Ukraine and Moldova are now officially EU accession candidates. This was decided by the heads of state and government at the EU summit on 23 June 2022. Georgia, by contrast, will only be allowed to enter the EU anteroom once it fulfils further reform requirements. The country will be granted candidate status as soon as the outstanding reforms are implemented, wrote Council President Charles Michel. He stressed: „Georgia’s future lies within the EU“.
In the context of the Ukraine war, the President of Georgia, Salome Zourabishvili, has activated her foreign policy competences and made several visits to European capitals. The aim was to inform Western political circles about the potential danger of a Russian invasion for Georgia and to obtain foreign policy support also with regard to EU and NATO integration of the country. However, some visits were not agreed or coordinated with the Georgian government, as it later became known. It also became known that the Georgian President has been blocking the appointment of individual Georgian ambassadors proposed by the government for months.
A few days ago, the Georgian government filed a new constitutional complaint against the President of Georgia to the Constitutional Court (organ dispute proceedings). „The Government of Georgia requests the Constitutional Court to issue a declaration on the separation of powers between the President of Georgia and the Government of Georgia in connection with the appointment and dismissal of the Ambassadors of Georgia and the Head of the Diplomatic Mission“, the government said in a statement. Many in Georgia, and not only in Georgia, think that the government is trying to curtail the powers of the president and punish the president for her pro-European political activities. What is interesting in this context is how strong the government’s legal positions really are.
The case presents an opportunity for the Georgian Constitutional Court to clarify the essential principles of the Constitution and the form of government it prescribes. It can be expected that the Constitutional Court will share the government’s position.
Georgia’s constitutional order
The last comprehensive constitutional reform in Georgia in 2017/18 introduced a norm (Art. 78 of the Constitution of Georgia) as a transitional provision in the Georgian constitution of 1995 according to which „the constitutional bodies shall take all measures within the scope of their competences to ensure the full integration of Georgia into the European Union and the North Atlantic Treaty Organization (NATO)“. The Georgian President has justified her foreign policy activity through these new provisions. In this context, it is important to define the form of government according to the Georgian Constitution of 1995 and to concretise the principle of separation of powers. The historical background in relation to these issues is also relevant.
On 21 February 1921, facing the onset of Soviet aggression, the Constituent Assembly of Georgia adopted the constitution of the Democratic Republic of Georgia, the first modern fundamental law in the nation’s history. The first constitution of the democratic republic of Georgia of 1921 strengthened the form of parliamentary government. Almost 100 years later, with the constitutional reform of 2017/18, Georgia returned to the parliamentary republic as a form of government. The first constitution of Georgia did not provide for the institution of the president. In contrast, the 1995 constitution gives the President the status of head of state and establishes the principles of a parliamentary government system.
In 1995, the Independent Republic of Georgia adopted a new constitution that established a presidential republic as the form of government influenced by the US Constitution. The current constitution of Georgia has been changed several times since 1995. The most extensive constitutional reforms were implemented in 2004, 2010 and 2017-2018. The most extensive of these three constitutional reforms was the last, the constitutional reform of 2017-2018.
After the so-called “Revolution of Roses” in 2003, the Georgian constitution of 1995 was systematically revised in 2004. The constitutional reform of 2004 formalized a semi-presidential system of government, but in effect it was a super-presidential government system. As the part of the constitutional reform of 2010, the newly proposed form of government was a transitional form from the semi-presidential to the parliamentary republic. However, the modernised version of the constitution was also unbalanced: the constitutional reform of 2010 ensured the transition from super-presidential system to the super prime minister system. Following the oath of office of the President of Georgia on 16 December 2018, the constitutional amendments of 2017–2018 and accordingly, the last and current version of the Georgian Constitution of 1995 came into force. The reform completely changed the form of the state: indirect elections of the president were introduced, the parliament was equipped with the control functions of the government, the government was made accountable and responsible to the Parliament of Georgia, the rights of the opposition were strengthened, the competences of the prime minister and the president were balanced, instruments for the independence of the judiciary were created, self-government was strengthened, etc.
Disputed competencies and the modernised constitution
The constitutional reform of 2017/18 was a political process that yielded the best normative version of the 1995 Constitution of Georgia, formally as it contained a better guarantee for the separation of powers than previous versions. The question of the political legitimacy of this reform which remains strongly critisized because the opposition left and did not participate in the work of the Constitutional Commission, is the subject of another constitutional debate. The chairman of the parliament of Georgia was elected as the chairman of the constitutional commission – Irakli Kobakhidze, a university professor with a German academic background. Accordingly, the whole process of the elaboration of the modern version of the constitution of 1995 was determined and predominantly influenced by German academic debates within the frames of the corresponding subject, which stood for the constitutional amendment.
Georgia is currently a parliamentary republic in which the president is only the head of state and does not represent the head of the executive/government. The president is not the head of the political process and the political official responsible for it. His or her functions are neutral to the programmatic visions of the parties, and they essentially act as a neutral arbiter themselves, taking into account the interplay of all three powers of the state. Major areas of domestic and foreign policy are determined by the legislature and implemented by the executive power. In this sense, the president is only vested with ceremonial powers in Georgia, taking into account the constitutional standards typical for classical parliamentary republics. Accordingly, any activity on the foreign policy side of the President of Georgia must be coordinated with the Government of Georgia.
What is debatable are essentially the following two points: Whether the President is free to refuse to appoint a government-appointed ambassador or diplomatic representative (the subject matter of the proceedings before the Constitutional Court is only this question in the context of the present case); and the President’s foreign policy powers: How compatible are planned foreign visits without prior consultation with the government.
The answer to the question of whether the President is free to refuse to appoint an ambassador or a diplomatic representative appointed by the government is as follows: The President has almost no discretion in this area. Only if any formal requirements are obviously violated and there is a gross and open violation of applicable law does the President have legal discretion to refuse the appointment of an ambassador. In this context, the president has no power to refuse on any political grounds (political discretion). This is because the government is fully responsible for the political part of this process. The President of Georgia is the head of state, but she is not the governing head, nor responsible for politics
As far as foreign policy is concerned: Due to the constitutional framework of the Parliamentary Republic, activities in the field of foreign policy must be approved by the president of the government. And if this is not the case, the constitution is violated. The President has no power to formulate foreign policy independently; she is limited to exercising the will of the state as determined by the competent organs of state.
Notwithstanding the above, the special importance of the Georgian President’s foreign policy activities on the Ukraine issue for Georgia should be taken into account (see Article 78 of the Constitution). Politically (but not legally), this can compensate for the violation of constitutional procedures. However, in this context, Art. 78 of the Constitution does not mean disregard for the legal norms set by the modern version of the Constitution of Georgia of 1995, which recognises the principles of a parliamentary republic. Art. 78 only provides that the constitutional bodies should make maximum political efforts within the framework of their legal powers.
Therefore, in the future, it is necessary to coordinate the President’s foreign policy activities with the government, and a uniform approach should clearly be established, consistent with the constitutional framework of the Parliamentary Republic. German constitutional theory essentially sets the same standard for the status of the president as defined by the Georgian constitutional norms. In Germany, for example, in the constitution of the Weimar Republic of 1919, the president was considered the guarantor of constitutional order and the „guardian of the constitution“. After the 1949 Federal Act, which established the form of government as a parliamentary republic, there was a „parliamentarisation of the state government“ (P. Badura). Consequently, the centre of power has become the parliament, and the authoritative link of foreign policy with the parliament (which defines the main directions of domestic and foreign policy) is the government (which implements them). The President in the Parliamentary Republic has essentially only ceremonial powers and, given the subject matter of the dispute, has sole and exclusive legal discretion in the appointment of senior officials and diplomats.
Accordingly, political will, in the current version of the 1995 Constitution, is linked to the establishment of a parliamentary republic standard whereby the president is a party-neutral arbiter representing only the head of state and has only the power to conduct political processes both in domestic and foreign policy. It has some reserve functions in which it is independent (dismissal of parliament, pardon of convicts, etc.) but this in no way implies the existence of political discretion in relation to the appointment of diplomats and the conduct of foreign policy.
In view of all this, it should be noted that the new competence dispute will be an important incentive for the Constitutional Court of Georgia (as pouvoir neutre) to explain the current Georgian model of parliamentary governance, the standards of relations between political institutions and the functions of the President in the republican parliament. It is solely ceremonial and associated with the power not to formulate and conduct foreign policy independently, but only to implement it.
In this case, the Georgian Constitutional Court, is asked to clarify not only the essential principles of the Constitution and the form of government it prescribes, but also, to a certain extent, with the need to explain the legitimacy of state power in general.
Georgia remains criticised for a lack of independence of its judiciary and also with regard to the independence of the Constitutional Court. During the last decade, the Georgian ruling party has implemented various reforms in the judicial system and has appointed several judges at once in the supreme court, which has been criticised (both in material and procedural terms) including by the ODIHR. But in this case, the constitutional grounds for the constitutional complaint are, oddly enough, stronger than those of the President. It is to be expected that the Constitutional Court will share the government’s legal position.