: Irma Aladashvili
has been working for more than a decade for the Georgian Young Lawyers’
Association from
Published February 2005
Table of Contents
THE REGIONAL STRUCTURE OF
GEORGIA
THE RELATIONSHIP OF THE PRESIDENT
WITH THE PARLIAMENT
THE RELATIONSHIP OF THE
GOVERNMENT WITH THE PRESIDENT
THE RELATIONSHIP OF THE
GOVERNMENT WITH THE PARLIAMENT
NEW CHALLENGES OF THE GEORGIAN
JUDICIARY
REGIONALISM AND LOCAL
SELF-GOVERNMENT IN GEORGIA
THE ELECTORAL PROCESS IN
GEORGIA
HIERARCHY OF LEGAL NORMS OF
GEORGIA
THE OFFICIAL GAZETTE, LEGAL
JOURNALS, AND MAIN NEWSPAPERS
Georgia is located in the wrinkled Alpine zone, in subtropical
zones of northern periphery between the 41° 07 and 43° 35 latitudes and West
40° 05 and 46° 44 longitudes. The border length is 1970 km, 315 km of which
(16%) is coastline. The country is bounded by the
The geological constitution is characterized by the
formations
from the Mesozoic and Cenozoic eras. According to the
wrinkles,
it's divided by several geotectonic units: from north to south by Caucasian main
ring's Antiklinorium, Georgian Belt, Achara-Trialeti system, Artvin-Bolnisi
Belt and Loc-Karabag's wrinkled zone.
Georgia is rich in mineral resources: oil, coal, peat, iron, magnum,
copper, projectile-zinc, arsenic, mercury, andezit, barite, talc, serpentit,
agate, quartz, basalt, granite, diorite, marble, etc.
Different areas of
The
|
Population and Area |
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Area |
69,500 |
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Census results of 1989 |
5,400,800 |
|
Official data of 1997 |
5,423,000 |
|
Population Density (per sq.km) |
78 |
Apart from the two breakaway regions of Abkhazia and
South Ossetia, Georgia today is made up of the following geographical areas:
Ajara, Samegrelo-Zemo Svaneti, Guria, Samtskhe-Javakheti, Racha-Lechkhumi-Kvemo
Svaneti, Kakheti, Kvemo Kartli, Shida Kartli, Mtskheta-Mtianeti and Imereti.
This arrangement by-and-large coincides with the medieval traditional division of
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|
|
|
Georgia, known to Greeks and Romans as Kolkheti (western part of the country) and Iberia (eastern part), adopted Christianity in the 4th century
under the influence of Byzantium. The country managed to unite during the 10th-13th
centuries, despite numerous invasions by Arabians, Mongolians, Turks and
Persians. This period in Georgian history is called the "Golden Era";
King David Agmashenebeli
(1089-1125) and his granddaughter the King-woman Tamar
(1184-1213) made great contributions during this period. Recollections of this
period helped to preserve a national self-awareness in the following centuries,
when Georgia was conquered by foreigners. Russia, which started annexation of
the region in 1801 and finished it in 1917, was the last among such conquerors.
Georgia became part of the Soviet Union in 1921, and became an independent
Republic of the Soviet Union in 1936.
The well-known Soviet dictator Joseph Stalin and the "Head" of his political police, Lavrenti
Beria, both Georgians by origin, destroyed the hope of Georgians to win
national independence. The repressions went on after Stalin’s death: in 1956
his successor, Nikita Khrushchev, severely suppressed a revolutionary attempt
by means of Soviet tanks, leading to the deaths of hundreds of people. During
Brezhnev's
governance, Georgian Authorities gained a little success – the Georgian language
was declared the state language.
In modern Georgian history, the year 1989 was a crucial
moment. In April 1989, the Soviet Army broke up a peaceful demonstration,
resulting in the murder of 20 people. Georgian society now strongly supported
the policy of complete independence and separation from the Soviet
Union.
On May 26, 1991, Georgia elected the Chairman of
the Supreme
Council Zviad Gamsakhurdia as President of the country.
Tension between the ruling and opposition parties gradually
intensified, and in 1991-92 developed into an armed conflict. President Gamsakhurdia left the country, the
Supreme Soviet ceased to function, and power was taken over by the
Military Council, which was reconstituted into a State Council. The State
Council restored Georgia’s Constitution of 1921.
In 1992 Eduard Shevardnadze
(ex-Minister
of Foreign Affairs of the Soviet Union) returned to Georgia, assuming chairmanship
of the Military Council; the news was announcedAugust 4, 1992, the day of
Parliamentary elections.
On July 31, 1992 Georgia became the 179th member of the UN. Presently Georgia is also a member of various other international and
regional organizations.
In February and March of 1993, the Parliament of Georgia formed
the State Constitutional Commission, presided over by Eduard
Shevardnadze, and commissioned it with preparation of a new edition of the 1921 Constitution
of Georgia. All the representatives of the Parliamentary factions (more than
half of the entire composition), a large group of lawyers, policy experts and
economists, and famous people of the Republic formed the Commission.
On August 24, 1995 the newly elected Parliament of Georgia adopted a new Constitution. The
majority expressed their wish and ability to solve the fundamental problems of
government authority and individuals not by violence, but only on the
basis of the Constitutional Justice.
On
Several days after the Rose Revolution, the same rank-and-file
citizens who spent day and night in the pelting rain before the parliamentary
building said: “We were not the blind weapon in the political struggle for
power. Rather, we were defending ourselves in those days”.
The lead-up to the pre-election period gave a good
indication of the fierceness of the struggle for mandates. Though parliamentary
elections officially involved 23 parties and party blocks, the essential fight
for mandates was held only among several parties, among them: President Shevardnadze’s party bloc “For New
Georgia”, “Renaissance Union” “National Movement”, “Burdjanadze-Democrats
Bloc”, “Labor party”, and the “New Rightists”. Some experts named the “Industry
Will Save Georgia” Party also on the list of favorites. However, many doubted
its ability to pass the seven-percent barrier.
Given the style and characteristics of the President’s
rule, all concerns appeared to be fairly well founded. It may be that Eduard
Shevardnadze was not a dictator, but he stood behind the old regime, which bore
signs far more dangerous than the dictatorship itself. It was a system full of
corruption, whose bounds flourished beyond the limits of the imagination. As
early as 1998, World Bank experts put out the catastrophic results of their
survey: all branches of government, including parliament, appeared to be
corruption-riddled.
This system put a drain on the state coffers, not to
mention on the economic development of the country. The shadow economy reached
enormous scales, while the large majority of the population continued to live
below the poverty line. In parallel, word was spreading widely in the press of
millions of dollars missing and placing blame on public officials. However,
none of them appealed in any sign of protest, instead just calling these charges
a “dirty battle” against them.
From autumn of that year on, the number of visits by
representatives of international organizations increased considerably. The
members of the OSCE Observers Mission held meetings with the leaders of the
Georgian political parties. “The country’s stay within the Council of Europe
depends on the conduction of elections” – Western diplomats repeated often.
What they required of the Georgian authorities was a particular attention to
elector lists, as well as the political independence of election commissions.
In the same period, opposition parties began to speak out
loudly on the clampdown measures employed by the government. “The executive
authorities do not allow opposition parties to meet those employees of
budgetary organizations, who declare their support for them,” party
representatives are quoted as saying.
The Central Election Committee adopted a resolution to
instruct the ministers of Justice and Internal Affairs, as well as the local
and self-governing bodies, to redress all errors before October 18. The basis
for this resolution was provided by the New Rightist Party, who submitted
evidence revealing the growth of the number of electors in one of the precincts
by 650,000. Unofficial indications are that there are over 3 million electors
in
From then on, a joke gained currency in
The day of the elections there was complete chaos in the
elector’s lists, incompetence and total ignorance of election commission
members, permanent breaches of provisions of the electoral code, unprecedented
and unlawful decisions adopted by CEC, contradictory statements on previous
polls by political parties and an absence of official information from the CEC.
How events were unfolding in those days is difficult
to describe without emotion. The country was confronted squarely with the
prospect of an armed conflict. In those decisive hours, the President’s
entourage promoted the illusion of civil clash, bringing in scores of policemen
in civilian clothes from Adjara.
November 23,
On
The President, who was both the Head of State and had
executive power, is now solely the Head of State. The President, as Head of
State, ensures the proper governing of the country and leads domestic and
foreign policy. He ensures the unity and integrity of the country and the
coordination of state bodies. In this, he has the role of arbitrator in their
activities. The President is the supreme representative of the country within
and outside the country – in foreign relations, in the conclusion of
constitutional agreements (on the bases of the changes on March 30, 2001),
international agreements and treaties, and negotiations with foreign states; he
receives and accredits ambassadors and other diplomatic representatives of
foreign states and international organizations, and awards highest diplomatic
ranks.
The President is also authorized to conclude
constitutional agreements with the apostle autocephalous Orthodox Church of
Georgia on behalf of the state. The President takes decisions on granting
citizenship, honorary, citizenship and dual citizenship to a person who has a
special merit before
The President has extensive powers in the field of
state security and defense. In particular, he establishes the national Security
Council, which he heads. Its purpose is military institutional building and the
organization of state defense. The members of the Council are appointed by the
President.
The President is the supreme Commander-in-Chief of the
armed forces. He appoints and dismisses the Head of the General Staff of the
Armed Forces and other commanders. The President approves the structure of the
armed forces.
The President participates in the organization of the
judiciary power; in particular, he is the chairman of the Supreme Council of
Justice. He appoints four members to the Supreme Council of Justice (under the
role defined by law) and three members to the
The President appoints the President of the National Bank.
The President may call for a referendum, sign and promulgate laws, issue
decrees and ordinances, and award state honors, highest military ranks or
special and honorary titles. The President also establishes the presidential
administration and appoints its chief.
We would like to address separately to the President’s
other authorities in terms of their relation with the Parliament or Government
as far as their execution is directly linked to them.
According to the Constitution of Georgia, the Parliament is the supreme legislative power of country. It is
made up of 235 members, 150 of whom are elected on the basis of a proportional
representation (PR) system, and 85 of whom are elected from single-mandate
districts in accordance with the majoritarian
system (electoral systems that do not result in proportional
representation are known as majoritarian systems). The Parliament is elected
for a four-year term on the basis of free, universal, equal and direct suffrage
by secret ballot. It is unicameral, although when Georgia regains its territorial
integrity it is intended to be transformed into a bicameral body.
Parliament exercises legislative power, determines the principal
directions of domestic and foreign policy, and controls the activity of the
Government. Parliament has extensive power in any democratic country, and the development and progress of a
country to a large extent depends on it. The Parliament has a legitimate
opportunity to make decisions of political and state-importance and
establish the legal base for the progressive development of the country.
Legislative activity (i.e. law making) is the
exclusive right of the Parliament. Although the President has the right not to
sign a law and to veto it, he does not have an absolute right to stop a law, as
Parliament may negate the veto. The Speaker of Parliament is authorized to sign
and promulgate a law if the President refuses to sign it a second time.
Parliament is also charged with the revocation of a
member of the Parliament, as needed; election of the Speaker and Vice-Speakers
of Parliament; the establishment of the internal entities; ratification,
denunciation and cancellation of international agreements and treaties, and the
adoption of decisions.
Parliament elects three members of the
It is the exclusive right of Parliament to call for
the impeachment, under the rule establishment in the Constitution, of persons in
question. Parliament shall be notified about international agreements and
treaties that do not require ratification. We shall review other authorities of
the Parliament in relation with the President and Government.
The President schedules the date of parliamentary
elections (no later than 60 days beforehand), as well as extraordinary elections.
He schedules the day of the first sitting of the Parliament within 20 days
after the elections.
Parliament defines the major tendencies of the
development of the country’s internal and foreign policies, while the President
leads and implements them. The President has the right to convene a special (extraordinary)
session or sitting. However if such an initiative comes from Parliament and the
President fails to issue the act of convocation, the Parliament is obliged to
start its work within 48 hours.
A state of emergency or martial law is also declared
by the President. However, he submits the decision (ordinance) to Parliament
for approval within 48 hours. If parliament will not approve it, the state of
emergency or martial law is considered annulled.
The Constitution foresees the issuance of decrees by
the President having the force of law only in the case of state emergency or
martial law. The decrees issued during martial law or a state of emergency
shall be submitted to Parliament within 48 hours for approval.
The President cannot use armed forces during the state
of emergency or for the execution of international liabilities without the
consent of the Parliament. In special cases, and as foreseen under the law, the
President makes the decision on bringing other armed forces into the country, including
their use and allocation for the purposes of the self-defense of the country.
However, the decision is first submitted to Parliament for their approval.
Parliament elects the Chairman of the Supreme Court
and members of the National Bank Council upon the nomination of the President.
The President nominates a Prosecutor general before Parliament for appointment.
The special authority – assigned to the President
against the Parliament within the framework of the Constitutional changes – is
the right of its pre-term dissolution. This was one of the critical issues that
were quite topical during the adoption of the changes, with the idea having its
supporters and opponents. The supporters believed that if Parliament had the
right to declare no-confidence in the Government, then the principle also requires
entitling the President to dissolve Parliament. Those in opposition believed
that the dissolution of the Parliament would cause a crisis in the legislative
power, as
There are countries where the dissolution of a
one-chamber parliament is constitutionally possible, such as
The existence of such practice in foreign countries
does not mean that it is acceptable. The right to dissolve the Parliament is
unanimously assessed negatively in legal and political literature. It is
underlined that in this case, legislative power falls under the influence of
the President and practically becomes the unconditional executor of his
policies. This is against the principle of supremacy of the Parliament. Affected
by such threat, the Parliament can never be courageous in its decisions.
Consequently the following question arises - do people need such an obedient
representative body that fails to act as an effective and actual counterbalance
of the President, and is not able to declare no-confidence in an irresponsible
Government, especially if the Government is the team of the president (except
the unconditional no-confidence)? In this case the boldness of Parliament – to
sacrifice their seats and numerous social and legal privileges for the
interests of the country and nation – remains the only chance. Such a step
requires a choice that is up to Parliament and depends on the willingness of
Parliamentarians to prioritize between themselves and the good of the country.
Parliamentary crises do not take place in countries
with a bicameral (two chamber) system because, as a rule, if the lower chamber
is dissolved, parliamentary functions are still executed by the upper house. A
crisis is inevitable in the case of dissolution of a one-chamber parliament,
until new parliamentary elections can take place. According to the
constitutional changes, extraordinary elections are held not earlier than 45
days and not later than 60 days before the enforcement of an order on the
dissolution of the Parliament i.e. that the country might stay without
Parliament for two months and all the activities executed by the legislative
body shall be terminated for two months.
The President is not authorized to dissolve Parliament
unconditionally upon his/her initiative. This can be done only in cases
foreseen under the constitution. In particular:
a) In case the Government and its program submitted by
the President does not gain the confidence of the Parliament three times, the
President can dissolve the Parliament and schedule extraordinary elections,
forming the Government himself. He appoints the Prime Minister and the latter
appoints ministers upon the consent of the President. This is quite a complex
situation, when the dissolution of Parliament is almost justified. If
no-confidence shall be declared in the Government three times, in turn, the
President should have the opportunity to avoid a government crisis by applying
the mentioned measure;
b) In case Parliament declares no-confidence in the
Government and the President does not agree with this decision, Parliament is
entitled to declare no-confidence in the Government again not earlier than 90
days and not later than 100 days. In these circumstances, the President might
dissolve the Parliament. If the Government fails to execute its functions and program
relevantly and Parliament declares no-confidence twice, the President in both
cases may conclude that the issue is more likely to be resolved if the
Government is appointed by him, whereas the Parliament is the opposition;
c) Parliament may be dissolved when the Prime Minister
puts the question of the confidence of the Government on the State Budget, Tax
Code and Procedure of the Structure, Authority and Activity of the Government.
If Parliament does not declare confidence in the Government, the President
gains the authorization to dissolve parliament again.
These are the three cases which are foreseen under the
constitutional changes; however, none of the conditions can serve as a basis for
the dissolution of Parliament if:
In cases when the impeachment procedure is carried
out, the President in not entitled to dissolve Parliament. Impeachment may be
initiated in case of violation of the Constitution, commission of high treason
and other criminal offences. Parliament initiates the procedure of impeachment
regardless of whether there is the actual threat of its dissolution or not. The
fact that Parliament may do so for the reason to blackmail the President or to
avoid its own dissolution is baseless, since the principles of impeachment are
defined in the constitution and its initiation without the motivation is
inadmissible in any case. Moreover, during the procedures of the confidence or
no-confidence in the Government, it is impermissible to put the issue of the
dismissal of the President in accordance with the impeachment procedure.
The dissolved Parliament assembles in the case of a
declaration of a state of emergency or martial law by the President, to decide
on the issues of prolongation or approval of the state of emergency or martial
law.
If Parliament fails to meet within five days or does
not approve (prolong) the order of the President on the declaration
(prolongation) of a state of emergency, the announced state of emergency is
cancelled. If Parliament does not approve the order of the President on the
declaration (prolongation) of a state of martial law within 48 hours, the state
of martial law shall be cancelled. The President submits the decision on
reconciliation to the Parliament for approval within 48 hours.
The President needs the consent of Parliament to
suspend the activity of self-government or other representative bodies of
territorial units, or dismiss them in cases foreseen under the constitution.
The President, upon the consent of Parliament, appoints and dismisses
ambassadors of Georgia and other diplomatic representatives.
Under the new constitutional changes, the President
gained a new important right to issue decrees on tax and budgetary issues
during the period from the dissolution of Parliament to the first convocation
of the new Parliament. However, the decree shall be invalid if it is not
approved by the newly elected Parliament within a month of its first
convocation. This decree shall be effective for four months, which is not
considered to be that short of a time in the tax and budgetary field.
If the President exercised the right of legislative
initiative without any restriction before the constitutional changes, he now
enjoys this right only in “exclusive cases”. Upon the President’s request,
Parliament considers the draft law submitted by him out of turn.
The President submits a report to Parliament on
important state issues once a year.
If the President is unable to execute his/her
authority, or in case of pre-term termination of his/her office, the Speaker of
Parliament exercises the responsibilities of the President. A person acting as
the President acts within the framework defined under the Constitution.
Parliament provides for the conduct of pre-term elections.
These issues are considered as the most important in
terms of the relation between the President and Parliament. They execute mutual
control and keep balance for the purpose of avoiding the imbalance of the power
and development of negative tendencies.
The Government is now based upon a
collective government model. The Government did not exist as a state body
before. It was the President's deliberative advisory body; the members answered
to the President. The ineffective activity of the executive body was commonly explained
by the lack of unity and collegiality of the Government. The way out from this
situation was the imposition of joint liability and joint support, and the promotion
of the government program.
The competence of the
Government, its relations with the President and Parliament, and the rule of
its establishment and procedure seem to be characteristic of a
semi-presidential or so-called mixed system. However, the issue of whether
According to the
constitutional changes, the Government exercises executive power as well as
"the internal and foreign police of the country", although this
function is also included in the President's competence. Subsequently, to avoid
duplication, it was necessary to make a distinction and note that the
Government "ensures the exercise of the internal and foreign policy within
the frame of its competencies".
The Head of the Government -
the Prime Minister - convokes and chairs
Government sessions and signs decisions, statements and orders taken in
cabinet.
The Government is
responsible to the President and Parliament. This is important from the legal- political
view. It refers to elements from the republican model of government.
Due to the Government’s
joint responsibility, the resignation of the Prime Minister or the termination
of his/her authority results in the termination of the authority of the Government.
The President is not the head of the executive and the
Government is not his advisory body. However this does not mean that their
interrelation is insignificant. On the country, as we will see, the Government
for the most part depends on the President. They are so closely interrelated
that it leaves the impression that the President has such an influence on the
Government that the latter may turn out to be inactive and powerless without
the President.
After the President takes the oath of inauguration,
the previous Government resigns. The President is entitled to oblige the old
Government with the exercise of the duties before the appointment of the new
Government.
The President submits the new composition of the
Government to Parliament for approval. In a case of not receiving confidence in
the new government, the President is entitled to submit the same composition
three times, and in case of still not gaining the confidence the President is entitled
to appoint the Prime Minister. The Prime Minister then appoints the Ministers
upon the consent of the President i.e. the composition of the Government can be
carried out ignoring Parliament and without its participation. This is an
example of when the President is expected to be an individual decision-maker in
the formation of the Government. It should be mentioned that the President then
submits the new Government to the Parliament once again. However, the Constitution
is silent about receiving a confidence vote from Parliament this time around.
The President is authorized to convene and preside
over government sessions with regard to issues of exclusive state importance.
The decision adopted at the session is formed by act of the President. Issues
of exclusive state importance cannot be a matter of subject appraisal. The
Prime Minister should not be ignored by the President.
The President is authorized to suspend and annul the
acts of the Government and executive bodies if they are in contradiction with
the Constitution. This norm seems itself unconstitutional, as the decision on
this matter has to be taken by the
Apart from cases foreseen under the Constitution, the
President is authorized to dissolve the Government upon his/her own initiative.
Apparently, facing the following threat - when the President is entitled to
dissolve the Government without any motivation and upon his/her own opinion -
the latter will do their best not “to upset” the President and not to cause any
confrontation. For the purpose of releasing the government from constant fear,
it would be better to dissolve the Government only in the cases foreseen under
the Constitution, and not at any time the President wishes. Relevantly, the
Government, from its part, would try by its activity not to allow the
precedent, which provides for the application of such measure by the President.
The President appoints the Prime Minister and gives
the Prime Minister consent to appoint ministers. The President may dismiss the
Prime Minister. He solely dismisses the Ministers of Internal Affairs, Defense
and State Security. They report to the President together with the Prime Minister.
The Prime Minister introduces and annuls the position
of the State Minister (minister without portfolio working on specific, ad hoc
issues), and dismisses him/her by the consent of the President.
The Minister hands his/her resignation to the
President, who makes the relevant decision. It would be more reasonable if the
minister addresses the Prime Minister on the issue of his/her resignation
because it is the latter who appoints him/her to the post, even though it is
with the consent of the President. However, it would be better if the Minister,
as a member of the Government, could address the Head of the Government
regarding these issues.
The fact that the Prime Minister is not entitled to
appoint or dismiss even deputy ministers confirms that the position has rather
limited power. Such a limitation of the Prime Minister is unreasonable.
The Government and the members of the Government give
their resignations to the President. The structure, authority and rule of
procedure of the Government is determined by the Constitution and law, the
draft of which is submitted to Parliament by the Government, but only upon the
consent of the President. The President gives consent to the Government on the
submission of the draft of the state budget to Parliament.
The case when the Prime
Minister may exercise the responsibilities of the President is very significant
in terms of the relationship of the President with Government. This takes place
when the performance of the mentioned duties by the Speaker of Parliament is
not possible.
According to the procedure
typical for mixed-form governing, the Parliament participates in the formation
of the Government together with the President. At the same time, the Government
is accountable to both of them. The level of this accountability as well as the
form of influence of the President and Government over the Parliament varies
from country to. In
Parliament is entitled to
submit the question of official liability of a particular Member of the
Government to the Prime Minister, and in case the Prime Minister does not
dismiss the member of the Government, he/she is obliged to submit the motivated
decision on the issues to the Parliament.
The member of the Government is entitled, and in case of request obliged, to attend the sittings of Parliament, its committee or Commission, to answer questions raised at the sitting and submit an account on the alleged activity. This measure is considered a form of individual control over the Government by Parliament. Parliament is entitled to begin an impeachment procedure against a member of the Government who violates the Constitution, co
