Otar Melkadze

 “Modern Problems of Georgian Constitutionalism”, 2001

A synopsis of the author’s attitude towards modern problems of Georgian Constitutionalism is presented and then elaborated on in seven chapters. After two years of preparation by the Constitutional Commission, a new Constitution was presented for consideration in the Parliament. An eleventh hour change in the State governing model proposed by the Constitutional Commission and speedy consideration and adoption of the current presidential model has resulted in serious shortcomings in the present Constitution. The superficial attitude towards the constitutional process has been established as the prevailing legislative style of the Parliament. Under artificially created time pressures "Organic Election Laws" and the law "On Constitutional Courts" were adopted in one day without any serious debate. This has created serious problems of efficiency in the Georgian government and difficulty in ensuring fairness of election law practices.

Rich factual material obtained by comparing constitutional legislation creates the background for consideration of peculiarities in the Georgian presidential model. The presidential institution is analyzed in a general sense and then from the perspective of legislative processes in former Soviet republics. Peculiarities of the institution of the president, and presidential, parliamentary and mixed presidential-parliamentary governance republics are considered. Ideas are presented from the works of well-known constitutionalists on classification of models and the legislative nature of each, and the opinion of the author on each model is shared. The role of the soviet past is an important impediment for establishing and strengthening democracy in the Newly Independent States of the former Soviet Union. The author concludes that it is very difficult to create and develop the democratic system defined by the present Constitution. Former leaders of the Communist party who became Presidents of the newly "independent" states have managed to create the appearance of democracy, as shown by examples of several republics. Peculiarities of the Georgian presidential system are compared to the classic American presidential governance model with an emphasis on election law.

The constitutional legend of the Georgian President, the State Minister, and executive power is presented as key figures of the legislative process by the system of normative acts. This adds to the unconstitutional position of the chairman of the Council of Justice created by the law. The Council, which should be a consulting body, in fact takes decisions in connection with formation and organizational activity of the court power. The principle of division of power is thus neglected and a super-presidential model of governance is established instead. The position of Prime Minister, which while legislatively inconsistent with the presidential model is often presented as if oriented on division of power, could actually further increase the President’s power. The author concludes that in order to restore balance between the branches of State power, Georgia should return to the original mixed presidential-parliamentary model which was adopted by the Constitutional Commission and rejected by the Parliament.

Election law is considered to be the most important sub-unit of constitutional law. The quality of fairness of an election law is dependent on the constitutional arrangement of the independent country and a healthy democratic microclimate. Problems of election fairness are looked at taking into consideration regulatory acts of election law. Special importance is given to the relationship between the Constitution and organic laws given that election law is an important guarantor of the country’s constitutional law provided the election law is protected by the Constitution.

Realization of the election law and formation of State representative bodies depends on the election system. The level of fairness of election law depends on the election system. It depends on fundamentals of the normative system and on fairness of their implementation and defense of both. In places where these conditions are not preserved the election law is not preserved. Its infringement is often connected to implementation of organizational technical mechanisms. This situation exists in Georgia. Some of these developments are opposed in some countries by enactment of law regulations or precedents.

There is an attempt to determine the fairness of election laws in Georgia. The answer may vary according to constituency. Legislators as well as voters have responsibilities to ensure fair implementation of laws. The law and implementing structures are key, but not the sole determinant of fairness. The last presidential election in the United States of America is considered. The results of U.S. presidential elections are decided not by the total number of popular votes, but by an Electoral College. The example is used to illustrate that the problem of fairness of election law is related to the timeliness of the law itself.

Issues of election law drawn from the experience of foreign countries are considered for perfection of the Georgian election law. Election law supports establishment of a multiparty system, and a healthy opposition based on competition and progress in the country’s political arena. The issue of economic support for elections and heritage is settled by different mechanisms of rotation of Members of Parliament. The author concludes that egistration of political parties is in serious need of regulation to improve the Georgian election law.

The process of formation and enactment of election legislation and analysis of the election process and its correlation with election results is reviewed. A chronological review of the constitutional process and rapid adoption of the Constitution set the tone for adoption of the election law in the same speed. Definitely, two organic laws, "On Georgian Presidential Elections" and "On Georgian Parliamentary Elections," which were adopted in one day without any prior discussion could not claim perfection.

Following a "brief analysis of election results" attention is concentrated on "what was demonstrated by elections " and "what did the elections give us." The discussion on "Georgian Parliamentary Elections" is related to shortcomings in the law, which resulted in a majority of votes cast being "lost" which permitted the party list election winners to assume the majority of mandates after redistribution of the "lost votes". Based on the two latest parliamentary elections shortcomings have been demonstrated in the function of the election law and election system. Proposals for regulation of those shortcomings are presented.

A role of election legislation is to establish a classic multiparty system. The law "On Georgian Parliamentary Elections" cannot fulfill this function. Among the defining factors in Georgia is the party spectrum that consists of numerous parties. Legislation should, but presently cannot regulate registration of political parties. The active dynamics of forming political parties in the pre-election period, especially in elections held according to the party list system, gives vital importance to the number of "lost votes" and creates a fictitious image of the political system existing in Georgia The last two parliamentary elections are used to illustrate this point.

Shortcomings of the Georgian election legislation and comparison of concrete positive examples from election legislation of foreign countries are considered and proposals offered based on these. Election laws should be protected from constant changes and within the frame of legislative expediency should limit immunity of Members of Parliament. Peculiarities of the activity of the Constitutional Court emerge in an attempt to perfect the legislation. Several proposals some of which require constitutional changes, such as regulation of the issue of incompatibility of the activity or conflict of interest among Members of Parliament are put forth. The majority of proposals put forth envisage changes and amendments to the law "on Georgian Parliamentary Elections" and imply regulation of registration of political parties, activity of the election commission, and general perfection of the election system.