OSCE/ODIHR Releases Opinion on Proposed Amendments to Georgian Election Code

The OSCE Office for Democratic Institutions and Human Rights (ODIHR) released its opinion on the draft amendments to the Organic Law of Georgia ‘Election Code of Georgia,’ saying the choice of the electoral system is a sovereign decision of the state so long as the chosen electoral system is consistent with the state’s obligations under international law.

OSCE/ODIHR’s opinion regarding the amendments to the election code of Georgia was requested by Nino Lomjaria, Public Defender of Georgia, on December 9, 2019.

The key notes listed in the document read that the international standards do not offer definitions for electoral systems, and that whether a particular system should be categorized as a majoritarian, proportional, hybrid, or better understood through another classification, is the subject of political and legal studies and scholarly opinion.

“The choice of an electoral system should be subject to a broad and inclusive debate that allows relevant stakeholders to bring forward positive and negative effects of the reform. Any proposed changes have to be carefully considered, and should be adopted through a process that facilitates a large consensus among political parties,” the opinion reads.

The document states that international practice recommends that key aspects of electoral legislation should not be open to amendment less than one year before an election.

“The draft proposes changes in the fundamental elements of electoral law, including the electoral system. International good practice recommends that key aspects of electoral legislation not be open to amendment less than one year before an election. The change would be implemented by amendments to the organic law, which, according to the Constitution, can be changed by a simple majority of votes in Parliament,” the statement reads.

In addition, the opinion notes that the proposed amendments do not introduce changes affecting compliance with the principles of universal, free, secret and direct suffrage, as well as periodic elections.

The organization also listed some recommendations:

• Amend the provision on how voters are required to mark the ballot to ensure that ballots where the will of the voter is clearly expressed are not considered invalid;

• Reconsider the provision that disregards votes for the party lists of voters who voted in favor of a winning independent candidate in the majoritarian race in that district;

• Ensure the deadline for the Central Election Commission (CEC) to summarize final election results does not go beyond the period necessary for this purpose and is in line with deadlines for election disputes; and revisit the method for selecting the sub-district in which by-elections will be held to provide a politically neutral mechanism;

• Undertake analysis and, if necessary, include additional provisions to ensure as equal a distribution of seats between the new multi-member constituencies as possible;

• Review the draft law to omit provisions which are not being amended, clarify which provisions are replaced, and ensure consistency of the amendments with the current provisions of the Election Code

Initially, the draft amendments envisaged the electoral system for the upcoming parliamentary elections due to take place in autumn, 2020. However, the constitutional amendments of 23 March 2018 introduced a fully proportional electoral system from the 2024 parliamentary elections. Thus, the 2020 parliamentary elections are currently subject to transitional provisions of these amendments which maintain the existing electoral system and provides 77 members of the parliament to be elected through a proportional system and 73 members of the parliament to be elected through a majoritarian system for the term of four years. Accordingly, the current Election Code provides for a mixed electoral system, which includes a majoritarian and a proportional component. In the majoritarian component, members are elected in single-mandate constituencies by an absolute majority of votes. If no candidate obtains the required majority of votes in the first round of voting, a second round is held between two candidates with the highest results. The proportional component is based on a closed list proportional representation system. The mandates distributed under the proportional component do not depend on the results of the majoritarian component.

The OSCE/ODIHR noted that, following the political agreement to amend the constitution and introduce a fully proportional system ahead of the 2020 parliamentary elections on 28 June 2019, the draft constitutional amendment was initiated by 93 members of parliament from the ruling Georgian Dream (GD) party. However, in the vote on the constitutional amendments on 14 November, a constitutional majority was not reached. On 4 December, a group of 29 opposition MPs initiated a new proposal to amend the election code. The amendments envisage a system in which, instead of the two-round system in single-mandate constituencies, 73 members of parliament would be elected from multi-mandate constituencies. Thus, voters would cast one vote and candidates with the most votes would obtain seats. The remaining 77 members of parliament would be elected through a closed list system. In contrast to the current mixed system, the distribution of seats in the proportional component would be linked to the performance in the multi-mandate constituencies and the stated aim of the proposed system is to deliver a more proportional outcome between the votes cast and the number of seats won.

“The choice of the electoral system is a sovereign decision of the state, so long as the chosen electoral system is consistent with the state’s obligations under international law. International standards do not prescribe the choice of electoral systems,” the organization said.

Opposition ‘European Georgia’ member Sergi Kapanadze says that the opinion of OSCE/ODIHR shows that the so called German Model, suggested by the opposition, does not contradict the Georgian constitution, as stated by the ruling party, and it is also in line with international standards.

“The OSCE concludes that this model is in line with international standards. It says that any model offered will have to be agreed between the parties and there must be a consensus...There is no word in the report that this proposed reform is unconstitutional. Moreover, the OSCE / ODIHR directly stresses that the model we propose, which involves multi-mandate constituencies, can be considered as a majoritarian component of the electoral system,” the MP noted, adding the OSCE conclusion is to confirm that the model proposed by the opposition can be put to the vote in Parliament.

However, the ruling GD’s position is that the proposed model is not constitutional and they refuse to discuss it. The leader of the parliamentary majority, Mamuka Mdinaradze, says the opposition is trying to mislead society when they claim the model is in line with the Georgian Constitution.

“It was, is, and will not be possible to determine that the German model is compatible with the Georgian Constitution...This cannot be written anywhere and no one would state this...They [the opposition] are manipulating words to lie to society and make them believe that it was written so in the report,” Mdinaradze said.

By Tea Mariamidze

Image source: CoE