Constitution of a democratic country represents supreme law based on national consensus and serves as an internal legal guarantee for human rights protection. It must include the principles and framework of democratic state governance model chosen by the people, democratic checks and balances, as well as efficient architecture of national security system, all of which together ensures good institutional governance and security of the country.
Constitutional Reform Process
Constitutional reform is legitimate and successful if based on broad public and political consensus and carried out with adequate civic engagement. This can be achieved only through open, transparent and substantial discussions and compromise making. Importance of reaching broad consensus on constitutional reform issues is clearly emphasized also in the recommendations of the Venice Commission.
Unfortunately, the principles reflected in the draft constitutional changes do not have broad supporting public and political circles.As drafting process did not ensure adequate civic engagement, the risk is high that the document adopted through such process will lack society’s support and respect, as well as legitimacy and will fail in fostering national unity. This will definitely have a negative impact on stability in the country as well as on its democratic development.
Some principles outlined in the draft constitutional changes directly contradict the public will. For example, despite recent opinion polls showing that the direct elections of the President is supported by 92%of the population, the mentioned changes abolish direct elections of the President, which have been an integral part of Georgia’s democratic governance tradition since the restoration of its independence.
National Security Architecture
The draft of the new constitution, due to serious shortcomings, fails to establish efficient institutional and legal framework for crisis management, as well as for the development, execution, coordination and supervision on the implementation of the national security policy. Main principles of democratic and civic control over armed forces, law enforcement structures and special services are also not clearly set in this draft document.
Moreover, neither local experts on defense and security matters, nor representatives of strategic partners and relevant international organizations were consulted at any stage of the development of these fundamental changes to the national security architecture.
National Security System during Peace, Crisis and War
Among the major substantial shortcomings of these draft constitutional changes are the principles regulating planning within and management of National Security System and relevant competencies during peace, crisis and war reflected in them, which are vague and problematic at the same time.
It is very worrisome to see inconsistency with democratic standards, ambiguity, and even contradictory approaches in some of the revised articles proposed by these draft changes that among other things concern the use of military and other armed forces, in particular:
Article 70 (para 3) introduces the notion of other military forces without clarifying what kind of forces they are and under what kind of control they operate. This entails significant risk of establishment of special armed units outside of meaningful democratic control, what is consistent with the Soviet, and not the democratic standards. Moreover, this article also stipulates that apart from ensuring independence and sovereignty, military and other armed forces will be used for meeting "other security related tasks", what allows for undesirably broad interpretation of the rationale behind their possible use;
Article 70 (para4) stipulates that military forces operate based on defense minister's order and the rules provided in the legislation. The above mentioned, can be interpreted as a right of the defense minister to use military forces at will, including against peaceful protesters, even when there is no officially declared emergency or war situation. During the emergency and wartime situation, the liberty of use of the military forces is given to the Prime Minister;
Article 72 is contradictory and does not comply with the principles of democratic control. According to its para 1, the decision on use of the military forces is initiated by the Prime Minister and taken by the President, which he immediately presents to the parliament for approval. However, this para also stipulates that during wartime, natural or manmade disasters or epidemic, Prime Minister has an authority to decide on use of military forces, with no parliamentary approval required. This article also contradicts to the President's authority of the Commander-in-Chief. Military forces must not be employed without the decision of the Commander-in-Chief and parliamentary approval. It’s understandable that in special cases, such as natural disasters and epidemic, when rapid reaction is needed, the preliminary parliamentary approval on use of the military forces might not be obligatory;nevertheless, in such cases, obtaining parliamentary approval post-factum, within 48 hours must be required.
Management of Security System on National Level and its Democratic Control
According to accepted international practice, each constitution, through inclusion of specific democratic check and balances, insures those major threats and risks that are more relevant in case of given country stemming from its history of state governance and political culture. In Georgia, such main risks include an arbitrary one-party rule and excessive consolidation of power under the executive branch. The draft constitutional changes, instead of decreasing, increase such risks.
According to these changes, the presidential powers on defense and security matters are dramatically reduced. Changing the rule of direct elections of the President also significantly limits the independence and legitimacy of the President. At the same time, these changes drastically increase the powers of the Government and the Prime Minister, while, to balance such a shift, they do not provide for efficient democratic control mechanisms on the executive branch.
Apart from decrees adopted during wartime and state of emergency, to enter into force, practically all legal acts on defense and security matters issued by the President require preliminary co-participation or countersignature by the Prime Minister. Thus, instead of institutionalizing mutual checks and balances, such changes give full control to the government over the President.
It also must be mentioned that banishing National Security Council from the Constitution effectively dismantles the body that should ensure appropriate review and coordination of significant security matters on a national level. Such a change eliminates the institutional mechanism for efficient, coordinated management of the country’s security system on the national level. It also disregards the principle of adequate democratic control to be achieved through co-participation in decision-making of the relevant institutions of different branches of power on important matters of national security.
According to the proposed constitutional changes,to ensure overall coordination on national security and defense matters during the wartime, the National Defense Council is to be created only after declaration of war. The Council must cease functioning as soon as peace is established. The National Defense Council will only be called after declaration of war. It is obvious that in an era of hybrid warfare and the conditions of ongoing Russian occupation, the Council that is activated only after official declaration of war will be dysfunctional, have only symbolic significance and will not be able to ensure the security of the nation.
In conclusion, it must be underlined that lessons learned from 26 years of independence experience clearly show that politicization of law enforcement structures and special services is a serious problem, which hinders Georgia’s democratic development and strengthening of its security. Illegal wiretapping,one of the most widely acknowledged and persistent shortcomings of Georgian democracy,serves as a good proof of this.Stemming from this,ensuring democratic control over the law enforcement structures and special services must be among foremost national priorities. Considering the importance of this issue, the principle of establishing effective democratic control on above mentioned agencies must be included in the Constitution as a separate article or paragraph.
Recommendations:
In order to address above discussed problems and construct a constitutional framework that ensures efficient set-up of national security system, we advise to:
Cease the process of rushed adoption of the Constitution and take appropriate steps to engage experts on defense and security in the work of the Constitutional Commission, as well as start consultations and seek advice also from strategic partners, relevant international organisations and prominent international experts;
Genuinely foster widest possible national consensus on key issues of national security system set-up,including, the Commander-in-Chief election rule,as well as main mutual control mechanisms and distribution-delimitation of the powers between the Parliament, the President and the Executive Branch;
Include in the Constitution the basic principles of civic and democratic control on the national security system, including, the activities of the armed forces, law enforcement structures and special services.
The 23-member “Coalition for Euro-Atlantic Georgia” aims to facilitate Georgia’s full-fledged integration in Euro-Atlantic structures
Transparency International Georgia
Atlantic Council of Georgia
Civil Development Agency
Media Development Foundation
World Experience for Georgia
Georgian foundation for strategic and international studies
Voice from Georgia
GRASS
Union Safari
The Economic Policy Research Center
Regional Centre for Strategic Studies
Society and banks
In Depth reporting and advocacy centre
Georgian Institute of Politics
Georgian Democracy Initiative
Georgian Institute for Strategic Studies