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Georgia – Proposed constitutional reforms

Draft amendments to the Constitution of Georgia are currently undergoing nationwide public discussions before being voted on in parliament. Among other significant amendments, the proposed draft foresees moving to a parliamentary form of government with the introduction of indirect presidential elections and changing the electoral system to full proportional representation.

On December 9, 2016 the Parliamentary Chairman, Irakli Kobakhidze, announced the setting up of a constitutional commission tasked with drafting a package of constitutional amendments. The commission would report at the end of April 2017.

Soon after the announcement, Giorgi Margvelashvili, the President of Georgia, boycotted the process and his administration (including the Security Council) refrained from taking part in the commission’s discussions. The administration noted that the format offered by the Parliamentary Chairman raised a lot of question marks.

The ruling Georgian Dream – Democratic Georgia party had 23 members in the commission; the United National Movement was represented by 8 members; and the Alliance of Patriots by 2 members. The commission also included one representative from each of the parties in the electoral blocs that failed to clear the 5% thresholdin the last parliamentary elections, but that had garnered at least 3% of votes .

Before boycotting the process, the President was supposed to have three representatives in the commission: the Head of the President’s administration; the President’s parliamentary secretary; and the Secretary of the National Security Council.

The government was represented by the Minister of Justice and the government’s parliamentary secretary. The  commission also included the chairpersons of the Constitutional Court and the Supreme Court; the heads of the legislative and executive bodies of Adjara and Abkhazian Autonomous Republics; the Georgian Public Defender; the President of the National Bank of Georgia; and the chairperson of the State Audit Office.

Experts and NGOs were included at the Chairman’s invitation.

Despite the broad range of topics that the commission was tasked to discuss, the electoral system, the election of the president, and the definition of marriage generated the most heated debates.

While the Chairman of the Commission aimed to legitimise the process, President Margvelashvili launched a campaign called the “Constitution Belongs to Everyone” and visited a number of towns in different regions of Georgia to discuss the likely amendments before the draft amendments were published on May 1.

Shortly before its final session of the Commission, opposition parties also left the Commission in protest.

Major Draft Amendments

Election of the President

The Georgian Dream-led Constitutional Commission opted for a Parliamentary Republic. In particular, the proposed amendments will abolish the direct election of the president, transferring it to a college of electors composed of 300 MPs, local, and regional government representatives. The scrapping off nearly all the powers of the President was justified by the proposed shift to a parliamentary system.

The college of electors will consist of 150 members of parliament and all members of the Supreme Councils of Adjara and Abkhazia (in-exile). Electors from municipal councils will be nominated by political parties in accordance with quotas assigned “on the basis of the principle of proportional geographic representation and the results of municipal elections.”

The eligibility age for the President of Georgia will increase from 35 to 40. There are changes to residency requirements as well; a potential candidate will have to have lived in Georgia for at least 15 years. He/she, however, is no longer required to have lived in Georgia for the three years before the election.

The president will remain the head of state, the commander-in-chief, and the country’s representative in foreign relations, but will no longer “ensure the functioning of state bodies within the scope of his/her powers granted by the Constitution.” The President will lose the right “to request particular matters to be discussed at the Government session and to participate in the discussion.”

The National Security Council, which “organizes the military development and defense of the country” and is led by the president under the current constitution, will no longer exist. Instead, the draft constitution establishes the National Defense Council, which will function only during martial law to coordinate the work of the constitutional bodies, and will consist of the President, the Prime Minister, Parliamentary Chairman and the Head of the Armed Forces of Georgia.

The proposed indirect election of President was met with the fiercest criticism in Georgian society. In their address to the Venice Commission, local CSOs noted, “the Constitution of a specific country should take into account the local context and experience, and should be responsive to local challenges and needs.” CSOs underlines that Georgia does not have a rich democratic experience, that the political/legal culture of voters is developing, democratic institutions are not strong enough, and there is lack of trust towards public institutions in the country. In this context, CSOs viewed the draft amendments as a step made towards weakening democracy, describing the reforms as “risky and not desirable”.

NDI Opinion Polls 2017

The most recent opinion polls commissioned by NDI confirmed that the citizens of Georgia prefer the direct election of the president (84 %). Furthermore, President Margvelashvili viewed the draft amendment as a personal attack against himself, a non-partisan president, and emphasized this issue during the public discussions of the proposed amendments.

Electoral System

If adopted, Georgia will move to a fully proportional electoral system, replacing the current mixed system, whereby voters elect 73 MPs in majoritarian, single-seat constituencies, while the remaining 77 seats are distributed proportionally in the closed party-list contest with a 5% threshold.

The new constitution will ban the establishment of party blocs ahead of elections, while leaving the 5% threshold intact.

The draft constitution increases the age of eligible candidates from 21 to 25 and sets a ten-year residency requirement in Georgia.

Only parties with members currently in the parliament or those which obtain the signatures of 25000 voters are eligible to participate in parliamentary elections. According to the draft, MPs nominated by one political party can form only one parliamentary faction.

CSOs in Georgia have concerns over the electoral system and, specifically, the allocation of the remaining seats (undistributed mandates). Since the constitutional draft introduces an unlimited bonus for a party that receives the most votes – all undistributed mandates will be allocated a single party. CSOs consider this aspect of the electoral system to be highly unfair and largely undermine the positive gains from the change of the majoritarian system. CSOs believe that the constitution should ensure that the undistributed mandates are allocated proportionally to all parties in the Parliament according to their election results.

Definition of Marriage

The draft constitution introduces the definition of marriage as “the union of a man and a woman.” While the definition of marriage already exists as part of the Civil Code of Georgia, the Georgian Dream party decided to introduce a special provision as part of the constitutional reforms.

CSOs have named the definition of marriage as “a problematic issue”. According to their assessment, this amendment is particularly problematic given widespread homophobia, increasing cases of hate crimes, and the continuous struggle for LGBT groups to exercise their right to freedom of expression and assembly. Furthermore, the assessment states that the constitutional prohibition of marriage equality is particularly concerning given that Georgian legislation does not guarantee civil partnerships for same-sex couples. CSOs believe that in line with ECHR practice, Georgia should introduce the legal recognition of same-sex couples and guarantee similar rights as the opposite-sex couples.

The constitutional commission expects the opinion of the Venice Commission, the Council of Europe’s advisory body on constitutional and legal matters, to issue its preliminary conclusion before June in time for parliamentary discussions and the final conclusion of the debate on June 15. However, it is uncertain if the Constitutional Commission will reflect the Venice Commission’s conclusions in the final text that will be voted upon.

Georgia – Ruling Party Wins A Big Majority In Parliamentary Elections

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On October 8, 2016 Georgia held a parliamentary elections to elect 150 MPs using a mixed electoral system. According to this system voters elected 73 MPs in majoritarian, single-seat constituencies, while the remaining 77 seats were distributed proportionally in a closed party-list contest, whereby the party must clear a 5% threshold to win representation. In total, 25 parties and 816 majoritarian candidates contested the election.

Pre-election atmosphere

Despite the high number of parties, the United National Movement (which was the ruling party from 2004-2012) and the Georgian Dream (the ruling party since 2012) remained the front-runners according to all pre-election opinion polls (NDI & IRI polls).

The UNM emphasized renewal and attempted to come out of the shadow of Mikheil Saakashvili. Saakashvili, who is currently serving as governor of Odessa in Ukraine, was the founder of the party and president from 2004-2012.

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The founder of the Georgian Dream, Bidzina Ivanishvili, who is now self-described as ‘just a citizen’ , but who for many remains the leader behind the scenes, was closely involved in campaigning through lengthy media appearances.

Until very recently, the electoral campaign was mostly peaceful, save for a few isolated incidents. But as the elections approached, the violence spiked, including the shootout at a campaign event in Gori and the explosion of a UNM MP’s car in the center of Tbilisi.

The “State for the People” party, which was launched by the renowned Georgian opera singer, Paata Burchuladze, just a few months before the elections, was a surprise challenger to the UNM-GD duo. Burchuladze united with several parties in an electoral bloc, including Girchi-New Political Center and Giorgi Vashadze (both of whom had recently split from the UNM). However, the unity vanished just weeks before the election day, leaving many of State for the People candidates out of the elections.

The Free Democrats and The Republicans, so called pro-western and anti-Russian factions of former Georgian Dream coalition decided to run independently.

Lastly, the pro-Russian Democratic Movement led by Nino Burjanadze and the Alliance of Patriots also actively campaigned in the pre-electoral period.

E-day

All 3,702 precincts opened at 8am on polling day, including the polling stations abroad. Georgians residing abroad could cast a ballot only if they were registered at a consulate before September 17, 2016 and attending to vote in person on October 8.

Early exit poll results commissioned jointly by public broadcaster, Imedi TV, Maestro TV, and GDS TV showed that the ruling party had won 53.8%, followed by the UNM with 19.5%, with the pro-Russian Alliance of Patriots winning just over the 5% necessary to clear the threshold. The same exit polls showed Free Democrats at 4%; Labor Party at 3.1%; Paata Burchuladze’s State for People at 2.7%; and Republican Party at only 2.7%.

An alternative exit poll was commissioned by the major opposition channel Rustavi 2 TV.  Conducted by GfK and fielded by Tbilisi-based pollster BCG Research, this poll returned a better results for the UNM at 32.74%, less for GD at 39.9%, and the Alliance of Patriots at 5.76%. According to Rustavi 2 exit polls, the Labor Party won 4.21%, Paata Burchuladze’s State for People won 3.25%, the Free Democrats won 3.21%, and Nino Burjanadze’s Democratic Movement won 2.81%.

With the exit polls proving controversial, on October 9 the International Society for Fair Elections and Democracy (ISFED), Georgia’s largest election monitoring non-governmental organization, released the results of its parallel vote tabulation (PVT) of proportional, party-list vote. This poll largely coincided with the early official results.

According to its PVT results, the ruling Georgian Dream party won 49.1% of the vote and UNM 26.8%. PVT’s margin of error was calculated at +/- 0.9%. ISFED was not able to determine conclusively whether or not the Alliance of Patriots had cleared the 5% threshold.  They returned the party at 4.9% of the vote, but the margin of error was +/- 0.3%.

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Several irregularities and violations were reported and complaints were filed by local and international observer organizations. In a number of precincts the electoral process and counting were interrupted due to the mob raids. Due to these incidents, several district-level results may be annulled.

Official Results

By October 10, Central Election Commission of Georgia has published the following results from all 3,702 precincts for the party-list vote:

Turnout: 51 %

Georgian Dream – 48.65%
UNM – 27.12%
Alliance of Patriots – 5%
Free Democrats – 4.62%

The process was particularly tense for Alliance of Patriots, as the CEC changed the result from 4.99% to 5% several times.

Of the 73 majoritarian constituencies only 22 candidates cleared the 50% threshold necessary for election at the first round, all of them from Georgian Dream. A second round will therefore be held in 51 constituencies, where in most cases Georgian Dream and United National Movement candidates will compete against each other. One of the exceptions is the Gori seat, where the GD and Free Democrats leader, Irakli Alasania, were to be the two main candidates. However, the leader of the Free Democrats has withdrawn from the race and announced that he is leaving politics.

These results will leave most parties outside parliament. The leader of the Democratic Movement, Nino Burjanadze, has said that he does not recognise the results of elections, while the leader of Republicans, David Usupashvili, accepted defeat.

Assesment of the International Observation Missions

The statement released by EU High Representative/Vice-President Federica Mogherini and Commissioner Johannes Hahn assessed the elections as “competitive, well-administered” and said that fundamental freedoms were “generally respected”.

According to the OSCE/ODIHR Election Observation Mission, “the calm and open campaign atmosphere was, however, impacted by allegations of unlawful campaigning and some incidents of violence. Election Day generally proceeded in an orderly manner, but tensions increased during the day and several violent altercations took place near and in polling stations. However, voting was assessed positively in almost all polling stations”.

Fear of Constitutional Majority

Georgian Dream is eyeing a constitutional majority in the new parliament if it can win most of the run-off elections. It could win 113 seats in the parliament. A constitutional majority requires the support of three-quarters of the total number of MPs.

Georgian Dream has said that it wishes to initiate several constitutional amendments. Firstly, it wishes to define marriage as the union of a man and woman. Secondly, it has openly declared that the President should be elected by parliament instead of by a popular vote. They also wish to change the procedures for impeaching the president, as well as power to change the electoral system.

With only three parties likely to be represented in parliament, Georgia’s young democracy is about to enter a new cycle that will test its political and democratic stability.

Georgia ahead of Parliamentary Elections

Election date misunderstanding

Under the constitution, the Georgian Parliament’s 150 members serve four-year terms, with 77 seats set by proportional representation and 73 in single-seat constituencies. Georgia’s constitution calls for the next parliamentary elections to be held in October, with the country’s president setting the exact date no later than two months before voters go to the polls.

In April, six months ahead of elections, in a televised briefing President of Georgia Giorgi Margvelashvili set the upcoming parliamentary election date for October 8. The timing of the announcement has caused another misunderstanding between the president and the major political parties, which received such an early announcement with little enthusiasm. Some political parties noted that such a long pre-electoral campaign favors the ruling Georgian Dream party, which is in control of administrative resources.

President Margvelashvili, however, defended his decision, saying that a lengthy campaigning season will benefit all of the parties who plan to take part. Later, PM Giorgi Kvirikashvili confirmed the date of parliamentary elections as October 8, however he did not confirm the official launch of the election campaign. It appears that the pre-election campaign dates remain subject to further discussions with the Central Election Commission (CEC).

“We cannot afford to pay an extra 7 or 8 million GEL (approximate USD 3.5 million) for such a lengthy pre-election campaign. We are discussing all of the technical and financial issues with the CEC and we will make a decision on when to formally launch the campaign cycle,” noted Kvirikashvili.

The official pre-election campaign for the next parliamentary elections in Georgia was only launched on June 10, 2016, two months after the President’s initial decision, when Giorgi Margvelashvili issued another decree with regards to his constitutional duty.

Although the date was set finally, the electoral environment looks far from being ready for E-day: the ruling Coalition was dissolved and the component parties are expected to run for election independently. Moreover, a number of politicians from the Georgian Dream Party have founded new political organisations for the upcoming elections. In addition to these internal struggles, issues relating to media freedom, a fair electoral environment, and inability to reach the achievement on the new electoral system are the major challenges facing the ruling Georgian Dream group.

Disagreement over the electoral reform

An interparty group was unable to reach a favorable outcome on the major electoral reform with the Georgian government, parliament and the ruling Georgian Dream party. Negotiations lasting for months encompassed changes in the electoral system, the composition of the Central Election Commission, TV advertising during pre-election campaign period, and the ratio of political party representatives in the Central Election Commission. In addition, political parties discussed the possibility of lowering the threshold for representation from 5 to 2 %.

The opposition parties claimed that the ruling coalition (at that time) and the executive government did not demonstrate the political will necessary for implementing major election related changes prior to the next Parliamentary elections.

For its part, Georgian Dream refused to dismiss the majoritarian system for the upcoming elections and expressed its readiness to enact such changes for the parliamentary elections of 2020, but not earlier.

However, it was still able to propose a change in the Electoral Code, according to which 11 electoral subjects will be able to use TV advertising time free of charge. Private TV broadcasters expressed their dissatisfaction towards the amendments that will be financially damaging for the companies.

The dissolved Georgian Dream and the renewed United National Movement

Just before starting the pre-election campaigning the ruling Coalition Georgian Dream was dissolved with its 6 political parties getting ready to participate in the elections independently. The newest of the former coalition member parties, the Georgian Dream Party itself, was founded by the former PM of Georgia, billionaire Bidzina Ivanishvili. Ivanishvili resigned as PM in 2014 but remains as the party leader behind the scenes. The 2016 parliamentary elections will be the first time that Georgian Dream will participate as an independent electoral party. Its former partners (Republicans, Conservatives, National Forum, Industrialists, Free Democrats) have more electoral experience but have little hope of clearing the threshold on their own.

On the other hand, the major opposition and the former ruling party, the United National Movement (UNM), has announced the policy of so-called renewal, or new-blood candidates. The UNM has already announced its top 10 candidates, consisting of former high officials and civil servants in charge of foreign policy, Euroatlantic integration and diplomacy.

Meanwhile, the law enforcement agencies are investigating the events of 22nd May, 2016, when the UNM leaders were attacked in the village of Kortskheli during the by-elections. Six men have been charged, without being arrested, in connection to the Kortskheli violence. Lawmakers from UNM party, who are currently boycotting the Parliament over the Kortskheli incident, accuse the energy minister and general secretary of the ruling Georgian Dream party, Kakha Kaladze, of being behind the group.

The incident was highlighted in a statement issued by the National Democratic Institute (NDI) in its pre-election assessment mission. The report, issued on June 17, called the event “a particularly alarming incident, ” adding that civil society and opposition as well as governing political parties lack confidence that the police, prosecutors, or courts can be relied upon to respond – whether to electoral disputes or physical confrontations – in a timely, impartial, and effective manner.

Visa Liberalisation with Europe

Meantime, citizens of Georgia are expecting the lifting visa requirements with the European Union. Although Brussels positively assessed Georgia’s progress in implementing a Visa Liberalisation Action Plan in December 2015, the EU remains hesitant to take the final decision. The EPP party group president, Joseph Daul, was first to link the outcome of parliamentary elections to the visa liberalization. Civil society organizations in Georgia feared that the topic of visa free movement with Europe would be used for political gain by different political groups and asked Daul to support the European aspiration of Georgian citizens.

Later, Mr. Daul, who is closely linked to United National Movement, had to deny any such relation between the elections and the lifting of visa requirements. During his visit to Gorgia in March 2016, he clarified that current challenges of the EU might be the major reasons behind the delaying of the decision on a visa-free regime.

Merabishvili Case

After the 2012 parliamentary elections, when the UNM lost its majority to the Georgian Dream, several leaders of the UNM were arrested and later sentenced. They included the former elected Mayor of Tbilisi, Giorgi Ugulava, as well as secretary general of the UNM and former PM, Ivane Merabishvili, and former Defense Minister Bachana Akhalaia. The UNM has accused Georgian Dream of trying to defeat former ruling party with the arrests.

Recently, in June the European Court of Human Rights (ECHR) ruled that the detention of Georgia’s ex-interior minister Vano Merabishvili was “used not only for the purpose of bringing” him before the relevant legal authorities on “reasonable suspicion” of various offenses with which he had been charged, “but was also treated by the prosecuting authorities as an additional opportunity to obtain leverage” over investigations into unrelated cases, including the one against ex-President Mikheil Saakashvili.

As a result, the Strasbourg-based court found that there has been a violation of Article 18 (limitation on use of restrictions on rights) of the European Convention on Human Rights taken in conjunction with Article 5 § 1 (right to liberty and security).

The UNM views the decision as a conformation that its leaders are being held as political prisoners in the country and repeatedly accuses Georgian Dream of using undemocratic tactics when dealing with political opposition

Rustavi 2 and press freedom case

One of the major guarantees of free and fair pre-electoral campaigning is the existence of a free media. For almost a year, the major opposition TV channel in Georgia, Rustavi 2 case, has been involved in a court case as the former owner who sold his shares back in 2006 appealed to the court to demand annulation of the sales contracts and over 18 million GEL ($7.5 million) from Rustavi 2’s current owners. As reported by Eurasianet, Khalvashi (the former owner) claimed that he was forced by President Saakashvili to give up the company in 2006 and transfer it to the owners who were chosen by the ex-president.

Rustavi 2 considered the event to be an attempted attack on the free media. Rustavi 2’s current Director, Nika Gvaramia, said he suspected that the judges are under the influence of the government. On the TV Show, “Archevani” Gvaramia stated the government, in his opinion, is interested in the disappearance of a critical media before the upcoming parliamentary elections.

Apart from the Rustavi 2 case, anumber of popular political talk shows have recently been closed down and popular journalists have been dismissed from the Public Broadcast, Imedi TV and Maestro TV.

Three months ahead of parliamentary elections – a major test for Georgia’s democracy – the electoral environment remains fragile due to the suspicions about the existence of political prisoners, attacks on media, and ambiguity about the electoral system.