EMC assesses the work of the constitutional commission and the project of constitutional changes

On April 22, 2017, the fourth Constitutional Commission in the history of independent Georgia concluded its work. The State Constitutional Commission was created in December of 2016 following the resolution by the Parliament, and four thematic working groups were set up as its structural units. The working groups started working on January 21 of the current year and concluded on April 18.

The Constitutional Commission worked under strict deadlines, but very intensively. It is noteworthy that the chairman of the Constitutional Commission chaired the meetings of each working group and the constitutional commission itself. The sessions were held were closed for media, and the attendance was limited for the concerned non-members. Regrettably, the formalized procedure of participation of the interested parties was not specified by the constitutional commission’s statute, but non-members had an opportunity to attend the meeting after issuing preliminary notification and receiving pass. With regards to the working groups’ activities, it is noteworthy and problematic that regulation for making decisions by the groups was not determined by the Constitutional Commission’s statute. Also, due to the obscurity of the procedures, it was not clear what was the principle for defining (or refusing) the issues to be discussed at every subsequent round of the gathering of the Commission (the activity of the Commission was divided into 3 stages).

Even though, most of the current revisions of the norms were reviewed from technical and content-related point of view, it can be said that, the rules of election and the reduction of the President’s power was the priority for the ruling party, and the chairman of the Constitutional Commission and the members of the parliamentary majority justified this with the need to improve the Parliamentary model of governance.  As for the general issues related to political authorities and governance model, it can be said that the direction of the Commission’s decisions does not contribute to a pluralistic political environment and is more adjusted to the interests of the ruling party and consolidating of its power, including, in particular the electoral system’s model, which does not ensure a fair distribution of mandates.

As for other important issues, discussed by the Constitutional Commission, EMC presents its own assessment on discussed changes with regards to human rights, justice and law enforcement systems.

Weakening of social rights guarantees

 

EMC welcomes the improvements that the draft constitutional law envisages in strengthening the provisions on clarification and equality of the principle of social State; However, in parallel with the mentioned improvement, it should be noted that most of the suggestions by EMC in the direction of social rights, including the obligation of State supervision over the protection of labour rights, were not shared by the Commission, which should be assessed negatively. Furthermore, it is essential for EMC that the proposed amendments to the constitution of Georgia exclude the weakening of the constitutional standards of human rights; the project that the Commission has approved contains such risks.

The risks of transferring the rights regulations to the general chapter of the constitution

The approved version of the project worsens the rights standard of minimum wage in the text of the Constitution, which refers to the issue of the subsistence minimum in the chapter of the general principles, not the basic rights.

This means that the right to subsistence minimum, which is an essential and basic part of the social security right, loses the content of the rights and turns into the defining direction of the general policy of the State, which is clearly a negative change. The same concerns the transfer of the Article 39 of the Constitution of Georgia to the general provisions. The removal of Article 39 of the Constitution, from the human rights and freedom chapter, excludes the disputes by the relevant subjects before the Constitutional Court using this norm, which is a lower standard in terms of human rights protection. We think that this change will affect a number of rights, but, considering the scarcity of social rights in the text of the Constitution, it may have a particularly negative effect on lowering the standards of social and economic rights protection. EMC believes that it is necessary to return these issues in the judiciary category, the human rights chapter, in order to preserve content for establishing the rights.

Labour rights and employment entry

 

According to the project, the existing entry to the constitution, according to which the State contributes to the employment of a Georgian citizen, who is left unemployed, is transferred from the category of rights to the general provisions, which we think, worsens the labour standard and should be maintained in its current form. Also, there have been some changes in the norm, which regulates the issue of labour rights. According to paragraph 4 of Article 30 of the current constitution of Georgia, “Protection of labour rights, fair remuneration and safe, healthy conditions, juvenile and women’s labour conditions are determined by organic law”. The given provision has been removed in the draft constitutional amendments and is presumably included in the “labour rights protected by organic law”. The proposed entry actually includes all protected areas of labour rights and the components, which are clearly indicated in the text of the constitution. However, we think it is important to maintain the highlight of certain aspects, as it clearly shows the components that should be specially protected from the constitutional perspective.

 

 

 

Right to Housing

 

According to the amendments to the Constitution of Georgia, the concept of “decent housing” appears in the general provisions chapter, which should be assessed positively considering the fact that the acting text of the Constitution does not mention the right to housing; however, we think that this is insufficient and this does not satisfy the minimum content to guarantee the housing. The approach of “basic obligations” is applied to the right to housing – the situation, in which, there are categories with regards to economic, social and cultural rights that cannot only be program related. Thus, according to EMC’s perspective, the entry about decent housing should be placed in the human rights chapter instead of general provisions.

Marriage Equality

 

In the package of amendments developed by the Constitutional Commission of Georgia, Article 36 of the Constitution changes in the way that the gender of the spouse is explicated, in particular, “marriage as the union of men and women with the purpose of creating a family, based on the equality and willingness of spouses” (Article 30. Right to marriage). In the given circumstances, when the Civil Code of Georgia leaves the same sex persons without the benefit of family and partner rights, the social need for implementing constitutional changes cannot be substantiated and is largely the expression of political homophobia.

Leaving the same-sex relationships beyond the legal regulations creates an unequal environment for the LGBT/queer community members as compared to heterosexual couples, which prevents them from exercising the rights and social benefits associated with marriage. Accordingly, in those circumstances, when Georgia’s legal system does not include any opportunities for giving legal means to the same-sex partner for personal and property rights, as the human rights legislation requires, the mentioned amendments project, which includes the removal of non-limiting definition of marriage from the constitution and its limitation, must be assessed as the attempt to worsen the human rights situation for LGBT/queer group and political instrumentalazion of a specific political group.

The relations between the State and the Orthodox Church of Georgia

According to the current project of Constitutional amendments, paragraph 9 of the chapter 1 of the existing version is being reformulated and the relation between the State and the Orthodox Church is selected as a title.  Under the circumstances, when the first chapter of the Constitution defines general provisions and fundamental principles of arrangement and organization of the State, the Commission has not strengthened and explicitly defined the principle of mutual independence and demarcation/secularism between the State and religious organizations, and instead, further weakened declarative entries on Human Rights in this chapter.

 

In particular, the provision of Article 9 of the Constitution – “the State recognizes full freedom of faith and religion, at the same time, it recognizes a special role of the Orthodox Church in the history of Georgia and its independence from the state” – changes and instead of recognizing full freedom of belief and religion, which would be followed by the words “in addition, “and then underling the Church’s role, the changes in the project use a weaker wording that together with the freedom of faith and religion, the State recognizes the special role of the Orthodox Church in the history of Georgia and its independence from the State. In addition, there are changes in the second paragraph of Article 9: “the Constitutional Agreement shall be fully compatible with the internationally recognized norms and principles, in particular, in the sphere of human rights and fundamental freedoms” and the proposed changes to the wording no longer include the specification with regards to the sphere of human rights and freedom.

 

Although the existing change formally improves the current entry and speaks about wider adherence to the universally recognized principles and norms of international law, maintaining an emphasis on human rights, which is the most relevant measure of the constitutional agreement, is important and it is necessary to replace the words ‘in particular’ with the word ‘including’. Thus, the mentioned constitutional amendments, at a glance, are editorial in nature and do not affect the merits of the constitutional freedom of religion-related standards, however, due to the change in wording and reshuffling of emphasis, the constitutional agreements and the special constitutional status of the Orthodox Church symbolically become even stronger, at the expense of weakening and removal of declarative entries on the importance of protecting the religious freedom and the human rights.

 

 

Judicial power

 

Despite some significant and positive changes in the chapter of the judiciary, we believe that constitutional reform in this part required further preparation and discussion, including the reforms and the analysis of their results, which has been implemented in the justice system in recent years. Also, the reform should have been aimed at overcoming the crisis that has been created in the hands of the Council with unbalanced power, non-formal procedures and decision-making practices that enable dominant groups to influence the developments in the court and the process of making important decisions. Unfortunately, in the framework of the reform, not enough efforts have been made to overcome this crisis. Furthermore, the faulty rule of electing non-judge members of the High Council of Justice has been established. It is even more regrettable that with the proposed model of recruitment for the judicial system, new risks have emerged in the direction of the formation of the Supreme Court. Also, the Commission refused to carry out such a primary change in the process of appointment of judges, such as the appointment of judges as a result of a well-grounded decision.

 

Law Enforcement Agencies

 

With the amendments made by the Commission, the Prosecutor’s Office is established as an independent body distanced from the executive branch. It is also important that the Chief Prosecutor now has the right to submit a constitutional claim. As for the rules of appointment and dismissal of the Chief Prosecutor, which is essential for the real independence of the Prosecutor’s System – unfortunately, the Commission has determined the rule of decision making by the majority of the total composition for the election of the Chief Prosecutor. However, it is a positive development that the impeachment was defined as the form of dismissal.

 

The constitutional guarantees of a substantive nature, in terms of law enforcement agencies’ independence and accountability, have not been determined. Regrettably, the Commission’s work was not intensive enough to address these issues. It is unfortunate that an important issue of determining constitutional guarantees for the independence of the State Security Service as was not included in the project. Also, the proposal for the mechanism for the objective and impartial investigation of the crimes committed by the law enforcement agencies – an independent and impartial investigative body – to be determined by the constitution, was denied.