GIP Commentary: The Venice Commission Opinion on Georgia’s Constitutional Reforms

Joseph Larsen*

Shortly after winning a substantial majority in last year’s parliamentary elections, GD formed a 73-member Constitutional Reform Commission to prepare a new constitution—one that would transform the country from its current semi-presidential system to a full-fledged parliamentary republic. After four months of deliberation, the Commission approved a draft constitution on April 22. But before the new constitution can be put to a vote, the Constitutional Reform Commission must get the blessing of Georgia’s European partners.

That approval came on June 16. The Council of Europe’s Venice Commission adopted a favorable opinion on the draft constitution. Their assessment is mostly positive, concluding that the reforms put the country on the path toward a parliamentary system and (should) result in a more proportional system of representation.

Its recognizes the problems, too: the five percent threshold for entering parliament; the rule about reallocating undistributed seats to the winning party; and abolishing electoral blocs. However, the Venice Commission took GD at its word that would accept its recommendations. The Commission is also not bothered by the idea of an indirect election system for the president, which it says is in line with European parliamentary standards.

Main takeaways from the Venice Commission decision

  • Obtaining the Venice Commission’s approval is a big victory for GD. The party has taken a lot of criticism for certain provisions, especially those concerning election procedures. The favorable opinion, which includes a show of faith that GD will improve the draft before final approval, is a big win for the party. It can now remind the public and the political opposition that it has the backing of Georgia’s European partners. That goes a long way.

 

  • The Venice Commission still has some reservations. The title of its press release says it all: “Georgia: constitutional revision on right track, but changes needed to ensure political pluralism.” The Venice Commission still wants to see changes to parliamentary election procedures, including the abolition of electoral blocs and the provision on allocating undistributed mandates to the party that receives the most votes.
    According to the Venice Commission’s conclusion: “It is strongly recommended 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.”

 

  • No direct election of the president? No problem. The Venice Commission has no concerns about making the president elected by an electoral college, noting that each European country has a different system in place: “The appropriate model for the presidential election is to be defined with regard to the overall system of checks and balances within a specific constitutional order.” The opinion concludes that if the right parliamentary election procedures are in place, procedures for electing the president won’t be an issue.

 

  • The ban on same-sex marriage isn’t good, but it’s not a deal breaker. The opinion states that the draft constitution is a step backward on this issue, as the current constitution allows the possibility for lawmakers to legalize same-sex marriage in the future. However, this issue must be decided domestically—and only a minority of European countries have legalized same-sex marriage, anyway—so it’s not a major issue for the Venice Commission. What is required by the European Court of Human Rights (ECHR), however, is the recognition of “civil unions or registered partnerships for same sex couples.”

 

  • The wording was changed regarding the prohibition on agricultural land sales to foreigners. On June 8, Parliamentary Chairman Irakli Kobakhidze announced that the Constitutional Reform Commission was adding a new provision prohibiting agricultural land sales to foreign citizens. That was both popular and controversial: proponents said it would protect the country’s vital resources, opponents called it discriminatory and said it would hamper rural development.
    The original wording, that “land may only be owned by Georgian citizens”, has been removed. In its place is a vague formulation that the right to ownership of land shall be regulated by Organic Law. According to the Venice Commission, the change constitutes a “laudable third way” between the previous system of no restrictions and the strict prohibition set out in the original draft. In short, GD is leaving the issue open to be decided in the future.

* Joseph Larsen, GIP Analyst

**This publication was produced with the support of the National Endowment for Democracy (NED). The views and opinions expressed in this article are the author’s alone and do not necessarily reflect the views of the Georgian Institute of Politics or the National Endowment for Democracy.

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