In a surprise move, Georgia's ruling party has announced plans to scrap the country's current constitution and draft a new one. The announcement coincided with a push for the adoption of two controversial constitutional amendments to the country's existing constitution.
For now, though, few specifics are publicly known about the plans for a new constitution. The government plans to start drafting the document in 2007, Parliamentary Deputy Speaker Mikheil Machavariani told Kavkaz Press on December 15. The current constitution, in force since 1995, does not "correspond" to "today's realities," he said.
However, constitutional analysts in Georgia question the decision. According to Professor Avtandil Demetrashvili, a member of the Tbilisi State University law department and the former chairman of the Georgian Constitutional Court, it makes little sense to amend the constitution if the government plans to write a new one immediately.
"[I]t is clear that before 2008, when the [presidential and parliamentary] election occurs, there will not be a new constitution," he said. "There is no sense in adopting the changes."
The first hearing of the proposed constitutional amendments was held in parliament on December 14. A final vote is expected before the end of the year.
Parliamentary Speaker Nino Burjanadze argues that the very fact that amendments are needed is proof that the constitution is no longer valid. "When corrections are entered into the constitution frequently, it becomes necessary to review the document as a whole," she said on December 14, Kavkaz Press reported. "This is necessary so that further changes are not needed in the future."
Demetrashvili maintains that there is nothing fundamentally wrong with the current constitution. While the government has hinted that the document is incomplete, the law professor asserted that the only article of the constitution that has not been fulfilled concerns a bi-cameral parliament.
"It is possible that there are already so many changes that you can begin thinking about writing a new constitution," he said. "But, basically, I am against deciding to write a new constitution because most of the changes only relate to institutions."
Over the past three years, the Georgian parliament has approved several amendments to the 1995 constitution. The changes pushed through by President Mikheil Saakashvili's administration in February 2004, which resulted in much stronger powers for the president, are widely considered to be the most significant. [For background see the Eurasia Insight archive].
David Usupashvili, a leader of the opposition Republican Party and one of the members of the 1995 state constitutional commission, argues that the ruling United National Movement Party's tinkering with the constitution poses the real danger to Georgia's constitutional order not an inherent problem within the document itself.
"[The amendments] decrease the meaning of the constitution as such, its role as it is understood in any developed society; it must be a respected document," he said, noting that the biggest problem with the 1995 constitution was its lack of any article concerning possible territorial definitions for the breakaway regions of Abkhazia and South Ossetia.
The staff of the parliamentary Legal Issues Committee did not respond to requests for information about what aspects of the constitution the government plans to change in a new version. According to Usupashvili, the National Movement has repeatedly promised to draft a new constitution, but has never stated a concrete time schedule or created the necessary committee.
The latest round of amendments to Georgia's constitution contained two controversial items: Article 51, which concerned the president's ability to dismiss parliament, and Article 104, which called for joint presidential and parliament elections. The ruling party, which holds the necessary two-thirds parliamentary majority to pass constitutional amendments, postponed discussion of Article 51, which would call for fresh presidential and parliamentary elections if the president dismisses parliament twice within four years. The deputies did agree, however, to extend parliament's term by roughly eight months and to shorten the president's term by several weeks in order to hold joint elections in 2008. President Saakashvili holds responsibility for naming the vote's exact date.
The new amendments also included widely welcomed measures According to the revised constitution, the president will no longer be able to hire or fire judges. In addition, he no longer holds the top position in the Justice Council, the body that oversees Georgia's judiciary system.
Non-governmental organizations and opposition leaders, however, have strongly criticized parliament's decision to extend its own term. In a November 2006 report, anti-corruption watchdog Transparency International termed the amendments "worrying" in light of the 2004 changes that enhanced presidential powers.
"Aside from all the content-based criticism, the very fact that the executive for the second time in two years is changing the fundamental rules without practically any public deliberation is worrying," the report read. "Here under insufficient discussion we are not overlooking the one month constitutional period, but besides this safeguard there needs to be at least some consensus on the need for changes and on their nature."
When President Saakashvili first announced the planned amendments in October, the government cited the financial burden of elections on the state budget as the motivation for the changes. [For background see the Eurasia Insight archive]. However, since Article 104 addresses only the 2008 election, some doubt remains concerning the overall financial benefit to the state budget. In addition, over the past month, the government's reasoning for the amendments has changed.
On December 14, Levan Bezhashvili, head of the parliamentary Legal Issues Committee, argued that state security was the real reason behind the amendments. Georgia needs to extend the mandate of a parliament that acts in the country's best interests, he said. "[C]ountries [with a developed democracy] do not face the same problems that Georgia does," he told reporters.
According to National Movement parliamentarian Nika Gvaramia, the parliament approved this unusual precedent due to political pressure from Russia. In an interview published by Interfax on December 13, Gvaramia, chairman of the parliamentary Investigation Commission On Actions Against Citizens of Georgia by the Government of Russia, defended the ruling party's right to extend their stay due to the upcoming Russian presidential elections, which would have coincided with the Georgian parliamentary elections in the spring of 2008.
"This is a political decision. We think that there is a very high risk which could endanger the very existence of this country," he said. "We do not want our country to fall victim to the Russian electoral machine."
Among other objections, legal analysts and opposition leaders, however, contend that another country's election should not be cause for Georgia to change its constitution.
"Even if you could change the constitution because of that, then logically we should have our election before the presidential election in Russia [not afterwards]," said Kakha Kukava, an opposition member of parliament's legal committee for the Democratic Front faction.
Constitutional law analyst Tamara Aleksidze, chairperson of the Georgian Law Students' Association, sees another concern: Georgia's parliament has now set a precedent by inserting an amendment into the constitution that will only be used once.
"[I]t is very dangerous to alter it [the constitution] every time you need to," she said. "[T]he problem is the constitution is not a one-time document. The constitution is something that has to be studied and all governments
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