Georgia’s further slide towards illiberal constitutionalism? The art of thinly veiled constitutional appearances

Despite hopes for a robust and balanced constitution reform, the ruling Georgia Dream coalition has proposed a draft constitution that will strengthen and guarantee the continued dominance of the majorities of the day. The proposals would also eliminate the modicum of existing institutional constraints on ruling parliamentary majorities – writes professor Davit Zedelashvili.

Introduction

The Georgian constitutional reform process started in December 2016 following the landslide victory of the Georgian Dream coalition (GD) in the October 2016 elections. GD won 115 of the 150 seats, despite only receiving less than half of the total votes cast. The Speaker of Parliament, who has been leading the process, appointed the members of and chaired the constitutional commission. Despite boycotts from some groups and opposition from the President of Georgia, the commission adopted a draft constitution in April 2017 (the April draft). Parliament then launched public consultations conducted in May 2017. Parliament also referred the draft to the Venice Commission, which adopted its final report on 16 June 2017. The GD had indicated that the recommendations of the Venice Commission will be taken into consideration in the preparation of the final draft. Nevertheless, the GD parliamentary supermajority adopted the draft constitution (the June draft) on first hearing on 22 June 2016 with 115 votes for to 0 against. All factions of the parliamentary opposition boycotted the vote, and non-parliamentary opposition parties and major CSOs condemned the unilateral and expeditious amendment process. Consequently, the reform process is manifestly devoid of any social consensus and enacts the arbitrary will of the GD parliamentary supermajority. While there are calls for the holding of a constitutional referendum, under the constitution, the reforms need only the approval of a 3/4 majority, which GD currently enjoys.

This piece follows up on an earlier ConstitutionNet contribution (January 2017) which stressed the duty on the GD to use its dominance to go beyond appearances and establish genuine constitutional limits on transitory politics. An analysis of the June draft reveals a betrayal of this responsibility and a systematic effort to design reforms to ensure GD’s continued dominance.  

Proposed institutional reforms: Towards an illiberal constitutional regime?   

Gone are the days when illiberal or undemocratic regimes were recognizable by their open and blatant disregard for or abolition of the constitution. The new illiberal regimes, most notably in Eastern and Central Europe, are developing their own brand of illiberal constitutionalism, where constraints on the democratic majority are purged, while retaining only those aspects of standard liberal-democratic constitutionalism that makes the reproduction of plebiscitary popular legitimacy efficient for the ruling social and political forces.

To subject constitutional constraints to rigorous substantive analysis, one needs to grasp not only normative content and aims of those mechanisms, but also the wider political and social context where they are embedded. The context is decisive in generating motivational structures for the actors to which the constraints refer. Each normative constraint has a complement in a set of external constraints, without which it cannot function. Remove the external constraints and the normative constraints collapse too. Illiberal regimes employ this knowledge with different skill and precision in transforming constitutional constraints to mere appearances. Skillfully done, appearances relatively easily deceive external observers unfamiliar with the local context and the motivational structure of powerful actors. In other instances, the appearances are so thinly veiled that they are devoid of any deceptive power.     

An analysis of the draft constitution should start with stating these theses. The drafters claim that the proposed constitution establishes a model parliamentary regime. However, it proposes to create a heavily majoritarian version of parliamentary government, where social forces, such as GD, attracting the support of the swinging tides of majority opinion have easy and continued access to power through a single election. To understand this outcome, we should first examine the major proposals in the draft, then direct our retrospective look to the forces involved in the drafting, their interests, agendas and actions. 

The alchemy of proportional representation: Power premium is here to stay 

Currently, 77 of the 150 MPs are elected based on proportional representation, with 5% minimum threshold, while 73 are elected in single member constituencies with a run off, if no candidate secures 50% of the votes.  The April draft proposes an overall proportional electoral system with a 5% threshold. Votes cast for parties that did not reach the threshold (bonus seats) would go to the party that had the most votes. The draft does not impose a minimum threshold for the winning party to receive the bonus seats. As such, even winning parties that receive far below the 50% majority of votes can govern with a comfortable majority of parliamentary seats. The fragmentation of the political system and the abundance of unallocated seats is further guaranteed by the prohibition on forming electoral blocs.

The explanatory report to the draft indicates that the prohibition of blocs is the only way to create a healthy and stable party system. Maybe, but this surgical cut from above only ensures stability for the ruling parties of the day, ensuring the fragmented field and sparse competition. Equally unconvincing is the argument that the bonus of unallocated mandates is necessary to ensure government stability under a parliamentary system based on proportional representation. As the Italian Constitutional Court aptly held in a case dealing with similar issues, the value of stability does not warrant the complete disregard of principles of electoral equality and proportional representation. The Italian example proved to be damaging in other respects too. The current parliamentary minority compared the system to Benito Mussolini’s 1922 election law, running its campaign to demand a referendum under slogans denouncing the ‘Mussolini electoral system’. 

The Venice Commission reiterated the foregoing reasoning. While welcoming the switch to proportional representation, it criticized the cumulative effects of the 5% threshold, the prohibition of electoral blocs and the premium of unallocated mandates, as ‘running contrary to the proportional elections system’, violating principle of electoral equality, and as undermining political pluralism to the disadvantage of smaller parties. Effectively, the conclusions of the Commission affirm that GD’s proposed electoral system is ‘proportional’ in appearance only.

Following the Venice Commission’s opinion, the June draft introduces a slightly modified rule for allocating bonus seats. The modified premium rule slightly reduces the gross disproportionate impact of the initial rule, but retains its underlying spirit and effect. Accordingly, the winner of the plurality of votes would not in principle obtain as bonus more than 35% of the mandates it received under first allocation (basic mandate), and in principle up to a total maximum of 89 seats. There are, however, exceptions where these rules do not apply. Overall, the combined effect of the modified rule with the 5% threshold and the prohibition of party blocs ensures a high number of unallocated seats where a winner of more than 40% of electoral vote is still likely to get a comfortable majority, and even an amending supermajority.  

The draft also provides that the modified rules will only apply for the 2024 elections, which will partly appease internal pressure from major elements in GD who lobbied for a majoritarian electoral system. The current electoral system will govern the 2020 elections, where a 3% threshold will also exceptionally apply.          

Hollow constraints on the powers of the parliamentary majority

GD’s political feud with the president, who independently travelled the country to consult on constitutional amendments, brought the amendments to presidential powers and the presidential election rule to the center. In this politically charged setting, it was lost from view that neither indirect presidential election, nor weaker presidential powers would be problematic in a parliamentary system had the powers of the parliamentary majority been adequately checked through other mechanisms.

In this respect, the distorted electoral and party system proposed in the draft amendments makes hollow additional constraints that in theory could restrain majorities in unicameral parliaments. The simplified procedure for the constructive vote of no confidence (lowering threshold to initiate the vote to 1/3 of MPs (from 2/5), cutting the period between initiation of no-confidence and vote to replace cabinet to one week, removing the presidential veto of the successor PM) does not make government more accountable, or the power of the parliamentary minority greater. Under the conditions of the proposed electoral system, it will nearly impossible to even initiate a no-confidence vote, as either a 1/3 strong parliamentary minority is unlikely, or it will be so fragmented that even the Whip of Francis Urquhart/Underwood type would fail to discipline them for a single vote. The influence of party leaders in deciding who is on (closed) party lists for elections will ensure strong discipline among the parliamentary majority, neutralizing chances of defection.   

Hollowness also marks the new power of 1/3 of MP’s to establish parliamentary investigative commissions. Moreover, the newly reintroduced power of the PM to initiate a confidence vote must be understood against the background of artificially reinforced stable majorities and party discipline cemented by the allocation of seats in closed national lists. In this context, the proposed power of the PM merely serves just as another disciplinary mechanism in the hands of ruling party leaders against their parliamentary faction. 

The proposal to replace the direct election of the president with an electoral college (comprising of 300 electors – 150 MP’s and 150 elected by local representative assemblies) also seeks to eliminate presidential checks on parliament. One should understand the unfortunate state of local democracy in Georgia and the long-standing political dominance of large national parties to grasp the effects of the proposal. It has been the unbroken causality of the political system that parties controlling the political branches of the central government have always won the local elections. As such, as noted in the Venice Commission opinion, the effect of the proposed electoral system in creating a strong parliamentary majority and the lack of qualified majority requirement for presidential elections could undermine the effectiveness of the President’s independent constitutional role, and may merely serve to legitimize and enhance the dominance of the ruling party of the day.

Keeping the status quo in the judiciary    

The draft constitutionalizes the existing legislative framework on the composition of the High Council of Justice. Accordingly, parliamentary appointees to the Council (five of the 15, including the chair, who is also the president of the Supreme Court) need only simple majority support in parliament. Effectively, this means the perpetuation of the status quo where the nine judicial representatives in the Council must cooperate with the ‘delegates’ of the ruling party for crucial decisions, such as tenure appointments and dismissals (taken by a 2/3 majority of the 15-member council). Additionally, the changes empower the Council to nominate Supreme Court judges (currently exercised by the president) for approval in parliament.

The June draft partly incorporates the Venice Commission’s recommendations. It confers life tenure on Supreme Court judges. Nevertheless, it rejected the recommendation that Supreme Court judges should be appointed either by the Council or by the President upon the proposal of the Council, leaving the rule providing for the election by the simple parliamentary majority (upon the proposal of the Council) intact.  The Venice Commission’s call for the introduction of qualified parliamentary majority for the election of Council members is partly met by raising the majority requirement to 3/5. However, under the condition of the proposed electoral system, even a 2/3 qualified majority rule would not effectively ensure the independence of Parliamentary appointees to the Council.      

Moreover, following recommendations of the Venice Commission, the Constitutional Court will not have the authority to decide on the constitutionality of electoral laws during an election year, unless they were adopted within the year preceding the election. It also reintroduces the power of the Court to rule on the constitutionality of elections within seven days of their holding.        

Substantive changes in Bill of Rights: Ensuring the support of leftist activists      

The expansion of the catalogue of social guarantees as directive policy principles has attracted many NGO and expert representatives within the drafting commission and the GD has been willing to use them as trading chips for their participation and support. Thus, the draft elaborates the social state as a general principle (currently only referred to in the preamble). The draft lists additional state goals of ensuring the health and social protection of citizens, subsistence, dignified accommodation and employment. It also recognizes the right to internet use. The generosity to leftist political groups did not extend to the inclusion of these goals as enforceable rights. Furthermore, the draft lowers the constitutional standard for restrictions on the right to property – there is no requirement of necessity anymore, and mere public interest could serve as a legitimate aim for restrictions.

Moreover, the constitution prohibits the raising of taxes by parliament without holding a special referendum, which may only be called by the government (in other cases, direct popular initiatives are allowed). The provision was introduced in 2010 to preclude the prospect of progressive taxation and new taxes, such as inheritance tax, in the name of freedom for enterprise and market. Following strong campaigns of leftist groups in and outside the commission, the June draft removes the tax referendum provision, but only after a grace period of 12 years from the date of entry into force of the draft constitution as provided.  

The forces in the drafting commission and the agenda of the parliamentary majority 

The previous ConstitutionNet contribution on the commencement of the reform process outlined the agenda of the GD majority, discernible from initial proposals. It was already clear then that the GD majority was the only political force having something resembling a coherent agenda. Even though some opposition political parties within the commission submitted their proposals, those drafts lacked any comprehensive vision of the constitutional system as a whole. Therefore, the participation of opposition political forces has been reactive to the advances of the GD majority, culminating in boycotting the constitutional commission in protest, a week before the final vote on the draft constitution.

As the commission’s work progressed, the agenda of the speaker of parliament became apparent. The agenda included core objectives that were off the negotiating table and all the other issues that served as trading chips for attracting the support of other political and social forces without compromising on the core objectives. The core objectives were to simplify access to unfettered powers for the simple majority winner in the general election, to remove the uncomfortable constraint of popularly elected presidents, and to introduce appearances of constraint to the otherwise unlimited powers of the parliamentary majority.

All other issues, especially the bill of rights, served as a carrot or in some instances even a stick for at least two purposes: to involve as many political forces in the deliberation process and ideally to secure their support to the final draft. This strategy worked, if partially. All political parties within the commission resisted active engagement in the process and left the commission membership in the last week of the commission’s mandate. NGO representatives and experts took part in the final voting. While all NGO representatives and some experts voted against the final draft (citing their opposition to the issues described as GD’s core objectives above), the GD majority still harvested the legitimacy benefits of their inclusion. The June draft partially includes the provisions these experts and NGOs lobbied for throughout the process. Therefore, even with their sharp disagreement with fundamental substance of the draft, they cannot deny their share in ownership of the draft.

The parliamentary minority (‘European Georgia’) and experts affiliated with leftist political groups (both GD’s partner Social Democrats and other affiliated non-parliamentary groups) chose to participate in the process of national public deliberations conducted in May 2017. The President, who initially boycotted the work of the commission and ran a parallel process of public deliberation, also joined the parliament-run public deliberations. These forces all attempted to use the national public deliberations process to advance their agendas with varying success.

‘European Georgia’ focused on the electoral and party system, and ran a consistent campaign against the manner of awarding bonus seats. They also opposed the removal of popular presidential elections, and the weakening of presidential powers. The president concentrated his criticism on changes to presidential powers, though he also attacked the electoral system. The leftist groups mostly pushed for the only item from their agenda that did not find its way in the April draft - the removal of the mandatory referendum on taxes, which was achieved in the June draft.

The spectacle of national public deliberations did much to discredit the overall process. By the beginning of June, with the commencement of parliamentary hearings on the draft constitution, internal disagreements on the core issue of the electoral system within the GD majority surfaced. Even the members of GD’s parliamentary majority publicly doubted that the speaker of parliament has lived up to the task of justifying why the proposed proportional system was better than the existing system combining proportional representation with constituency-based elections.

Overall, the agenda of the Speaker of Parliament for the work of the drafting commission has mostly failed. He did not manage to attract any support for the reform outside the GD, apart from the halfhearted support of the leftist activists (whose electoral power is wholly negligible) and his proposals on the core political issue – electoral system - were challenged even from within his own party. Nevertheless, his failure would not necessarily defeat entirely the core constitutional objectives of his political force. Considering its dominance in parliament, the GD majority will likely carry its way and adopt the constitution.    

Davit Zedelashvili is Assistant Professor at the Free University of Tbilisi. His research and teaching covers comparative constitutional law, philosophy of law and political philosophy.