Three Dissenting Judges of Constitutional Court: Our colleagues misinterpreted President’s constitutional mandate

On October 16, the Constitutional Court of Georgia ruled that President Salome Zurabishvili breached the country’s Constitution by making working visits to Europe without the Government’s approval. The decision of the Constitutional Court on violating the Constitution by the President of Georgia includes a dissenting opinion from three judges – Giorgi Kverenchkhiladze, Irine Imerlishvili, and Teimuraz Tugushi.

“We believe that our colleagues misinterpreted the constitutional mandate of the President of Georgia, as well as the nature and purpose of the constitutional provision determining the consent of the Government to the exercise of representative powers by the President in foreign relations”- judges stated.

The judges agreed that while the current Constitution doesn’t grant the President executive authority or the power to direct domestic and foreign policy, it doesn’t entirely exclude the President from a role in foreign affairs.

In their view, the Constitution of Georgia “should not create empty or fictitious institutions without a clear and meaningful role”. They argued that presenting any constitutional institution in such a way, without its intended function, not only diminishes the constitutional significance but also disregards the fundamental purpose of the Constitution as the cornerstone of democratic governance.

The judges conveyed that the role of the President of Georgia, as well as all other constitutional bodies, should be comprehended within the broader context of the Constitution, considering its overall architecture, cohesive spirit, and fundamental values. “Thus, the role assigned to the President of Georgia by the Constitution of Georgia is unique. The activities of political groups (government or opposition) are always loaded and dictated by a certain political agenda, which may carry different interests of one or more groups. Contrary to what has been said, the President of Georgia, as a politically impartial high-ranking official, is in the most favorable position to express the common national position both domestically and internationally”- judges stated.

The judges explained that Article 52, Paragraph 1, Subparagraph “A” of the Georgian Constitution examines whether the President can be delegated governmental powers. They emphasized that a potential violation of the Constitution may occur when the President undertakes a foreign visit without the consent of the Government if such a visit goes beyond ceremonial duties. The judges emphasized the importance of considering the content and purpose of the visit in determining whether the President exceeded her ceremonial role or infringed on the government’s constitutionally defined powers.

The judges argued that requiring formal approval for each such action would change the role of the President and undermine her role as a politically impartial head of state.

According to the judges, the Constitutional Court of Georgia is a crucial authority in the impeachment process, authorizing the removal of the President from office. It is responsible for determining valid grounds for impeachment. However, the Court’s decision states: “… the Constitutional Court unequivocally and clearly states that its role is not to assess, in case of confirmation of the legal basis for impeachment, whether a particular official deserves the corresponding dismissal from office on the grounds of violation (violation of the Constitution and/or the presence of signs of crime in his/her actions), which, in case of a positive conclusion by the Constitutional Court, will be decided by the Parliament of Georgia according to the relevant political considerations…”. The Court’s interpretation suggests that the decision will ultimately depend on political factors rather than a careful legal analysis that may deviate from the constitutional intent. The judges expressed concern that this would place the legal issue of impeachment in the realm of political considerations.

The judges argued that even if the President had violated the Constitution in a formal sense, her actions did not significantly damage the state’s foreign policy or pose a substantial threat to the constitutional order of governance. They argued that removing the President from office is a drastic measure that should be considered only when necessary to protect the constitutional order. In this case, according to them, such a drastic step was unwarranted.

In addition, they believe that the impeachment of the President would result in a greater violation of the constitutional interests of the President in the exercise of her powers than the violation specified in the petition as defined by the Constitution of Georgia.

The judges concluded, based on the evidence presented, that the President did not exceed her authority or obstruct the government in the conduct of its foreign policy through the disputed visits, and thus found no basis for a violation of the Constitution in this particular case. Hence, the Constitutional Court should not have found that the President had violated the Constitution.

Also Read:

• 16/10/2023 – Presidential Representatives: Constitutional Court Ruling is Political
• 16/10/2023 – Constitutional Court Rules President’s Foreign Visits Unconstitutional
• 05/10/2023 – Updated: 3 Days of the Constitutional Court Deliberation on President’s Impeachment