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The Purge of Witches: In the name of the Constitution

26.02.2021

 Lazare Jibladze
Introduction

The purpose of the current article is to assess the new draft law initiated by the Parliament of Georgia of the 10th convocation, registered in the legislative body on December 16, 2020, and has already been adopted by the Parliament of Georgia in the first reading. The draft law envisages the adoption of amendments in an expedited manner to the procedure for receiving funding from the State budget and free advertising time by political parties, as well as for the revocation of election registration for the parties. 

Clearly, in assessing the issue, attention must be paid to both the legal and political aspects. However, before starting the evaluation, it would be necessary to answer some questions in advance: We need to understand how the Constitution of Georgia perceives the issue of party finances; further, we have to find out what the boycott of some of the political parties means; only then we can assess both the legal and political aspects of the draft law initiated by the ruling party.
 
Main part

In democratic societies, the purpose of political parties is to unite individuals who share common  political ideologies. By running in elections, political parties try to have as many of their members as possible in the representative bodies such as the Parliament or municipal councils. At the same time, the parties strive to be involved at the extent possible in the process of formation of the executive branch, both at the central and local levels.

For political parties, along with the different objectives, it is especially important to represent the interests of the party supporters and to pursue the policies for which the voters have expressed confidence in the parties.
Like other parliamentary democracies, Georgian citizens form the country's highest representative body, the Parliament, every four years through unified parliamentary elections. 

Article 3 of the Constitution declares Georgia as a democratic republic and the same Article elaborates on the activities of political parties, thus strengthening the necessary feature of the democratic order and linking political activities to the feature. According to the Constitution: "Political parties participate in the formation and implementation of the political will of the people".  Consequently, as the Constitution directly links the functioning of the democratic system to the activities of the political parties in the country, any move aimed at restricting such activities can pose a threat not only to any political entity but also to the democratic order as such.

Given the role of political parties in democratic processes, which includes the parties employ criticism in order to participate in the political life,  express the will of the people and perform a wide range of functions, financial resources are needed to enable the political parties to perform these functions.

Funding of political parties is regulated in different manner across the countries of the globe depending on the culture, precedents and legal standards of a particular country.

In most of the continental European countries, political parties are at least partially funded from the national budget in the form of various financial resources; the funds are allocated inter alia for the regular work of the party, for the functioning of the parliamentary groups of the party representatives and for the expenses of the election campaigns. Although private funding is legal in most of these countries, the role of such funding is largely secondary in terms of overall finances of political unions. We find a different approach in the US and the UK, where private donations are a major source for funding the parties. 

According to the Law of Georgia on Political Unions, the assets of parties in Georgia shall be created from private donations and membership fees, as well as from the amounts allocated by the State in the cases provided for by the law. Exactly the above-mentioned normative act regulates in Georgia the procedure of party financing and the amounts of the financing.  Indeed, Georgian legislation allows for different procedures to finance the political parties, nevertheless, in contrast to the Western countries, the volume of membership fees for the parties in Georgia is extremely low. Moreover, historically, the most of the private donations are concentrated in the hands of the ruling political party. For example, in 2017 local self-government elections, Georgian Dream received 88% of the total donations, in 2016 Parliamentary Elections the donations to the ruling party amounted to 66% of the total donations, and for 2020 Parliamentary Elections, to 48%. Thus, state funding of the parties having been introduced in Georgia since 1997, is more important in Georgian political reality than in some of the developed Western countries, as  in most cases, the state funding in Georgia is the bulk of the annual income of the parties which are not in power. 

Therefore, the given reality further increases the urgency of the issue and the possible negative impacts of the planned legislative amendments  on Georgian political life by reducing political pluralism and political competition. 

Taking into consideration the above factual inequality, leaving the opposition parties having refused to take seats in the Parliament without funding poses an even greater challenge to the principle of party equality within the constitutional law obliging the State to ensure not only formal but also substantive equality.

In its turn, the parliamentary boycott is not a product of Georgian parliamentary life, nor is it a challenge to Georgian political reality alone.

According to Albert Hirschman, a well-known economist, when people do not like the direction in which a particular institution is heading, they have only two choices: to raise their voices or to leave the institution. 

According to Hirschman, when the choice is made on the first option, it is largely due to the trust in the institution. It is this paradigm that helps us explain why the institution of the parliament is operable and when it fails to work.  In a functioning parliament, the opposition may not like the ruling majority, but it continues to participate in the debates and voting. However, even such loyalty has some limitations. If the ruling power does not encourage the existence of a dissenting opinion, the opposition loses motivation to hear its own concerns from the pulpit of the Parliament and it leaves the Parliament. 

The first scenario is mainly typical for countries with democratic traditions, where the institutions are strong and authoritative, and the principles of equality before the law and the rule of law are observed. Furthermore, some of the significant factors can be mentioned, like the political culture of the parties, the economic situation of the country, the level of development of the civil society, etc.

As for the second scenario, this largely takes place where there are young democracies and fragile democratic institutions, which may be due to other particular circumstances.  A large-scale crisis such as the spread of the new coronavirus Covid19 around the world has become a major challenge for the entire democratic world. Clearly, the erosion of democracy is more acute  in transitional democracies such as Georgia and other young democracies. Thus, it is not surprising that in 2019, in 4 countries on the European continent (Albania, Serbia, Montenegro, Bulgaria) the opposition  boycotted national parliaments. In early 2020, and later after October Parliamentary Elections, Georgia joined the list of such countries. 

The decision of the opposition spectrum not to take seats in the Parliament and to reject their mandates, has already earned various assessments both inside and outside the country. However, regardless of how the political move of the opposition spectrum is assessed, the constitutionality of the steps taken by the government to defuse the crisis should be assessed separately. 
The reviewed draft law, initiated by the incumbent MPs of the ruling party, aims to change the rules for financing political parties to prevent a parliamentary sabotage. 

Clearly, there is some logic to see the issue in this way. Let us imagine a case where a multiparty country, after the Parliamentary Elections, the opposition does not appeal to the large-scale rigging of the elections and, dissatisfied with their own results, boycotts the political entity with a majority of mandates in the parliament, hoping to create a political crisis and new elections called. This, at first glance, creates a scenario of sabotage, but it has nothing to do with the procedure of state funding of the parties. In multiparty democracies, this "sabotage" is balanced not by the seizure of the funds allocated by the State  for party activities, but by political pluralism and the political accountability of the parties themselves to their constituents. 

The European Court of Human Rights considers as the purpose of state funding for political parties the prevention of the corruption and avoidance of the excessive reliance on private donors by the parties. According to the judgment by the Federal Constitutional Court of Germany, the threshold for state funding of parties should be set much lower than the electoral threshold. Thus, the work in the Parliament is irrelevant from the very beginning in the context of state funding of political parties. This approach is shared in the recommendation published by the Venice Commission in 2010 together with the OSCE / ODIHR, according to which, "[...] it is  in  the  interest  of  political  pluralism  to  have  a  lower  threshold  for  public  funding  than  the  electoral  threshold  for  the  allocation  of  a  mandate  in  parliament."

The same opinion was shared by the Secretary of the Political Council of Georgian Dream, Doctor of Law, Irakli Kobakhidze, who published his own textbook "The Law of Political Unions". The author of the book criticizes the cessation of state funding for the then opposition by the ruling National Movement in 2008 in response to the parliamentary boycott and explains: "It is inadmissible for a political party to refuse state funding due to its boycott of the Georgian Parliament. The main basis for the distribution of state budget funds among political unions is the degree of public support for the party and not their representation in the legislative body."

Conclusion

Therefore, it can be said that the amendments to the Organic Law of Georgia on Political Unions of Citizens contradict the principle of equality of political parties enshrined in the Constitution of Georgia and international legal instruments, promote a non-competitive political environment and damage the process of formation of the pluralistic political environment.

Furthermore, the parliamentary boycott is part of a political process that can only be prevented by strengthening state institutions and high public confidence in the institutions; further, by increasing the responsibility of political parties and political pluralism. Consequently, the restrictions on the state funding of the parties may not serve as a legitimate and proportional basis for diffusing the political crisis and preventing the so called  "parliamentary sabotage”. 

That is why the government of National Movement had to withdraw the amendments in 2008, and now it is time for the government of Georgian Dream to acknowledge what multiparty democracy means, which Georgian people gained under the government of Georgian Dream.

The article has been prepared by Human Rights Centre (HRC) within the frameworks of the project “Right to Peaceful Assembly and other Civic Rights during Covid 19 pandemic in Georgia”. The project is supported by the European Center for Not-for-Profit Law Stichting (ECNL) under the INSPIRES program. It is made possible by the International Center for Not-for-Profit Law (ICNL) and financed by USAID.

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