that the Chapter provides the number of abstract rights impossible to be realized. “Hence, we decided to withdraw all abstract norms and maintain the records of certain legal force. We decided to conceptually change the structure and thus, the Chapter II starts with the fundamental right of human dignity”. The right on fair administrative proceedings, accessibility to internet and other rights are as well guaranteed.

The Speaker underlined that none of the norms shall be endorsed unless approved by Venice Commission. “The most sensitive issues of the Chapter II are land and marriage. Taking the results of public considerations into account, we decided to make the records stricter. We keep discussing formulation of land issue, though we will at maximal extent restrict land alienation to foreign citizens. The marriage also entailed wide discussions. The Constitution will clearly define marriage to be unity of man and a woman to create a family. Some forces manipulated with absence of this definition to trigger homophobic and anti-Western attitude. We want to deprive this ground to prevent any forces in Georgia facilitate to aggravation of homophobic and anti-Western attitude”.

The draft provides the principle serving the basis for state administration system and regulates the issues related to the Parliament, President, Government and Court. The concept is – strong Parliament, effective Government, independent Court and impartial President. As to the strong Parliament, the Parliament-Government relations are not due regulated currently and the draft increases Governmental accountability and responsibility to the Parliament. “One of the subjects of criticism by Venice Commission was vote of non-confidence which was not in compliance with the separation of power but the draft eliminates incompliance. Besides, the draft enhances the positions of the Opposition in the Parliament expressed especially in the norm envisaging authority of the opposition to set up the Investigation Commission”.

Transition from the mixed to the proportional system is what strengthens the Parliament as increases the representation of the opposition in the Parliament which has positive impact on balance of political forces. “We decided to change this system taking the following circumstances into account: since 90s, we had to cases when two various Governments due to this system obtained the Constitutional Majority and abused it for own political purposes. Our task is to prevent any autocracy”.

Speaking about the independent Court, the Speaker emphasized irreplaceability of the Judges guaranteed in the draft. The draft also regulates revision of the Constitution and establishes so-called plural vote envisaging the Parliamentary decision on revision to be endorsed by the next convocation. Speaking about defense and security issues, I. Kobakhidze stated that various positive changes are introduced. As to transitional provisions, they provide the only norm – all the Constitutional agencies are assigned to undertake all measures for EU and NATO full integration. “It is the record formulated as an assignment”.

The Speaker spoke about the new proportional system. “The system is characterized with three elements – 5% threshold aiming at provision of stability at some extent; annulment of blocs necessary to ensure party system development in Georgia; and so-called bonus system envisaging attribution of undistributed mandates to the winner party – 5% addition for the winner party to ensure more stability in the system”. Speaking about the President, he stated that not the President but the Government actually administers the country through domestic and foreign policy. Same is with the status of Supreme Commander and Representative authority. “All three elements of the status remain unchanged.

The President remains the Head of State, Supreme Commander and Representative in foreign relations but these records shall be properly interpreted. As to the competences, there were speculations as if we wanted to restrict the Presidential authority but it in fact was restricted in 2010. So, no further restriction or increase is possible. We revised only two competences – Security Council and nomination of judges of the Supreme Court”.

As to the Presidential election, “to ensure the impartial President principle, we shall move to the indirect rule”. The Speaker answered the questions concerning public considerations and expressed remarks, land issue and marriage definition, bonus system, Presidential election, proportional system and social state.