The Venice Commission published its final opinion yesterday on Georgia’s draft revised constitution, which includes recommendations on the constitutional reforms in Georgia. The conclusion touches several aspects such as the electoral system, human rights, and the judiciary system:
“Georgia remains a fairly centralised country with a parliament which will remain unicameral for the foreseeable future. It lacks a longstanding tradition of judicial independence. Under such circumstances there is a risk of domination by the majority in parliament and consideration should be given in the future to the possibility of strengthening checks and balances, for example by the introduction of a second chamber and strengthening the role of the opposition in parliament.
The replacement of the current proportional/majoritarian election system by a proportional election system is, without doubt, a positive step forward aiming at increasing pluralism in Parliament. However, this positive step forward is limited by three mechanisms: the 5% threshold rule in legislative elections is maintained; the undistributed votes below the 5% threshold are allocated to the winning party and, electoral coalitions (party blocks) are abolished.
While the 5% threshold is perfectly in line with European standards and does not as such expose itself to criticism, taken together, these three mechanisms limit the effects of the proportional system to the detriment of smaller parties and pluralism and deviate from the principles of fair representation and electoral equality to a larger extent than seems justified by the need to ensure stability.
Against this background, the Venice Commission recommends that other options of allocating undistributed mandates than the one suggested by the draft amendments are taken into consideration, such as: - proportional allocation either to all political parties passing the 5% threshold; or - setting up of a ceiling to the number of wasted votes that is to be allocated to the winning party (premium); - and/or reduction of the threshold to 2% or 3%, thus applying the proportional system also to the distribution of leftover mandates.
Introduction of indirect election system for the President is as such in line with the European standards. It is welcome that the new system will not be applicable at next year’s election but only from 2023. It should, however, be borne in mind that, also in the absence of a functioning senate, the main counterbalance to a strong government with an overwhelming parliamentary majority in the Georgian constitutional system is the President. Consequently, the passage to an indirect election system should not result in the constant and exclusive election of the candidate presented by the parliamentary majority as President. Measures in order to better guarantee the pluralism in the Parliament (and consequently in the Election Board) and the principle of checks and balances are thus necessary. The Venice Commission reiterates its recommendation concerning the proportional allocation of unallocated mandates and/or reduction of the threshold under the precedent paragraph. In addition, it is also recommendable to require a qualified majority in the first round of the election of the President by the Election Board…
- ...life tenure for judges should be extended, in unequivocal terms, to Supreme Court judges and their election by parliament is best replaced by their appointment by the High Council of Justice or by the President upon the proposal of the High Council;
- Accountability of the Public Prosecutor to Parliament in individual cases of prosecution or non-prosecution should be explicitly ruled out. In case the accountability leads to a dismissal procedure, a fair hearing should be guaranteed;
- It is recommended to provide for a requirement of qualified majority for the election of those judges of the Constitutional Court and members of the High Council of Justice which are elected by Parliament as well as for the election of the Prosecutor General;
- The prohibition to the Constitutional Court to declare unconstitutional legal norms regulating elections during the election year (unless this norm has been adopted one year prior to the respective election) disproportionately limits the power of the Constitutional Court to review the constitutionality of legislation regarding the election.”