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Strasbourg, 10 December 2003
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Restricted
CDL (2003) 101
Engl. only.
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Opinion no. 251 / 2003
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
COMMENTS
ON THE UNIFIED ELECTION CODE
OF GEORGIA
AS AMENDED ON 14 AUGUST 2003
by
Mr Hjörtur TORFASON (Member, Island)
Introduction
1.
This
opinion is submitted to the European Commission on Democracy through Law (the
Venice Commission) in response to a request to the Commission for providing
comments on the unified Election Code of Georgia (the Code), as amended on and
as of 14 August 2003. In preparing the comments accordingly set forth below, I
have had access to the original Code of 2 August 2001, which was presented to
the Venice Commission in an unofficial (IFES) English translation of 11
September 2001 (CDL (2002) 20) and was in its time made subject of a review by
the Commission, against a background of several documents and reports from the
CoE Parliamentary Assembly and OSCE-ODIHR, resulting in a Commission opinion
dated 24 May 2002 (CDL-AD(2002)9).
2. In addition, I have examined a version of the
Code as amended until 25 April 2002, in unofficial English translation
(published as CDL(2003)45), which also was considered by the Commission and was the subject of an opinion from Mr. Michael Krennerich
of Germany on 2 June 2003 (Elections in Georgia: Comments on the Election Code
and the Electoral Administration,CDL-EL(2003)5). Finally, there is the version
here under review, i.e. the Code as amended until 2 August 2003, presented to
the Commission in an unofficial (IFES and OSCE) English translation of
September 2003 (CDL(2003)99).
3. The comments are being made without benefit
of dialogue with representatives of Georgia, and they also take only limited
account of the current political situation in Georgia and the practical
experiences with the Code in connection with the general parliamentary
elections of 2 November 2003, as my information thereon mainly stems from the
media and does e.g. not include detailed information on the process resulting
in the subsequent resignation of President Eduard Shevardnadze and the partial
annulment of the election results by the Supreme Court of Georgia on 25
November.
General
remarks
4. The unified Election Code of Georgia, adopted
on 2 August 2001,
integrated the previous laws on presidential elections, parliamentary elections
and elections for the organs of local self-government into a single body of
legislation and thus unified the rules for elections at all levels within a
comprehensive statute. In the opinion of 24 May 2002 by the Venice Commission, the adoption of
the Code was properly viewed as representing a major and important step forward
in securing democratic standards for elections for representative government in
Georgia. At the same time, it had to be acknowledged
that its rules were being established in an environment of difficult political
and economic conditions and against a background of deficiencies in the
implementation of election standards, which were seen to be reflected in the
extensive detail of many of its provisions.
5. As briefly referred to in said opinion, it
also appeared that some of the reformatory provisions of the Code were not
based on a solid political consensus. This especially applied to the provisions
on the composition of the Central Election Commission (CEC) and lower level
commissions (District and Precinct, DEC and PEC), in Chapter IV (Articles 27,
32 and 36). As set out in the Code, these provisions sought to change the
previous system towards depoliticisation and professionalism of the election
commissions, i.e. mainly by having the members of the CEC elected by the
Parliament from a list of candidates proposed by non-governmental organisations
(NGOs) engaged in electoral observation. This innovation did in fact remain an
issue of conflict, and in the result, the reconstitution of the CEC according
to this principle was never implemented. Instead, the Code continued to be an
object of serious debate.
6. The Code has now been amended a few times,
and many changes have been proposed and discussed. The amendments up to 25 April
2002, commented oninCDL-EL(2003)5 by Mr. Krennerich, were not extensive
and of rather secondary importance, although of positive nature. In the spring
of 2003, when the date for the forthcoming general parliamentary elections had
been fixed as 2 November 2003, matters came to a head, and the debate over
the Code resulted in several substantial amendments being adopted in August. Chief
among these was a revision of the provisions of Chapter IV on the composition
of the election commissions, involving a return to a system of having the
commission members appointed by the President and the political parties. As a
part of this move, it was decided to have the commissions for the November 2003
elections constituted on the basis of express transitional provisions (Article
128), which also dealt with the important matter of compilation of voter lists
for these elections.
7. Although my information is limited as above
noted, it seems that the relatively late resolution of the matters determined
by the amendments resulted in serious problems with the implementation of the
Code in relation to the November elections, so that the controversial conduct
of the election process largely may be ascribed to inadequate preparation
rather than inadequacy of the law.
8. The Code has from the outset contained nine
Chapters (I-IX) of provisions applicable to elections in general, followed by
two Chapters (X-XI) on elections for the President of Georgia, three Chapters
(XII-XIV) on elections for the Parliament of Georgia, and three Chapters
(XV-XVII) on elections for organs of local self-government (Sakrebulo -
representative bodies, and Gamgebeli - mayors). The Articles of these
Chapters bear numbers from 1 to 126. There is a Chapter XVIII (Articles
127-129) on transitional provisions, and a concluding Chapter XIX (Articles
130-131) proclaiming the entry into force of the Code and the repeal of prior
legislation. – In the process of amendment, this structure of the Code has been
maintained, including in most cases the division of the subject matter of each
Chapter among its Articles, so that where the amendments have required
additional Articles under a further heading, these have been given numbers
subsumed to the number of the related initial Article.
9. In the following, the amendments to the Code
will be discussed mainly in the order of its Chapters and Articles. By way of
general comment, it is to be noted that the various amendments all relate to
specific provisions and issues within the Code and do not alter its fundamental
validity or potential as a legal framework for free and fair elections. Secondly,
while the delicate issue of CEC, DEC and PEC composition stands somewhat apart,
the amendments largely are of positive nature and contribute to the
clarification of matters in their respective fields. Thirdly, while some of the
amendments relate or correspond to recommendations made and points criticized
by the Venice Commission and other institutions in the international forum,
several issues remain which may be regarded as problematic or debatable. It
follows that the various points and recommendations expressed in the
Commission’s opinion (CDL-AD(2002)9) and in the
comments by Mr. Krennerich (CDL-EL(2003)5) remain fully valid in so far as they
are not answered by the amendments.
General Provisions (Chapter I)
10. This Chapter, containing definitions used in
the Code and statements of basic principles, is mostly unchanged. In Articles 2
and 3, some provisions of technical nature have been added for clarification. In
Article 5 on universal suffrage, the former paragraphs 1 and 2 have been joined
and reworded so as to address both the active and passive electoral right, and
to make reference to those Articles in the Code under which the voting right or
eligibility as candidate may be restricted consistently with the Constitution,
i.e. subject to special registration or method requirements, such as in the
case of persons unable to vote in their precinct on election day on account of
disability or being at sea or dwelling abroad at the time. This appears to be
in line with comments in the Venice Commission opinion. There are two new
Articles, on the publicity of elections (8¹, stating that the conduct of the
electoral process shall be open and public), and on electoral right guarantees
(8², prohibiting the adoption of normative acts restricting free expression of
a voter’s will or interfering with the equality of election participants). Both
are to positive effect.
Registration of voters (Chapter II)
11. The provisions of Article 9 and related
clauses on voter registration (including in Article 29, on the powers and
duties of the CEC, a new para. 2.w) have been amplified and reworded with a
view to stating clearly that there shall be a general and centralized register
or list of voters which is to be regularly updated (with reference to February
and August of each year) and for the formation of which the CEC shall be
responsible. The commission also will be responsible for computer processing of
the voter list and publishing it on the Internet. The revision of the Chapter
to this effect represents an important positive step and is largely in line
with the recommendations of the Venice Commission, which remain in point.
12. The revision involves a clarification of
various matters concerning the voter list, such as the position of persons who
are placed outside their precinct at the time of elections (e.g. in hospitals,
in detention, at sea or abroad). It is foreseen that these will belong within
the general list, but entered on a special list under Article 10 compiled by
the DEC, which secures them the possibility of voting (other than in
majoritarian elections in their registered districts, if their current location
is outside the district). The provisions of Article 12 on a voting license
obtainable on the basis of changed residence until the day before election day are deleted. The term “voter’s list supplement”
(Article 11) is now used for the mobile ballot box list, intended for physically
handicapped or forcibly displaced persons, the provisions on which have not
been substantially changed.
13. Article 9.12 provides that the voter list may
not be amended within the last 10 days prior to election day,
and only by way of court ruling within the 19th to the 10th
day. This is a significant tightening change and needs to be counterbalanced by
publishing requirements and by easy access to inspection of the standing list. The
latter is i.a. provided for in Article 9.7 (where each voter is expected to
receive only data concerning himself and his family).
14. In relation to the elections of 2 November,
it was found necessary to provide for a definitive voter list by transitional
provisions, which are contained in Article 1286 and mainly intended
to be in line with Chapter II but with different time limits. It appears that
the problems with the compilation and maintenance of this list were among the
most serious encountered in connection with the elections and thus of fateful
import. This is perhaps mainly to be ascribed to time constraints and other
specific circumstances. In any case, the provisions of the Chapter as amended
clearly provide a sufficient basis for a satisfactory register if properly
implemented.
Election Districts and Election Precincts (Chapter
III)
15. The text in Article 15 on the formation of
election precincts (entrusted to the CEC, as under Article 29.3.a of the
original Code) has been amplified, but mainly to provide for time limits and
publication rather than to provide guidelines. There is no change as regards
the question of equality of apportionment of single-mandate parliamentary
districts (maximum deviation in the ratio of registered voters per district),
so the previous comments by the Venice Commission on the matter remain pertinent.
As noted for my part, the problem is partially offset by the weight of the
parallel nationwide proportional election system, and also is a constitutional
problem. While the fundamental importance of this question is not to be
ignored, it is tempting to think that it may be of secondary weight at this
point in time as compared with the urgent problems of ensuring the integrity of
the voting register and establishing public and political confidence in the
election commissions.
16. The text of Article 16 on election precincts,
the formation of which is entrusted to the pertinent DECs, also has been
amplified. The allowable maximum of 2,000 voters per precinct (Article 17.2)
has not been lowered, however, and the recommendation for its reconsideration
still appears pertinent.
Election Administration (Chapter IV)
17. As above noted, the Georgian election
administration appropriately is intended to operate at three levels as a
centralized system, having a Central Election Commission (CEC), District
Election Commissions (DECs) and Precinct Election Commissions (PECs). It is now
further provided (Article 17.5 and 31¹) that the Abkhazian and Adjarian
autonomous republics also shall have their own CECs. Their task will be to
organize elections for the state representative authorities and elective
government authorities of the autonomous republics. In elections under the
Code, the DECs within the territory of each republic will be subordinate to its
CEC.
18. The extensive Chapter IV (Articles 17-39)
deals with the organisation, powers and functions of the ECs in considerable
detail, clearly intended to promote transparency and confidence, and has now
been reinforced and amplified by several revisions and additions to positive
effect. The tenor of the changes may e.g. be observed in the initial Article
17, where the status of the ECs is now described in terms emphasizing their
independence as entities of public law (for which purpose the prior text on the
CEC in Article 26 has been moved here and expanded). Among other things, it is
now spelled out in 17.6 that the CEC is accountable to the Parliament of
Georgia, and is required to submit a report concerning any offences against the
election law and related matters within 60 days after the end of each elections. According to 17.7, the authority to review such
report and the legality of EC activities is vested in an ad hoc parliamentary
commission, where the number of majority representatives shall not be more than
half.
19. Article 18, which designates the members and
staff of the ECs as officials of the election administration, draws a different
line than before between them and the civil service (with the staff being civil
servants, but the members only so for certain purposes). A new 18.3 provides
that an EC member may not join a political party and must withdraw or suspend
prior membership thereof. In Article 19 on rights and responsibilities, a new
para. 3 also appropriately declares that an EC member is not a representative
of the election subject which may have appointed him/her, and that in his/her
activities, the member shall be independent and subject only to the
Constitution and the law.
20. Among the persons excluded from membership of
an EC, Article 18.6.h continues to name judges and their assistants. This may
constitute a disadvantage under current conditions in Georgia from the point of
view of trust in the ECs, but in view of the necessary role of the courts of
law in connection with the implementation of the election legislation, and of
the need for trust in the courts, it may be questioned whether a departure from
this should be recommended.
21. As noted in the introduction, one of the main
objectives of the new amendments was to reconsider the principles for
composition of the election commissions. These are dealt with generally in
Article 26 and in Articles 27-28 for the CEC, 32-32 for the DECs and 36-37 for
the PECs. Both the CEC and the DECs are institutions
of permanent tenure, with regular appointment or re-appointment occurring in
the months following each general parliamentary elections,
which corresponds with the principles adopted. The PECs are constituted in
advance of each forthcoming elections (generally during the second last month),
and on the footing that no member can be removed within 7 days of the election
(Article 21.4).
22. The solution adopted in August was to have
the commissions appointed by the President and the political parties. It is
thus foreseen that the CEC normally will have 14 members, of which two are
appointed by the President, one each by the Presidents of the two autonomous
republics, and two each by the five parties or election blocs obtaining the
most votes in the latest parliamentary elections. Normally the condition is
that the party has passed the threshold of 7% of the popular vote, but if these
are less than five, the limit will be lowered to 3%. If the latter leaves less
than five parties, these parties will each be entitled to appoint one
additional member. – Similar rules apply to the DECs, where one member is
appointed by the newly constituted CEC, and the remainder by the
parties/election blocs. These nominate one member each, with a minimum total of
7 members being required. – This principle again applies for the PECs, where the total members will be from 9 to
13 depending on the number of voters in the precinct.
23. Under the transitional provisions of Article
128, the CEC was constituted of 15 members, with a chairperson appointed by the
President according to nomination by the OSCE. The President appointed another
five members, while the remaining nine members were appointed by political
parties (three each), starting with the party with the second best results in
the last parliamentary elections.
24. While the rules for CEC appointment under the
original Code were of particular interest, it must also be said that the
solution adopted for the future ECs of Georgia according to the amendments
appears to constitute a basically valid approach, making it possible to
maintain consistency with international standards in the long term, and in the short
term, the consistency does apply if it may be said that the solution was based
on a real political consensus at the time. The achievement of the standards
under this model may require a certain political stability or balance which may
not be at hand as of now, but the main premise is in any case that the
commissions work independently and professionally and are generally regarded as
legitimate. This is possible under “partisan” appointment, since abuse of trust
in the electoral process will in the end affect all parties. Further, the model
is one which can be improved upon without departing from the underlying
concept.
25. It remains to be added that the Chapter
contains a new Article 39¹ with provisions concerning the nomination of
candidates for election as members of the election commissions. These
provisions include a right for NGOs (non-governmental and non-commercial
entities) and voter initiative groups to nominate candidates for DEC and PEC
memberships. This would seem to be a positive element.
26. It also is to be noted that the provisions
concerning the selection by the ECs of their administrative officers
(Chairperson, Deputy and Secretary) have been amplified in a new Article 22¹
(replacing 22.2). The principle of election by majority has not been abandoned,
but full majority by roll-call is required in the first instance.
Registration
of Election Subjects and Lists of Supporters (Chapter V)
27. The provisions for candidate registration
procedures have been amplified for added clarity, and now allow for giving a
short respite to the applicants to correct inconsistencies in their documents,
in line with suggestions from the Venice Commission. This also is reflected in
Article 98 on parliamentary election registration. The provision for random
checking of supporter lists (Article 42.2) has, however, not been altered.
Election
Funding (Chapter VI)
28. The provisions on financing of the election
administration have been amplified and clarified by requirements for an annual
budget of the CEC, in Article 43, which also authorizes the CEC to file a claim
in the Supreme Court if allocated funds are not transferred to its account.
29. As to campaign funding, the provisions of
Articles 46-48 are progressive and conducive to transparency, and remain
unchanged.
Polling
(Chapter VII)
30. This Chapter includes several amendments
contributing to increased clarity of the law and orderliness of the voting, and
provisions for safeguards against electoral fraud have been strengthened, both
towards the voters and election officials and those present at polling
stations. The former include a new Article 52¹ directed against multiple
voting, providing for the marking of voters by invisible chemical ink. This
innovation, which was discussed in the above opinion of Mr. Krennerich, presumably
is the more important while there are problems with voter lists. There also is
an innovation in Article 50.3.a, which requires one side of each voting booth
to be open to enable observers to keep the voter in sight. It is to be hoped
that this requirement can be abolished with before long, though it may perhaps
be reasonable in the light of recent experiences.
31. As regards the election officials, there are
amended and detailed provisions in the new Article 51¹ and 51² concerning
summary protocols of the PEC of voting and election results and an election day record book, which aim at promoting the
security of the election data and facilitating their certification and eventual
publication. There are also additional provisions to promote voter flow and prevent
crowding at the polling place, the latter of which include authorizations for
limiting the number of observers and requiring them, if necessary, to choose
representatives from among their number. – On the other side, there are
improved provisions concerning access of disabled persons and voting by persons
with limited eyesight.
32. In Article 58.4, it is now clearly provided
that ballots from mobile ballot boxes shall be counted separately, as suggested
by the Venice Commission.
33. The Articles on vote counting (58-60) provide
clearly for the entry of results information into the PEC summary protocol, and
also that six copies of the protocol shall be given directly to the most
successful election contestants in the precinct and two to observer
organisations, while the original is dispatched to the DEC. Further copies can
be requested the following day. Under the Articles relating to consolidation of
voting results by the DECs (60-63), similar provisions apply.
Transparency
of Preparation and Conduct of Elections (Chapter VIII)
34. There are also several specific amendments in
this Chapter, one of which (Article 66.3) importantly requires the public
broadcasting TV to use gesture-translation or other technology in favour of
people with limited hearing when communicating information from the election
commissions. The provisions of the Chapter concerning the media have generally
been amplified in a positive direction, inter alia to promote equality in
political campaigning.
35. In Article 73 on election agitation,
para. 3 curiously has been limited so as to proclaim
only a deadline for agitation in the press and other mass media, which is set
at 24:00 on the day prior to election day. There appears to be no general
deadline, and the original wording including dissemination of agitation
materials in vicinity of the DEC buildings has been dropped. There seems reason
to reconsider this matter.
36. On the other hand, a clear deadline for
publication of opinion poll results has been added in 73.12 (forbidden from 48
hours prior to voting time and until 24:00 on election day), and disclosure as
to whether a poll is paid for or unpaid must now be added to other information
on the poll.
Adjudication
of Disputes (Chapter IX)
37. The provisions of this Chapter (Article 77),
containing timeframes and rules for handling of disputes over breaches of the
election law and the election process, have been
reviewed and partially revised and expanded in the interest of added clarity
and efficiency. The instructions as to court referral are quite precise, and
although a choice between appeals to an election commission or a court has been
maintained, the significance of potential problems therewith appears to have
been reduced.
Elections
of the President (Chapters X-XI)
38. The changes in these Chapters are mostly
minor. With reference to prior comments by the Venice Commission, it is a
disappointment that the possibility of withdrawal of candidates during the
campaign (at any time before polling day, Article 84.4) has not been
restricted. The requirement for not less than 50,000 supporters of the
candidature also has been maintained (Article 81.2).
Elections for the Parliament (Chapters
XII-XIV)
39. These Chapters contains certain amendments,
mainly for clarification in various respects. With reference to prior comments,
it is to be noted that the requirement of 50,000 supporters in the nationwide
elections for a non-parliamentary party (now in 95.10) is being maintained. There
is, on the other hand, a new Article 95¹ concerning election registration of voter-initiative
groups, presumably to supplement other provisions for their participation in
presidential and single-mandate elections.
40. Again with reference to prior comments, the
7% level of the threshold for parties in the nationwide elections (now in 105.6)
has not been lowered, but the matter is also constitutional.
41. In Articles 92.3 and 107¹, there are now
provisions preventing drug addicts or users from being elected for Parliament,
and requiring attestation in that respect before an elected member is
recognized. This is rather exceptional and may merit consideration.
Local
Government Elections (Chapters XV-XVII)
42. The provisions of these Chapters were not
amended in August, and do not call for comment here.
Transitional
Provisions (Chapter XVIII)
43. The transitional provisions added in August
behind the original Article 128 deal with the organisation of the elections of
November in considerable detail. Owing to my limited information at this point
on these elections and the associated controversy, I am refraining from
specific comments on the text for the time being.
Conclusion
44. As a concluding general remark, it is proper
to state that the Electoral Code of Georgia as amended since 2001 remains a
comprehensive and thoroughly drafted body of legislation which does in
principle provide an adequate legal framework for democratic elections. In the
recent amendments, note has been taken of several views and comments expressed
by the Venice Commission in respect of the original Code. There still are
certain provisions which may be regarded as problematic, and it is to be hoped
that circumstances in the country will permit their consideration in due
course.
