Controversial Bill on Constitutional Court Adopted in Final Reading

A controversial bill increasing the quorum required for the Constitutional Court to decide cases was rushed through the Parliament by the GDDG ruling party adopting it with its third and final reading on Saturday morning.

The bill was passed with 81 votes, 5 more than required minimum, about 14 hours after it was adopted with its second reading by the Parliament on Friday evening after two days of heated debates.

Late on Friday evening lawmakers from the GDDG ruling party proposed holding of a parliamentary session on Saturday to finalize adoption of the bill – it is highly unusual for the Georgian legislative body to convene a session over weekend.

Parliamentary committee for human rights held an impromptu late-night session on Saturday to formally prepare the bill for its third reading at the parliamentary session next morning. The committee hearing was held amid fierce opposition from the UNM parliamentary minority group, whose lawmakers were protesting against hasty process.

“I understand that these two hearings were hasty, but we have been working openly over the past two months over this bill and the [human rights] committee accepted almost all the critical remarks and the only thing that remained source of disagreement was the issue of quorum,” GDDG MP Eka Beselia, chairperson of the human rights committee and co-sponsor of the bill, said at the parliamentary session on Saturday.

Along with UNM lawmakers, the bill was not supported also by MPs from Free Democrats opposition party, as well as by MPs from the Republican Party, which formally remains within the GD parliamentary majority group. New Political Center-Girchi, which voted for the bill during the first reading, refused to vote for it in second and third readings.
 
Parliament Speaker, Davit Usupashvili of the Republican Party, who also opposed the bill, said that President Giorgi Margvelashvili indicated about intention to veto the bill. At least 76 votes are needed to override a presidential veto.
 
Chief of president’s administration, Giorgi Abashishvili, said on May 14 that the President “will take decision after holding consultations with all the stakeholders.”

“The fact that the bill was adopted so hastily… already causes question marks,” Abashishvili said, adding that the President had already raised his concerns about the bill before PM Giorgi Kvirikashvili and the Parliament Speaker.

The proposed rule to impose a two-thirds majority, instead of a simple majority, required for the 9-member Court to decide cases, has also been criticized by some watchdog groups.

Coalition for Independent and Transparent Judiciary, a group uniting dozens of non-governmental organizations, said in a statement on May 14 that high quorum is “problematic” which is not in line with the international standards.

“There is a high probability that it [high quorum] will paralyze the Court,” it said. “The amendments pose threat to country’s democratic development.”

Along with higher quorum for taking decision, the bill also proposes to increase number of judges required to be present when the Constitutional Court sits as a full bench when discussing a case.

According to the existing legislation, when adjudicating a case in full bench, the 9-member Constitutional Court is eligible to proceed if at least 6 judges are present.

The bill envisages increasing this number to 7 judges.

The existing legislation requires support of simple majority of judges for taking a decision – that is 4 judges in case minimum required 6 judges are present, and 5 judges if all nine are present.

Under the proposed new rule decisions should be taken by at least 6 judges – no matter whether minimum required 7 judges will be present or all nine of them.

In another controversial proposal, decisions on suspending a disputed legislative clause as an interim measure pending final verdict should be taken by full bench; currently such interim decision can be taken by a panel of four judges. Opponents say the proposed new rule will overload the Court and complicate its functioning.

Although much criticized initial draft has been heavily amended to address concerns of civil society groups and other opponents, co-sponsor of the bill GDDG MP Eka Beselia, chairperson of the human rights parliamentary committee, refused to compromise on the issue of quorum.

It was among the most contentious issue during the two-day tense debates in the Parliament on May 12-13.

UNM MPs slammed the bill as a “punitive measure” against the Constitutional Court for taking number of decisions over the past eight months, which angered the government, among them on the complaint filed by ex-mayor of Tbilisi Gigi Ugulava; Rustavi 2 TV case; financial supervisory agency, and most recently on surveillance regulations.

Opposition MPs, including those from the Free Democrats party, claim that by increasing quorum, the government wants to block Constitutional Court’s decisions with the help of few judges, who might be loyal towards the governing party.

Currently all but one of the members of the Constitutional Court, were appointed when the UNM party was in government. Only one member, Merab Turava, was elected as Constitutional Court judge by the sitting Parliament.
 
10-year term of four judges, among them of the Constitutional Court Chairman Giorgi Papuashvili, will expire in late September. Two of them should be replaced by new judges appointed by President Giorgi Margvelashvili; one has to be appointed by the Parliament and the fourth one by the Supreme Court.

MP Tamar Kordzaia of the Republican Party said that some of the controversial clauses of the bill, including those related to high quorum, “increase the risk of political manipulations and for that reason the bill is unacceptable for us.”

MP Shalva Shavgulidze of the Free Democrats said that “the only purpose of this bill is to gain control over the Constitutional Court by the governing party.”

“As it has no majority members of the court, [the GDDG] came up with such a proposal, which would allow just few members to block decisions of the court,” he said.

Rejecting allegations, GDDG MP Beselia said that the bill is “not in any way weakening the Court.”

“This is the Court, which has to be fully liberated from political influences,” she added, referring to allegation that most of the current members of the Constitutional Court are loyal to UNM party.

Along with disputed legislative clauses and laws, the Constitutional Court also has the authority to adjudicate disputes related to election and referendum results.

In the view of upcoming parliamentary elections planned for October 8, this issue was also raised, although briefly, during the debates.

UNM MP Irma Nadirashvili told GDDG lawmakers: “You try to adopt this bill at any cost, because this is vitally important for you. You think that you won’t be able to rig election results without this law.”

GDDG MP Beselia responded that these remarks by MP Nadirashvili was exposing UNM’s possible intention to use its loyal judges in the Constitutional Court to try annul election results if unfavorable for the opposition party. “That’s a very dangerous scenario,” she added.

The bill also changes to rule of nominating and electing Chairperson of the Constitutional Court. Under the existing law, the Chairperson is selected through consultations between the President, Parliament Speaker and Chairperson of the Supreme Court. The new bill replaces it with new rule according to which the Chairman should be selected by the Constitutional Court judges among themselves and elected with support of at least five members.

The ruling GDDG party decided to go ahead with adoption of the bill without sending it for review to the Venice Commission, which is the Council of Europe’s advisory body for legal and constitutional affairs.

Co-sponsor of the bill, MP Beselia, apparently pledged to send the amendments to the Venice Commission before adoption, when she met co-rapporteurs from the Parliamentary Assembly of Council of Europe (PACE), who visited Georgia earlier this month.

After the visit PACE co-rapporteurs Boriss Cilevičs and Kerstin Lundgren said in a joint statement that they welcome the intention of the chairperson of the human rights parliamentary committee to send the proposed amendments to the Venice Commission for opinion, “before they are discussed in second reading in the parliament.”

“This should allay any fears that, when adopted, these amendments would inadvertently hinder the efficient functioning of the Constitutional Court. The important role of the Constitutional Court as an independent and impartial arbiter should be ensured. By being asked for an opinion in the next couple of days, the Venice Commission would be able to adopt its opinion at its June plenary session, which in turn would allow the parliament to take the recommendations of the Venice Commission into account when adopting the amendments in final reading before the end of this parliamentary session,” the two co-rapporteurs said in the statement released on May 10.

MP Beselia and other lawmakers from the GDDG party said that they will send already adopted bill to the Venice Commission.

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