Human Rights Education and Monitoring Center (EMC) presents its legal conclusion on the three draft laws on the constitutional amendments, initiated by the members of the parliament on June 13, 2013. EMC considers that despite of several positive provisions, some of the proposed novelties do not serve to the goals of achieving political stability and constitutional order in the country and can be considered as steps made backwards.

According to the current amendment package the provisions enacting the October 15, 2010 and December 27, 2011 constitutional amendments,[u1] will be abolished;

As a result, the mechanisms for making constitutional amendments will be kept simple, the provisions on complicating the procedures for constitutional changes will be annulled. This on its hand diminishes the role of the main law of the country (constitution) and turns the constitution into the ordinary parliamentary tool. We believe, that the ways for undertaking constitutional changes should be kept at the level where they oppose to adjusting the main law of the country to the political processes, especially, to the individuals. The constitution should regulate state politics – not vice versa.

One of the positive aspects of the October 15, 2010 constitutional provision is the clause “b” of the Article 44; According to it minimum of four-month period is necessary for making the constitutional amendments. This significantly improves the conditions for proper consideration of the proposed constitutional amendments. Despite the fact that some consider the four-month period to be unnecessarily starching the procedures in time, EMC thinks this will serve well to the upcoming wave of the constitutional reforms, anticipated to start after the presidential elections. [u2]

Besides, EMC thinks abolishing these provisions without proper alternative proposal is unacceptable and therefore considers Plural Voting as an alternative. Plural Voting would mean the constitutional amendments of the previous parliament to require approval by the acting parliament in order to be enacted. Such a procedure minimizes the threat of adjusting the constitutional amendments according to any specific political party and ensures the legitimacy of the constitution.

Changes in the Composition of the Government: The current constitutional amendment project foresees partial abolishment of the clause 33 of the Article 1 of the October 15, 2010 constitutional law, which means that the current version of the Article 811 of the constitution is being maintained; according to the currently proposed version (which foresees maintaining the current version and abolishing the planned amendments), if the composition of the government changes with more than 1/3, the Declaration of Trust (empowering the government) should be conducted anew. The requirement of the Declaration of Trust according to the Article 80 of the constitution of Georgia relates to not only the prime minister, but to the government in its entirety. For this reason, complete independence of the head of the government on the issue of the renewal of the ministers does not correspond to the general spirit of the constitution and contradicts the general principle of the selected model of the power separation.

Based on these arguments, we share the views of the initiators of the amendment proposal regarding the necessity to abolish the mentioned right of the prime minister.

The “Negative Voting”, ”Mistrust Voting”: According to the amendments, the so-called “Negative Voting”, foreseen under the clause 33 of the Article 1, of the October 15, 2010 constitutional law, is being abolished. Specifically, the mentioned provision empowers the prime minister with the unlimited right to raise the issue of mistrust towards the government, based on any of the legal amendment proposal, initiated by the government. In case if the parliament does not pass the proposed amendment, the parliament becomes obliged to declare mistrust towards the government, which is practically impossible, due to the unreasonable difficulty of the “Negative Voting” procedure; as an outcome, the legal amendment may be passed without the support of the proper majority of the parliament. All of the aforementioned poses a threat of interference in the activities of the legislative branch and contradicts the principle of separation of power. Abolishing the mentioned constitutional provision surely deserves positive evaluation.

As a partial alternative to the mentioned procedure, the initiators offer to link the law on budget and the issue of declaring trust together. Specifically, if the parliament is unable to enact the budget law within the two months from the beginning of the fiscal year, the parliament has the obligation of declaring mistrust towards the government according to the regulations prescribed in the Article 81; if the parliament fails to do so, the president has a right to dismiss the parliament and schedule extraordinary elections.

Failure of the parliament to enact the budget law causes governmental conflict, the resolution of which is vital for the development of the state in the economical, social or other aspects. If at least after the five months of consideration the executive and legislative authorities do not agree on the content of the document, it becomes necessary to renew the composition of one of authorities. In our case, it is very natural and rational that the parliament is given priority and has a right to declare mistrust towards the government. The inability of the parliament to declare mistrust towards the government indicates the parliament’s ineffectiveness, which results in dismissing the parliament, as inevitable means for resolving the crisis; however, in the Georgian context, the mechanism of declaring mistrust is unreasonably difficult. We would like to especially emphasize the president’s right to get involved in the implementation of the “Mistrust Voting”, which increases the necessary majority up to 3/5 in order to complete the procedure; this causes the threat of artificially causing the dismissal of the parliament.

Based on the aforementioned, we consider it necessary to simplify the “Mistrust Voting” procedures, foreseen in the October 15, 2010 constitutional law. Otherwise, the proposed amendments give the government possibility to manipulate with the artificial dismissal of the parliament through the budget law, which unreasonably diminishes the role of the legislative authorities in the system of power division.

The proposed [u3] project of the amendments includes positive aspects; specifically, maintaining the current version of the Article 811 and abolishing the “Negative Voting” envisaged by the October 15, 2010 constitutional law. Maintaining the current version of the mechanisms of making the constitutional amendments unchanged may be considered as a step backwards – it is necessary to substitute the old provision with the proper alternative. We would like to express our concerns in relation to maintaining the “Mistrust Voting”, which has always been the main subject of criticism in relation to the 2010 constitutional reform; the threats, related to the issue of trust/mistrust, existing in the 2010 version, become very realistic in conjunction with the Article 93.