World Congress of the
International Association of Constitutional Law
16-20 June 2014 - Oslo, Norway
Workshop 05
“Judicial and extra-judicial conversation on the constitution”
The role of constitutional borrowing for the constitutional drafting
Process in post soviet space – the case of Georgia
Malkhaz Nakashidze1
INTRODUCTION
The constitutional borrowing have different interpretations in the scientific literature.
Authors consider that borrowing, in its most literal sense, means that the borrowed good in
question belongs to someone else, and one intends to give it back. Moreover, manners dictate
– and custom or law often requires – that one ask and be granted permission to borrow
something in the first place. Borrowing implies that a borrowed goods is in one’s possession
temporarily and that, as the property of another, one should treat it with care and attempt to
restore it in the condition in which it was initially lent.2
Constitutional borrowing has become very topical in the early 20th century, especially after
World War II, when changes in the international level reflected on the development of the
several countries and the constitution building process has been broadly developed.
Constitution have been adopted in France (1946, 1958), Japan and Italy (1947), Germany
(1949), Greece (1975), Portugal (1976), Spain (1978) and of other countries. The exchange of
ideas between law scientists, constitution makers was very important and constitutional
borrowing has been one of the significant methods of constitutional design.
The constitutional borrowing became a very significant in the early 90s of 20th century, after
the Cold War, when the so-called socialist camp in Europe and the Soviet Union collapsed. a
A lot of constitutions have been adopted in very short period in Central and Eastern Europe
and the former Soviet republics as well. The constitutional building could be very difficult
without the constitutional borrowing in these countries. The main constitutional ideas,
principles and institutions have been borrowed from the constitutional experience of the
Western Europe and United States. The constitutional makers should borrow the solutions of
new challenges exactly from these constitutions.
1
Associate Professor, Faculty of Social Sciences, Business and Law, Department of Law, Batumi Shota Rustaveli
State University, Georgia, E-mail: [email protected]
2
Kim Lane Scheppele, Aspirational and aversive constitutionalism: The case for studying cross-constitutional
influence through negative models, International Journal of Constitutional Law (2003) 1 (2): 296.
1
Thus, borrowing takes plase when drafters of new constitutions encounter a particular
problem and look to other constitutions for solutions.3 Post-communist countries have had
goals of borrowing not only the constitutional institutions but also the constitutional
principles (for example, separation of powers, popular sovereignty, etc.). The issue of
borrowing particular institutions and provisions may seem simpler that the borrowing of the
general idea of constitutionalism. 4 Successful borrowing on the constitutional level can
involve new institutions, such as the ombudsman, borrowed by many countries from
Scandinavia for its great potential to protect the rights of the powerless.5 Another institution
that lent itself to borrowing was a constitutional court.6
The purpose of this paper is assessment of the constitutional borrowing and using of foreign
law in the Georgian constitution building process, but before starting to discuss on the issue,
it would be important to turn very briefly in historical past of the country. Georgia has a
significant experience of the constitutional borrowing in the past. The first Constitution of
February 21, 1921, was adopted four days before the Soviet occupation of Georgia. February
25, 1921 the Soviet Russian Army invaded in Georgia and the Soviet governance has been
declared. The Constitution of the Republic of Georgia had been abrogated and country was
one of the Soviet Republics and part of the Soviet justice system during 70 years.
The constitution of Democratic Republic of Georgia should be considered as one of the
founding document of Georgia. Before discussion on the modern constitutional making and
constitutional borrowing of Georgia, we have to look briefly at this first constitution, which
was a special case of a constitutional borrowing and not only in Georgia, but also in the
Caucasus and pre-soviet space. It is perhaps less known for our European colleagues and the
issue has not been the subject of fundamental scientific research up today. There are of
course objective reasons, first of all Soviet system has removed all ideas and principles
borrowed from Europe, US and the all civilized world in early 20th century by Georgian
founders.
THE FIRST CONSTITUTION (1921) OF GEORGIA
AND BORROWING OF EUROPEAN CONSTITUTIONALISM
The Constitution 1921 was not based only on the national traditions and political situation in
the country. Despite the fact that Georgia was one of the provinces of Russian empire, had a
great influence of Russian law and traditions before declaration of independence on 26 May
1918, constitution has been based on the traditions and experience of the Western
constitutions. The political elite of that time had no experience in democratic governance
and constitutionalism, but ideas and principles of constitutionalism had not been
automatically copped in the constitution from the western constitutions.
Wiktor Osiatynski, Paradoxes of constitutional borrowing, International Journal of Constitutional
Law (2003) 1 (2): 244.
4
Ibid, 248
5
Ibid, 254
6
Ibid, 254-255
3
2
As one of the authors of the constitution of 1921 Razhden Arsenidze noted: "We do not
rewrite the constitution from other constitutions, but we have to impose it to our life. We
have constitution of all democratic countries when started the work on the constitution. It
should be noted that many of the basic ideas we took from Swiss constitution and combined
to our reality, but used some principles of other democratic constitutions as well 7 . To
confirm the influence of Western European Constitution, the authors cite view of MP
Samson Dadiani who stated that "...we were guided more theoretical point of view during
the drafting of the Constitution, we were impacted not only by real, but also ideals have
shown by other successful countries. So, this constitution is given from the best norms of the
current constitutions." 8
The confirmation of borrowing of Western European constitutional principles is also the fact
that the Swiss constitution was published in Georgian in 1906. One of the members of the
constitutional building process Alexander Mdivani noted that "The Switzerland is very
interesting for us and Swiss constitution has quite a big influence on draft of our
constitution." 9 At the same time, as some experts note, one of the session of the
Constitutional Commission shows that Simon Kldiashvili translated the French constitution,
which unfortunately was not published, at least it is not found in the archives. This
constitution was drafted by a constitutional assembly in 1871-1875 for the French Third
Republic. 10 In addition it should be noted that the Weimar Constitution of 1919 were
published as a separate booklet in Georgian and original published in Leipzig is kept in the
Library of Parliament in Tbilisi. There has been also translated into Georgian and published
the Czechoslovak Constitution 1920. The number of references had a constitutional building
process from an international community. For example, in early 1920, the Ministry of
Foreign Affairs of the UK Ramsay MacDonald has seen the draft of the constitution and
published his positive opinion in journal "National". Mr. MacDonald pointed out that the
Georgian people confirmed high legal culture and political consciousness to all mankind in
the drafting of the constitution. 11
It should be noted that a significant impact on the 1921 Constitution had principles and
ideas of French constitution. It is known that amendment to the article 8 of 1875
Constitution made in 1884 defined that "Republican form of government can not be a subject
of constitutional revision." This article of the French constitution has been directly moved to
the article 148 of the first Georgian constitution determined that: "The Republican form of
government of Democratic Republic of Georgia should not become the subject of the
revision of the Constitution." At the same time, the second paragraph of article 1 of the
Constitution, recognizes the democratic republic as a permanent and unchangeable form of
political system.
7
Beka Qantaria, Western principles of constitutionalism and the legal nature of the Georgian Governance
System in the first Georgian Constitution, Dissertation, Faculty of Law, Tbilisi State University, 2012: 15
8
Ibid, 15
9
Ibid, 16
10
Ibid, 16
11
Ibid, 18-19
3
One of the main subject of the constitutional borrowing in process of drafting of the
constitution 1921 was the government system. Serious debates and discussions took place on
the government system during drafting of the constitution. The characteristics of
monarchical system of government was well known for Georgians. Country was under
Russian governance for a long time and caused negative associations from Russian Empire.
Legal historians believe that the constitutional commission headed followed to the European
experience, they are well aware of the bitter experience of the monarchical regime
(unilateral usurpation of power, rejection of the principle of separation of powers, total
restriction of human rights), and therefore a major influence on the constitutional
commission had French constitutional amendment 1884. 12
Following the theory of constitutionalism of Western Europe, the constitutional commission
considered three basic systems of government: American democracy, French parliamentary
democracy and Swiss direct democracy. The context of Georgia was significant during the
constitutional borrowing and commission members believe that a geographic location of
Georgia had required a strong executive authority with the president. They think that
Switzerland is in the geopolitical space, in the neighborhood of France, Germany and Italy.
Unlike Switzerland, in geopolitical point of view, Georgia is in a difficult situation: "No one
threatens to shove overflow and destruction to Switzerland. Georgia is on the crossroad of
world, Russia, Persia and Central Asia are naturally attack to the country and could overflow
it. Our international situation is completely different than in Switzerland. We need the
President of the Republic, the executive power shall be united, always intiator energetic. He
believes that an absence of the presidency in Switzerland could be explained with rivalry of
cantons and the international situation. George Gvazava did not properly considered the
majority view that the President was the shadow of King and endanger the national freedom.
Gvazava think that in countries where the draft of constitution is being make, authors of
draft were free in the selection process, nevertheless, they are still stopped on the
presidential system, so that could be a national necessity, an essential feature. 13
On the other hand, the president of the constitutional commission Sakhvarelidze compares
each other in point of rights and did not see a difference between the president and the king.
He considered president defined by the French constitutional law as the King. He pointed
out that: "... Former kings ruled and governed.. the president of Republic of France neither
reigns nor governs. Obviously, the President of the French Republic holds less right than the
President of the United States, but in many cases, especially in government, is more powerful
and influential than parliamentary king, let's say, is king in seven years term. President
should make a big impact on the national state system and change direction of governmental
policy."14
12
Beka Qantaria, 28
Ibid, 70
14
Ibid, 79
13
4
THE CONSTITUTIONAL BORROWING AFTER RESTORATION
OF STATE INDEPENDENCE
The constitutional borrowing was actual in 1991 when the country regained independence
from the Soviet Union and ended the soviet constitutional systems in Georgia. One of the
main objectives for Georgia after the declaration of independence was making a new
constitution it should be created according a foreign experience. Constitutioon making was
started in Georgia after removing of the first president Gamsakhurdia from power by
military intervention, and since the former secretary of the central committee of the
communist party, a former foreign minister of Soviet Union Eduard Shevardnadze returned
in Georgia. February 16, 1993, Eduard Shevardnadze, the head of state and chairman of the
State constitutional commission passed the proposal in the parliament and offered to work on
a new edition of the constitution of February 21, 1921. It was devotion to the inheritance of
the first republic, principles and ideas of the Western constitutionalism, adopted by the
founders.
The constitutional borrow in the constitutional making was one of the most important issues
standing in the way of the transformation of the former Soviet Republic. The constitutional
borrowing was conducted in many directions, but they can be distinguished between two
main directions: the government and human rights standards. On April 27, 1999 Georgia,
was the first country from Caucasus republics (Azerbaijan, Armenia) has become a 41st
member of Council of Europe. Georgia submitted an application to the Council in 1996,
however Parliamentary Assembly of Council of Europe approved application in January 1999
because deputes believe that serious steps were made in development of a pluralistic
democracy.15
As Georgia has an expectation to become a member of the European and international
community, the constitutional borrowing was important way to be close to international
legal and political standards. Many international organizations and experts have participated
in the constitution drafting and borrowing of many constitutional ideas were provided with
the active participation of these organizations or experts. Their role in the constitutional
borrowing is invaluable. We should consider several organizations in this term.
MAIN ACTORS IN THE CONSTITUTIONAL BORROWING
Some authors consider that there are two categories of actors in borrowing. One will be
called “the messengers.” These are the experts, including constitutional scholars; diplomats;
the personnel of international organizations; human rights activists; etc. – all of whom try to
bring proposals and solutions to the drafters. The drafters are “the recipients.” They listen to
such proposals and accept, reject, revise, or distort them Some actors could be considered in
the constitutional borrowing process in Georgia. The constitutional commission and the
political elite presented to Parliament since 1995 can be considered as recipients. At the same
time, it should be mentioned that in general the constitutional borrowing is defined as the
recipients.
15
Wolfgang Babeck, Constitution Making in Georgia, Tbilisi, GTZ, 2002: 379
5
At the same time Lee Epstein and Jack Knight think that the constitutional borrowing could be
considered as institutional choices, really – as a bargaining process among relevant political
actors, with their decisions reflecting their relative influence, preferences, and beliefs at the
moment when the new institution is introduced, along with (and critically so) their level of
uncertainty about future political circumstances.16
Several actors could be considered in bargaining process in Georgia during the constitutional
drafting. Many international organizations have been involved in the constitutional process
from the beginning of drafting the constitution: OSCE - The Organization for Security and
Cooperation in Europe. European Commission for Democracy through Law - so-called The
Venice Commission, Constitutional Legislative Policy Institute" (COLPI) – the Soros
Foundation-funded institute based in Budapest. COLPI invited the biggest delegation in
Tbilisi in June 1993, consist of well-known experts: Lawrence Lessig, Alexander Blankenagel,
András Sajo, John White and David Duke and David Kupferschmidt. German International
Cooperation (GIZ) - law experts of GIZ have worked closely with the constitutional
commission since 1990s. In addition, it should be noted the United Nations Development
Programme (UNDP), assisted to the constitutional commission in the territorial and local
issues. US Agency for International Development (USAID) assisted the commission in
organizing the meetings, including invitation of American legal experts.
There have been actively involved Georgian experts in the process of constitutional with
foreign experts and they were mainly focused on the Georgian specifics. For example,
Professor Aleksidze believed that for realizing of the Georgian specificity people need to live
in Georgia. Foreign experts know a lot of things, but they did not give an enough attention to
some kind of specificity. This refers to the psychological, social and ethnic aspects. 17 Also
Professor Demetrashvili, who headed the Constitutional Commission noted that: "We must
be able to integrate into the international community as a European country, we need to
know the European standards. 18
The foreign experts considered that transfer of technology in the legal framework is not
impossible. Of course, the moving of law is also perfectly normal. But it requires a vast
knowledge in order to calculate the foreign aspect of the practice can be successfully
implemented in a different institutional setting, where are different methods and different
approaches. 19 So, Georgian specificity was important during the constitutional borrowing
since 1990s. International actors significantly influenced on the process of constitutional
borrowing, however no less important role had the political elite. Their impact was often
much higher than foreign constitutional experience and advices of foreign experts. Later we
will discuss more detail on the role of political elites in process of constitutional reform in
Georgia.
Lee Epstein and Jack Knight, Constitutional borrowing and nonborrowing, International Journal of
Constitutional Law (2003) 1 (2): 200
17
Wolfgang Babeck, 342
18
Ibid, 37
19
Ibid, 330
16
6
MAIN AREAS OF THE CONSTITUTIONAL
BORROWING IN GEORGIA
The borrowing of constitutional ideas and principles, as well as individual constitutional
institutions was important since 1990s in Georgia, as the post-Soviet country. Georgia had to
make a complete transformation of legal system after the restoration of the independence
and constitutional reform was fundament of this process. After a heavy Soviet political
heritage, the ideas of constitutionalism and borrowing of the constitutional institutions was
associated with the Western experience.
In the beginning of 1990s, borrowing of ideas or principles, institutions from the Western
European democracies was significant. The new constitution of Georgia was based on the
important constitutional principles, such are separation of powers, popular sovereignty,
republicanism, the recognition of basic human rights, restriction of state by human rights,
have been borrowed from constitution of US, France, Germany and other countries. We are
not able to discuss all af these ideas and principles have been borrowed from Western
constitutions within this paper, but we would like to draw attention to the borrowing of the
constitutional institutions, were most important in Georgia since 1990s to the present time.
Date of adoption of Georgian constitution (August 24, 1995) was a very important event for
the country, but it was not initially a completely perfect document. There have been always
different, sometimes ungrounded changes provided in many cases accordance the political
objectives of the political elite. Despite the imperfections of the constitution, significant
achievement was the creation of several constitutional institutions borrowed from the
constitutions of other countries. There could be noted three main institutions: the system of
government, the Constitutional Court and the Ombudsman.
One of the main line runs continuously in the process of constitutional amendment in
Georgia is a system of government. One of the main confrontations between the Georgian
political groups in 1993-1995 during working on the constitution was the government
system. Two models of government were discussed: the American Presidentialism and the
European Semi-Presidentialism. However, really majority of members of constitutional
reform process have had so distorted view on the institutional model of government as it was
based only on one key issues: the presidential powers. Despite the fact that the constitutional
commission has received 12 drafts of the constitution and many of them were presidential,
parliamentary or semi-presidential system, finally so-called Shevardnadze's draft on the
semi-presidential system of government had been submitted to Parliament for consideration.
This draft had become the subject of serious criticism after its publication in Parliament and
outside in society.
Although the project was called as French model, but in fact, it was seriously distorted by
increasing of the powers president and weakening of the cabinet and parliament. It was clear
that Shevardnadze had actually wanted to take a strong authority and have also cabinet
would be depended to him and could became responsible on the executive authority. As had
been noted by some of his opponents, Shevardnadze himself give preference to the French
7
model, but did not want to take responsibility for his cabinet. As it was not really the French
model and did not include the separation of political power among the President and the
Prime-Minister/Government, got a great resistance in parliament where more than 30
political parties were represented. On August 9, 1995, 15 days before the adoption of the
constitution, an initiative on the creation of purely American presidential system was
presented to the parliament. Results of almost three years work on the semi-presidential
model had dramatically changed in 15 days. Presidentialism without the cabinet gained the
support in the parliament and it was caused by political situation.
Another important institutional borrowing from Western constitutions was the introduction
of the Constitutional Court. Georgia, a former Soviet country, has never had this institution.
In 1995, adoption of a new mechanism of protection of the constitution - constitutional
control was very important. For Georgia, like other former socialist countries, the German
Federal Constitutional Court was basic orientation point in process of establishing the
constitutional justice. 20 Two main models were considered in process of making the
constitution: American and the creation of European specialized constitutional court. As it is
confirmed by the events of that time, originally there was very of difficult a selection of the
model for constitutional commission. Basically, under influence of the secretary of
commission Professor Demetrashvili (later he has become the first chairman of the
Constitutional Court) there could be created the Constitutional Court, but the working group
of the judicial power headed by former chairman of the Supreme Court Mindia
Ugrekhelidze, think that the Supreme Court shall be entitled to provide the constitutional
control. 21
This assumption was not supported by the professor Lesig who was specially invited from the
United States and specifics of American model were well-known for him. He thought that it
was better creating of the constitutional court and its jurisdiction could be restricted by
"non-political" issues. Political issues during the transition period might be additionally
considered by another body. The advantage of this design should be opportunity that the
constitutional court would develop its institutional competence and at the same time have
not be fallen into a serious political threat to engage in conflicts during so-called "Relying
period.” 22
Obviously, main provisions of the constitution related to the constitutional court had been
taken from the German Federal Constitutional Court, but many norms from other European
countries had been borrowed as well. For example, the composition of the Constitutional
Court of Georgia, when three members are elected by the Parliament, three appointed by the
President and three elected by the Supreme Court, exactly replicate the constitution of the
Republic of Lithuania. In addition, the number of judges (9 judges) likes to for example,
Albanian, Lithuanian, Macedonian and Slovenian decisions. Thus, the borrowing of the
constitutional provisions of these countries was important in the constitutional making
process. Finally, the European model of Constitutional Court of Georgia was established in
20
Babeck, 247
Ibid, 248
22
Ibid, 249
21
8
1995 and it was mainly caused by the proximity of Georgian legal system to the continental
law. Supreme Court established like United States Supreme Court operates in the precedent
systems, as well as decision of other Eastern European countries favor to the specialized
constitutional court could be explained by close relationship of these countries to the
continental European legal traditions.
The next important institution borrowed in 1995 constitution from the constitutions of
Western countries was a Public Defender or Ombudsman. For Georgia, as part of Soviet
political and legal system during 70 years, establishment of so new institute for protection of
human rights was very important. It should be noted that, at the beginning this institution
has not been defined in the draft of constitution and the idea came to the text after the draft
of constitution has been submitted to the parliament for consideration. 23 Constitution has
determined that supervision over protection of human rights and freedoms within the
territory of Georgia shall be exercised by the Public Defender of Georgia who shall be
elected for a five-year term by a majority of the total number of members of the Parliament
of Georgia. The Public Defender shall have the right to reveal facts of violation of human
rights and freedoms and inform corresponding bodies and officials thereof. Impediments to
the activities of the Public Defender shall be punishable by law. Organic law shall determine
the powers of the Public Defender.
Law on “Public Defender” has defined very important powers of the Ombudsman: The
Public Defender shall examine the complaints and applications of citizens of Georgia and
those of aliens and stateless persons, as well as of non-governmental organizations, dealing
with the violation of human rights and freedoms provided for by the Constitution and
legislation of Georgia, by international treaties and agreements to which Georgia is a party,
caused by actions or decisions of public authorities, national or local, public or private
organizations, institutions, enterprises, public officials and legal persons. The Public
Defender shall examine an application or complaint, provided that the claimant questions
the decision of a higher body, administrative body or that of the court entered in force and if
the application or complaint deals with the violation of human rights and freedoms
committed during the consideration of a case. 24
It can be mentioned that the constitutional institute of the ombudsman has been completely
borrowed from his homeland the Swedish constitution. The constitution of Georgia contains
almost similar provisions as the Swedish Ombudsman's powers, its status and the election
procedures. Like Sweden, the Swedish Public Defender shall be elected by secret ballot at the
session of Riksdag. In Sweden public defender shall exercises a control on the protection of
laws and other acts by state officials. There have been taken several provisions from the
French and the Spanish Institute of the Public Defender, where it is also responsible for
receiving complaints from citizens on illegal activities of the state bodies, territorial units and
other state agencies.
23
24
Babeck, 124.
Law of Georgia on “The Public Defender of Georgia” #230, 16/05 1996, www.matsne.gov.ge
9
THE ROLE OF POLITICAL ELITE
IN THE CONSTITUTIONAL MAKING AND BORROWING
The role of the political elite in process of adoption and amendment of the constitution has
significant role in the former Soviet republics and Georgia is not also an exception. Although
many international and expert organization is involved in process of the constitutional
amendment and their participation is very important, but political elite of every countries is
initiator of any constitutional changes. There is important how will be protected the
constitutional principles, whether these changes are beneficial for the society, or it will only
provide goals of the political elite of the country.
The process of drafting the constitution of Georgia, then process of two fundamental changes
(2004, 2010) confirms that the political elite was mainly out of the principles of the
constitutionalism and all processes have been influenced by the political interests of
governing elite. Perhaps, this should not be surprising because politicians have often more or
less influence on the constitutional amendment process, but it is especially noticeable in
Georgia. The especial role of the political elite in the constitutional process is caused not only
by a simple changes in the 1995 constitution, but with emendmants on the system of
government and the separation of power between the branches of power. During the
drafting of the constitution as well as the changes it was an important who was the
"recipient” of the final product.
Political elite has been always interested in results of the constitutional making and
recognized principles of constitutionalism, advices of the international experts have not had
a significant effect on the constitutional borrowing in Georgia. There is interesting a
consideration of Professor Osiatynski on the Polish experience could be correspond to
Georgia. He noted that: “Polish experience suggests that in the choice of the model of
government, the most important factor is the actual distribution of power during
constitution making. This factor helps explain the limited impact of constitutional experts
and foreign models. All theoretical considerations, rations choices between various models,
and foreign examples can be used as arguments. The question is, who has the real power to
implement what he wants.25
Real power in the constitutional borrowing in Georgia had the political elite represented in
the parliament and the constitutional commissions had been created periodically (1994,
2004, 2010) in Georgia. The impact of the political elite on the constitutional process is
clearly shown in changes to the system of government, basic issue of all constitutional
reforms of the last 20 years and the same goals has the constitutional commission established
in 2013.
Adoption of 1995 constitution. Three basic models: parliamentarism, presidentialism and
semi-presidentialism has been considering in the state constitutional commission in 19931995. All systems had its supporters and opponents in political circles of this period. The
presidency was a central issue in process of selection of the political system. There has been a
25
Wiktor Osiatynski, 260.
10
serious dispute around the authority of president, what authority and status would have the
president. Several important factors had affected on the making of decision. First - negative
results of the president Gamsakhurdia’s governance. Second - personal factor of Eduard
Shevardnadze. Third - the fragmentation of political groups (more than 24) in the
Parliament. Personally Shevardnadze always used to say that the constitution should not be
applied to him because the constitution shall act during a long time, they have to think that
he could not be always here and will be elected someone else, he is not immortal, whenever
will go, but the constitution will operate permanently. That is why the Constitution must be
directed to the society.26
At the same time the most influential people in his team thought that he is the guarantor of
stability in Georgia. Establishment of the presidency without considering of his personal
authority is unreal. 27 For example, Levan Aleksidze thouth that "The president have to be
strong because it is not secret that in process of preparing of the constitution we considered
that Shevardnadze will be the president during at least 10 years. Therefore, we have to give
broad authority to the person who could help country out of crisis. No one would think that
Citizens’ Union could obtain so broad majority in the new parliament. We thought that we
would get the same fragmentary and practically incapable parliament as it was earlier. 28
Aleksidze also noted that the USA c2onstitution was written for someone or even the French
- for Charles de Gaulle.29
This kind of model has been opposed by the main organizers of overthrowing of president
Gamsakhurdia, leader of semi-military organization "Mkhedrioni" Jaba Ioseliani and the
former commander of presidential guard and then minister of defense Tengiz Kitovani who
had a significant power at this time. Jaba Ioseliani has described the project as
Shevardnadzes’ intention to establish a dictatorship in Georgia.30 If we consider that he was
arrested for the organizing of attack on Shevardnadze in 1995, perhaps he felt some danger if
Shevardnadze would achieve the consolidation of a strong power after the election.
Influence of Shevardnadze’s political elite on the constitutional borrowing is showed in a
book on the Georgian Constitution written by German constitutionalist Wolfgang Gaul
(Babeck). According the Babeck, a strong argument in favor of strong presidential power was
transition perion of Georgia. Due to the incapacity of state a radical power must be
concentrated in strong hands, people are asking a strong leader and there could not be
established another model and are not ready to approve parliamentary republic; there is no
often a clear majority in parliamentary democracy, we need to create coalitions, it weakens
the state during implementation of reform, parties do not have any experience in Georgia.
That is why Parliament should not have a very high responsibility, as a nation, Georgia
customized on "One person government" model, Georgia as a multi-ethnic state, needs a
26
Babeck, 173
Ibid, 166
28
Ibid, 167
29
Ibid, 167
30
Ibid, 74
27
11
strong hand to consolidate the country, Shevardnadze is a guarantee of stability, adoption of
Presidency without considering of authority of his personality is unreal. 31
Constitutional Changes Since 1995. There were 33 constitutional laws was adopted on the
amendments to the Constitution Since 1995. Only 6 of them have been made during the
presidency of Eduard Shevardnadze and other 27 amendments were adopted during the
presidency of President Mikhail Saakashvili. Such a large number of constitutional changes
during 19 years could not be assessed positively. Since 1995 the constitution provided that
parliament shall promulgate the draft revision for open discussion. Parliament shall start to
consider the draft revision in a month from its promulgation. A draft revision of the
constitution shall be deemed adopted if it is supported by not less than two-thirds of the total
number of MPs. We are not able to discuss all constitutional amendments took place since
1995, but we can represent the basic constitutional changes that would perfectly show role of
ruling political elite in the constitutional making.
The first constitutional amendment to the constitution of Georgia was adopted on July 20
1999. On the electoral system. In particular, it defined to change electoral threshold for
parliamentary elections from 5 % to 7%.32 Generally is known that goal of the threshold is to
ensure equality of subjects participating in the elections and the efficiency of parliament. The
threshold 5% has been determined in 1995 after the adoption of the constitution, when
almost all parties were represented in the parliament before new constitution and there was
almost impossible to make a decision. This threshold was significant for 1995 elections and
only three political parties obtained seats in the parliament. In general there could be only a
particular case and special circumstances can be considered 5 % threshold as unreasonable
and could be lower. As well as according the common legal view is that only in the most
important so-called “compulsory" case can be considered increasing of 5 % threshold. 33
Constitutions of most European countries, as well as the post-socialist countries define
mainly 3-5 % electoral threshold. For example, in Germany it is 5%. Poland is also a 5% and
8 % threshold for party coalition. This constitutional amendment was adopted on July 20,
1999 and parliamentary elections were held on 31 October. 34 In fact the constitutional
borrowing from German or Polish constitution was not main goal of political elite. They
aimed to remove other small political parties from politics. The results was as expected and
the presidential party gained a majority in the parliament, while the second one was ruling
party in one of the region of Gerogia – Adjara. Support of this regional elite was significant
only in the constitutional amendment process. The regional elite also used his given chance
and adopted number of changes in the constitution regarding the status of Adjara Autonomy.
35
31
Wolfgang Babeck, 166.
Constitutional Law of Georgia №2221-რს, July 20, 1999
33
Kote Kublashvili, legal and political importance of 5 % minimum electoral threshold, Almanakhi, State Law,
2001 № 10 (II)
34
The initiator of increasing of threshold to seven percent in 1999 was leader of the National-Democratics Irina
Sarishvili-Tchanturia who was not himself elected in the parliament after election.
35
Constitutional Law of Georgia №260-IIს, April 20, 2000
32
12
Reduction of the threshold was actual in November 2003 after so-called "Rose Revolution" in
an un-ordinal situation when president Saakashvili received 96% of the votes on January 4,
2004 in presidential election. Since the presidential election there was a risk that all parties
could remain outside the parliament. That was really happened, political elite did not change
the threshold and 2/3 of seats received Saakashvili's political party and one of the parties got
only 15 seats in the parliament. The election threshold was decline again from 7% to 5% in
on March 12, 2008 and was preceded by the parliamentary elections that took place on May
21, 2008. These constitutional changes for lowering the threshold was adopted after early
parliamentary elections took place in 2007 when after the mass protests Saakashvili used
force and was self-resigned from the post of president. Presidential election was held on 5
January 2008, when he officially received the 54.73% of vote, 7% threshold for
parliamentary election could be risky for his party in parliamentary elections.36
Thus, the constitutional provisions regarding the minimum electoral threshold were
borrowed from European countries as a result of the constitutional amendments in Georgia,
but it coincides with the goals of the political elite. If the political elite have a high public
support, they do not change this constitutional principle as it was made in 2004.
2004-2012 constitutional changes. The second significant example of of influence of political
elite on the constitutional borrowing took plase after Rose Revolution in November 2003
followed by a resignation of Shevardnadze. Speaker of parliament Nino Burjanadze who was
one of the leaders of Rose Revolution with Saakashvili and Zurab Zhvania, has became the
acting president after the Shevardnadze's resignation. New constitutional changes have been
prepared by new political group before the parliamentary election in March 2004. This law
was adopted on February 6, 2004 and the semi-presidentialism has finally introduced in
Georgia. Formally it was a mixed model, but significantly different from European models
because of very strong powers of the president and weakening of cabinet, prime minister and
the parliament. The model has caused serious criticism from experts as in country, as well as
from international community, including the Venice Commission of the Council of Europe
due to its unbalancing character.
It should be noted that the main reason for the introduction of semi-presidentialism in
February 2004 was a political context. As we know, the main organizers of the Rose
Revolution were the National Movement’s leader Mikhail Saakashvili and "The United
Democrats' leaders Zurab Zhvania and Nino Burjanadze. The first question following the
resignation of Shevardnadze was a division of political power among the leaders of the
revolution. The real division of power in the current presidential system was not possible
because all power in this model was concentrated in the hands of the president. Burjanadze
has been a chairman of the parliament who served as acting head of state, Mikhail
Saakashvili, who has been the popular leader of the Rose Revolution has considering as the
presidential candidate and Zurab Zhvania, who has been not less important political figure,
needed the highest political office for participating in politics of the country. All this issues
could explain introducing of the cabinet and the semi-presidentialism in Georgia after the
36
Saakashvili's National Movement party received 59.18% of the votes in the 2008 parliamentary elections and
won a majority in the parliament.
13
Rose Revolution. Unfortunately, the aim of introducing of the mixed model has not been
really an improvement of the political system. That is confirmed by the fact that these
changes have been adopted very quickly without any extensive consideration. On March 23,
2004, the parliamentary elections were scheduled and new authority would be formed
following this model.
In addition, since 2004 many changes were adopted into the constitution on the various
issues. One such change was the reduction of the minimum age for judges provided by the
government in 2005. According to this amendment, minimum age of judges of general courts
has been reduced to 28 from 30 and from 35 to 30 for judges of the constitutional court37. It
should be noted that such kind of changes was not consistent with the constitutions of any of
the developed European countries, which could be borrowed by the government.
There are mostly a higher age requirement defined in the vast majority of European
constitutions, because it is associated with certain education and experience, which unlikely
to have the candidates in 28 years of age. More criticism could be addressed to the reducing
of minimum age for judges of the constitutional court. Generally 40 or 45 year is the age
limit for judges of the constitutional court in most European countries38 and lowering of the
minimum age requirement in Georgia could be considered as attempt of the political elite to
intervene in independence of the judiciary. It should be mentioned, that many young judges
were appointed in general courts. Judges were appointed also in the constitutional court after
these changes. Government should borrow significant norms from constitutions of Germany,
Hungary or other countries if these changes aimed to strengthen the judiciary.
The ruling elite often used the constitutional changes to influence the electoral process and
that was being implemented with the upcoming elections. The constitutions of many foreign
countries define the month when the parliamentary and presidential elections are usually
held in accordance with the electoral cycle. There was no such provision in the constitution
of Georgia and constitution only determined that the next parliamentary elections will be
held no later than 15 days before the expiration of its term. The constitution has been
changed twice by the political elite regarding the election calendar. First, defined that
regular presidential elections shall be held in the month of October of a calendar year when
the President’s powers expire. 39 The second amendment was also adopted before the election
in March and has been determined that the next parliamentary elections will be held in May
2008. 40 As a rule, presidential elections was expected to be held in January 2009, but as the
president was resigned after mass demonstration in November 2007, the elections were held
in January 2008 and the presidential term might be expire on January 5, 2013. However, as
the constitution established the next presidential election in October 2013, the presidential
term of office was additionally extended with 10 months.
37
Constitutional Law of Georgia №2496-რს, December 27, 2005
Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe, Tbilisi, 2003: 92
39
Constitutional Law of Georgia №4133–რს, December 27, 2006
40
Constitutional Law of Georgia №5833–Iს, March 11, 2008
38
14
The constitutional law on the amendment of the constitution has been appealed in the
constitutional court of Georgia, but the court did not accept a complaint for review. The
court shared the Venice Commission’s consideration that there is not a consensus in the
comparative constitutional law what should be the role of the constitutional court on the
constitutional amendments. The constitutional control on the revision process of the
constitution is a relatively rare occurrence in theory of constitutional law, as well as in the
practice of the court. As a general rule, it may express the constitutional review to the
preventive, formal, and/or "Invariable", "Constant" norms in form of repressive constitutional
control. In addition, fundaments, volume and frequency of implementation of these forms
are different. This constitutional claim has not been received for review because the court
was not allowed to consider constitutionality of the disputed provisions of the Constitution
to the constitution of Georgia. 41
The subject of serious debate for ruling elite and the opposition was the relationship between
majoritarian and proportional representation in parliamentary elections. The number of MPs
has been reduced from 250 to 150 based on results of Referendum 2003. In February 2005,
the amendment was adopted to the Constitution and was defined that 100 MPs will be
elected by proportional system and 50 according the majoritarian system. 42 In 2008, just a
month before parliamentary elections, this provision was still changed and now the
parliament consist of 75 members elected by proportional majority system and 75
majoritarian members of parliament. 43 Government has changed these regulations again in
2012, one year before the next parliamentary elections and determined that parliament
consist of 77 members elected by proportional system and 73 majoritarian members of
Parliament. 44 The parliament of Georgia is a bicameral and therefore a mixed electoral
system is used in Georgia. If we look at the constitutions of European countries, we can see
that there is basically a two-chamber parliament with lower chamber elected by
proportional representation or bicameral with only proportional system of voting. Georgia
might take the example of some European constitution where a mixed system is used and a
subject of the constitutional borrowing could be constitutional norms such as Lithuania or
Ukraine, where a mixed electoral system operates.
Location of the Parliament. One of the most important constitutional changes implemented
under President Saakashvili and the National Movement was related to the parliament. The
Georgian parliament was always located in the Georgian capital Tbilisi and it was defined by
the Constitution 1995. President Saakashvili decided to move the parliament in Kutaisi
Georgia's second large city and accordance the amendments adopted on September 24, 2009
location of the parliament has become Tbilisi and Kutaisi. 45 Later, another amendment
introduced on July 1, 2011 determined location of the parliament just in the city of Kutaisi. 46
There has been also defined that only during a state of emergency or martial law may the
41
Ruling of the Constitutional Court of Georgia - Citizens of Georgia - Irma Inashvili David Tarkhan-Mouravi
and Joseph Manjavidze versus the Parliament, №1/1/549, February 5, 2013
42
Constitutional Law of Georgia №1010-Iს, February 23, 2005
43
Constitutional Law of Georgia №5853–Iს, March 12, 2008
44
Constitutional Law of Georgia №5630–რს, December 27, 2011
45
Constitutional Law of Georgia №1674-IIს, September 24, 2009
46
Constitutional Law of Georgia 4985-რს, July 1, 2011
15
residency of the Parliament of Georgia be temporarily changed for the purpose of convening
meetings or sessions.
The constitutions of most European countries do not contain definition of whereabouts of
the parliament. Only a few number of constitution of Council of Europe Member States
contains defining the norms on the whereabouts of the legislative body. These countries are:
Austria, Iceland, Latvia and Georgia. In constitution of Norway and Bosnia and Herzegovina
is stated that Parliament shall assemble in the capital. According to the constitution of Malta,
the venue of each meeting shall be determined by a special legislative act. As a rule, majority
of national parliaments work in the capitals of the country. Government's motives for this
decision was certainly not caused by goal of borrowing the constitutional regulations from
foreign experience and decisive was a political motivations. According the government,
changing of location of the parliament would help the country's decentralization and
economic development of the region where the legislature has been moved. In fact, the
political elite aimed to move the political life from the capital to a less active region.
Political elite and 2010 constitutional amendments. Last Georgian constitutional changes
were implemented in 2010 and it mainly aimed to improve the government system.
According to the regulations of the constitutional commission: “Changes aims to prepare a
draft of constitutional law for providing a modern, sustainable and stable development, the
rule of law, civilized relations between civil society and the state. 47 These changes were
related to the political developments of Georgia in November 2007, when President
Saakashvili used strong force against mass protests has ended by a resignation of president
and early presidential elections. Saakashvili has won this election again. One of the main
demands of the opposition was the constitutional amendment for balancing the power and
weakening of the presidential unlimited authority. 48 During the serious confrontation,
president Saakashvili said in May 2009 that in a meeting with opposition he offered
number of suggestions, including the constitutional reform with a strong president and a
strong parliament. 49 The ruling party's proposal suggested that a winner political party
should form the government and the President would not be able to take part in this
process. At the same time, they thought that a new constitutional model must be very
quickly adopted by the constitutional commission headed by opposition candidate. 50
In June 2009, non-parliamentary parties holding demonstrations, refused to work in the
established the commission. Along this protest, the social constitutional commission was
created gives preference to the parliamentary model and many representatives of opposition
took part in this body. We have to share the view of some foreign experts that the legitimacy
of the State constitutional commission had a very low quality, because its independence was
constantly questioned as the opposition (with few exceptions) did not participate in the work
47
Presidential Decree № 348, June 23, 2009 "On the Regulations of the Constitutional Commission," in:
Avtandil Demetrashvili, 2009-2010 constitutional reform in Georgia, Batumi, 2012, p. 44
48
Civil Georgia, May 18, 2009 / 17:40, http://www.civil.ge/geo/article.php?id=21151&search
49
Civil Georgia, May 11, 2009 / 18:38, http://www.civil.ge/geo/article.php?id=21104
50
Civil Georgia, May 12, 2009 15:23 http://www.civil.ge
16
of the constitutional commission. 51 These exception was just a small group of some parties
did not have any effect on the decision-making process. Non-parliamentary opposition
considered the constitutional changes as way allowed the chance to the president Saakashvili
to head the country in third term as Prime-Minister. 52
We definitely agree with M. Steven Fish that: if the reforms are to retain their legitimacy
they must, above all be disassociated from the ambitions of any particular political figure. In
some cases, politicians have sought constitutional changes for the sake of retaining power. 53
As M. Steven Fish mentioned in 2012, Saakashvili has remained laudably removed from the
processof change and does not appear to have engineered the constitutional revisions to suit
a personal interest in retaining power after he steps down as president, as he must at the end
of his term at the beginning of 2013. In order for the constitutional revisions to retain their
legitimacy and vitality, it is now imperative that Saakashvili explicitly renounce any
intention of becoming prime minister in the future. It is, moreover, crucial that he through
on this promise by retaining from Georgian politics after his tenure as president ends.54
The president Saakashvili said in an interview with French newspaper Le Monde in 2010: "I
have thought about this possibility (to be prime-minister), but there are too many
uncertainties today. Who knows what economic situation, the constitutional reform, my
feelings and the rating will be there after two years." It should be said that the president
really had this plan because it was never clearly stated that he was not going to stay in power
like Putin in Russian Federation. 55
At the same time, during constitutional reforms provided by Saakashvili's political elite, the
Venice Commission noted in its report that these changes will provide several important
improvements and significant step in the good direction, however, believes that it would be
desirable to strengthen the powers of the Parliament.56 According other experts “The reforms
move Georgia closer to the company of Lithuania and Poland and further from the Russian
and Central Asian models. The revised Georgian constitution, like the constitutions adopted
in Lithuania in 1992 and Poland in 1997, provides for a strong parliament and a prime
minister who is accountable to parliament. Furthermore, the revised Georgian constitution,
like its Lithuanian and Polish counterparts, does not reduce the president to a mere
figurehead. 57
Making the constitutional amendment in favor the political elite confirms a fact that this
constitutional amendments adopted on 15 October 2010, should be enforced after the
presidential elections of October 27, 2013. Until this date the president Saakashvili should
51
Woffgang Babeck, Lessons from Georgia: A role model for constitutional reform? In: Wolfgang Babeck,
Steven Fish, Zero Reichenbecher, Rewriting a Constitution: Georgia’s shift towards Europe, GIZ, 2012: 63
52
Civil Georgia, May 14, 2009 / 15:58 http://www.civil.ge
53
M. Steven Fish, Georgia’s Constitutional Development in Comparative Perspective, in: Wolfgang Babeck,
Steven Fish, Zero Reichenbecher, Rewriting a Constitution: Georgia’s shift towards Europe, GIZ, 2012: 56
54
Ibid, 57
55
Civil Georgia, June 8, 2010 / 17:03 http://www.civil.ge/geo/article.php?id=22833
56
Venice Commission #543/2009, CDL(2010)028, 15-16 October, 2010
57
M. Steven Fish, 68
17
be in power. If the real purpose of this constitutional reform was improvement of the
constitutional system, adoption of the European semi-presidential system, balance of
power, weakening the president and the strengthening of parliament, formation of
government by parliament, it would be more appropriate implementation of this
constitutional changes after parliamentary election on 1 October 2012 parliamentary
elections.
CONCLUSIONS
Several tendencies can be identified in the Georgian constitutional borrowing. The first - the
constitutional borrowing was important in Georgia since adoption of 1921 constitution.
Georgia has borrowed many important principles from western constitution: Popular
Sovereignty, Republicanism, Separation of powers, Fundamental Rights, Parliamentarism
and other principles, were innovative in this region for that period. Second - constitutional
borrowing has been given an important place in in Georgia since 1995, when a new
constitution was adopted. Not only the principles of constitutionalism was borrowed in 1995,
but many new institutions were introduced from the European and American
Constitutionalism: The Constitutional Court, the Ombudsman, the Presidentialism and SemiPresidentialism. Third - the constitutional process of borrowing was significantly influenced
by the political elite during whole period since 1995 and this influence was often caused by a
political goals of elite and had a negative impact on the final product of constitutional
borrowing.
The constitutional reforms have not been finished in Georgia. On December 27, 2013,
parliament created the constitutional commission aims to prepare a draft for the revision of
the constitution sharing the experience of international and Georgian constitutionalism. As
we see the constitutional changes are still expected in Georgia and the constitutional
borrowing of different constitutional principles, institutions would be very significant part of
this reform in the future. According to the current constitution, A draft revision of the
Constitution shall be deemed adopted if it is supported by not less than three fourths of the
total number of MPs of Georgia at two successive sessions of the Parliament of Georgia after
an interval of at least three months. This means that the procedure of revision of the
constitution has become relatively complicated and adoption of these constitutional changes
would not be possible without a parliamentary minority. Thus, it will be the first time since
1995 when a role of political elite and agreement between parliamentary majority and
minority would be decisive for adoption of new amendments.
18