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Mission report by Wolfgang Babeck (representing GIZ), February 2013 - recommendations to resolve constitutional issues -

Recommendations The following matters are put forward for consideration: 1. It is recommended to implement the 2013 reform-constitution or part thereof as soon as possible. 2. The requirement for a 3/4th majority to alter the constitution should be reconsidered and modified. 3. The shortcomings of the 2013 reform constitution should be adjusted a priori. 4. An individual complaint system for citizens to challenge state acts before the constitutional court should be introduced. 5. Reforms should either be adopted by Parliament before October or a Constitutional Commission should be established, if Art 102.3 is changed accordingly. To depoliticize the process, a working committee should be established consisting of lawyers, instead of politicians.

Further details: 1. It is recommended to implement the 2013 reform-constitution or part thereof as soon as possible. The current constitution is not designed for co-habitation. This is evidenced by the President needing to exercise restraint with respect to all the powers vested in his role from the 1995/2004 constitution. An early implementation of the 2013 reform constitution would better reflect the decision of the electorate. It would also provide more certainty to the roles of the different organs set out in the constitution.

2. The requirement for a 3/4th majority to alter the constitution should be reconsidered and modified. At the end of 2011, the Georgian parliament altered the majority required to amend the constitution from 2/3rds to a 3/4ths majority. This amendment will only come into force in October 2013. This occurred despite the recommendations put forward by the constitutional commission and Berlin conference, where the alteration clause to the constitution was extensively debated. It is presumed that this amendment was also passed without any significant public debate. 2.1 If this change is implemented, any future amendments to the Georgian constitution will be very difficult; it will become one of the most difficult country constitutions to amend. This is also not

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advisable because Georgias constitution has not arrived at the final wording of all provisions. The 2013 reform constitution has not yet been tested in practice and it is most likely that provisions of the constitution will still require considerable modification. It is likely these modifications will need to be made to the final separation of power arrangements and others. It is acknowledged and understood that the opposition is eager to have their say in this discussion, but it is suggested that this can be achieved by other means which are more temporary and not final in nature. Currently, there are only two political party blocks in Georgias parliament. This is very unusual from a historical standpoint. It is very easy for one or two splinter parties to form at any time in the future, which could easily block any attempts for constitutional reform. This is in fact quite likely. 2.2 The standard majority requirement for a consitutional amendment is a 2/3rd member majority. Let us for reasons of comparison disregard any additional constitutional hurdles such as a referendum or, as is the case in Georgia, the requirement of a second confirmation of any constitutional amendment after a period of three months. A 2/3rd member majority is required in most European countries. These countries include Germany1, Austria2, Belgium3, Luxembourg4, Italy5, Spain6, Portugal7, Poland8, Rumania9, Latvia10, Lithuania11, Norway12 and Finland13. That applies e. g. to the United States as well.14 The highest majority required in Armenia for constitutional amendments is also a 2/3rd majority.15

Both Chambers (Bundestag and Bundesrat) pursuant to Article 79 paragraph 1 and 2 of the German Basic Law (GG). 2 See Article 44 paragraph 1 of the Federal Austrian Constitution (B-VG): two-thirds majority of National Council; two-thirds majority of the Federal Council (Bundesrat). All subsequent majorities quoted from Weber, Comparison of European Constitutions (Europische Verfassungsvergleichung), 2010, page 46 et seqq. 3 In Belgium, a constitutional amendmend is decided upon by Parliament and has to be confirmed by a twothird majority of a subsequently elected Parliament; see Article 195 paragraph 1-4. 4 Pursuant to Article 114 of the Constitution of Luxemburg, a constitutional amendment requires two-third majorities in two successive votes. 5 See Article 138 of the Italian Constitution: two-thirds majority in two consecutive votes; in this case, no referendum. 6 The Spanish Constitution provides for a particular variation of a compulsory referendum. Pursuant to Article 168, a two-thirds member majority of the Cortes. Secondly, a subsequent two-thirds majority of the newly elected Cortes is necessary. Afterwards, a referendum has to be held. 7 Pursuant to Article 284 of the Portuguese Constitution. 8 Pursuant to Article 235 paragraph 1-5: two-thirds majority of the Seijm and presence of more than 50 per cent of its legal members; absolute majority of the members of the Senate. 9 See Article 147 of the Rumanian Constitution. In case of a disagreement, a three-quarter majority and a referendum are necessary. 10 Article 77 of the Latvian Constitution: two-thirds majority in three readings and compulsory referendum in case of an amendment of essential provisions of the Constitution. 11 See Article 148 of the Lithuanian Constitution. 12 Pursuant to Article 112 of the Norwegian Constitution, the newly elected Storting has to confirm the proposal of the constitutional amendment of the former Parliament. 13 Section 73 of the Constitution; however, in case of urgency, special quorums are required. 14 Under Article 5 of the Constitution of the United States of America, a complex process applies in order to make constitutional amendments: Amendments can be proposed by Congress or a special Constitutional rd Convention consisting of members of the US States. The proposals need to be approved by at least a 2/3 member majority of both the Senate and the House of Representatives. Afterwards, the amendments must be rd ratified as well by the Parliaments of 2/3 of the US States or a Convention specially voted for this purpose. Only then, an amendment enters into force. 15 See Article 111.4 AC for details of a complex regulation; in addition, a referendum needs to be held.

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A number of countries, including France16, Slovakia17 and Greece18 have an even lower threshold for constitutional amendment, requiring a 3/5th majority only.19 Bulgaria20 is one of the very few countries which require a 3/4th majority. 2.3 To practically secure the involvement of the Georgian United National Movement whilst lowering the threshold for future constitutional changes several alternatives are set out below: a. The threshold for consitutional amendments according to Art 102.3 is reduced to a 2/3rd majority. Additionally, a party agreement between the major parties can be entered into to ensure agreement is reached before any constitutional changes are voted upon during this legislative period. This consitutional pooling agreement would be a bipartisan agreement and would not have any constitutional status. b. Amendments to the constitution could differentiate between total revisions of the constitution, requiring a 3/4th majority and a 2/3rd majority for any other provisions. c. Amendments to the constitution could require a 3/4th majority for this legislative period only and then revert back to a 2/3rd majority in 2016. d. Amendments to the constitution could require a 5/7th majority. This would amount to an unusual majority of 71.5 % (108 members) and protect the interest of the United National Movement, but remains below the 75% threshold. This is only marginally lower than the threshold, so any of the above solutions are much more desirable.

3. The shortcomings of the 2013 reform constitution should be adjusted a priori. Some of the shortcomings of the reform constitution have been outlined in an article by Irakli Kobakhidze21. Another summary is contained in my essay: Lessons from Georgia: A role model for constitutional reform? in Rewriting a constitution: Georgias shift towards Europe by Babeck/Fish/Reichenbecher, which will be available in Georgian in the next two weeks. The comments by the Venice Commission found in opinion 543/2009 also contain valuable guidance. The following articles should be revised as a matter of priority: - Art. 81 (Motion of non-confidence) - Art 93 (Too weak a role for Parliament in the Budgetary Process) - Art 102.3 (Constitutional amendments as outlined above)

16 17

Article 89 paragraph 3 of the French Constitution. See Article 84 paragraph 4 of the Slovakian Constitution. 18 See Article 110 of the Greek Constitution: three-fifths majority in two votes of the former Parliament or absolute majority of the new Parliament. 19 Aserbaidshan currently allows for a simple majority plus referendum or simply a Presidential proposal plus referendum, where the constitutional court is prohibited from giving an opinion (Art 152 ff. AsC). Obviously, Aserbaidshan is far from worlds best or recommended practice. 20 Article 155 paragraph 1a of the Bulgarian Constitution: three-quarter majority of the National Assembly; in case of total revision or an essential amendment of important constitutional provisions, Article 158 Nr. 1f requires a meeting of the Grand National Assembly. 21 http://www.osgf.ge/files/publications/2010/Const_Final_ENG_11_pdf.pdf.

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4. An individual complaint system for citizens to challenge state acts before the constitutional court should be introduced. There are many reasons for the timely introduction of an individual complaint system: a. Already more than six years ago the European Court of Human Rights, in its judgment of Apostol v. Georgia dated 28 Nov 2006 (application no. 40765/02), came to the conclusion that:
the current system of individual constitutional complaints in Georgia lacks effective mechanisms for offering direct and specific redress for particular instances of human-rights violations and that it cannot be regarded with a sufficient degree of certainty as an appropriate remedy for the complaint about non-enforcement.22

b. Furthermore, all Georgias administrations in recent history, whether it be under Gamsachurdia, Shevardnadze or Saakashvili have been undermined by authoritarian security forces. These authoritarian security forces intimidate and terrorize citizens (and evidently, these citizens include MPs). They develop a life of their own without the government of the day being able to properly monitor or control these authoritarian forces. Any future government will eventually fail under such a force if this pattern is not broken. c. The introduction of an individual complaints system for citizens challenging state acts in the constitutional court will certainly strengthen the civil courage of the citizens. It will also ensure that both individual administrative acts and court judgments are well within the boundaries outlined by the constitution. d. Lastly, Georgia will no longer be faced with the embarrassment of the thousands of Georgian cases pending hearing with the European Court of Human Rights in Strasbourg.

5. Reforms should either be adopted by Parliament before October or a Constitutional Commission should be established, if Art 102.3 is changed accordingly. To depoliticize the process, a working committee should be established consisting of lawyers, instead of politicians. Firstly, an acknowledgement must be paid to Mr Usupashvili and Mr Bakradze. It appears that political dialogue is stepping forward to resolve open constitutional issues (which are in my view by no means essential, but are certainly desirable to resolve). 5.1 It is suggested that a bipartisan legal working group is formed to elaborate on the precise wording of any changes. This can depoliticize the process and redirect the focus on specific legal solutions. It is understood that Vakhtang Khmaladze as well as Levan Isoria and Irakli Kobakhidze have already worked on new constitutional recommendations. Those authors should be thanked and their work should be reviewed and duly considered. 5.2 If more fundamental changes to the constitution are envisaged it is highly recommended to establish a constitutional commission. Georgia would certainly catapult itself further towards western European countries if such a more parliamentarian model was implemented, but details of such discussion should be left to a constitutional commission.

22

ECHR Judgement Apostol v. Georgia, dated 28 Nov 2006 (application no. 40765/02), par 46.

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Any changes should be made with a broad consensus by the population. Many of the proposals I have heard from Vakhtang Khmaladze regarding the modus operandi of a broad constitutional discussion are commendable. It is suggested that the basis for any constitutional amendments is the text of the reform constitution of 2013 or that of the current constitution, as constitutional continuity is vital for both the constitutional court and Georgias citizens. 5.3 Changes to the imperfect 2013 reform constitution are crucial and time until October is of the essence if threshold majority required for constitutional amendments cannot be reduced. It is therefore recommended that priority amendments to the reform-consitution of the 2013 constitution are attended to by a bipartisan legal working group as mentioned above and not by a constitutional commission, which would consider a more fundamental revision of the constitution.

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Meetings: During the mission dated 10th 12th of February, Wolfgang Babeck met with the following persons: Mr David Bakradze, MP, Leader of Parliamentary Minority Ms Caterina Bolognese, Head of Office of the Council of Europe Office in Georgia Mr Gigi Bregadze, Program Analyst, UNDP Mr Tinatin Bolkvadze, Human Rights and Good Governance Coordinator of the Open Society Georgia Foundation Mr Giorgi Chkheidze, USAID/JILEP Prof Avtandil Demetrashvili, former President of the State Constitutional Commission of Georgia Ms Heike Gabriel, Charg d'affaires of the Embassy of the Federal Republic of Germany Mr Gia Getsadze, Lawyer Prof Levan Isoria, Vice Minister of Interior Affairs Ms Tamar Khidasheli, UNDP Georgia Ms Tina Khidasheli, MP Mr Vakhtang Khmaladze, MP, Chairman of the Committee on Legal Affairs Mr Irakli Khorbaladze, Secretary of Republican Party Ms Manana Kobakhidze, MP, The First Deputy-Chairperson of Parliament Mr Kakha Kozhoridze, Chairman, Georgian Young Lawyers Association Mr Pavle Kublashvili, MP Ms Nino Lejava, Director of the Heinrich-Bll-Foundation Prof Lawrence Lessig, Harvard University Mr Zurab Macharadze, Center for Constitutional Law Dr Guido Muentel, Leiter, Head of Economic Section, Head of Legal and Consular Affairs of the Embassy of the Federal Republic of Germany Mr Beka Mikautadze, Chair of the Cabinet of the Chairman of the Parliament of Georgia Mr Akaki Minashvili, MP Mr Ucha Nanuashvili, Ombudsman - Office of Public Defender of Georgia Ms Natia Natsvlishvili, Governance Team Leader, UNDP Mr Richard B. Norland, Ambassador of the United States of America Dr David Onoprishvili, MP, Chairman of the Committee responsible for budgetary issues Dr Shalva Papuashvili, GIZ Ms Eka Popkhadze, Executive Director, Georgian Young Lawyers Association Mr Zeno Reichenbecher, Director Legel Reforms South Caucasus, GIZ

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Ms Danielle Reiff, Director, Democracy and Governance Office, USAID Dr Volker Stampe, GIZ Ms Tea Tsulukiani, Minister of Justice of Georgia Mr David Usupashvili, MP, Speaker of Parliament

and a number of NGO representatives