EMC and Trade Unions Confederation Address to the Venice Commission regarding Constitutional Reform

Human Rights Education and Monitoring Center (EMC) and Georgian Trade Unions Confederation (GTUC) jointly address to the Venice Commission concerning the possible drawbacks in regard to the social rights guarantees within the ongoing constitutional revision process. The purpose of the submitted views is to prevent any compromise of the constitutional standards on social rights; as well as to foster consistent and coherent constitutional system development of this sphere. Joint submission covers the following issues:

Minimum Standard of Living

According to the draft constitutional law submitted to the Parliament of Georgia, the provision on subsistence minimum is transferred from the Chapter of Basic Rights to the Chapter of the General Provisions. The submitted to the Venice Commission joint opinion underscores that the minimum standard of living is the basic standard, which should not lead to any confusion or uncertainty on the part of the state’s positive obligations. Therefore, current Georgian constitutional system considers it in the form of justiciable right and the proposed revision deteriorates this standard. In addition, according to the suggested amendment, the aspiration toward the realization of the social state idea necessarily means its consolidation with the minimum legal standards, however, transfer of minimum standard of living in the Chapter of General Provisions is counterproductive to the constitutional purpose.

Article 39 of the Constitution of Georgia

The draft constitutional law transfers Article 39 (according to the mentioned norm, the constitutionally protected rights are the universally recognized human rights and freedoms to which the Constitution of Georgia does not refer, however, they stem inherently from the principles of the Constitution) of the current edition of the Constitution from the chapter of the basic human rights to the Chapter of General Provisions. It is particularly problematic, that it excludes disputes to be filed by the relevant applicants before the Constitutional Court. In addition, contrary to the argumentation of the proponents of this revision, it is controversial whether there is the resource of “reading” other rights in the Constitution of Georgia that are not directly covered by itself. The indicated deterioration will affect several rights, however, in the context of a limited catalogue of social rights in the text of the Constitution, it may have particularly negative effect. Therefore, we share the vision on the importance of maintaining Article 39 of the Constitution in the Chapter of Human Rights.

The Right to Work and the Employment Provision

The draft constitutional law removes paragraph 4 of Article 30 (“Protection of labor rights, fair remuneration and safe, healthy conditions, juvenile and women’s labor conditions are established by the organic law”) of the current constitution of Georgia. The deleted content is presumed to be covered by the draft’s provision/wording that “labor rights are protected by organic law”. However, we believe that it is important to maintain the constitutional emphasis on special components of the labor right, as it clearly indicates the content that should be of special protection from the constitutional perspective.

Pursuant to the draft, the current provision of the constitution, according to which the State supports the unemployed citizens of Georgia to find their employment, is moved from the category of rights to the general provisions. Due to the expected revision, it is not possible to interpret the constitutional provision in terms of state’s progressive commitment to develop effective employment policies and care for their realization. This weakens the existing constitutional standard and therefore, the current drafting pattern should be maintained.

Effective State Supervision over the Protection of Labor Rights

The current constitution contains no provision on the effective protection/supervision of labor rights by the State. The consensus on the necessity of drafting the mentioned constitutional provision was reached in the State Constitutional Commission, however, it the later draft of the law did not include such provision or any content. The joint submission underlines that the key importance of the issue was neglected on the one hand and not all the interested parties had equal possibilities to influence the decision-making process on the other hand. In particular, during public meetings, it was noted that, when changing the decision on drafting effective protection provision, consultations with business associations were conducted when no discussions were held with trade unions at any stage.

We hope that the indicated areas of concern and the relevant argumentation will assist the Venice Commission in the evaluation of the draft constitutional law of Georgia with regards to standards of the social rights in light of the national context of the country.