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Consensus Reached Over Georgian Constitutional Court Changes

  • Liz Fuller

(Left to right:) Georgian Prime Minister Giorgi Kvirikashvili, President Giorgi Margvelashvili, and Parliamentary Speaker Davit Usupashvili appear to have thrashed out a compromise on proposed changes to the Constitutional Court.

(Left to right:) Georgian Prime Minister Giorgi Kvirikashvili, President Giorgi Margvelashvili, and Parliamentary Speaker Davit Usupashvili appear to have thrashed out a compromise on proposed changes to the Constitutional Court.

Addressing the Royal Institute of International Affairs in London last month, Georgian Prime Minister Giorgi Kvirikashvili defined as one of his primary objectives lowering the temperature of political debate and promoting dialogue among all political stakeholders. That approach has characterized Kvirikashvili's interaction with Georgian President Giorgi Margvelashvili.

Following a contretemps in April over the date for the start of campaigning for the parliamentary elections due in October, Kvirikashvili has now negotiated a compromise between the president and the parliamentary-majority Georgian Dream faction over controversial amendments to the Law on the Constitutional Court passed with great speed by the parliament in mid-May, and which Margvelashvili vetoed on May 31. The Georgian Dream faction initially voiced its intention of overriding that veto.

Margvelashvili had made clear his negative opinion of the bill shortly after it was passed in the second and third readings on May 13-14 by a narrow majority of 83 and 81 votes respectively (out of a total of 150 lawmakers). While admitting he had not seen the text, he expressed concern that it could undermine the functioning of the Constitutional Court, which he termed a pillar of Georgian statehood. He then sent the bill to the Council of Europe's Venice Commission of legal experts for review.

Deputy speaker of parliament Eka Beselia, one of the co-sponsors of the amendments, had assured rapporteurs from the Parliamentary Assembly of the Council of Europe (PACE) in early May that the proposed amendments would be submitted for assessment to the Venice Commission before the bill was debated in the second and third readings; it remains unclear why this was not done.

'Excessive' Quorums

Following a two-hour meeting at which Margvelashvili's aide Kakha Kozhoridze and Georgian Security Council Deputy Secretary Levan Bodzashvili were present, the Venice Commission made public on May 27 its preliminary assessment of the bill, which focuses primarily on four specific proposed changes.

The first increases the quorum required for the court to pass a ruling from six to seven of the nine members. Decisions must be approved by at least six judges, regardless of whether seven, eight, or all nine are present. (Under the current legislation, decisions are adopted by a simple majority, meaning four if six or seven judges are present or five if eight or nine are present.)

The Venice Commission criticized those proposed higher quorums as "excessive" and as creating the risk that a minority of judges could "easily" block decisions.

The second was a proposed restriction under which a judge would be barred during the final three months of his or her 10-year term from participation in adjudicating any new cases, with the exception of those relating to electoral disputes and the impeachment of senior officials. The commission opined that "from a European perspective," the restriction on judges participating in new cases during the final three months of their tenure appears "arbitrary" and may even be unconstitutional.

'Not Logical'

Similarly, the commission described as "not logical" a proposal that urgent decisions on suspending a disputed legislative clause as an interim measure pending a final verdict should be taken by the full bench, rather than by just four judges, as at present. And it termed "incoherent" a provision that would empower a single member of a panel of four judges to request referring a case to a full plenary session.

The commission recommended dropping those proposed changes. But it praised other aspects of the bill, including the new procedure for electing the Constitutional Court chairperson and the introduction of an automatic case-distribution system.

On the basis of those recommendations, Margvelashvili vetoed the bill. At the same time, he proposed to parliament amending it to take into account two of the Venice Commission's four points: the inadvisability of raising quorums, and the ban on judges taking on new cases during the last three months of their tenure.

According to Margvelashvili, his objections to the proposed changes were formulated during "constructive" consultations with Kvirikashvili, who was recently elected head of the Georgian Dream-Democratic Georgia party that is the largest member of the Georgian Dream parliamentary faction, and parliamentary speaker Davit Usupashvili of the Republican Party, one of the four smaller groups within it. Usupashvili had earlier expressed reservations about the bill.

Kvirikashvili had argued immediately after the bill was passed in the final reading that it would facilitate the smooth functioning of the court. He said that increasing the quorum for passing judgment would serve to strengthen the court insofar as it precludes the possibility of an important decision being influenced by "political pressure" exerted by opposition parties on one or two judges.

Pragmatic Compromise?

All but one of the court's current members were appointed prior to October 2012 when then-President Mikheil Saakashvili's United National Movement (ENM) was still in power.

Despite his initial approval of the proposed amendments, Kvirikashvili nonetheless pledged on May 31 to do everything in his power to persuade the Georgian Dream parliamentary majority to accept Margvelashvili's proposed changes rather than proceed with the threatened veto. But the final version of the law unanimously approved on June 3 by all 84 lawmakers present stops short of completely endorsing them or taking into account the Venice Commission's other recommendations.

True, the restriction on judges taking on new cases during the final three months of their tenure has been dropped. And the requirement that decisions on suspending a disputed legislative clause be taken by the whole bench, rather than a panel of four judges, to which the Venice Commission objected, has been amended to require only a simple majority. But the ruling raising the quorum for handing down court rulings remains in force with regard to cases involving organic laws, disputes related to elections or referendums or the impeachment of senior officials, and revoking the immunity of a Constitutional Court judge.

The NGOs aligned in the grouping For An Independent And Transparent Judiciary, which had opposed the proposed amendments from the outset, are not satisfied with the compromise version and plan to appeal the raised quorums to the Constitutional Court.

It is conceivable that the compromise reached between Margvelashvili, Kvirikashvili, Usupashvili and senior Georgian Dream-Democratic Georgia lawmakers on the final wording of the draft amendments was dictated at least in part by pragmatism, insofar as it is by no means certain that the Georgian Dream faction could have secured the minimum 76 votes required to override the presidential veto. The Georgian Dream parliamentary faction currently numbers 82 deputies, but the Republican Party warned on May 22 that its 10 parliamentarians would not participate in a vote on overriding the veto.

The Republicans have endorsed the compromise version as an improvement on the original amendments, while expressing reservations about keeping the high quorum for rulings on organic laws.

About This Blog

This blog presents analyst Liz Fuller's personal take on events in the region, following on from her work in the "RFE/RL Caucasus Report." It also aims, to borrow a metaphor from Tom de Waal, to act as a smoke detector, focusing attention on potential conflict situations and crises throughout the region. The views are the author's own and do not represent those of RFE/RL.