Problems of Constitutional Change in Georgia
To the surprise of nobody, it was recently reported that the new Georgian parliament will set up a committee to explore constitutional reforms. Constitutional changes are reasonably common in Georgia, so this is not quite groundbreaking news and certainly does not represent a crisis or turning point in any significant way. Given the awkward structures and relationships created by the current constitution, this is an opportunity to make important reforms, but it is also ripe with the potential to create greater problems.
Constitutional reform is not necessary in Georgia, but if done well it could make Georgia a more stable and democratic country. Correspondingly, it must not be seen as an effort by the ruling party to create structures simply ensure its continuation in power. This has been the case too frequently in the past for Georgia. With this in mind, below are four suggestions for constitutional reforms that would make Georgia a more effective democracy, but would not have a direct effect on any particular political party or grouping.
Phase out the presidency after the next election. Dividing executive power between a directly elected president and a prime minister who is chosen through a parliamentary election, particularly in a small country like Georgia, makes governance more complicated than it needs to be. In the current system the prime minister has much more power than the president, but the president is not completely powerless. Thus, the president lingers in a kind of political purgatory between being a figurehead and an actual chief executive. President Giorgi Margvelashvili has carved out a good role for himself, acting almost as a national ombudsman, using his position to address of Georgian politics and democracy, but it is unlikely that the next president would be able to continue such a role. Additionally, President Margvelashvili has created that role using his acumen more than any constitutional powers.
There is a presidential election coming up in 2018, in which President Margvelashvili is likely to run. Given that, abolishing, or otherwise changing the nature of the presidency immediately, would seem like an attempt to eliminate a critical voice, as President Margvelashvili has not hesitated to speak out against what he has seen as abuses of power by the governing Georgian Dream (GD) coalition. A better approach would be to hold the next presidential election as scheduled with the understanding that following that term, there will no longer be a president and the powers that now rest with the president will be given to a more powerful prime minister.
Reduce the number of MPs and make them all party list. Eliminating the presidency will, under the current system, lead to an extremely powerful prime minister and, more importantly, take away, one of the few formal, or informal, checks on a powerful prime minister who enjoys a big majority in parliament. Changing the structure of the parliament so that it is constituted entirely from the party list will make the legislature less likely to be dominated by the ruling party and therefore a stronger check on the prime minister. Because Georgian voters do not split their votes very much, the single mandate portion of the parliament gives the winning party a much bigger majority of seats than they won from the party list. For example, in the recent election, the GD won 44 of 77, or 57%, of the seats, but they now enjoy a constitutional majority because they won 71 of 73 single mandate seats.
The logic of single mandate seats is that they create bonds between MPs and the people they represent, giving ordinary voters access to parliament and a name and face that they can associate with the legislature. This model has never been reality in Georgia where MPs representing specific districts often have very tenuous ties to those districts and rarely spend a lot of time working on behalf of their constituents. Thus, abolishing these types of MPs would not be a great loss for Georgian democracy.
Reducing the number of MPs to somewhere between 60-90 will help professionalize the parliament as with fewer members it will be possible for MPs to have larger and better staffs. A smaller number of MPs will also make it more difficult for back benchers who are more interested in business opportunities than the work of legislating to win seats in parliament because, for example, an 85 member legislature will not have much room for a back bench.
Simplify the process for calling new elections. The possibility of a government failing and new elections being called is found in many parliamentary systems. This process provides an additional check for the parliament on a prime minister who loses touch with his party and his constituency, or abuses his power in some way. However, if new elections are called too frequently, or are too likely, an element of instability is introduced. The process for calling new elections should be simplified and based on a majority, or perhaps 60% vote, from the parliament. Clearly in this scenario, the prime minister could ask parliament to vote for new elections but would need the votes in parliament to make that happen. This would mean eliminating provisions where new elections kick in based on some government or legislative action such as failing to pass a budget or changing the makeup of the government too frequently. With this reform, the possibility of new elections would primarily be a way for either the parliament to reign in an unpopular prime minister, or for the prime minister to bolster his support if the parliament did not go along with his popular agenda. It would not be a way to limit debate about, for example, the budget.
Stay away from policy pronouncements. The role of any constitution is to establish the structures and laws that will frame politics and political debate, not to craft policy that should be the product of that debate. Even positions such as Georgia’s commitment to NATO, that currently are the bedrock of Georgian politics, should not be written into the constitution. Writing positions into the constitution that are discriminatory and that will likely not reflect political opinion in the coming years and decades, such as narrowly defining marriage as to be between a man and a woman, creates additional problems. The constitution should create democratic in structures in which issues like foreign policy or the definition of marriage are discussed. It should not seek to resolve that debate.
These four proposals are very unlikely to all be turned into law. They are also not essential to the future of Georgian democracy. While a smaller parliament or the elimination of a presidency that divides executive power would be good for Georgia, the country can survive without these reforms. Similarly, writing policy into the constitution will create problems down the road for Georgian democracy, but it will not bring down the country.
Georgia’s constitution as it stands, like that of every country in the world, is imperfect and could be more democratic, but constant tinkering with the constitution is unlikely to change that. A reformed Georgian constitution, will still be an imperfect one. Following the recommendations above will improve the constitution, but there will still be problems. Constitution crafting, like democracy itself, is an exercise in trying to get somewhere that is pretty good while avoiding the problems that often come with trying to achieve an impossible perfection.
Despite this, constitutional reform can either be a way to address shortcomings in political structures to help the country become more democratic and function more efficiently, or it can be a way for the party in power to increase their chances of staying in power, address short term political problems or achieve policy goals that are better left in the hands of the legislature. If the latter is the rationale for constitutional reform then, regardless of the reforms themselves, the process will create more problems than it solves.
Accordingly, the process around constitutional reform is essential to its success. If all political actors, civil society and the people, in one way or another, are engaged, the process will be more likely to be successful almost regardless of what changes are made. It is not yet clear whether or not this sill be the case in Georgia. President Margvelashvili has indicated he will not participate or otherwise lend his support to the constitutional discussion, but other representatives of civil society, government and civil society will be invited.
Georgia could benefit from an inclusive constitutional process that leads to a small number of clear structural changes to governmental systems that are not seen as simply strengthening the Georgian Dream (GD). However, getting from here to there, particularly given how constitutional reform has so frequently been simply another tool in the governing party’s toolbox, no matter who that party is, will not be easy. Another constitutional discussion that leads to minor changes with partisan goals and a sprinkling of policy changes that should have been done in the legislature, however, will damage Georgia and weaken the notion of constitutionalism there.
The Georgia Analysis is a twice monthly analysis of political and other major developments in Georgia. Lincoln Mitchell is a political development, research and strategic consultant who has worked extensively in the post-Soviet space. If you would like to be on the Georgia analysis mailing list or are interested in more research, analysis or consulting for your business, government, campaign or other organization, please email firstname.lastname@example.org.