TOWARDS SUBSTANTIVE AND PROCEDURAL MODUS OPERANDI –WHY DID CONSTITUTIONAL REFORM FAIL IN GEORGIA?
WHY DID CONSTITUTIONAL REFORM FAIL IN GEORGIA?
Abstract
On February 12, 2016 held the fifth and concluding meeting of the Working Group on the Issues of the Parliament, the President, and the Government of Georgia. The working group was one of the central units of Georgia’s third State Commission for Constitutional Reform. The other foundational or core working groupings of the Commission included the Working Group on the Issues of General Provisions and Revision of the Constitution of Georgia; the Working Group on the Issues of Human Rights and Freedoms, the Judiciary, and Prosecuting Institutions; the Working Group on the Issues of Independent Constitutional Institutions; and the Working Group on the Issues of Territorial Arrangements and Local Self-Government.
The first such kind of quasi-constituent body or assembly worked during 1993-1995 and the second one accomplished its mandate throughout 2009-2010. The outcome of this work was the second Constitution of Georgia, adopted on 24th of August 1995. The second was the major revision of the supreme politico-legal act on October 15, 2010. At this date, the Parliament of Georgia passed a bill including all of the constitutional amendments after working with the Venice Commission of the Council of Europe and other international actors and stakeholders. These amendments and addenda entered into legal force and were implemented after the inauguration of the fourth elected president of the Georgian polity on November 17, 2013.
As regards the first Constitution of Georgia, it embraced on February 21, 1921 and was one the
first European Constitution, which guaranteed and implemented the Social Democratic Republic
in practice.5
As foreign and Georgian scholars and officials elucidated, the first Constitution of Georgia eloquently empowered its citizenry with the equal franchise and endorsed a concept of naïve secularism that was inspired by the French notion of laïcité or laïque (state neutrality for religion). Overall, it formulated a progressive narrative of human rights within twentieth-century constitutionalism.
The first significant amendments to the second 1995 Georgian Constitution occurred on February 6, 2004 just after two months after Georgia’s Rose Revolution. In purely constitutional terms, this was a vivid demonstration of the so-called instrumental use or instrumentalization of the constitution from the new post-revolutionary leadership.
Between the first alteration to the Constitution of Georgia on July 20, 1999 and the entire package of constitutional amendments which entered into force on November 17, 2013, there was an indisputable pattern of ‘malleable constitutionalism’.Notably, as some scholars argue, the very term firmly illustrates the politico-legal bedrock in the polities, where the ruling political party or coalition unilaterally captured and thoroughly dominated, both procedurally and substantively, in the field of constitution-making or revision. Furthermore, constitutional changes passed without bipartisan support or the general public’s consultation or acceptance.
The substantive content of constitutional amendments adopted in 2010 covered a wide range of institutional and substantive issues and made an across-the-board impact. Inter alia reformulated the institutional framework of Governmental institutions; developed the checks and balances system among the branches of Government; and enhanced and strengthened the independence of the judiciary (by proposing tenure appointments of judges for probationary periods, maximum three years).
Constitutional reform redefined the constitutional clauses for private property, created a new constitutional chapter on local self-government, affirmed the European subsidiarity principle and advanced the role of political parties in decision-making in order to encourage inclusiveness and responsiveness within the wider institutional framework. At the same time, critics pointed to the inter-institutional relationships between executive and legislative branches and the sui generis arrangements of confidence, no confidence and constructive vote of no confidence constitutional clauses.
Immediately after the Working Group on the Issues of the Parliament, the President, and the Government completed its work, the chairperson and head of the Legal Affairs Committee of the Parliament of Georgia delivered a statement articulating the challenges confronting the future of the State Commission for Constitutional Reform. The statement further elucidated the divisions between the governing coalition and the opposition regarding specific constitutional issues and, given this context, emphasized that there was no likelihood of achieving the procedural quorum and political reconciliation necessary to reform the constitution.
The presiding officer of the supreme legislative body of Georgia conveyed similar concerns. Additionally, Parliament’s presiding officer and one of the leaders of Georgia’s incumbent governing political coalition emphasized the productiveness of the staff and the members of the constitutional commission, particularly constitutional law experts and political scientists. As he argued, the State Commission for Constitutional Reform was unable to elaborate the draft law of the Constitution for these reasons, but it nonetheless drafted 97-98 concrete proposals covering virtually every key constitutional issue. It is important to note that members of the leading parliamentary majorityნ employed the same justifications. In political science terms, it was the lingua franca of both the ruling political elite and leadership.
The fourth and final activity of the Plenary Session of the State Commission for Constitutional Reform took place on February 28, 2016. The commission included 58 representatives from academia, civil society organizations (CSOs and NGOs), and political parties and core state institutions. However, only 21 members took part in the concluding plenary meeting of the commission. The speaker of Parliament outlined why the constitutional commission should conclude its work.
As the chief legislator argued, the State Commission for Constitutional Reform was a victim of the uncooperative political environment created following the Georgian parliamentary elections on October 1, 2012. The political divisions between the opposition and leading coalition completely damaged the entire telos and procedural side of the reform initiative. The speaker of parliament emphasized the same argument at the third plenary meeting of the commission. On March 28, 2015, he put it succinctly: ‘we did not want and did not implement fast changes; we did not want and did not implement domination of issues initiated by the Government. To the contrary, the task was to allow everyone express their own positions, offer their own views on the constitutional institutions, norms or mechanisms to be implemented. This is the principle of our activity.’
It seems clear that firstly, the chairperson of Georgia’s legislative body conceptualized and focused primarily substantive issues or accented the ‘fundamentals of the political constitutionalism’and his conclusive argument was pure procedural by its connotation. He specified that thequorum that is necessary to revise the constitution is one of the highest thresholds and formidableobstacles existed in the contemporary constitutional texts worldwide. According to article 102, paragraph 3 of the Georgian Constitution, a draft law revising the constitution shall be deemed adopted if it is supported by not less than three-fourths of the total number of MPs of Georgia at two successive sessions of the Parliament of Georgia after an interval of at least three months.
Based on this line of reasoning and justification this contribution attempts to understand Georgia’s particular politico-legal road map in the prism of modern constitution building, particularly through its context and procedures.16 In order to become aware of the failures and gaps of recent constitutional reform efforts and assess the future of Georgian constitution-making.
