Georgia's civil society is likely disappointed in the early reaction of the Venice Commission to the proposed constitutional amendments that are under public consultation in the country at the moment. In mid-May, four Georgian non-governmental organisations (NGOs) appealed to the Council of Europe's constitutional law watchdog to evaluate the sweeping changes the ruling Georgian Dream party is looking to make to the constitution. 

Georgian civil society had pinned its hopes on a critical assessment by the Venice Commission as a way to halt the constitutional amendments, which have been heavily criticised in Georgia by opposition parties and rights organisations. A new constitution would bring sweeping changes to the distribution of powers in the state and even affect civil rights like gay marriage. Opponents have decried the changes, which they sum up as an attempt to consolidate power in the hands of the ruling party to the detriment of political pluralism. 

The official assessment by the Venice Commission will be made public in mid-June. But, after a public consultation held in Berlin on May 22-23, Thomas Markert, the commission's secretary, praised the initiative to amend the constitution, saying that it is "a step forward" and that the watchdog's attitude to "the whole process is quite positive. [...] But maybe what is particularly important now is to have a consensus in society and the political class to make this a text that is valid in the long term".

Regardless of the commission's assessment, the matter of the new constitution is far from settled in Georgia. Public consultations will continue in the capital city Tbilisi and 20 provincial towns until June 5, after which the parliament will vote the draft constitution into law. That is, of course, if the ruling party makes big enough concessions to appease the opposition, which has demanded a referendum on the proposed changes. 

Racked with controversy

The plans to amend the constitution were racked with controversy from the very beginning. Following the ruling Georgian Dream party's landslide victory in the October 2016 parliamentary election, which ensured it had a constitutional majority of three quarters in parliament and therefore could legislate unhindered, the legislative body created a 73-member commission in December comprising civil society members, politicians and independent experts to draft a new constitution.

However, discontent emerged soon after. President Giorgi Margvelashvili, who has been in power since 2013, announced that he would boycott the commission because he was not appointed its president, but rather as a regular member. Furthermore, he has been outspoken about his opposition to the proposal to remove the direct voting system for the presidency and even launched a public PR campaign - the Constitution Belongs to Everyone - to encourage public participation in the consultation process and promote his own views.

While he initially had the ruling party's backing - he ran for office after being appointed by Georgian Dream - Margvelashvili has found himself increasingly at odds with the government in recent years over issues ranging from the oversight of the banking sector and governmental attempts to control monetary policy, to energy policy, the independence of the judiciary and political pluralism in the country.

However, the head of state, whose executive powers are already limited and inferior to those of the government, has been increasingly isolated in his opposition to Georgian Dream. Following a humiliating defeat in the October polls, the leading opposition party, the United National Movement, split in January, while smaller opposition parties like the Free Democrats and the Republican Party have been scrambling to regroup after none of them won enough votes to secure seats in the current parliament.

As such, despite Margvelashvili's outspoken opposition to the ruling party and the constitutional amendments, his influence over the process will remain limited, particularly since he chose militant opposition to participation in the drafting of the new constitution as a member of the parliamentary commission. 

At a rally in April, the head of state decried the fact that "the country will no longer have a commander-in-chief, who ensures civilian oversight over the military", that the National Security Council would disappear in the new constitution, "leaving the president, who is tasked to serve as commander-in-chief in wartime, as a commander-in-chief without any powers" and that the new electoral system would be "obscure". 

Margvelashvili was not the only one to voice opposition to the new constitution. On April 21, seven NGOs released a joint statement criticising the proposed constitutional reforms; days earlier, the members of the constitutional commission representing opposition parties announced that they would boycott the commission's final meeting on April 22 in protest. 

And, in mid-May, activists disrupted a public consultation held in Tbilisi, forcing parliament speaker and head of the constitutional commission Irakli Kobakhidze to stop the discussions. 

Sweeping changes

The bone of contention in the new constitution is undoubtedly the fact that it will swap a direct electoral system for a presidency that is indirectly appointed by a college of 300 electors. Comprising MPs and representatives of local and regional governments, the college will undoubtedly reflect the will of the party that controls the parliament - in this case, Georgian Dream. 

Seeing as the outlook for the Georgian opposition is dire, the ruling party is likely to control political power for the foreseeable future. And through this constitutional amendment, it would ensure that not only the parliament and the cabinet, but also the presidency, would fall under its control, critics argue. 

The president would be elected without a debate in parliament and would serve a five-year term, just like at present. However, he or she would lose the right to "request particular matters to be discussed at the government session and participate in discussion”, according to civil.ge. Furthermore, the National Security Council that is presided over by the head of the state would be replaced by a National Defence Council that would function during martial law and would comprise the president, prime minister, chairperson of the parliament and the military chief of staff. 

The second bone of contention in the new constitution is the shift to a fully proportional electoral system for parliamentary elections. At the moment, Georgia has a mixed system whereby 73 of the 150 MPs are appointed in majoritarian, single-seat constituencies and the remaining 77 based on a proportional, party-list system. The new constitution would do away with the single-constituency seats in favour of simplifying the appointment of parliamentarians. 

However, a few stipulations in the new electoral code have been heavily criticised. For starters, the new constitution would ban the formation of electoral coalitions before elections, thus forcing parties to run individually. Furthermore, parties would continue to be required to meet a 5% threshold of votes in order to secure seats in the legislative body. The votes that go to the parties that fail to meet the threshold would be awarded solely to the winning party, as per the new constitutional draft, instead of being distributed proportionally among the parties that exceed the threshold. Critics contend that these new laws would disproportionately disfavour the small and fragmented opposition parties in the country.

Another contentious stipulation in the new constitution is the definition of marriage as a union between a man and a woman. The stipulation is superfluous in a country like Georgia, where gay marriage is illegal and the powerful Orthodox Church has ostracised the already small and disenfranchised LGBTQ community. Attacks on members of the community have become more and more frequent in recent years, and are sometimes spurred by the prelates themselves. Rights groups have criticised the move to expressly define marriage as a union between a man and a woman in the constitution as an institutionalisation of discrimination against the LGBTQ community and a failure to separate religion and state in the country. 

The new constitution would also reappoint the prosecutor's office, which would no longer serve under the justice ministry but would respond to the parliament; would only allow public defenders to serve for one term; would limit foreign citizens' ability to engage in political activities; and would include free access to the internet as a constitutional right.

The ruling party has made some concessions during the drafting of and consultation for the new constitution. For instance, it conceded to have the new presidential appointment system come into force not from 2018, when the next presidential election is to take place, but in 2024. This would mean that, in practice, Margvelashvili could run, and serve a second term if he is elected again. The concession shows the ruling party's "readiness to compromise”, Markert said on May 23, but it has failed to placate the head of state's opposition to the new constitution. 

"It would be good if the majority were ready to compromise more, but the opposition should also acknowledge when the majority is making additional steps, and not have an approach of systemically opposing all the proposals," Markert concluded diplomatically.