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Constitutional reforms

 

Constitutional reforms are complex and lengthy processes. In some European States, these processes have stretched over several years, and have been accomplished through subsequent sets of amendments. Sometimes they are the result of a new positioning of political forces following elections and pushed by new majorities wishing to consolidate and, where appropriate, re-establish the institutional and constitutional architecture of the country.  

 

Requests for assistance and the participation of the Venice Commission in these processes bear witness to the trust and respect enjoyed by the Commission from the States concerned as well as from institutional partners within and outside the Council of Europe.

 

Key topics

In recent years, the Venice Commission has been working on important constitutional reforms and/or constitutional issues in a significant number of European and non-European countries, representing both younger and more established democracies. 
 

In this context, the Commission tackled diverse and complex issues including:

  • the balance between flexibility and rigidity of the Constitutional provisions;
  • procedures for amending the Constitution (thresholds and required majorities for constitutional amendment, the inclusiveness of the constitutional process, the citizens’ participation in the decision-making);
  • the need for a coherent concept for the country’s political system;
  • checks and balances between powers and the principle of inter-institutional co-operation;
  • the delegation of legislative powers;
  • judicial reforms;
  • guarantees for the respect of the rule of law and fundamental rights and freedoms;
  • electoral reforms
  • regulations aimed at cleansing the state administration from incompetent, corrupted, and/or crime-related individuals.
  • local self-government and decentralisation issues etc.

 

In 2010, the Commission adopted a general Report on constitutional amendment.

Also see: Compilation of Venice Commission documents on constitutional amendment

 

Opinions on recent reforms

In 2018, the Commission adopted opinions on the last set of constitutional amendments in the process of the passage to a proportional election system in Georgia, constitutional amendments pertaining to the judiciary in the Republic of Moldova and in Serbia, as well as on (draft) amendments to the Constitutions of Malta and Albania.

  • In March 2018, the Venice Commission adopted a third opinion concerning the recent constitutional reform in Georgia. The 2018 opinion examined a last set of draft amendments mainly enabling the political parties, for the 2020 parliamentary elections exclusively, to form electoral blocks and providing for an election threshold of 3%. The Commission welcomed those “measures” as factors which alleviate the detrimental effects of the postponement of the entry into force of the proportional election system for smaller parties. On 24 March the Parliament adopted the last set of amendments. The revised Constitution entered into force after the 2018 presidential election.
     

  • Draft amendments to the Constitution of the Republic of Moldova in respect of the Judiciary had been prepared in the framework of the national judicial action plan for EU association. The Venice Commission welcomed the removal of probationary periods for judges and the introduction of the functional immunity of judges on the constitutional level. at at the same time, it emphasized the importance of the dialogue between the Superior Council of the Magistracy and the other institutions and recommended increased clarity as to the composition of the Council. A second opinion welcomed the introduction of the freedom of association to the Constitution of the Republic of Moldova, whilst providing a few recommendations in order to improve the assessed draft law even further.
     

  • The Venice Commission examined the constitutional revision of the judiciary of Serbia and made recommendations especially regarding the composition of the High Prosecutorial Council and the High Judicial Council, the dissolution of the latter, the selection of public prosecutors, the grounds for the dismissal of judges and of deputy public prosecutors as well as the method to ensure uniform application of laws. These recommendations were followed by the new draft amendments.
     

  • The Venice Commission examined a draft amendment to the Constitution of Malta establishing a human rights and equality commission (the HREC), as well as a Board with an adjudicative authority, to be set up by the HREC In the Commission’s view, the establishment of such a quasi-judicial authority was problematic as its competency overlapped with the constitutional competency of the courts, and the needed judicial guarantees of independence and fair trial had not been foreseen. A second opinion looked into structural, constitutional and legislative issues with a view to assisting Malta in improving checks and balances and the independence of the judiciary. The Commission recommended strengthening the position of the President, Parliament, the Cabinet of Ministers, the Judiciary and the Ombudsman which are too weak to provide sufficient checks and balances over the Prime Minister. The opinion, which also made recommendations on the judiciary and prosecution service, might become the basis for a future constitutional reform in Malta.
     

  • Initiated by the Albanian parliamentary opposition, the draft constitutional amendments on politician’s vetting in Albania, were aimed at preventing persons who “have contacts with persons involved in organised crime” from being candidates for Parliament or other elective positions, or from holding such positions. The opinion concluded that the vetting proposal, despite its legitimate aim, failed to provide the guidance and safeguards needed for such a complex and sensitive process, with severe implications for the rights of those subject to it.

     

In 2017, the Commission adopted opinions on the major constitutional reform in Turkey, which introduced a super-presidential regime, and the completion of the constitutional reform in Georgia (which was assessed in two opinions). It also examined a proposal for a constitutional amendment referendum in the Republic of Moldova, where the President sought to expand his power to dissolve Parliament, and the constitutional reform in Kazakhstan, where some of the powers of the President were distributed between Parliament and the Government.

 

  • Following the failed coup of 2016, and in the context of the state of emergency, the Turkish Parliament adopted constitutional amendments which transformed Turkey into a presidential regime. The President will henceforth be a party leader, who would appoint and dismiss, at will, ministers, vice-presidents, and other top officials. The President will have the power to dissolve Parliament, issue presidential decrees and veto laws. The President will have the power to appoint almost half of the members of the high judicial council. The opinion concluded that the proposed presidential system concentrated excessive power in the hands of the President, weakened the control of Parliament over such power and weakened even further the judiciary.

     

  • The constitutional developments in 2017 in Georgia completed the evolution of Georgia’s political system towards a parliamentary system, started in 2010. In its June 2017 opinion, the Commission welcomed the passage from a partly majoritarian system of parliamentary elections to a fully proportional system. However, the Commission criticised the combination of the relatively high threshold, the allocation of the wasted seats to the winning party and the prohibition of party blocks, detrimental to smaller parties. The Venice Commission also regretted the postponement of the establishment of the second chamber of Parliament. The second opinion on Georgia (adopted in October 2017) examined the revised text of the constitutional amendments, which took into account some of the Commission’s earlier recommendations.

     

  • The opinion on a proposal for constitutional amendment referendum in the Republic of Moldova was requested by the President of the Republic of Moldova, in an attempt to supplement the Constitution in order to enlarge his powers to dissolve Parliament. The Commission observed that, despite the return to the direct election of the President, the Republic of Moldova remained a parliamentary regime, where the President’s dissolution powers should remain “semi-automatic” and not discretionary, as proposed by him. The Commission also expressed doubts as to the legitimacy of the referendum as such. 

     

  • The constitutional reform in Kazakhstan, adopted in March 2017, changed the distribution of powers between the President and other branches of state power. The role of the Parliament was increased and some of the powers previously in the hands of the President were distributed between the Government and Parliament. The Constitutional Council received additional competencies (to examine draft constitutional amendments and questions to be submitted to a referendum), which was welcomed by the Venice Commission.

     

  • At the request of the Organisation of American States the Commission adopted an opinion on the National Constituent Assembly in Venezuela, convoked in 2017 by President Maduro. The opinion concluded that the decision on the convocation of the Assembly could only be taken in a referendum, and the power to establish the rules for the election of the Constituent Assembly belonged to the National Assembly (Parliament) only, which had to adopt a specific piece of legislation. The rules based on sectorial representation within the Constituent Assembly entailed a flagrant violation of the democratic principle.

 

In 2016, the Commission adopted opinions on the referendum on constitutional amendments in Azerbaijan and on the state of emergency in Turkey. Furthermore, the Venice Commission adopted the final opinion on the constitutional reform regarding the judiciary in Albania.
 

  • In July 2016 the President of Azerbaijan introduced amendments to the constitution. This reform had been put to the referendum without the involvement of the Parliament and without genuine public discussion. The Commission noted that position of the President, already very strong, was strengthened even further, which disturbs a proper balance of powers.
     

  • The 2016 opinion on France (Opinion on the Draft Constitutional Law on “Protection of the Nation”) recommended that the proposed constitutional clause on emergency regime should circumscribe emergency powers of the legislature and that the prolongation of the state of emergency be decided by a qualified majority of votes.
     

  • Three major opinions on Turkey have been adopted in 2016. The first concerned the suspension of the second paragraph of article 83 of the Constitution guaranteeing parliamentary immunity. This amendment was criticised as a misuse of the constitutional amendment procedure, which, in addition, encroached on the freedom of the parliamentary debate. 
     

  • The second opinion on Turkey adopted in 2016 did not concern permanent modifications to the Constitution, but the emergency regime introduced in July 2016, whichhad important effect on the constitutional design of the country, at least temporarily. The Commission acknowledged that vesting the Government with the emergency powers might have been justified after the failed coup d’état of July 2016, but the measures taken by the Government were excessive. In particular, the Commission expressed concern that the Government was allowed to legislate for over two months without any control by Parliament or by the Constitutional Court, and that it conducted an indiscriminate purge of the State apparatus, which raises serious human rights concerns.
     

  • The third opinion on Turkey concerned the curfew measures impose din the South-Eastern part of Turkey which, in the view of the Venice Commission, did not meet the requirements of legality enshrined in the Constitution and resulting from Turkey’s international obligations in the area of fundamental rights.
     

  • The work on the Albanian constitutional reform, started in 2015, continued in 2016. The Commission adopted a final opinion in which it generally endorsed a comprehensive reform of the regulatory bodies of the Albanian judiciary, and the introduction of a special ad hoc “vetting mechanism” supposed to combat corruption amongst judges and prosecutors, under supervision of the international community. The Commission also adopted an amicus curiae brief for the Constitutional Court of Albania regarding the vetting law, which developed constitutional provisions on the vetting of judges and prosecutors.
     

  • The Venice Commission analysed the draft law of the Republic of Moldova proposing an “ethno-cultural status” for the district of Taraclia, inhabited by a majority of ethnic Bulgarians. Notwithstanding the legitimacy of its declared aim - the preservation and protection of the linguistic and cultural identity of Bulgarians in Taraclia - the draft raised issues of legal certainty, constitutionality and consistency with the relevant domestic legislation, and the proposed status appeared to bring little added value to the existing legal framework.
     

  • The Venice Commission endorsed the preliminary joint opinion by the Venice Commission and the OSCE/ODIHR on the introduction of amendments to the Constitution of the Kyrgyz Republic, where it concluded that the draft amendments would negatively impact the balance of powers by strengthening the powers of the executive, while weakening both the parliament and the judiciary.

 

See also - the Compilation of Venice Commission opinions concerning Constitutional and Legal Provisions for the Protection of Local Self-Government (CDL-PI(2016)002).

 

See also: All documents on constitutional reforms

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