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“Georgian Citizens Ucha Nanuashvili and Mikheil Sharashidze against the Georgian Parliament”

July 7, 2015
Analysis of the decision issued on the case by the Constitutional Court of Georgia

Mikheil Sharashidze, Constitutionalist

Georgian citizens Ucha Nanuashvili and Mikheil Sharashidze appealed to the Constitutional Court of Georgia with the constitutional claim (registration N547) on December 12, 2012. The claim was prepared in Human Rights Center. The Constitutional Court by the first panels’ protocol record N1/1/547 of July 4 2013, received the constitutional claim for an substantial hearing. Meeting of the substantial hearing was held on January 30, 2014, by oral hearing. The decision was issued on May 28. The Constitutional Court deemed as unconstitutional those norms of Election Code of Georgia, which provided rules of determining 73 single mandate majority electoral districts.

The plaintiffs contended the first and second paragraphs of article 110 of the Organic Law of Georgia- Election Code of Georgia. According to the first paragraph of article 110 of the Election Code of Georgia, “73 single mandate majority electoral districts are created for the parliamentary elections, including 10 majority electoral districts in Tbilisi.” According to the second paragraph, “for parliamentary elections, each municipality (self-governing city, district), except Tbilisi, is a single mandate majority electoral district” (edition of December 27, 2011).

According to the plaintiffs, the disputed provisions of the Election Code contradict article 14 and first paragraph of article 28 of the Constitution of Georgia.

According to article 14 of the Constitution of Georgia, “Everyone is free by birth and is equal before law regardless of race, colour, language, sex, religion, political and other opinions, national, ethnic and social belonging, origin, property and title, place of residence.” According to the paragraph I of article 28, “Every citizen of Georgia who has attained the age of 18 shall have the right to participate in referendum or elections of state and self-government bodies. Free expression of the will of electors shall be guaranteed”.

The plaintiffs were pointing out incorrect determination of electoral districts and disproportion of distribution of parliamentary seats. According to the plaintiff’s argumentation, number of population in districts is significantly different and the seats are distributed unevenly, which decreases the weight of citizen’s vote. In some cases, the disproportion is so high, that number of registered voters is 22 times more in some districts. All the above mentioned distorts the results of majority elections, because the votes are disproportionately reflected in the final results of the election.

For example, according to the information published by CEC, number of registered voters in 10 majority electoral districts is more than 1 000 000 (1 025 455 voters), while there are 3 613 851 voters registered in electoral districts of the whole country. Accordingly, 28% of total voters are registered in 10 districts of Tbilisi, and 10 mandates out of 73 are distributed in Tbilisi, which is only 14% of the seats.

According to the argumentations of defendant, a representative of Georgian Parliament, the deviation of equality of citizens’ votes is conditioned by the electoral system established by the Constitution of Georgia and specifics of majority elections. According to the explanations of the defendant’s representative, majority elections mean not the representation of the population but representation of municipalities, which is explained by the fact that majority elections by itself means the territorial representation.

The Constitutional Court of Georgia, first of all, checked the defendant’s argument and confirmed if the majority electoral system, established by the Constitution of Georgia, means the territorial representation and whether the representation of municipalities – local self governing units is considered within this representation.

As the Constitutional Court has pointed out, popular sovereignty principle which is consolidated by article 5 of the Constitution of Georgia, manifests one of its expressions in article 52 of the Constitution of Georgia, which defines that a member of the Parliament of Georgia shall be a representative of the whole Georgia. At the same time the Constitution of Georgia does not provide territorial representation… Article 4 of the Constitution of Georgia After the creation of appropriate conditions and formation of the bodies of local selfgovernment throughout the whole territory of Georgia, upper chamber of the Parliament –Senate shall be created, which is set up by members elected in territorial units and 5 members appointed by the President of Georgia. Thus, according to the Constitution of Georgia, the system based on the principle of territorial representation shall be enacted only “after the creation of appropriate conditions throughout the whole territory of Georgia”.

Thus, according to the Constitutional Court, “the constitutional legitimacy of local self-governments does not apply on the participation in stuffing of the Parliament.”

It is pointed out in the decision of the Constitutional Court that “electoral system, by its context, represents a mechanism, tool, by which an appropriate legitimacy shall be transferred from the source of legitimacy to the receiver state authority (or an official). In the conditions, where the Constitution does not provide the participation of territorial units in the formation process  of Georgian Parliament and territorial units do not hold the constitutional legitimacy, or have representatives in Georgian Parliament, the majority electoral system cannot be considered as the source of legitimacy.”

In addition to this, “according to the governance model established by the Constitution of Georgia, the Georgian Parliament as the highest representative body, implements the power established by the constitution, which was transferred to it by people – the only entity established by the Constitution. The majority electoral system in itself does not mean a priori, that the territorial representation has to be provided. The majority electoral system has its own features, which provides specific distribution of electoral mandates. The majority electoral system serves for the personified representation. Under the conditions of this electoral system, people directly elect a specific body; direct connection between the voters and elected person is higher.”

Equality of votes and providing equal capabilities for voters shall be the main principle for determining electoral districts and electoral geography. Election legislation shall be determined to define borders of electoral districts in such a way that achieves equality of votes and appropriate representation. This means that number of voters in the electoral districts have to be as even as possible to provide equal weight of votes.

The Constitutional Court of Georgia takes into consideration the inability of achieving absolute equality, but this kind of inequality is acceptable if there legitimate grounds for justification. According to the Constitutional Court of Georgia, “while defining electoral districts, administrative borders, geographical specifications and other criteria of public importance might be taken into consideration. In some cases, due to specifics of a particular region, admission of moderate disproportion between electoral districts might be necessary. However, any such adjustment will be subject to constitutional-legal inspection in accordance with the rights of election and equality. The element of territorial representation should not cause unjustified and obvious inequality of votes. Influence of votes made by the voters registered in the territorial units should not be reduced so much to substantially limit participation of citizens in the process of forming the government.”

Meanwhile, deviation from the established regulation, in particular, difference between the amount of voters registered in the districts shall not exceed 10%, except extraordinary cases (protection of densely populated national minorities, sparsely populated administrative units). In these cases, the deviation shall not be more than 15%.

Based on the above, according to the Constitutional Court, the Parliament of Georgia mechanically linked the electoral districts to the municipalities, without taking into consideration the number of registered voters there. This has caused a significant deviation from the equality of votes and reduced influence of part of voters on the process of election. Election geography, established by disputed provisions, stipulates that electoral districts to which parliamentary mandates are distributed significantly differs from each other by number of registered voters. Existing deviation is so high that it causes disproportional representation and inadequately reflects representation of Georgian citizens in the highest representative body.

Based on the above, formation rule of single mandate majority electoral districts established by the Election Code of Georgia, in particular, mechanical connection with territorial units-municipalities, breaches the voters’ rights before the law and their election rights provided for by article 14 of the Constitution of Georgia.

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