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Conference Paper as of 26/05/2015
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Karlo Godoladze
The Center for Constitutional Studies at Ilia State University
Regional Conference – Constitutional Challenges and Constitution-Making
11-12 June, 2015
Tbilisi, Georgia
Hosted by Ilia State University School of Law and the Center for
Constitutional Studies
Conference Paper
Absence of Constitution Building: Lessons Learned From 20 Years of
Constitution-making in Georgia
Karlo Godoladze
The Center for Constitutional Studies at Ilia State University
Conference Paper as of 26/05/2015
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Karlo Godoladze
The Center for Constitutional Studies at Ilia State University
Dear speakers,
Ladies, and Gentlemen,
I am honored to participate in this regional conference. In this session, we will discuss
a topic which is timely and rich. Therefore, allow me to share the Georgian
experience and speak about the Georgian constitution-making process since the
adoption of the modern constitution of Georgia. I would also like to express my keen
appreciation to our guests, distinguished scholars from Turkey and prominent
Georgian panelists. Special thanks to Asli for her valuable job regarding conference
organization. Many thanks both teams of Ilia State University school of law and the
center for constitutional studies.
In Georgian context the main problem connected to the absence of the
constitution-building; instead it affected instrumental use so-called
instrumentalization of the constitution and lack of inclusive and participatory
constitution-making process in practice. Let start from the first concept which is so-
called an umbrella concept and shows the main difficulties. Constitution-building by
its essential definition is more broad and comprehensive term than constitution-
making. It includes long-term oriented institution-building procedural fairness and the
implementation stages of supreme law.
1
Vice versa constitution-making basically
focused and defined with more narrow sense in the modern constitutional literature.
Since the adoption of the constitution of Georgia, there were two fundamental
revisions of this document first one in 2004 and the second in 2010. In both times,
Georgia’s acting political leadership nullified some fundamental principles which are
core to the final legitimacy of the constitution in the general public. The genuine term
which fundamentally describes the constitution-making process in the country in 2004
is instrumental use or instrumentalization of the constitution. Post-revolutionary
political elite more focused state building issues than constitution-building and totally
ignored such a fundamental constitutional principles as separation of powers, checks
and balances and even more nullified obligatory deliberation clause regarding
1
See A Practical Guide to Constitution Building by Markus Böckenförde, Nora Hedling and Winluck Wahiu.
International Institute for Democracy and Electoral Assistance (International IDEA), 2011
Chapter 1 Introduction pp. 1 -45
Conference Paper as of 26/05/2015
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Karlo Godoladze
The Center for Constitutional Studies at Ilia State University
constitutional changes, argued that such type draft law of constitution previously
deliberated at the previous session of parliament of Georgia.
2
There was a clear violation of both substantial and procedural parts of
constitution-building during this process when legislature implemented and confirmed
newly initiated amendments only to the three-week periods from 24th of January to
6th of February. Instead of ruling elite all other political or social actors excluded
from the process there were serious constitutional discourse dysfunction in post-
revolutionary reality. Proponents focused on the significance of state building and
emphasized the need of urgent reforms necessities while opponents basically oriented
towards a normative framework of constitutionalism. Such type of constitution-
making construed very fragile starting point for the future legitimacy of the Georgian
constitution; it was not the document for all vice versa it belongs to the political elite.
Another serious obstacle affected to the constitution-making process in 2004
was the absence of so-called ‘grand constitutional design’. As one of the key political
figure and former prime minister of Georgia, Zurab Zhvania puts it correctly at the
eve of the constitutional amendments: “the changes that we introduce are the
beginning of the constitutional reforms; they are not the model that should guide
Georgia for decades.” (Interview; 24 Hours, 24 January, 2004) According other
thinkers the philosophy of constitution does not orient towards representation and
inclusion, instead it focused effectiveness. The most relevant and pertinent scientific
term to describe the attitudes of the main constitution-makers is “pocket constitution”
and Georgia implemented pocket constitutionalism in practice.
3
Second constitution-making saga connected to the amendments in 2010.
According to the best international practice and doctrine “constitution-building that
includes and permits the participation of all legitimate groups, actors and stakeholders
is more likely to result in institutional choices and strengthen democratization.”
4
The
second endemic problem and obstacle of the constitution-making process in 2010 and
before was the lack or virtual absence of participatory and inclusive process in
2
See Constitutional Changes in Georgia: Political and Legal Aspects by Karlo Godoladze, Humanities and Social Sciences
Review; pp. 443-460 (2013)
3
See more Instrumentalization of the Constitution: Story of Post -Revolutionary Constitution-Making by Giorgi Meladze
& Karlo Godoladze; Journal of Law and Criminal Justice December 2 014, Vol. 2, No. 2, pp. 265-274
4
See Supra note 1; pg. 8
Conference Paper as of 26/05/2015
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Karlo Godoladze
The Center for Constitutional Studies at Ilia State University
practice. In the light to perceive the very nature and pattern of constitution-making in
2010, it is essential to laconically describe the aforementioned phenomenon.
President Saakashvili appointed the chair of the constitutional commission and
members of the commission from nominees of political parties and his
representatives. Every major political party represented in parliament or outside the
legislative body had a quota. Despite this fact, major opposition parties boycotted the
process. However, it has been rarely mentioned that the working groups and
commissions working on the constitution have never had the inclusive nature. Georgia
is a multicultural society with various ethnic, religious and cultural minority groups.
There is no example that representatives of minority groups were invited to join the
constitutional commission. Moreover, the percentage of female members of the
commission is below 15. It is obvious that the main cooking pot of the new draft
constitutional law was the small circle of lawyers and so-called Georgian experts.
Thus, these organic characteristics fully undermined the very nature of inclusive
constitution-making and construed extremely weak legitimacy of implemented
constitutional amendments.
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At the concluding part of my conference paper, I focused recent constitutional
reform process in Georgia. On October 4th, 2013, the Chair of the Parliament
announced the creation of the third Constitutional commission. According to the
decree “On the Establishment of the State Constitutional Commission” members were
appointed. Members were selected from the nominees of political parties and
independent members. Commission was organized into five groups, namely: Working
Group on the Issues of General Provisions and Revision of the Constitution of
Georgia; Working Group on the Issues of the Parliament; the President and the
Government of Georgia; Working Group on the Issues of Human Rights and
Freedoms, the Judiciary and Prosecuting Institutions; Working Group on the Issues of
Independent Constitutional Institutions and Working Group on the Issues of
Territorial Arrangement and Local Self-Government.
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5
See Constitution for “All” or for “Chosen Few” – Problems of Constitution-making in Georgia by Giorgi Meladze &
Karlo Godoladze; Constitutional Law Review (CLR); ISSN 19878540 (In Press)
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See more at http://constcommission.ge/en/about last visited May 26, 2015
Conference Paper as of 26/05/2015
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Karlo Godoladze
The Center for Constitutional Studies at Ilia State University
It has been 1 year and two months since the commission started to work.
Commission already has staff and runs a website where relevant information is
updated. However, questions remain open regarding the effective participation of
various stakeholders. The general Georgian pattern regarding member selection is
eternity and unchangeable. The composition of the commission still fails to be
inclusive, focusing on representatives of political parties, academia and few members
of civil society organizations. Commission excludes representatives of minority
groups and has only nine female members from 58; it fails to integrate youth and
representatives of different regions. Therefore, it’s difficult to say whether the
working draft will reflect concerns of any of the mentioned group.
The whole analysis of the constitution-making process in Georgia provides a
solid ground to conclude that, unfortunately, there are no lessons learned from the
past. As we mentioned above there is no societal diversity representation and no
options of the inclusion of the dissimilar groups belong to the different constitutional
identities. Constitutional “Democracy needs pluralism in political ideas and checks
and balances in relations between the institutions of government. What undermines it
is the concentration of power in the hands of a few.”
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Recognizing the diversity of
societal identities is the main challenge of the whole mainstream of Georgia’s
constitution-making, otherwise there are no an option nor possibilities to implement
constitution which is for all in the Georgian constitutional landscape.
Ladies and Gentlemen,
Thank you very much for your kind attention.
7
See Supra note 1; pg. 26