Irakli Kobakhidze: we will have the Constitution in full compliance with the best practice of European Constitutionalism

“Our goal was to ensure compliance of the Constitution of Georgia with the checks and balances and retention principles and the State Constitutional Commission and the Parliament of Georgia succeeded in this process. It is our historical achievement”, - the Speaker stated at the 5th PAC sitting. 

He spoke about the Constitutional reform and stated that the Constitutional changes were one of the main promises of Georgian Dream. “The process started in December, 2016 when we set up the State Constitutional Commission in the Parliament. We decided that for the desired outcome the process should be based on wide involvement and participation. Hence, we set up the State Constitutional Commission in December, 2016. It was one of the promises of Georgian Dream to improve the Constitution. It was one of the most important promises the ruling party gave to the population before the Parliamentary elections and we aspire to adhere to this promise”.

Amongst 73 SCC members were actively involved in the process except the Presidential Administration. According to the Speaker, the SCC actively cooperated with Venice Commission. “We have made a unique statement – Parliament of Georgia would never adopt any norm negatively estimated by the Venice Commission. Naturally, we adhere to this promise and none of the norms will be adopted rejected by the Venice Commission. We had a productive cooperation with the Venice Commission and will further cooperate on Constitutional reform”.

In the end, the SCC has developed a high quality product, though the opposition left the Commission. He elucidated that the criticism was based on two reasons – Parliamentary electoral system and the Presidential elections. “The document developed by the Constitutional Commission is purposed to improve the Parliamentary administration system with the proportional electoral system. However, the opposition left the Commission based on two reasons: Parliamentary electoral system with three main aspects – 5% threshold for political parties as applied in most of EU member states; bonus system as well. Initially, we have clearly stated that we would never adopt the norm rejected by the Venice Commission. It was clarified that if Venice Commission gave the negative estimation to the bonus system, it would not be adopted. All in all, we had a clear offer – proportional system, 5% threshold in full compliance with international practice. It was a disputable issue despite we essentially change the electoral system against the ruling party. Another disputable issue was the Presidential elections.

As we know, we move from the direct to indirect system. This change was positively estimated by the Venice Commission. The change is entailed with compliance of the Presidential election with the general functions and competences of the President. Currently, we have the disproportion between the legitimation and the functions. Correspondingly, we wanted to avoid problems deriving from the disproportion. Hence, we substitute the direct with indirect Presidential election rules. Once again, the Venice Commission gave the positive estimation to this issue”.

He underlined that the indirect Presidential elections will be applied in 2024. “We move to the indirect Presidential election rule not for the next year. It is a very important aspect because in this case, it would entail suspicion that it was the subjective interest of the ruling party. But the indirect rule will apply in 2024, after 7 years. So, no one can blame us of subjective interest of the ruling party. We want to establish a clear Parliamentary system in compliance with the best practice of EU. It was the reason and was had a very positive document with positive changes. Despite, the opposition left the Commission as well as the President, declaring boycott to the process”.

The Speaker spoke about the context of the Constitutional draft. “According to the current Constitution, the Parliament is extremely weak. We should particularly strengthen the accountability and responsibility of the Government to the Parliament. In 2010, Venice Commission stated that the current Constitution is not in compliance with the checks and balances principle due to weakness of the Parliament and strength of the Government. Accountability of the Government to the Parliament is extremely low. We strengthened the role of the Parliament in this system, improved accountability procedures of the Government, including the vote of non-confidence, as well as the accountability of the Prime Minister. We have lots of changes strengthening the Parliament and ensuring respective checks and balances system”.

The Constitutional changes strengthen the opposition as well. “One of the mechanisms is proportional system. We also have other changes – enabling the opposition to set up the fact finding commissions. Currently, it is the privilege of the Majority but the Constitutional changes attribute this privilege to the Minority as well”.

The Constitutional changes dissociate the functions and competences between the President and the Government. Besides, the draft enhances the judicial independence. Proportional electoral system was named as one of the most dramatic changes.

The Speaker noted that the proportional system will be applied after the Parliamentary elections 2020. “One of the most dramatic changes is related to the proportional electoral system. Preceding Governments failed to change the system as it always was in the subjective interests of the ruling party and we had a negative experience with mixed Parliamentary election system. Various Governments managed to obtain the Constitutional majority henceforth abusing it to establish the semi authoritarian or authoritarian regime. Now, we make steps to substitute the mixed system with the proportional. Unfortunately, these changes could not be applied for the forthcoming Parliamentary elections but we will apply it after 2020. We had contradictions within the Majority regarding this issue. We have 116 mandates and the Constitutional changes require 113 votes. However, we have 73 Single mandates and most of them do not support the proportional system. So, we decided to apply the system after 2020 elections. The only possibility in this case was if the Minority supported the changes, then we would be able to move to the proportional system for 2020. We had consultations with the Minority leaders after the Venice Commission plenary session but they refused to support the changes. It is the first time in Georgia when the Government makes steps to the proportional system”.

According to the Speaker, the Venice Commission gives the positive estimation to the document. All the recommendations by Venice Commission except 3 are shared. As to the remaining recommendations, they are of technical nature. “We adopt the European type Constitution with excellent Parliamentary system and proportional electoral system. We have already received the Venice Commission opinion providing 23 recommendations 20 of which were shared. As to the remaining 3, they are of technical nature. We believe that non-consideration of these issues will not affect the final estimation of the document. All in all, we have the positive estimation by Venice Commission. Despite the final opinion is received, we asked the Commission to provide us with another opinion after the process to have the opinions about the adopted document. Currently, we expect the second final opinion. The leadership of the Parliament will be provided with the opinion this week, which will be adopted at the Venice Commission plenary session on October 6”.

According to the Speaker, the current Constitution is not in compliance with the fundamental principles of the Constitutional law as evidenced in the Venice Commission opinion of 2010. “We strived to ensure compliance of the Constitution with the checks and balances and retention principles and the Constitutional Commission and the Parliament succeeded in this process. It is our historical achievement. We will have the Constitution in full compliance with not only formal legal principles but with the best practice of European Constitutionalism”.