Referendum or not?
The recent agreement between the ruling party and several opposition parties on election system changes includes, among other things, raising the number of MPs from the current 150 to 190. This would of course require constitutional changes which the ruling party, with its constitutional majority in the current Parliament, can achieve without any outside help. But it looks like it might be up to the voters to decide this particular case through a referendum.
Parliament was shrunk to its current 150 members (from 235) in February 2005, based on a November 2003 referendum initiated by the ruling party in which over 80% of voters supported the reduction. According to Organic Law on Referendum, the outcome of a referendum may only be challenged through another referendum, or ruled unconstitutional by the Constitutional Court, and annulled accordingly (Art 28.4 and 28.5). Up until now no doubts have been cast on the constitutionality of that particular referendum.
However, in the past few days, at least two leaders of the ruling UNM party (Mikheil Machavariani and Akaki Minashvili) have made statements presenting following arguments:
- Article 3.2 of the Organic Law on Referendum prohibits referenda for introducing or abolishing legislation, among others. Hence, the 2003 referendum results must be void, since any amendment to legislation is a separate law in itself.
- The law on Referendum says that referenda must be held on the entire territory of the country. And given that a substantial part of Georgian territory is outside effective control of Georgian government, this provision would be impossible to fulfill.
The Constitution itself stipulates in Article 94.4 that any introduction of a new tax or increase in the maximum rates of existing taxes must be affirmed through a referendum initiated by the government. The UNM's reading of the Law on Referendum apparently conflicts with this constitutional requirement, since a new tax is also a new law.
As for the second argument, it is not only the referenda that are to be held on the entire territory, but elections too, among others. And that fact that elections cannot objectively be held on the territory of Abkhazia and South Ossetia do not automatically render Georgian national elections invalid.
We regret that legislation and policy making, even on issues as important as electoral system changes, seem to be guided more by short term partisan interests, rather than legality and constitutional process, leaving Georgian voters on the sidelines. We call on the government and all Georgian parties to respect Constitutional principles and the Georgian electorate.