Constitutional/Political Reform Process in Georgia, in Armenia and Azerbaijan

198 Pages·2005·1.22 MB·English

C I P D D

International Institute for Democracy and Caucasus Institute for Peace,
Electoral Assistance Democracy and Development

Note: This is a direct translation of "Voices of Georgia in Political and Constitutional
Reform" published by IDEA and the CIPDD in Georgian and Russian. The accuracy and
quality of the translated text was not verified by International IDEA. In case of doubt, the
original Georgian and Russian versions prevail.

Constitutional/Political Reform Process in Georgia,
in Armenia and Azerbaijan: Political Elite and
Voices of the People

Joint Project: Voices of Georgia in Constitutional and Political Reform

Armineh Arakelian
Regional Representative and Head of Programme
for the South Caucasus-Europe
International IDEA

Ghia Nodia
Chairman
CIPDD

Tbilisi, Georgia
2005
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ACKNOWLEDGEMENTS

International Institute for Democracy and Electoral Assistance (International IDEA) and the Caucasus
Institute for Peace, Democracy and Development (CIPDD) would like to take this opportunity to
acknowledge the valuable cooperation and contribution of the Georgian authorities, especially the
Georgian Parliament; Georgian civil society; Georgian, Armenian and Azeri as well as European
experts and practitioners; International IDEA’s member states and associate members; European
Delegation for Armenia and Georgia; Council of Europe; all national, regional and international
partners; as well as all the individuals and institutions that have provided advice, assistance,
cooperation and support during the implementation of the IDEA/CIPDD joint project Voices of
Georgia in Constitutional/Political Reform since June 2004.

In this regard we would like to give special thanks to: the Swiss Agency for Development and
Cooperation (SDC) for their support and ear marked financial contribution to IDEA core budget;
International IDEA’s member states’ and associate members’ embassies and consulates for Georgia
and Armenia: in particular H.E. Harry Molenaar, Ambassador of the Netherlands for Armenia and
Georgia; and H.E. Dipak Vohra, Ambassador of India for Armenia and Georgia.

We would like to give special thanks to the Georgian experts and practitioners: Vakhtang Khmaladze,
David Usupashvili, Avtandil Demetrashvili, Zurab Jibgashvili, Alexander Nalbandov, Levan
Ramishvili, Gigi Tevzadze, David Losaberidze, Ivlian Haidrava, Otar Zoidze, Lela Khomeriki, David
Melua, Arnold Stepanian, Tengiz Shergelashvili, Zaur Khalilov and David Darchiashvili; as well to
European experts - Jonathan Wheatley (Free University, Berlin) and Alexander Mihaylov (Resident
expert of the Council of Europe) for their significant input; also to the Center for Social Studies, in
particular to Marina Muskhelishvili and Luiza Arutiunova for their valuable contribution to the
IDEA/CIPDD project.

We wish also to express our deepest gratitude to all local partners for their support during the public
discussions conducted within the framework of the IDEA/CIPDD project in 7 Georgian regional
cities, especially to Tamar Gogsadze (OSGF – Kutaisi Branch), Nino Inaishvili (OSGF – Batumi
Branch), Sofo Arsenishvili (OSGF – Telavi Branch), Khatia Jashiashvili (OSGF – Akhaltsikhe
Branch), Ararat Esoian (“Center for the Support of Reforms and Democratic Development”,
Akhalkalaki), Leila Suleimanova (“Union of Azeri Women in Georgia”, Marneuli) and Tea Bulia
(“Atinati”, Zugdidi). We appreciate also participation of the regional representatives from Georgian
civil society and the authorities in public discussions (October-November, 2004) and International
conference (Tbilisi, 18-19 March, 2005) organized jointly by IDEA and CIPDD.

Special thanks to Armenian and Azeri experts: Mkrtych (Sos) Gimishyan, Sergey Minasian, Aharon
Adibekian and Mayis Gulaliyev, Rahman Badalov, Niyazy Mehdi, for their contributions and
cooperation.

Finally, thanks go to all the translators, editors, rapporteur and consultants in the South Caucasus and
Europe who assisted IDEA and CIPDD in the consultation and publication processes; and, finally, the
IDEA’s South Caucasus Programme and CIPDD teams, as well as the thematic, information and
administrative teams at IDEA’s Headquarters in Stockholm.

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Table of Contents

FOREWORD………………………………………………………………………………………..4

Georgia
GOVERNMENT OF GEORGIA ON THE CENTRAL LEVEL: THE BALANCE BETWEEN
ITS BRANCHES, Policy Paper by Avtandil Demetrashvili, Zurab Jibgashvili, Vakhtang
Khmaladze, Alexander Nalbandov, Levan Ramishvili, Davit Usupashvili…………………………….6

COMMENTARY ON THE POLICY PAPER GOVERNMENT OF GEORGIA ON THE
CENTRAL LEVEL: THE BALANCE BETWEEN ITS BRANCHES by Jonathan Wheatley…23

DISTRIBUTION OF STATE POWER BETWEEN THE CENTRAL AND LOCAL LEVELS,
Policy Paper by Ivliane Khaindrava, Zaur Khalilov, Lela Khomeriki, Davit Losaberidze, Davit
Melua, Tengiz Shergelashvili, Arnold Stepanian, Otar Zoidze…………………………………………..31

COMMENTARY ON THE POLICY PAPER DISTRIBUTION OF STATE POWER BETWEEN
THE CENTRAL AND LOCAL LEVELS by Alexander Mihaylov…………………………………..57

COMMENTARY ON THE POLICY PAPER DISTRIBUTION OF STATE POWER BETWEEN
THE CENTRAL AND LOCAL LEVELS by Mkrtych (Sos) Gimishyan …………………………63

COMMENTARY ON THE POLICY PAPER DISTRIBUTION OF STATE POWER BETWEEN
THE CENTRAL AND LOCAL LEVELS by Sergey Minasian………………………………………70

CONSTITUTIONAL CHANGES IN GEORGIA, Research Paper by Marina Muskhelishvili
(Center for Social Studies)…………………………………………………………………………………….74

POLITICAL PERCEPTIONS OF GEORGIA'S POPULATION, Research Paper by Marina
Muskhelishvili, Luiza Arutiunova (Center for Social Studies) ……………………………………..91

Armenia
POLITICAL AND CONSTITUTIONAL REFORM IN ARMENIA
by Mkrtych (Sos) Gimishyan………………………………………………………………………………….109

EU- ARMENIA COOPERATION AND THE NEW EUROPEAN NEIGHBORHOOD POLICY
by Sergey Minasian……………………………………………………………………………………………129

Azerbaijan
THE POLITICAL INSTITUTIONS OF AZERBAIJAN: A DICHOTOMY BETWEEN TEXT
AND REALITY by Rahman Badalov and Niyazi Mehdi………………………………………………...141

POLITICAL REFORMS IN AZERBAIJAN (1989-2004) by Mayis Gulaliyev…………………….159

INTERNATIONAL CONFERENCE REPORT March 2005- Constitutional/Political Reform
Process in Georgia, in Armenia and Azerbaijan: Political Elite and Voices of the People….…180

About CIPDD ……………………………………………………………………………………….193
About International IDEA …………………………………………………………………………..195

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C I P D D

FOREWORD

International Institute for Democracy and Electoral Assistance (International IDEA) an
intergovernmental Organization (based in Sweden) and Caucasus Institute for Peace, Democracy and
Development (CIPDD) a Georgian NGO, are pleased to present the publication
Constitutional/Political Reform Process in Georgia, in Armenia and Azerbaijan: Political Elite
and Voices of the People - the result of the joint Project of International IDEA and CIPDD Voices of
Georgia in Constitutional and Political Reform, June 2004- August 2005.

This undertaking was stimulated by the political reform process that started immediately after the
Rose Revolution in Georgia. The revolution opened up a new period of reforms of the Georgian
political system. These reforms involve important constitutional changes. In fact, in February 2004,
the Georgian parliament amended the Georgian Constitution that alongside other changes redesigned
the system of power on the national level. However, this happened without sufficient public debate.
Further important reforms and constitutional changes are on the agenda of the government.

The joint project of International IDEA and CIPDD focused on reforming two most important issues
of the Georgian political system: the balance between different branches of power on the central
level, and devolution of power from national to regional and local levels. Main objective of the
project was to strengthen public debate on these issues and strengthen international community
involvement into Georgian constitutional processes. This would increase both quality and legitimacy
of the process of constitutional change. Two groups of leading Georgian experts developed policy
papers on the two respective issues. Draft policy papers were then discussed in five Georgian regions
and the capital with participation of government representatives, NGOs, academics, journalists.
Suggestions developed in these public debates were incorporated in the policy papers. Two European
experts have commented those policy papers. In addition a sociological research has been also
conducted separately which identified public discourses on the current constitutional process.

Furthermore, the project had a regional dimension including expert analyses on political reforms in
Armenia and in Azerbaijan within a European integration perspective. Three experts from Armenia
and three from Azerbaijan prepared research and policy papers on these issues. The four policy
papers are included in the present publication.

Within the framework of this joint project International IDEA and CIPDD organized on 18-19 March
the International Conference in Tbilisi, Georgia. The International conference
Constitutional/Political Reform Process in Georgia, in Armenia and Azerbaijan: Political Elite
and Voices of the People was dedicated to the exchange of information about the reform process in
the three South Caucasus countries, Armenia, Azerbaijan and Georgia and the prospects for their
European integration. On this subject all policy papers prepared by the group of Georgian, Armenian,
Azeri and European experts/practitioners were presented at the conference.

The conference was opened by Ms. Armineh Arakelian (Regional Representative and Head of
Programme for South Caucasus-Europe, International IDEA), Mr. Ghia Nodia (Chairman of CIPDD),
H.E. Nino Burjanadze (Chairperson of Parliament) and Mr. Jacques Vantomme (First Counselor,
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European Delegation for Georgia and Armenia). Up to 55 participants- representatives of Georgian
Authorities and Civil Society, experts from Armenia and Azerbaijan, as well as, International
Organizations and Diplomatic guests took part in the conference.

At the final stage of the project International IDEA and CIPDD published the outcomes of this joint
undertaking. The present publication summarizes views of Georgian policy community as well as
present European reactions to it; it also includes analyzes of the constitutional processes in two other
South Caucasus countries – in Armenia and Azerbaijan.

We hope that the outcomes of this process of public discussion and expert work on political reform
issues and process at national level will be taken into account by the national authorities in the public
policy development in the three countries, as well as, by international and donor community in their
partnership policies.

Armineh Arakelian Ghia Nodia
South Caucasus-Europe Regional Representative Chairman
and Head of Programme CIPDD
International IDEA
26th April, 2005
26th April, 2005

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Policy paper

Government of Georgia on the Central Level:
The Balance between its Branches

Avtandil Demetrashvili
Zurab Jibgashvili
Vakhtang Khmaladze
Alexander Nalbandov
Levan Ramishvili
Davit Usupashvili

1. Brief Description of the Principle of the Separation of Powers
Democracy is defined as the government by the people. According to the main principle of
democracy, government should be administered through the consent of the people. Direct or
representative democracies are the forms of public consent. In a representative democracy, the people
express their will through their representatives. This means that power is invested in the majority of
these representatives. At first glance, this is the way to exercise the will of the majority of the people.
However, in reality, the majority of representatives, as a rule, are elected by less than the half of the
voters. While executing the will of the majority, especially when this is the will of the representatives
and not that of the voters, there is a potential threat of suppressing the will of the minority. Besides,
the practice shows that governments have a tendency for self-expansion and strengthening of their
presence in all aspects of life, thus jeopardizing the human rights and freedoms.
Constitutionalism serves to defend society and its each particular member from such jeopardy
inherent to democracy. According to this idea, government should be administered so that it can on
one hand prevent the democracy or government by the people from tending towards despotism and,
on the other hand, avoids the establishment of dictatorship (the dictatorship of an individual, a party
or a group).
The stability of democracy should be guaranteed not by the motto ‘the winner takes it all’, but
by the necessity and inevitability of the collaboration of ‘the winner’ and ‘the loser’ in order to avoid
turning the latter, threatened by the prospect of destruction, into an enemy of the system. This
problem is solved by the constitution that implements the concept of constitutionalism through
reasonable limiting of the state (implying the government) as well as the people.
To prevent the government from trespassing its limits within the political system and to
ensure proper performance of its functions, it is necessary to follow some principles of its
arrangement and functioning. One of these requirements is the establishment of an optimal system of
supreme bodies of the government based on the principle of the separation of powers.
The Declaration of the Rights of Man and of the Citizen, adopted by the National Assembly
of France in 1789, states that “A society in which the observance of the law is not assured, nor the
separation of powers defined, has no constitution at all”.
The separation of powers is a set of guidelines for the arrangement and functioning of the
state which rules out arbitrariness on the part of the rulers and anarchy on the part of the
governed.
Specific aspects of the doctrine of the separation of powers were much discussed as early as
the times of the great Greek philosophers. John Locke and Charles Montesquieu developed the notion
further, while the legal formalization and institutionalization of the idea is connected to the era of the
great revolutions.
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Since then, almost all non-communist constitutions see the separation of powers as the main
principle for arranging the government, though the constitutions of different countries use different
versions of this principle.
Under the classical model of the separation of powers, power is divided between three
branches of government – legislative, executive and judicial. This model was first introduced in
England in the 18th century. The classical model of the separation of powers, as well as its practical
application have undergone certain structural and content-related changes over time.
There are many different forms of the separation of powers and the formation of the
government. Each of them has the right to existence, provided that the ways of limiting freedom are
ruled out or avoided – Andras Sajo said.
Evidently, there are many models which satisfy the ideal of constitutionalism, and
presumably it does not matter which model will be chosen for a given state. However, it is also
obvious that not all models can be equally suitable for a specific state for a simple reason that each
country has its unique historical experience, different traditions and system of relationships. The
choice of a model is influenced by the situation in a particular country, the balance of political forces
and the expectations of society. While it is very difficult to make a perfect choice, one thing is beyond
doubt: the model of the government should correspond to the concept of the separation of powers. In
the modern world, this implies the following:

a) The horizontal and vertical separation and division of the government, i. e. the exercise of the
state authority by different branches which are hierarchically independent (separation of
authorities) and have their own competences (division of power). The degree of the
separation and division of the government is defined by the constitution and represents the
necessary and indispensable element of the separation of powers. Usually, three branches are
specified – legislative, executive and judicial, but recently the presidential, controlling,
supervising, electoral and other authorities are quite often mentioned as the branches of
government as well.
b) The system of checks and balances which enable different branches to control and resist any
abuse or exceeding of authority by other branches.
c) Cooperation between the branches stemming from the governmental nature common to all
the branches. All branches should coordinate their activities regarding principal issues of
public policy. Otherwise, the state governance would become impossible and thus leading to
anarchy and damaging the public interest.

Depending on particular ways by which these principles are implemented, they distinguish between
different models of government. Usually, three main models are described: presidential,
parliamentary and semi-presidential (mixed government). Each model has many variations. There are
numerous factors that determine the extent to which this or that model corresponds to the concept of
constitutionalism, that is, the extent to which it guarantees the protection of human rights and
freedoms and the effectiveness of governance. The constitutional legislation is one of the most
important factors that define how the government is separated and divided, how effective the system
of checks and balances is and how the cooperation between the government branches proceeds. It also
determines how the election system guarantees the representation1 of the minority (the opposition),
secures the effectiveness of government and the protection of rights and freedoms of the people, and
provides the means of establishing stability and overcoming political crises smoothly.
Other factors that can be mentioned here include:

1 For example, the high barrier in the proportionate elections against the background of the underdeveloped party system, absence of
democratic traditions and low level of political and legal awareness supports the establishment of a dominant government party. If this is
combined with the party of the president gaining the parliamentary majority, which may be quite likely, the system of checks and balances
becomes very weak if not purely formal.
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• The legitimacy of the government and the coincidence of objectives declared by the
government with the objectives and aspirations of the majority of society: This factor is of
special importance to the collaboration among the government branches).
• The party system and the configuration of political forces on the political arena: When there
is a dominant governing party and a weak opposition (or no genuine opposition at all), the
collaboration among the government branches is becoming stronger while the system of
checks and balances – even though it is provided for by the legislation –deteriorates
dramatically or ceases to exist altogether;
• Civil society institutions, namely mass media and non-governmental organizations;
• Political and legal awareness of the public.

It should be noted that those post-Soviet countries that rejected classical parliamentarianism are
characterized by a significant expansion of the president’s powers and the absence of the system of
checks and balances. This resulted in the distorted presidential/semi-presidential systems that are
sometimes referred to as super-presidentialist or absolute presidentialist. Such a situation can be
explained by a wish for a “strong presidential hand” often embodied in a charismatic leader.
Apparently, though, it is very dangerous to introduce a form of government custom-tailored for a
‘good’ ruler with a huge authority. This is not only because a ruler can turn out to be ‘bad’, but also
because huge and unchecked power has a degrading effect and, as a rule, turns a ‘good’ ruler into a
‘bad’ one.
The concept of head of state does not implicitly define limits of his/her authority, that is
limits to the power of the head of state in a constitutional democracy. This does not mean, however,
that there are no legitimate values that define the limits of such authority. The criteria such as the
separation and division of powers among the branches of the government, checks and balances,
collaboration among the branches and the division of competences provided for in the constitution,
should limit the president’s powers as well as powers of other government agencies.
The implementation of the concept of constitutionalism can only be guaranteed by a model
which would not allow even a ‘bad’ ruler to cause significant damage to the country. This concept
implies the separation of powers and the establishment of such a relationship among the government
branches whereby none of them could take over another’s authorities, force the other to act against its
will, or act unchecked and go unpunished. The government, in which powers are separated, may
appear to be less efficacious if the parliamentary majority cannot be formed (in any system), or if it is
formed but it is in opposition to the executive (in the presidential and semi-presidential systems). It is
true that the government may be more effective when power is concentrated in one person’s hands
rather than separated, but if the effect turns out negative then it will be much more difficult to protect
the country from the damage than it would have been had the powers been separated. That is why
violating the principles of constitutionalism is highly dangerous for any country and more so for
Georgia, which has no tradition of democratic governance.

2. Constitutionalism in the Post-Soviet Georgia
The process of strengthening the principles of constitutionalism and separation of powers has been
very difficult and controversial in the post-Soviet Georgia. The reason is that the two centuries when
Georgia was a province of Tsarist Russia and the Soviet Union did not help developing the civic
values or formulating public demand for democratic state institutions. A new aspiration for national
independence and individual freedom that emerged in the 1980s, in independent Georgia occasionally
expressed itself as a general desire for democracy. These movements, however, implied resistance to
undesirable political regimes rather than establishment of any specific political system. Presumably,
the removal of an undesired government would by itself bring about a desired one. Society required
all the new political leaders aspiring to power to bring down the old unwanted regime but did not put
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forward any specific demands as to what the new regime should be like. Consequently, the people
who were unaware of their rights and abilities found themselves alienated from the founding
constitutional processes, that is, from the process of defining how the country should be governed and
how the irreversibility of the democratic rule and the protection of human rights can be guaranteed.
Many terms and concepts, among them ‘binding the government and the people with the constitution’
and ‘the separation of powers’ became buzzwords in the speech of well-educated Georgians without
acquiring real meaning. The meanings of these terms had no value for the citizens and they became
useless, meaningless rhetoric of the new Georgia which served only to prove that the speaker belongs
to the intellectual elite, along with other phrases such as “The Universal Declaration of Human
Rights” or “leasing”.
In such circumstances, whereby society was not ready to formulate and articulate a particular
political demand for democratic institutions, the role of political elites increased significantly. These
elites were to offer society what it itself did not demand. However, since 1990, none of the political
leaders in the government and the groups associated with these leaders took responsibility for this
task and offered the disoriented society a model of governance based on the principles of
constitutionalism and separation of powers. Every leader who came to power felt that he or she had a
very important historical mission to fulfill and in this process regarded the supremacy of the
constitution and the separation of powers as a handicap and not as a means for fulfilling this mission.
Arguably, some leaders considered the denial of the supremacy of the Constitution and the
concentration of power in single person’s hands to be a temporary tactical step, whereas for others it
was a cornerstone of their ideology. However, this did not make any essential difference in practice.
Consequently, since 1990 to this day, the country has been governed either according to a
constitution custom-tailored to political tastes of specific rulers and their political tasks, or without a
constitution at all. Most importantly, no leader has governed the country over this period in a manner
that would communicate to society the idea of the supremacy of the Constitution. That is to say, no
leader has positioned the Constitution above his personality and has respected it properly. There were
many ways of showing disrespect towards the Constitution – ranging from the direct and clear
disregard of political norms to the adoption of the amendments to the Constitution that suited narrow
political interests.
All kinds of violation of constitutionalism by the government were met with ‘understanding’
not only from the governing political elite, but also from the majority of the intellectual elite. In other
words, the Constitution did not gain the relevant public value even for the majority of that part of
society, which was more or less knowledgeable about constitutionalism. They too perceived the
Constitution as a political and legal means of governance in the hands of the ruler rather that the basis
for democratic governance.
The elite sometimes criticizes the leader and blames him for ignoring the country’s
fundamental law. But such criticisms are made not for the sake of defending the Constitution, but in
order to tarnish the reputation of a leader they have already grown tired of – when the desired
governor comes to power, the same segment of society forgets the Constitution and lets the new
‘clever’ leader ‘take care of it’.
Along with such attitudes of the political and intellectual elites towards the Constitution and
constitutionalism, the established de-facto one-party political systems impeded establishment of the
system of separation of powers in Georgia. Although many political parties have stood for the
elections since October 1990 and there have always been more than one party in the Georgian
parliament, at any given stage a ruling party considered itself to be the only political actor and strived
to establish a complete dominance and control over state institutions. Such self-perceptions as well as
the ruling parties’ tendency for merging with the state were nothing but the continuation of the Soviet
Communist Party traditions. The figure of the single political leader, the chief, is part and parcel of
these traditions. Such a figure makes the principle of the separation of powers inadmissible –
otherwise, the chief would cease to be the chief, that is the wisest person who has the final say.
Consequently, the principle of the separation of powers, which was at least declared in the
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Constitution during 1996-2003, has never transformed into a fundamental principle for the formation
and functioning of government institutions. Even for the most well-educated sections of the political
establishment that subscribe to liberal democratic values, the separation of powers remained desirable
in theory, but unattainable in the Georgian context. The majority of the opposition political parties
that argue most vehemently against the extreme concentration of power in the hands of the ruling
political leaders, are themselves governed in an authoritarian manner and the separation of powers or
checks and balances are alien notions within their parties. Moreover, the vast majority of active non-
governmental organizations are managed autocratically and they themselves fail to maintain
allegiance to the principles they require the government to abide by.
Therefore we can conclude that in the post-Soviet Georgia there has been no public demand
for constitutionalism or the separation of powers. Nor have the political elites been able to guarantee
such democratic benefit to society. However, there have been some attempts from the latter to either
establish a model based on the principle of the separation of powers declared by the Constitution or
modify the principle and establish a “Georgian model”. Below we will look at the Constitution of
Georgia of 1995 in its initial form and the changes made to it in February 2004, focusing our attention
on the horizontal division of state powers.

3. The Constitution of Georgia of 1995
3.1. The Constitutional Principles for the Arrangement of the Government

The main characteristics of Georgia’s government are defined by the Constitution adopted in
1995, namely by:

a) The preamble where the people of Georgia express their strong will to establish a democratic social
order, economic independence, a social and legal state, to guarantee universally recognized
human rights and freedoms…’;
b) Article 1 – ‘the form of political order of Georgia is a democratic republic’;
c) Article 5 that stipulates that:
‘1. The people are the sole source of state power in Georgia. State power is only exercised within
the framework of the Constitution.
2. Power is exercised by the people through referenda, through their representatives and through
other forms of direct democracy.
3. No individual or group of individuals has the right to seize or unlawfully take state power.
4. State power is exercised and based upon legal state principles’;
d) Article 7, which says that ‘The state recognizes and defends universally recognized human rights
and freedoms as eternal and supreme values. The people and the state are bound by these rights
and freedoms as well as by current legislation for the exercise of state power.’

Dozens of articles, dedicated to the implementation of these fundamental provisions, define
the model of the government and enable us to discuss the branches of the government, the extent of
the division and separation of powers and the types and effectiveness of checks and balances.

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