24 June 2004, 12:01
Constitutional reform in Georgia, 2004
The Georgian parliament introduced a number of significant amendments to the national Constitution by a majority at a specially called extraordinary session on February 6, 2004. The amendments introduce important changes in the functioning of Georgia's main government institutions, primarily the legislature and the executive. Officially, the amendments are to facilitate Georgia's transformation into a parliamentary-presidential state, whereas the opposition fear that they reinforce the authoritarian elements in the state system.
Before the Constitution was amended on February 6, 2004, Georgia had been a presidential republic and it possessed all properties corresponding to this form of government: the president was elected immediately by the population, there was no office of prime minister, the ministers were appointed directly by the president and reported to him; the president had no right to dissolve the parliament, while the latter in turn could not dismiss ministers. Codified in the Constitution, the established procedure for shaping the executive provided for participation of the parliament in this procedure only in the form of approval (disapproval) of the candidates nominated by the president, and the president could insist on the rejected candidates by once again submitting them for the parliament to approve. Besides, the authority was reserved for the parliament to approve the structure of the executive and the forms of its activity as proposed by the president of Georgia. Thus, the parliament took part in giving a certain initial impulse to shaping the make-up and structural arrangement of the executive, but everything then passed on to the president. As an emergency measure for extraordinary cases (violation of the Constitution, high treason or committing some other crime), the parliament was granted the right to conduct the procedure of impeachment with regard to the president, chairperson of the Supreme Court, members of government (ministers), Prosecutor General, chairperson of the Control Chamber, and members of the board of the National Bank.
The above-mentioned system of organization of interaction between the supreme government bodies is typical of presidential republics for which the first state shaped in this way, the USA, serves as a model. Other combinations and correlations are typical of the European system, expressed in the concepts of parliamentary and mixed (parliamentary-presidential and presidential-parliamentary) forms of government. While distinct separation of powers is typical of presidential forms of government when the powers interact but cannot stop the activity of each other, it is quite on the contrary an ordinary situation for the systems widespread in Europe when the activity of one of the powers is stopped with the purpose of its renovation, which is provided for by the Constitution as leverage to ensure the functioning of government that would be adequate to the people's will. In other words, the institutions of vote of no confidence, dissolution of parliament, the government's accountability to the parliament make part of the European doctrine as ways to achieve a correlation between the activity of the executive and legislature and mass sentiments: if the parliament and government are unable to reach mutual understanding, the issue can be submitted for consideration of the people (in the form of an early parliamentary election). The presidential republic does not provide for such an address to the opinion of voters. Thus, introduction of institutions of parliamentary accountability is on the one hand (externally) a movement towards forms of organization of government typical of European states, while on the other hand (internally, for the state itself), it is transition to another type of accountability and interaction between the powers.
As a result of the amendments to the Georgian Constitution that were introduced on February 6, 2004, the system of interrelations in the top echelon of government looks as follows. The president is as before elected by the electorate, which testifies to the mixed nature of the form of government (the head of state in a purely parliamentary republic is elected by the parliament or an electoral college based on it). However, mixed forms of government may have some elements, presidential or parliamentary, that will be more pronounced, i.e. they may be presidential-parliamentary or parliamentary-presidential. The amendments in Georgia introduced the following elements of a parliamentary nature.
Firstly, the procedure for shaping the government is changed. The office of prime minister is introduced, who forms the government which is appointed by the president in accordance with subparagraph (b), paragraph 1, Article 73 of the Constitution, although the appointment must be preceded by the procedure of obtaining parliamentary confidence. This procedure is regulated by paragraphs 2-6, Article 80 of the Constitution and consists in the following. Within a seven days' period after the retirement, dismissal or abdication of responsibility by the government, the president of Georgia consults parliamentary factions and decides on a candidate for the office of prime minister, and the candidate for the office of prime minister decides on the candidacies of members of government within a ten days' period, finalizing them with the president of Georgia. When this procedure is completed, the president of Georgia submits to the parliament to obtain confidence. The parliament, after the make-up of the government has been submitted by the president of Georgia, considers it and conducts a vote of confidence in the make-up of the government and their program (the parliament is given a week for that). Obtaining parliamentary confidence requires support of the majority of the full make-up of the parliament. In the event of obtaining confidence, the president appoints the government within a three days' period.
If a given make-up of the government fails to obtain confidence, the president of Georgia submits the same make-up of the government or a new one to the parliament within a week, and the procedure repeats itself. If the make-up and program of the government fail to obtain confidence from the parliament for three times successively, the president of Georgia nominates a new candidate for the office of prime minister within five days or appoints the prime minister without the consent of the parliament, and the prime minister, again within five days, appoints the ministers as agreed with the president of Georgia. In this case, the president of Georgia dissolves the parliament and appoints an extraordinary election.
There is also a provision for rejection of an individual member of government along with approval of the government as a whole and their program. In case the president seconds the parliament's rejection decision, the appointment of the rejected person in the same government instead of a member of government that has been removed from or left office is not allowed.
The Constitution also regulates the issue of a partial renewal of the make-up of the government. In accordance with Article 811, in the event of a renewal of one-third of the initial make-up of the government but not less than five members of government after the parliament has expressed confidence in the make-up and program of the government, the president of Georgia submits the new make-up of the government within a week's period to the parliament to obtain its confidence.
Thus, the key point in shaping the government has become the approval of the make-up and program of the government by the parliament. Preliminary consultations to parliamentary factions for which the Constitution provides serve the same purpose.
It should be noted the Constitution contains a provision that prevents linkage between failures in shaping the government with the removal of the president from office: Paragraph 6 of Article 80 indicates that no question of removal of the president from office by way of impeachment can be raised when the above-mentioned government-shaping procedures are being carried out.
Secondly, the Constitution contains provisions for the parliamentary accountability of the government, primarily in the form of the procedure of vote of no confidence. Not less than one-third of the complete make-up of the parliament has the right to bring up the issue of no confidence. The parliament is entitled to pass a vote of no confidence in the government by the majority of its complete make-up according to Paragraph 1, Article 18. When a vote of no confidence in the government has been passed, the president dismisses the government or gives no support to the decision of the parliament. If the parliament passes another vote of no confidence in the government in not less than 90 and not more than 100 days, the president of Georgia dismisses the government or dissolves the parliament and appoints an extraordinary election. If there are circumstances that exclude the dissolution of the parliament (see below), another vote of no confidence must be taken within fifteen days as these circumstances cease. Thus, this rule gives the president an opportunity to maneuver depending on the circumstances, as a dual settlement of the conflict between the executive and the legislature is possible in this case: both in the form of dismissal of the government and, accordingly, shaping of a new government enjoying the parliamentary support and in the form of dissolution of the parliament and submission of the matter for consideration of the electorate.
The procedure of "unconditional distrust in the government" has a different structure. Paragraph 2 of Article 81 entitles the parliament to pass a resolution raising the issue of unconditional distrust in the government. If the parliament passes a vote of no confidence in the government by a majority of three-fifths of its complete make-up not earlier than in 15 and not later than in 20 days after the adoption of the resolution, the president makes a decision on the dismissal of the government. In case the government is dismissed according to this procedure, the president of Georgia is not entitled to appoint the same person or nominate the same candidate for the office of prime minister in the next make-up of the government. If the parliament fails to pass a vote of no confidence in the government, it is not permitted to raise the issue of no confidence in the government within the following six months. This procedure can thus have a dual result, too: either dismissal of the government or a moratorium on raising the issue of no confidence within six months, but the president has no opportunity to dissolve the parliament in this case.
The Constitution next provides for raising the issue of confidence by the government itself. The prime minister is entitled to raise the issue of confidence in the government in connection with the draft state budget, the draft tax code and the bill on the structure, authority and forms of activity of the government. The parliament passes a vote of confidence in the government by the majority of its complete make-up. If the parliament does not pass a vote of confidence in the government, the president of Georgia dismisses the government within one week or dissolves the parliament and appoints an extraordinary election. A vote of confidence must be taken within fifteen days after the issue is brought up. No vote taken within this period means a vote of confidence is passed. In case the parliament passes a vote of confidence in the government, a pertinent bill is considered to be passed. This procedure allows the parliament to approve of the activity and bills of the government without "losing face," because just no vote on a specific issue may be taken, suffice it to take no vote.
While the above-mentioned procedures of raising the issue of confidence (no confidence) are being carried out, it is not either permitted to bring up the issue of removing the president of Georgia from office by way of impeachment.
Thirdly, the provisions establishing the forms of parliamentary control over the activity of the government (Article 59 of the Constitution) have been given a more accurate formulation and supplemented. In particular, a group of members of parliament not fewer than ten in number or a parliamentary faction now have the right to make inquiries not only with an agency reporting to the parliament or an individual member of government, but also with the government as a whole. Those inquired are obliged to give a reply to the inquiry at a sitting of the parliament. The reply may become a subject for the parliament to discuss. Innovative is the provision for the official responsibility of members of government. Paragraph 3, Article 50 of the Constitution says the parliament is entitled by the majority of its complete make-up to bring up the question of official responsibility of an individual member of government to the prime minister. In case the prime minister does not dismiss the member of government, he submits his motivated decision to the parliament within a two weeks' period.
Fourthly, the president has been granted the right to dissolve the parliament, but only in cases for which the Constitution provides directly (they were quoted above). Besides, the parliament may not be dissolved:
a) within six months after a parliamentary election;
b) when the parliament is implementing its authority determined by Article 63 of the Constitution (the procedure of impeachment with respect to the president);
c) while a state of emergency or martial law is in effect.
This means, in particular, that the president cannot use dissolution as a means to avoid impeachment and in fact he cannot alone decide on declaring a state of emergency or martial law. There is Paragraph 31 in Article 50 as regards the latter which says the parliament stops its operations when the presidential act on the dissolution of the parliament enters into force. When the presidential act on the dissolution of the parliament has entered into force the dissolved parliament meets before the first session of the newly-elected parliament only in case the president declares a state of emergency or martial law or to decide on approving a state of emergency or martial law or to extend a state of emergency or martial law. If the parliament does not meet within five days or fails to approve (extend) the effect of the presidential act declaring (extending) the state of emergency, the declared state of emergency is canceled. Martial law must be canceled if the parliament, meeting, does not approve the presidential act declaring (extending) martial law. The meeting of the parliament does not entail the restoration of parliamentary offices and salaries of members of parliament. Thus, the last word in the decision on declaring a state of emergency or martial law is now also reserved for the parliament.
Fifthly, organizational and financial guarantees of the functioning of the parliament have been reinforced. Aside from various forms of parliamentary control and the granting of the new authority, which was described above, the Constitution included a number of innovations concerning the rules of its functioning. Thus, the time for the president to appoint the date of a parliamentary election has been determined more accurately. Paragraph 3 of Article 50 had it previously: "A parliamentary election shall be conducted not later than fifteen days before the expiry of the authority of the parliament. If the date to conduct the election coincides with a period when a state of emergency or martial law is in effect, the election shall be conducted not later than in 60 days after it is canceled. The president of Georgia shall appoint the date to conduct the election not later than in 60 days before the election begins."
The new version of this paragraph contains one more sentence: "In the event of an early dissolution of the parliament, the president shall appoint an extraordinary parliamentary election that shall be conducted not earlier than in forty-five and not later than in sixty days after the act on an early dissolution of the parliament enters into force." Besides, as was indicated above, Paragraph 31 has been included to determine the procedure for the dissolved parliament to approve the presidential act on declaring a state of emergency or martial law.
The president no longer has the right to nominate the candidate for the office of chairperson of the Control Chamber, it is elected by the parliament as nominated by the chairperson of the parliament. Thus, the executive has been made more separated from this agency reporting to the parliament and implementing control over the use and spending of state funds and other valuable assets of the state.
The reinforced financial independence of the parliament is also of importance. Article 49 has included Paragraph 4 that says the following: "A reduction in the current expenses which the state budget of Georgia provides for the parliament comparing with the amount of budgeting in the previous year is permitted only with the preliminary consent of the parliament. The parliament decides on the allocation of the funding which the state budget provides for the parliament by itself." This rule gives the parliament a constitutional guarantee of control over the process of budgeting of its own operations, whereas it was previously controlled by the executive.
Sixthly, because now there is a government, not just a group of ministers reporting to the president (which is typical of a presidential republic), and a part of the presidential authority has passed to it, the Constitution determines its status and authority (a special chapter is devoted to it: after Article 77 the Constitution is supplemented with Chapter 4 "The Government of Georgia"; at the same time, articles 78, 79, 80 and 81 are related in a new version and the chapter is supplemented with Article 81, parts 1 and 2). Paragraph 1 of Article 78 indicates that "the government in accordance with Georgian legislation ensures the implementation of executive power and home and foreign policy of the nation." The article establishes the responsibility of the government to the two agencies: the government reports to the president and the parliament of Georgia.
The government consists of a prime minister and ministers (one of them is entrusted with the duties of a deputy prime minister); besides, it may include a state minister or state ministers. The prime minister decides on general policies of the government, organizes its activities, carries out coordination and control of the activities of members of government, reports the activities of the government to the president of Georgia and has responsibility for the activities of the government to the president and the parliament of Georgia. The dismissal of the prime minister or the termination of his authority entails the termination of the authority of the other members of government. In the event of the resignation or dismissal of another member of government, the prime minister, as agreed with the president of Georgia, appoints a new member of government within a two weeks' period. The government and members of government abdicate responsibility before the president of Georgia.
A provision important for understanding the role and status of the government and its interrelations with the president is contained in Paragraph 4 of Article 78: "The president of Georgia is entitled to call a meeting of the government on especially important matters of state and to chair it. The decision passed by the meeting is formalized as an act of the president."
The submission of the draft state budget and its implementation are completely entrusted to the government. At the same time, the parliament and president carry out control over these matters and in doing so, the president performs as an arbitrator between the parliament and the government.
Seventhly, a rule has been introduced to the Constitution aimed at active interaction between all the three branches. Paragraph 2 of Article 60 has been related as follows: "A member of government, an official, elected, appointed or approved by the parliament shall be entitled or, upon request of the parliament, obliged to attend meetings of the parliament or its committees and commissions, give answers to inquiries made at meetings and submit reports on the job done. Upon request of these officials, they shall be heard by the parliament, a committee or a commission." Here, firstly, a special remark is made that the mentioned provision refers to members of government, too (there was no such remark before), and secondly, the new thing is that they do not simply attend, but are also obliged to "give answers to inquiries made at meetings and submit reports on the job done." The provision on the right of legislative initiative has also been changed significantly. The president of Georgia now can use this right only "in exceptional cases"; it is not specified, though, what exactly cases, which is at his own discretion. Apart from the former subjects of this right (it belonged and belongs to a member of parliament, a parliamentary faction, a parliamentary committee, the top representative bodies of the Abkhaz Autonomous Republic and the Ajar Autonomous Republic and voters who are at least 30,000 in number), Paragraph 1 of Article 67 mentions the government. The latter may demand that the parliament of Georgia should give priority consideration to its bill along with a bill of the president (this also applied to presidential acts before). Paragraph 3 is completely new in this article: "If the government fails to submit critical remarks on a bill being considered by the parliament within a period provided by the law, the bill is considered to have been approved by the government." This formulation is also aimed at active interaction between the parliament and the government and the exclusion of the possibility that the legislative process may be delayed by the executive. Simultaneously, the time to transmit a passed bill to the president has been raised from five to seven days, which is once again more convenient to services of the parliament.
All the above-mentioned attributes are really typical of parliamentarian forms of government and they testify to the objective reinforcement of the role of the parliament, especially in matters of shaping the executive branch and control over it. In a sense, one can say the parliament does not only control the executive branch but is also responsible for it to a greater extent, since it is given legal leverage enabling it to terminate the activity of the government that is not in line with the interests of the people. However, legal leverage does not exist in a vacuum, but in a specific state and specific environment. This model will therefore work differently under various make-ups of the parliament and layouts of political forces. In the event of a legitimate parliament with a sufficiently represented opposition and a diversity of political forces, the parliament can restrain authoritarian impulses of the government and the president. In the event of a "puppet parliament," the changes made will step up the power of the president rendering an air of greater legitimacy to the activity of his government. As far as Georgia is concerned, it is important for an assessment of the constitutional amendments to pay attention to the change in the status and authority of the president. He is no longer viewed as the chief executive in Georgia according to the new version: Paragraph 1 of Article 69 describes him only as the head of Georgian state. Although the presidential election procedure has basically remained the same, its terms have been simplified significantly. Gaining the majority of votes of the people who have taken part in the election is enough to be elected in the first round, while there are no longer any requirements to the number of participants (more than fifty percent of the total number of constituents were required to take part in an election before). This means it is no longer of importance how many people attend an election; what is important is that there is a serried absolute majority among them (a minimum of 50% of votes plus one vote). Otherwise, a second round is appointed for the two candidates showing the highest results in the first round; the candidate that receives the largest number of votes (plurality) is considered elected. The requirement that at least one-third of the voters must take part in the second round, which existed before, has also been lifted.
As before, the president is not entitled to hold any other office, run a business or get a salary or any other type of permanent remuneration for any other activity. However, an exception has been made presently for a party office (Article 72).
The following changes have occurred with regard to the authority of the president:
Firstly, amendments relating to the introduction of new offices and parliamentary institutions have been introduced to Article 14 of the Constitution that contains a list of presidential powers. Therefore, while previously the president appointed members of government (ministers) as agreed with the parliament, had the right to dismiss them without any explanations, accepted the resignation of ministers and some other officials in accordance with the law, once again without any explanations, and was entitled to assign ministers to fulfill their duties until the new government is shaped; now his government-shaping authority is that he "appoints the prime ministers, gives his consent to the prime minister for the appointment of a member of government (minister); is entitled to dismiss the government and the ministers of internal affairs, defense and state security of Georgia on his own initiative or in other cases provided for by the Constitution; accepts the resignation of the government, a member of government and other officials in accordance with the law; is entitled to entrust fulfilling duties to the government or a member of government until the appointment of a new make-up of the government or a new member of government" (subparagraphs (b), (c) and (d), Paragraph 1, Article 73).
Subparagraph (e) of Paragraph 1 of this article has also been amended. While previously the president submitted the draft state budget of Georgia to the parliament by himself, having finalized its key figures and policies with parliamentary committees, now he gives his consent to the government for the submission of the draft state budget of Georgia to the parliament. Thus, he controls the submission of the draft budget, but the government, in the first place, has full responsibility for it.
Besides, Paragraph 1 of Article 73 has been supplemented with several subparagraphs establishing a number of new presidential powers. The president dissolves the parliament in the cases and according to the procedure established by the Constitution; he chairs the Supreme Justice Council of Georgia according to the procedure provided for by the Constitution and organic legislation; he appoints and dismisses judges; after a dissolution of the parliament and before the first meeting of the newly-elected parliament, in special cases he is entitled to issue tax and budget acts having the power of a law - a decree that becomes invalid unless the newly-elected parliament approves it within one month after its first meeting; when there are circumstances for which subparagraphs (a) to (d) of Article 511 provide, if the parliament does not express confidence in a make-up of the government within the time determined by the Constitution, he is entitled to appoint the prime minister and give him his consent for the appointment of ministers. Within one month after the termination of the above-mentioned circumstances, the president again submits the make-up of the government to the parliament for obtaining confidence. Special attention here should be paid to how the decisive influence of the president on the shaping of the judiciary has been formalized, as well as to the right of the president to issue tax and budget acts having the power of a law; the latter, though, at least the way it is formulated in the new version, has been introduced to fill the vacuum that emerges when the parliament is dissolved.
In existence before, the right of the president to "cancel acts of agencies of the executive branch reporting to him" has undergone an inevitable transformation in connection with the changing organization of the system of top government agencies. The new version of Paragraph 3 of Article 73 contains the following provision: "The president of Georgia is entitled to suspend or cancel acts of the government and establishments of the executive branch if they contradict the Constitution of Georgia, international treaties and agreements, laws of Georgia and statutory acts of the president." This means, on the one hand, that he has received the right of suspension along with the right of cancellation (and his authority has broadened in this sense); on the other hand, some cancellation criteria have been introduced (which somewhat restricts his authority, at least formally). As far as these criteria are concerned, one can but mention, nonetheless, the sufficiently spacious room for maneuver for the president: as a matter of fact, nothing prevents him from issuing an act of his own and canceling the governmental act that does not suit him. A mentioning has been excluded from this Article 73 of the Constitution that the president chairs meetings of the Security Council, but that is simply an improvement in the legislative technique (it duplicated provisions of Article 99 that has been preserved).
The procedure of implementation of the presidential authority in case the president cannot implement his authority has been regulated in greater detail. It was only mentioned previously that in the event of an early termination of the authority of the president of Georgia or his inability to implement his authority, the chairperson of the parliament would act as the president, and one of his deputies would act as the chairperson of the parliament. The version in effect now regulates the situation when the chairperson of the parliament cannot act as the president of Georgia either or when the parliament is dissolved. In this case, the prime minister acts as the president of Georgia. Besides, it is established that in the period when the chairperson of the parliament acts as the president of Georgia, one of the deputies of the chairperson of the parliament acts as the chairperson of the parliament as assigned by the chairperson of the parliament. In the period when the prime minister acts as the president of Georgia, the member of government with the authority of a deputy prime minister acts as the prime minister.
An acting president is not entitled, on his own initiative or in other cases provided for by the Constitution, to dismiss the government or the ministers of internal affairs, defense and state security of Georgia; he has no right to suspend the operation of or dissolve representative bodies of local government or territories, to appoint a referendum or to dissolve the parliament.
Besides, the Constitution has been supplemented with Article 76(1) of the following content: "The president of Georgia nominates a candidate for the office of Prosecutor General of Georgia and submits this candidacy to the parliament. The authority and the forms of operation of the Prosecutor General's Office of Georgia are determined by organic legislation." Article 91 of the Constitution that regulated the status of the Prosecutor General's Office previously, has been abolished. However, there are no changes here as regards the presidential powers.
An "interesting addition" has been made to the new version as regards issues of granting of citizenship. Paragraph 2 of Article 12 has been related in a new version as follows: "The citizen of Georgia cannot simultaneously be the citizen of another state with the exception of the cases established by this Paragraph. The president of Georgia can grant Georgian citizenship to a foreign citizen for special services to Georgia or when the granting of citizenship to him proceeds from national interests." The innovation here is that, firstly, the president of Georgia can now grant citizenship to any foreigner if he sees it useful, because there is no special difficulty in substantiating it with national interests; and secondly, the foreigner can preserve his former citizenship and the ban on dual citizenship does not apply to him (the Constitutional ban on dual citizenship was absolute previously).
The constitutional regulation of the status of the judiciary has undergone transformations in the two aspects: firstly, the Constitution now mentions jury service; and secondly, the government has been included in the list of entities having the right to apply to the Constitutional Court, while its acts have been made subject to constitutional control.
If the amendments introduced are evaluated in general, the above-mentioned changes are potentially intended to render the state more properties typical of parliamentary republics (the parliamentary responsibility of the government, connection of the issue of the make-up of the government with election results, and so on), which theoretically and as a matter of fact is to step up the democratic, not authoritarian, elements of the state organization. The constitutional innovations objectively facilitate active cooperation between the president, the parliament and the government; moreover, many of the new rules have been formulated so that they cannot evade this cooperation. Whether the above-mentioned constitutional model, to a great extent borrowed from European constitutions, will lead to the democratization of political processes in Georgia depends on the actual alignment of political forces. For the time being, one can only assume that the new constitutional regulations have apparently adequately reflected the division of power between the three political forces that act as a whole in the present stage. Hence the constitutional mechanisms of "compulsory cooperation" and the emergence of additional guarantees for the president as well as the government and the parliament.
Evaluating the constitutional amendments from the point of view of the role of the president, one can but note that the new constitutional model reserves for him rather the role of an arbitrator between the parliament and the government, because it is the president who has the right to make a decision to dismiss the government or dissolve the parliament in some specific political situations and it is the president who has the greatest freedom of action (comparing with the parliament and the government). As for his specific powers, the constitutional reform has freed the president from "particulars" and direct confrontation with the parliament, but reserved for him control over all of the most important matters and the opportunity of active involvement in decision-making.
Author: Galina Andreeva Source: Materik (CIS States Institute)