OSCE/ODIHR opinion about the so-called German model of the parliamentary elections

Lana Giorgidze

OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) published its opinion about the so-called “German Election Model” on February 5. The choice of the electoral system is a sovereign decision of the state. 

By letter of 9 December 2019, Ms. Nino Lomjaria, Public Defender (Ombudsman) of Georgia, based on the request of the opposition political parties, requested an opinion of the OSCE/ODIHR on draft amendments to the Organic Law of Georgia “Election Code of Georgia. However, the document does not present clear answer to the questions. Therefore, the OSCE/ODIHR opinion was interpreted in different ways in Georgia.

The opposition political parties addressed the Parliament of Georgia to introduce amendments to the election system but after the noisy plenary session of November 12, 2019 the Parliament down-voted the draft law with 101 against 3. The adoption of the constitutional amendments needed 113 votes. The opposition political parties, CSOs and civil activists protested the down-voting of the draft law. 

Humanrights.ge already discussed the negative and positive sides of the proportional election system in the article 'Proportional election system, as a way to overcome the crisis'; it also reviewed the differences between the majoritarian and proportional systems and why the opposition political parties wish and the ruling party does not wish to change the system. This time, humanrights.ge intends to analyze the conclusion of the OSCE/ODIHR and hear the opinions about the document in Georgia. 

Public Defender Nino Lomjaria evaluated the OSCE/ODIHR opinion during the press-conference on February 6 and stated that the Public Defender played the positive role in the deadlocked situation about the election system. “It is a fact that both the opposition and the authority shares and welcomes the OSCE/ODIHR opinion,” Nino Lomjaria said.

She added that the ombudsperson was a mediator between the opposition and the OSCE/ODIHR because they had the mandate and technical capacity to request opinion of the organization. 

“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 choice of an electoral system, whether it should be a majoritarian, proportional, hybrid, or alternative system, should be subject to a broad inclusive debate which allows relevant stakeholders to bring forward positive and negative effects of the reform. Any proposed changes have to be carefully considered, including their adoption by a large consensus among political parties,” the OSCE/ODIHR opinion reads.

Lawyer Ana Dolidze said the OSCE/ODIHR directly indicates that the decision with regard to the election system shall be made based on a large consensus among political parties. “The Government shall demonstrate kind will and sit at the negotiation table with the opposition. All models shall be agreed with the political opposition by a large consensus only,” Ana Dolidze told media.

According to the OSCE/ODIHR opinion, the international standards do not prescribe the choice of electoral systems. European Court of Human Rights notes there are numerous ways of organizing and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision.

According to the OSCE/ODIHR opinion, both election systems – majoritarian and proportional, as well as the mixed system are legitimate choices.

“The OSCE/ODIHR conclusion once again confirmed double incompetence of the opposition,” the MP Irakli Kobakhidze from the parliamentary majority stated during the briefing with media and noted that determination of the constitutionality of the draft law is not within the authority of the ODIHR and the organization hinted them, like a child, at this”. Irakli Kobakhidze said the opposition sent distorted German model of the bill to the ODIHR. In this regard, the opposition received a reply from ODIHR that the assessment of constitutionality of the bill is not their prerogative - ODIHR cannot assess the constitutionality of the bill.

Unlike the members of the ruling party, the leaders of the opposition political parties believe the OSCE/ODIHR opinion answered right questions to their main question about the constitutionality of the legislative amendments. 

“The main question was answered. Although nothing was clearly written in the document, the opinion does not state that the amendments are unconstitutional; if it is so, they should have written it by all means. The government made different interoperation of the OSCE/ODIHR conclusion and took advantage that the constitutionality was not mentioned directly. Of course, the OSCE/ODIHR could not take over the functions of the constitutional court,” Davit Zurabishvili of the Republic Party told humanrights.ge.

Leader of the European Georgia Sergi Kapanadze shared the position of Zurabishvili and believes that the OSCE in its opinion underlined that the model is compliant with the international standards. 

“As it was expected, the OSCE/ODIHR notes in its conclusion that the model is absolutely compliant with the international standards, it does not have any conflict with the best practices in Europe or elsewhere. The OSCE states that any model shall be passed based on the consensus of the parties. They repeated what the Georgian opposition parties have been stating for so long and calls on the government to start dialogue,” Sergei Kapanadze stated during the briefing. 

“Considering the international standards and good practices, the OSCE/ODIHR opinion delivers recommendations which include the following issues: annulment of the ballot papers, how a voter shall mark the ballot paper, the timeframe for the CEC to calculate the final results, etc.

The member of the Republic Party Davit Zurabishvili said that the recommendations of the OSCE about the elections are of technical character and it is difficult to foresee whether the ruling party will fulfill them or not. 

“The government states they have drafted the amendments; therefore I believe the ruling party plans to fulfill some of the recommendations not to offend the West. The GoG will fulfill less important recommendations; as for the essential recommendation like moving to the proportional election system, they will not implement this particular recommendation of the opposition political parties. As little time is left before the scheduled elections and it is impossible to move to the proportional election system, we offered them the so-called German Model which aimed to introduce multi-mandate districts instead single-mandate ones – we offered this and many other changes, which could guarantee proportionality of representation. These changes did not require constitutional amendments but the GoG did not accept our proposals,” Davit Zurabishvili said.

Executive director of the study and advocacy organization Freedom Institute Salome Khvadagiani told humanrights.ge that the Government makes rigid statements and then surrenders. “Starting from November 2019, the Government made quite rigid statements but then surrendered and chose new position. Maybe, Bidzina Ivanishvili is not fully aware how serious the remarks of the Western partners are; however, I believe one day he will understand. It demonstrates that the western leaders can influence the Government of Georgia.”

Having few months left before the parliamentary elections, when the ruling party does not satisfy the requests of the opposition, it is difficult to predict whether the GoG will fulfill the recommendations of the international organizations.