Opinion on Pending Amendments to the Organic Law of Georgia – “Election Code of Georgia”
Georgian Young Lawyers’ Association
International Society for Fair elections and Democracy
Transparency International – Georgia
The Central Election Commission (CEC) has proposed a package of amendments to the Parliament of Georgia introducing changes in the organic laws of Georgia - the Election Code of Georgia, the Law on Political Associations of Citizens, and the Local Self-Government Code of Georgia. According to the author of the package, if adopted the amendments will improve norms of the Election Code, remedy its flaws and simplify some electoral procedures.
We believe that some amendments contained by the bill will improve electoral norms, including, for instance, amendments that define the notion of votes cast during an election, determine the time when electoral procedures should begin, specify the right of non-governmental organizations to lodge appeals in the non-electoral period concerning electoral lists and setting up of electoral districts, simplify registration procedure for nongovernmental and media organizations, specify the group of individuals that may be appointed as representatives of an electoral subject, specify regulations on membership of voters initiative groups, and more.
At the same time, many of the proposed amendments are not responsive to the goal declared in the explanatory note of the bill and may negatively effect the electoral environment. These amendments include, for instance, amendments indicating that presence in representations of political parties will no longer be considered canvassing; amendments that, if adopted, will increase chances of employing a commission member, who has previously committed a violation, in the electoral administration system and more.
We present to you a joint opinion of the Georgian young Lawyers’ Association, the International Society for Fair elections and Democracy, and Transparency International – Georgia about the pending amendments.
- Narrowing down the notion of canvassing
Subparagraph “z8” of Art.2 of the Election Code of Georgia shall be formulated the following way:
“Z8) Canvassing - appeal to voters in favour of or against an electoral subject/candidate, as well as any public action facilitating or impeding its election and/or containing signs of election campaign, including the participation in organisation/conduct of pre-electoral events, preservation or dissemination of election materials, work on the list of supporters.”
Based on the amendment, presence in political party representations will no longer be considered canvassing. Under the electoral legislation, commission members are prohibited from canvassing or participating in canvassing during the pre-election period, whether they are party-appointed members of electoral commission or not. The amendment is problematic because during pre-election periods cases of civil servants present at party offices during work hours and engaged in party activities have been found. In the past, such facts also involved commission members.
We find that the proposed amendment will encourage such facts and civil servants/commission members will be even more involved in party activities, and it will be even more difficult to draw the line between parties and civil service. The reason for such amendment or how it will promote improvement of the electoral environment is unclear. We believe that these changes will have an absolute opposite effect.
- Abolition of special envelopes
Para. “z12” of Article 2 of the organic law of Georgia – Election Code of Georgia shall be formulated the following way:
“z12) electoral documents – applications, complaints, letters, business correspondence, protocols, ballot papers, legislative acts of the Electoral Administration of Georgia, registration books, lists of voters, voter invitation cards, statement of a member of an electoral commission, incoming and outgoing at an electoral commission.”
Special envelopes will be abolished starting from 1 January 2019. According to the proposed changes, a special envelope is not a document of strict registration and its use no longer has a meaningful purpose or function.
Abolition of electoral envelopes may simplify vote-counting process but it may also increase the risk of vote rigging, as absence of envelopes will make ballot stuffing easier if there is an intention of electoral fraud.
- Prohibition of recording or otherwise processing nonpublic information at a polling station
Para.25 of Art.8 of the Election Code of Georgia shall be formulated the following way:
“25. An individual authorized to be present at a polling place, not including the polling booth, as well as an individual authorized to attend a commission meeting, may carry out photo/video recording without interfering with the commission session. Photo/video recording or otherwise processing of information or data not categorized as public information pursuant to this law is prohibited, except when such recording or processing is allowed by this Code.”
Article 8(25) of the Election Code prohibits “Photo/video recording or otherwise processing of information or data not categorized as public information pursuant to this law, except when such recording or processing is allowed by this Code.”
According to the authors, the amendment targets the practice of illegal processing of personal information at polling stations. While we agree with this idea, we also believe that the stipulation “except when such recording or processing is allowed by this Code” – should not leave room for any interpretation that would run against purposes of the law. It subsequently raises the following question: in which particular case is “such processing or recording allowed by the Election Code when the information concerned does not fall under the category of public information?” In addition, the notion of “otherwise processing” is quite broad and it may be used to limit rights of observers.
- Abolition of the term of effect of liability imposed for electoral violations
Subparagraph “c” of para.5 of Article 12 of the organic law of Georgia – Election Code of Georgia shall be removed.
Based on the existing Election Code, a person who has violated the electoral legislation of Georgia and the violation is confirmed by the court may not be elected/appointed as a CEC member, within eight years after the court decision comes into force.
Following abolition of the prohibition, an individual who has been found in violation of electoral legislation by court may still be employed by the electoral administration, which we categorically disapprove. We believe that the proposed amendments will not be effective in reducing and/or preventing electoral violations and moreover, individuals that violate the law will be put at an advantage compared to other candidates since they will easily meet the criteria about having electoral experience. This will put them in an advantageous position compared to other candidates that lack electoral experience but are qualified and have unblemished reputation. As a result, we may find ourselves in a situation where commission of electoral violations may be rewarded since perpetrators of such violation will still be able to return to the electoral administration and find a job with an electoral commission without any trouble. This renders imposition of a liability for violating the electoral legislation pointless.
We believe that the term of effect of liability for such violation should not be abolished but reduced – for instance, the limitation period may be reduced from 8 to 4 years.
- Prescribing one-year term of effect for a disciplinary liability and relieving of liability in less than a year after it was imposed
The following subparagraph “y1” shall be inserted in subparagraph “y” of Article 14(1) of the organic law of Georgia – Election Code of Georgia:
“y1”) by ordinance determine the terms for relieving district and precinct electoral commission members of liability early.”
The following paragraphs 5 and 6 shall be inserted in Art.28 of the organic law of Georgia – Election Code of Georgia:
“5. A member of a commission is considered to be subjected to disciplinary liability within 1 year after a measure of disciplinary liability was imposed on him/her.
6. Relevant higher electoral commission shall be authorized to relieve a commission member of liability early. Disciplinary liability shall be relieved early in accordance with the rule used for imposing the liability.”
The amendment reduces the term of effect of disciplinary liability imposed on a commission member and such member is considered to be subjected to disciplinary liability only within the period of 1 year after the liability was imposed on him/her. In addition, the amendment allows a higher commission to relieve a commission member of a disciplinary liability early.
While such regulation (establishing a one-year term of effect for a disciplinary liability) may be relevant for civil service, it is most certainly unacceptable for electoral administration. It will only increase violations and promote existence of poorly qualified personnel who will be well-aware that no violation or liability may prevent their future employment at the electoral administration.
In view of peculiarity of elections, we believe that a two-year term of effect should be established for a disciplinary penalty instead of the one-year term of effect. In addition, relieving of liability should not be allowed for a disciplinary liability with a two-year term of effect, as in view of peculiarity of elections, it would be impossible to evaluate the grounds that may serve as relieving a person of disciplinary liability.
- The CEC will no longer maintain the database of electoral commission members subjected to disciplinary punishment
Subparagraph “z1” of Art.14 of the organic law of Georgia – Election Code of Georgia shall be formulated the following way:
“z1) The CEC shall maintain the database about electoral commission members who were dismissed from the Electoral Administration office by an election commission or court for violating the electoral legislation of Georgia.”
Based on the amendment, the CEC will no longer maintain the database of individuals who violated the electoral legislation of Georgia and the violation was confirmed by court, and who were imposed disciplinary liability measures for culpable nonperformance or improper performance of their official duties.
We disapprove of the amendment. Maintaining the database is important for taking the information into account in the process of selection of commission members and ruling out easy re-employment of individuals that have violated the law. The reason why the CEC should no longer maintain the database is unclear.
- Stripping the CEC of the power to review election results
Subparagraphs “j” and “k” of Art.14(1) of the organic law of Georgia – Election Code of Georgia shall be formulated the following way:
“j) on its own initiative or based on an application/complaint, under the procedure determined in this Law for resolution of electoral disputes, verify the legality of decisions and acts of electoral commissions, their officials, and if any violations is identified, cancel or change them by its decree.”
The provision authorizing the CEC to decide by decree on opening of packages from the respective PEC and re-counting of ballot papers/lists of voters will be abolished. We categorically disapprove of stripping the CEC of this very important power, as the proposed amendment will exclude the possibility of revising election results at the CEC level. This will undermine the standard of public confidence in the electoral administration as an independent institution with credible reputation. The reasoning behind stripping the CEC of such power is unclear.
- Changes in the rule of appealing
Para.3 of Art.72 of the organic law of Georgia – Election Code of Georgia shall be formulated the following way:
“3. The PEC chairperson shall immediately respond to the application/complaint and eliminate any existing violation. If the commission chairperson fails to eliminate the violation, or otherwise refuses to respond to the application/complaint, the observer/representative of an electoral subject or other observer of the same monitoring organization/other representative of an electoral subject may immediately appeal the action of the PEC chairperson before relevant DEC.”
Paragraphs “2” and “3” of Art.73 of the organic law of Georgia – Election Code of Georgia shall be formulated the following way:
“2. An application/complaint about violations that occurred during the procedure of counting votes or summarising polling results shall be drawn up until drafting of a summary protocol, as prescribed by Art.72 of this Law.
3. A PEC secretary shall register the application/complaint referred to in the second paragraph of this article in a log-book. The PEC/PEC Chairperson shall immediately and adequately respond to the application/complaint and eliminate the existing violation. If the commission chairperson and/or the commission failed to eliminate the violation or otherwise refused to respond to the application/complaint, the observer/representative of an electoral subject or other observer of the same monitoring organization/other representative of an electoral subject may immediately appeal the action of the PEC/PEC chairperson before relevant DEC within two days. The DEC shall consider the application/complaint within two days after it was received.”
The following para.6 shall be inserted in Art.74 of the organic law of Georgia – Election Code of Georgia:
“6. PEC summary protocol of polling results and polling results at a polling station shall be appealed based on the rule provided in para.2 of Art.77 of this Code.”
According to these amendments (Art.73.3), if the PEC chairperson and/or the commission failed to eliminate a violation that occurred during counting of votes or tabulation of polling results, or otherwise refused to respond to the application/complaint, action of the commission/the commission chairperson can be appealed before relevant DEC.
The reason why such changes are needed is unclear, while under the existing regulation a PEC is not authorized to consider such type of complaints and it may only accept them to hand them over to the DEC. The Election Code also provides for the right to record a comment in the book of records if needed, which the PEC can respond to adequately and afterwards mark the violation as “eliminated” in the book of records.
We believe that instead of making the process healthier the changes will create more difficulties at polling stations, especially considering that PEC members have a negative approach towards filing of complaints, which creates tension among PEC members and observers. In addition, the mandatory requirement to submit complaints at a polling station is completely unjustified, since in most cases in view of content of violations and demands it is pointless to file a complaint with a PEC as it cannot respond to the violation anyway or is unauthorized to consider the complaint. In such cases, the mandatory requirement to file complaints with a PEC is unreasonable and it will only increase number of complaints. This leads us to suspect that the purpose of introducing such requirement is to create additional obstacles and difficulties for those who wish to file a complaint. In addition, inconsistencies in interpretation of electoral norms may be revealed in practice, which in many cases will allow the electoral administration to leave complaints filed with higher electoral commissions without consideration.
- Summoning a party to a trial
The following paragraph 33 shall be inserted after paragraph 32 of Art.77 of the organic law of Georgia – Election Code of Georgia:
“33. Courts shall immediately notify the CEC about complaints/applications lodged before common courts concerning electoral disputes by courts. Further, relevant court shall provide the CEC with a decision related to a pending case on scheduling of a trial and engaging third parties, to be immediately published by the CEC on its website. Three hours after such decision is published on the website, the decision shall be considered to have been handed to the third parties and they shall be considered to have been summoned to the trial.”
We believe that the power of summoning third parties to a trial should not be exclusive to the electoral administration. In addition to the CEC website, information about summoning of third parties to a trial should also be published on the court website.
- The timeframe for examining a complaint by an appellate court
Para.2 of Art.77 of the organic law of Georgia - Election Code of Georgia shall be formulated as follows:
“2. Decisions of PEC/head of PEC may be appealed to the relevant DEC within 2 calendar days after decisions are made. The DEC shall examine the appeal within 2 calendar days. The decision of the DEC may be appealed to the relevant district/city court within 2 calendar days. The district/city court shall examine the appeal within 2 calendar days. The decision of the district/city court may be appealed to the Court of Appeals within 1 day after the decision is made. The Court of Appeals shall examine the appeal within 1 calendar day. The decision of the Court of Appeals shall be final and may not be appealed.”
The Court of Appeals will no longer wait for expiration of the deadline for appealing. Instead, it will consider the appeal within 1 calendar day after the decision is made. We believe that the existing provision stipulating that the Court of Appeals will examine the appeal within 1 calendar day after expiration of the deadline for appealing shall remain in para.2 of Art.77.
- Restricting the right of a presidential candidate to withdraw from a second round of elections
Para.5 of Article 100 of the organic law of Georgia – Election Code of Georgia shall be formulated the following way:
“5. A candidate for President of Georgia may withdraw his/her candidacy at any time no later than 12 days before polling day by filing a written application to the CEC.”
The following para.31 shall be inserted in Art.105 of the organic law of Georgia – Election Code of Georgia:
“31. The rules provided in para.5 of Article 100 of this Code shall not apply to candidates participating in a second round of elections.”
A presidential candidate will no longer have the right to withdraw from a second round of elections (art.105.31). This renders holding of a second round pointless as the opportunity of making a real choice will be taken away from voters and financial resources spent for holding of elections would be wasted.
We believe that a candidate should be able to withdraw from a second round if he or she no longer wishes to participate in the election. In case an electoral subject wishes to withdraw from a second round of elections, the law should ensure competitiveness and the right of other candidates to stand.
We recommend replacing a candidate, who no longer wishes to participate in a second round, by next successful candidate.