NGOs’ Statement regarding the marriage Constitutional amendment

 

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On February 14th, Georgian parliamentary bureau registered Constitutional law project regarding “the amendment of the Georgian constitution”, signed by 80 MPs, which aims to promote “more clear formulation of first part of the Article 36 of the Constitution”.

According to the initiative, “marriage, a consensual union of a man and woman aimed at creating a family, is based on equal rights of spouses”. The bill explanation card stipulates that “in order to avoid misinterpretation it is recommended to form a clear formulation of the Constitutional provision, which clearly expresses the meaning and interpretation of the provision by removing much of society’s questions and concerns in terms of the interpretation”.

In addition, on March 28, the Central Election Commission registered the following issue presented by the initiative group – “Are you in favor or against of same-sex marriage to be allowed in Georgia?“[1], which aimed to act as  insurance in case the Constitutional amendment failed to go through.

In the present statement, we, the representatives of civil society, want to focus on the essence of the Constitutional amendment and its legitimacy, which in a democratic society should be based on human rights and the emancipation of different groups and not on political interests.

Legitimacy of the constitutional amendment

Marriage, as a fundamental right, is protected by the Constitution, as well as the international treaties and conventions to which Georgia is a signatory party. The content of the Article 36 of the Constitution is of a general nature and it has regulatory/legal resources to extend to the same-sex family and personal relationships. Its open declaration and enforcement is related to the future transformation of the values of the society, as well as the awareness and re-evaluation of the issues of sexuality. In this framework, when the Georgian Civil Code strips the same-sex partners of a family and partnership rights, the social need for constitutional amendment cannot be proved.

The Constitution is not an unchanging document, however it really should be a solid social contract, which will be subject to revision only in case of significant requirement.  The Venice Commission notes that the constitution should be fixed and changing document at the same time and it should reflect the changing cultural, economic and social context in the society.[2]

Although the Georgian Constitution does not specify the limitation for the revision of the Constitution, the Venice Commission notes in the 2015 document that the Article 14 of the Constitution provides bases for “limiting the constitutional amendments, which aims to restrict the people’s constitutional rights and freedoms […]. ”[3]

The Venice Commission believes that constitutional norms, which deal with fundamental rights, are of principal importance and should be open to debates and changes, no matter if they expand/reinforce rights or, in some cases, restrict their content.  However, the above-mentioned should be implemented with caution and should be subject to strict requirements, based on which, these amendments should not weaken the functionality of those provisions, which oblige to  care out commitment to protect the rights of the individuals and minorities against the tyranny of  majority.[4] According to some theorists, the question of the stability of the Constitution is based on understanding “constitutionalism”. The fundamental issue is that the Constitution is an instrument by which the government exercises self-restraint. It is created by the body of politics in order to protect itself from tendency of predictable decision-making (Elster).[5] Restriction of constitutional amendments must be explained by the need for protection of democracy and prevention of the tyranny of majority and must rule out decision making beyond the framework of democracy.

Considering that Georgia’s legal framework does not include legal mechanisms/capabilities and other personal and property rights for same-sex partnerships, the proposed initiative, which aims at narrowing and abolishing unrestricted definition of marriage in the constitution, can be considered as an attempt of substantial deterioration of constitutional standards and legal status of  LGBT persons. Restricting constitutional rights because of political interests and destroying right recognition resources for the future is unjustifiable.

As for the referendum initiative regarding the narrowing of the constitutional provision, we believe that referendum – tool for the people to exercise power- should not become means for the pursuing political interests. In addition, according to the Georgian Constitution[6] and Georgian organic law “regarding the referendum”[7], referendum cannot be held on issues restricting the basic constitutional rights and freedoms.

Considering the above mentioned, it is clear that this initiative is not based on taking care of the families, but to promote not recognition of LGBT rights and protect the ban on same-sex partnerships. While democracies move forward in terms of legal recognition of LGBT partnerships and development of social acceptance, Georgia’s acceptance of the constitutional amendment serves to promote further restrictions, prohibitions and expending discrimination towards LGBT community.

Political Instrumentalism of constitutional amendment

It is important that LGBT community and relevant organizations have not raised the issue of marriage equality in the legal and political agenda.[8] It is important to note, that the issue of constitutional amendment regarding marriage has come up several times  in the political reality of Georgia, and as a rule, it was part of the pre-election campaign.[9]  It is worth noting that the issue of marriage has never been part of the legal and political agenda of LGBT community and relevant organizations. In social and political structures where there is institutional homophobia, LGBT persons are evicted from public spaces and become victims of violence and systematic discrimination,[10] which prevents them to enjoy their fundamental rights guaranteed by the Constitution.

Existing violent system is legitimized by state ignoring policy of LGBT rights and not effective practices against homo/transphobic crimes and rights abuses. In these conditions, the right to marry for LBGT person in Georgia is less of a priority compared to the above-mentioned problems. Accordingly, this issue is not on the agenda of LBGT human rights organizations. This is indicated in the LBGT organizations’ February 8th statement, which asserts that “considering a violent environment, LGBT persons in most cases have to hide their sexual orientation and/or gender identity […], entering civil marriage will lead to public disclosure of their identity and relationship. Since, LGBT people have to hide their identity and relationships, in order to avoid future violence, persecution and harassment, the right to marry, even if it is legalized, would be inapplicable opportunity.“[11]

By making this decision, the ruling party actually shared anti-gender political and social groups’ ideology that LGBT persons are “enemy” and the institution of marriage is associated with danger. Instead of eliminating violent and discriminatory practices towards LGBT people, the state uses the discourse of homophobic groups and promotes political instrumentalisation of the issue. In the dramatically patriarchal society, this political initiative is an attempt to cover the social, economic and political crises and gain electoral support.

Government’s argument, that this amendment is aimed at the prevention of risks associated with the pro-Russian soft power forces manipulating with this issue, is unfounded because the constitutional initiative led to extreme politicization of LGBT issues and pushed public discussions beyond the formal space. In this respect, it is important to discuss the referendum on the issue, which is also supported by the ruling party. In terms of safety concerns, justifying restriction of human rights is at odds with constitutionalism and the concept of protection of human rights. Attempt to promote political instumentalisation of human rights issues prevent the emancipation of marginalized groups and hinder democratic values. In this respect, the Venice Commission notes that the Constitution should kept above the “domestic politics”, it should act as a framework for political actions and should not become its instrument.[12] The Venice Commission in its opinion on the fundamental law of Hungary pointed out that the country’s Constitution should create public perception/possibility of constitutionalism, the perception that the Constitution is a fundamental document and is not a simple random political declaration. How it is going to be accepted and implemented should convince the public that the document represents a stable law, in its very nature, which is not subject to the simple change based on the will of the majority. The permanence of the Constitution should not be based on the mathematics, which is derived from the ruling and opposition parties’ numerical strength. Constitutional and social policy must be clearly separated from each other, since the Constitution is not part of a “political game” but the unity of the rules governing the game.[13]

Existing legal framework regarding LGBT couples’ partnership relations

Consensus regarding the marriage equality is not achieved even in European countries; European Court of Human Rights is also conservative and delegates the right to expand the subject of marriage to states. However, it should be noted that according to the European Court of Human Rights legally not recognizing same-sex couples are considered to be violations of Article 8 (respect for private and family life) and Article 14 (prohibition of discrimination) of the Convention. In the case of Schalk and Kopf v. Austria, the European Court clearly states that “same-sex couples may enter a stable relationship, same way as the people of the opposite sex do. Accordingly, they are essentially in the same situation as opposite-sex couples, which mean that they need to have their relationship legally recognized and protected. “Yet another demonstration of this assessment is the European court’s decision regarding the case Vallianatos and Others v. Greece, where the Court unequivocally criticizes non-existence of “registered partnership” for LGBTI persons.

European Court’s recent decision regarding the case Oliari and others v. Italy is essentially interesting, where the absence of legally empowering mechanism of the same-sex relations was found to be a violation of Article 8 of the Convention. Consequently, beyond the issue of recognition of marriage, Georgian government is obliged to regulate and execute an equal legal framework for the same sex couples’ existing partnerships (including inheritance, property, and other personal and non-property relations).

Accordingly, initiated referendum  and the amendment presented by the government is ignoring the legal framework set by the European Human Rights Convention and instead of contributing to the realization of the rights of various groups, it increases the process of marginalization.

Therefore, we believe that the proposal for the Constitutional amendment on the one hand, presents the attempted violation of state obligations, and, on the other hand, contributes to occurring violence towards LGBTQ persons, and promotes discriminatory practices and strengthening of the marginalization of the LGBT community.

Human Rights Education and Monitoring Center (EMC);

Women Initiative Support Group (WISG);

LGBT Georgia;

media development foundation (MDF);

international society for fair elections and democracy (ISFED),

SAPARI;

GRASS;

Media Development Foundation (MDF);

Georgian Democratic Initiative (GDI);

Tolerance and Diversity Institute (TDI).

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[1]See: http://www.cesko.ge/ge/mediisatvis-4-ge/pres-relizebi-13-ge/28-martis-sxdomis-shedegebi28.page

[2](VENICE COMMISSION) REPORT ON CONSTITUTIONAL AMENDMENT, Adopted by the Venice Commission at its 81st Plenary Session (Venice, 11-12 December 2009), პარა.82; 88.

[3](Venice Commission)CompilationOf Venice Commission OpinionsConcerning Constitutional ProvisionsFor Amending The Constitution, Strasbourge, 2015. Para.112

[4](Venice Commission)ReportOn Constitutional Amendment, Adopted By The Venice CommissionAt Its 81st Plenary Session, Hera. 177

(Venice, 11-12 December 2009)

[5](Venice Commission)ReportOn Constitutional Amendment, Adopted By The Venice CommissionAt Its 81st Plenary Session(Venice, 11-12 December 2009), პარა.73

[6]Article 74.2

[7]Article 3.2 (d).

[8] See, Joint statement of NGOs, available: https://emc.org.ge/2016/02/17/ngo-2/

[9]See in detail: Http://Netgazeti.Ge/News/101418/

[10]According to the various polls conducted by the NGO “Identoba”, in two years, one in three LGBT persons has been subject to physical violence. The most common forms of physical violence against LGBT persons are beatings, sexual coercion and sexual violence. The subjects of the attacks were more often strangers. In addition, as a rule, the attacks occur spontaneously or in groups. 89% of LGBT people in Georgia have endured at least one incident of psychological violence over the past two years. In Georgia, among the most exposed to violence based on sexual orientation are LGBT youth from ages 18 to 26.

According to the 2012 survey, out of 48 respondents surveyed, who were victims of physical violence in 2011-2012, 60.87% were subject to violence – one time, 17.39%- twice, 21.74%- three or more times. Out of 134 respondents, who were victims of mental violence (threats), 75.37% have incurred such facts three or more times, 11.94%- twice and 12.69% – once. Out of 150 interviewed LGBT people, 45.83% named the street as a place of an attack, 18.75% – families, while 14.58%- were victims of an attack at a bar / club, 4 cases happened in a vehicle, 2 in the store and 4 in a different locations. Since the most common place of attack is the street, it may be concluded that subjects of violence against LGBT people are strangers.

The most common forms of physical violence was beating (58.33%), and sexual coercion (11.67%). Domestic violence cases, which according to the intensity are on the second place, should be observed separately. Out of 150 respondents, 56% (84) have at least once been the victim of pressure from family members. The most common forms of domestic violence are forced marriage, abuse, humiliation, economic violence, forcing to change clothes and hairstyle. “Women’s Initiatives Support Group” (WISG), LGBT people’s  situation in Georgia, 2012. p.27-30

[11]see: www.women.ge

[12](Venice Commission) Report On Constitutional Amendment, Adopted By The Venice Commission At Its 81st Plenary Session (Venice, 11-12 December 2009), პარა. 75

[13]CDL-AD(2013)012 Opinion On The Fourth Amendment To The Fundamental Law Of Hungary, პარა. 137