Resume: In accordance with the Rules of Procedure of the Parliament of Georgia it is possible to terminate the powers of an MP before his/her term expires based on an MP’s personal statement on the termination of powers. This requires the confirmation of the parliament. A parliamentary vote to terminate the powers of an MP based on the latter’s personal statement is only a formal part of the procedure. Legislature rejecting a statement of an MP would constitute a breach of the Rules of Procedure.
Analysis
Irregularities identified in the 31 October 2020 parliamentary election sparked distrust among part of the public towards the result of the vote. The opposition parties, which took part in the elections, denounced the 31 October election results as illegitimate, staged protests and demanded fresh elections. The ruling party refused to accede to these demands. On 3 November 2020, the opposition signed an agreement on a refusal of parliamentary mandates. Given the post-election complications, several rounds of talks between the opposition and the authorities were held at the US Ambassador’s residence with the involvement of Kelly Degnan and Carl Hartzell although the parties have not yet reached an agreement. The opposition demands that the ruling party dismiss the CEC chairperson, “release political prisoners” and hold fresh/snap elections, refusing to take their seats in the parliament unless their demands are met.
On 20 November 2020, one of the leaders of the Georgian Dream, Irakli Kobakhidze, made remarks on the opposition’s boycott. Mr Kobakhidze stated: “This is a certain form of blackmail. The opposition may lose elections in any country and say ‘we are not going to enter’ and demand snap elections, etc. The Constitution contains a counter-blackmail mechanism. The Constitution was written by smart people and this means that it is up to the parliament and parliamentary majority whether or not to make it a one-party parliament. Therefore, the parliament may easily open up a room for negotiations even for the next four years. This is the Constitution’s mechanism against blackmail. The procedures are drafted in such a manner that nobody will be able to pursue blackmail, since the Parliament will not allow this.”
In accordance with the Rules of Procedure of the Parliament of Georgia, one of the grounds to terminate the powers of an MP before his/her term expires is the MP’s personal statement. [1] In order to do this, an MP has to apply to the Speaker of the Parliament with a personal statement. The Speaker of the Parliament transfers it to the Committee on Procedural Issues and Rules. The committee examines the validity of the statement, studies the circumstances on which the statement is based and within no fewer than eight and no more than 15 days presents a relevant conclusion. Within seven days of the submission of the statement on the termination of power to the Chair (Speaker) of the Parliament, the MP may retract his/her statement and continue exercising his/her authority. The Committee on Procedural Issues and Rules submits a relevant conclusion to the Bureau of the Parliament. The Bureau of the Parliament adds the issue of the termination of the powers of an MP before his/her term expires to the agenda of the next plenary sitting. Parliament then immediately discusses the issue of the confirmation of the early termination of the powers of the MP. It is impermissible to vote on other issues on the agenda before parliament makes a decision on the issue of the confirmation of the early termination. Parliament makes a decision in regard to the termination of the powers of an MP before his/her term expires. This decision may be appealed to the Constitutional Court of Georgia. Irakli Kobakhidze was referring to this procedure in his statement. Both the Rules of Procedure of the Parliament of Georgia and the Constitution of Georgia [2] clearly say that an MP’s power can be terminated before his/her term expires based on an MP’s personal statement. Therefore, the parliamentary vote on the early termination of an MP’s power is a matter of formality since an MP cannot be forced to carry out his/her duties against his/her will.
To further clarify this issue of the early termination of an MP’s powers, FactCheck interviewed constitutional pundit and lecturer at the Free University of Tbilisi, Davit Zedelashvili. In his interview with FactCheck, Mr Zedelashvili stated: “The Constitution provides an exhaustive list of grounds for the termination of an MP’s powers before the end of his/her term. The parliament does not have discretionary authority to refuse the termination of power by a respective decision if there is a constitutional ground. In specific cases, such as the termination of powers because of carrying out entrepreneurial or other activities which are incompatible with the status of an MP, the respective fact has to be disclosed by the parliament itself. After disclosure, the parliament has no discretionary authority to refuse a termination of powers. The same applies to other reasons when the ground for the termination of powers is provided independently from the parliament’s decisions. Holding public office is the constitutional right of a citizen and forcing someone to carry out this duty is incompatible with the Constitution’s fundamental logic.” As stated by Mr Zedelashvili, Irakli Kobakhidze’s statement is an example of abusing the interpretation of the Constitution: “Leaving aside the fact that he fundamentally contradicts the logic of the constitutional right to hold public office, his use of the parliament’s institutional defence instrument is also fundamentally flawed. For the sake of comparison, when it comes to stripping an MP’s immunity, parliament does indeed have the discretionary power not to do so. In this instance, the will and the opinion of an MP have no obligatory power for the parliament. This serves the purpose to enable the parliament to protect MPs from politically motivated persecution by the executive of legislative branches. In such a case, the danger against which the parliament safeguards itself comes from other branches of the government. Mr Kobakhidze wrongly extrapolates the institutional defence logic on this case when no danger is coming from other branches of the government. His absurd argument is an attempt to prove that the Constitution defends the parliament from itself and from self-destruction. It is impossible to discern even a sign of political content or common sense, let alone sound constitutional logic. It is impossible for the parliament to put limits on an MP’s free judgment when it is his clear will to terminate his powers.”
Of interest is that in December 2019, Irakli Kobakhidze was arguing that the termination of Nika Melia’s power was directly governed by the Constitution and the Rules of Procedure [3] and that the parliamentary vote on the termination of powers was a legal formality. On 12 December 2019, Mr Kobakhidze stated: “This [termination Nika Melia’s MP mandate] has no alternative. This is a very simple issue. The verdict is made and eventually enforced. Therefore, the parliament should make a decision which is envisioned by the Constitution and the Rules of Procedure. Naturally, his powers as an MP should be terminated. Not voting for that would be a very grievous decision.” With this statement, Mr Kobakhidze confirmed himself that in the cases of the termination of an MP’s power as provided by the Constitution and the Rules of Procedure, parliamentary assent is of a formal nature. Based on Irakli Kobakhidze’s statements on 12 December 2019 and 20 November 2020, we may say that he seeks to mislead the public by wrong interpretations of the Constitution of Georgia. When the parliament did have the discretionary authority to not terminate an MP’s power despite a court decision, Mr Kobakhidze argued that the termination of power issue was a formality whilst in the case when an MP applies to terminate his powers based on his personal statement, he opines that such an issue has to be decided by the parliament. As per Mr Kobakhidze’s explanation, making a decision on the termination of an MP’s powers based on his personal statement is not a formality and the parliament may keep MPs in their capacity against their will for four years. Based on this we may say that Irakli Kobakhidze’s statement is a LIE if parliament makes such decision that will definitely contradict both the Constitution and the Rules of Procedure.
Of note is that on 9 December 2020, Irakli Kobakhidze changed his position and stated: “The parliamentary majority will terminate the powers of all MPs who fail to oppose the radical opposition’s script and submit a respective statement to the Parliament.”
Apart from the early termination of the powers of MPs, it will be interesting to see what legal phases the opposition parties will have to overcome in order to refuse their seats in the parliament. According to the Constitution of Georgia, the first meeting of the newly elected parliament will be held no later than the tenth day after the results of the parliamentary elections have been officially announced. The first meeting of parliament is called by the president. Parliament is authorised to start work at the first meeting if the majority of the total number (76) of the members of parliament is present at the meeting. Parliament acquires full powers once this is acknowledged by two-thirds of the members of parliament. This means that at least 76 MPs at the sitting recognize the power of at least 100 MPs. For final acknowledgement of the power of the MPs, a Temporary Mandate Commission will be elected by the majority of the MPs attending the first sitting. At the same sitting, a CEC chairperson will present the election returns and the documents required for the recognition of the powers of the members of parliament to the Temporary Mandate Commission. The commission will study the submitted documents and report the results to the parliament which recognizes the authority of the members of parliament. From this moment, the term of office of the parliament of the previous convocation is terminated.
After the parliament of the new convocation acquires full powers, the party/electoral block which took part in the elections is authorised to revoke its decision on MP candidates in the party lists after the elected MPs' powers are recognised. A candidate for MP nominated by the party/electoral bloc will be withdrawn from the party list by an ordinance of the CEC chairperson based on an application the party leader, within 3 days after submission of the application. If the application is not satisfied within this period, the candidate for MP will be deemed withdrawn from the party list as from the day following the lapse of the above-mentioned period.
After annulling their party lists, those members of the opposition who took parliamentary seats based on CEC results have to submit personal statements to the parliament and request the early termination of powers. Since the party lists have already been terminated, withdrawn MPs cannot be replaced and the mandate of those MPs will be considered annulled.
Finally, we may say that entering/not entering the Parliament is entirely up to a specific party and those individuals who won parliamentary seats and the parliament’s involvement in this process is of a formal nature.
[1] Sub-point “a” of Point 2 of Article 6 of the Rules of Procedure of the Parliament of Georgia.
[2] Article 39 of the Constitution of Georgia.
[3] Based on the decision of Tbilisi City Court of 2 December 2019, the Parliament of Georgia voted for the termination of Nika Melia’s MP mandate on 12 December 2019 ahead of the expiration of his term.
