ODIHR Opinion on draft amendments to the Election Code of Georgia leaves room for speculations

By Natalia Kochiashvili

Friday, February 7

The OSCE says any electoral change should be carefully considered and the parties to reach a broad consensus.

The United Opposition has offered the ruling party a switch to the German model of electoral system after parliament failed to pass a draft law on transferring to a fully proportional system by 2020.

The report prepared by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) on the package of amendments prepared by the opposition on Georgian election legislation has been published on February 5, 2020. It concerns the amendments to the Organic Law “election code of Georgia”, in particular, introducing the so called German model that was drafted by the opposition and sent to ODIHR by Georgian public defender, Nino Lomjaria.

The report acknowledges ongoing discussions with respect to the constitutionality of the proposed amendments and emphasizes that it is up to the national courts to make a final judgment on constitutionality of the legislation. It covers the amendments submitted for review and analyses them against “relevant international obligations and standards, including OSCE commitments, as well as international good practice”.

According to the ODIHR, whatever election system the country will have is its sovereign choice. Whether the electoral system will be majoritarian, proportional, hybrid or alternative, it should be subject to inclusive scrutiny.

“Any proposed changes have to be carefully considered, including their adoption by a large consensus among political parties.” – reads the report.

The ODIHR package also makes recommendations concerning the regulations on how voters cast the ballots, the deadline for the Central election commission to summarize the final results, as well as the coherence of votes and mandates in the multi-mandate constituencies, and the revision of the provision that abolishes party votes, if the civilian voted for the independent candidate in majoritarian constituencies.

Opinion statement published by the ODIHR says that the proposed bill replaces the fundamental elements of the Electoral Code. International good practice recommends that key aspects of electoral law not be opened for change one year before elections.

However, according to the ODIHR, amendments should be made to the organic law, which the Parliament can adopt by a simple majority in accordance with the constitution.

According to the ODIHR, international standards do not offer definition of electoral systems. Whether a particular system should be categorized as majoritarian, proportional or hybrid is a matter of political and legal learning, of scientific reasoning.

As stated in the document, the proposed package fits in with the principles of universal, free, secret and direct suffrage.

Politicians in Georgia have already responded to the report. Former Georgian Parliament Speaker Irakli Kobakhidze appealed to the opposition to agree to a proposal by the ruling party to hold a mixed 2020 election on the principle of 100/50. Otherwise, he said, the elections would be held on the existing 77/73 principle. Irakli Kobakhidze gave the aforementioned warning while commenting on the report of the OSCE-ODIHR.

According to Kobakhidze, two conclusions can be made based on the report: choosing election system is state’s sovereign rights and, both, fully majoritarian and mixed election systems are fair; there’s also a hint, that it shouldn’t be changed during the election year. However, the main takeaway from the ODIHR opinion, according to the ex Parliament spokesperson, should be that the constitutionality of the bill is not ODIHR’s prerogative.

European Georgia member Sergi Kapanadze stressed at the briefing that the ODIHR report did not say a single word that the model they proposed was unconstitutional, a key argument of the Georgian Dream against the project.

"As expected, the OSCE says that this model is in full compliance with international standards, it has no opposition to [European] best practice.” - Kapanadze said at a briefing yesterday, adding that they are ready to work on all the recommendations outlined in the report. "European Georgia" believes that the OSCE conclusion will be one of the important tools to continue to exert pressure on the government.

Lelo Chairman, Davit Usupashvili emphasized, that the OSCE has no questions about the constitutionality of this model and has technical recommendations such as how to fill out a ballot paper,

He dismissed the Georgian Dream's estimates that the system based on the German model is unconstitutional: " When such a question was raised by the OSCE in relation to one of the Moldovan draft laws, it did not evade and wrote about it in the document” – said Usupashvili, calling GD’s narrative speculative.