“The legitimate Abkhazian authorities leave the Georgian constitutional area, which legally will provide them with a possibility to form the Abkhazian Government, without the consent of the President.”
At the briefing held on 23 September 2013, presidential candidate Zurab Kharatishvili accused the Supreme Council of Abkhazia of making arbitrary decisions. As stated by the candidate, two months ago the legislation of the Autonomous Republic of Abkhazia had been arbitrarily amended, “the legitimate Abkhazian authorities leave the Georgian constitutional area, which legally will provide them with a possibility to form the Abkhazian Government, as well as acting officials, without the consent of the current or future President.”
FactCheckinquired about the accuracy of the statement.
Pursuant to Part 4 of Article 3 of the Georgian Constitution, Abkhazia is granted the status of an Autonomous Republic. It is entailed by the Article that Abkhazia represents a state formation falling under Georgian jurisdiction which has its own constitution, governmental bodies and other state characteristics. The status of the territorial unit itself, therefore, implies that the election and appointment of governmental bodies is to be regulated by the constitution of the Autonomous Republic.
As defined in Part 1 of Article 93 of the Constitution of the Autonomous Republic of Abkhazia, legislative governance is performed by the Abkhazian Supreme Council. Presently, the procedure for the Supreme Council election is not regulated by the Constitution. The current Council was elected based on the elections held in December of 1991 on the territory of Abkhazia. Due to the existing conflict new elections have not been held since. In line with the resolution of the Parliament of Georgia, the authority of the existing Council has been prolonged until the restoration of territorial integrity. The Constitution of Abkhazia authorises precisely the Supreme Council of the Autonomous Republic of Abkhazia to make amendments to the Constitution of Abkhazia.
As for the executive power of the Autonomous Republic, in accordance with Article 111 of the Constitution of Abkhazia, it is executed by the Abkhazian Government. Prior to 20 August 2013, the Head of the Abkhazian Government was appointed by the Supreme Council of Abkhazia with the President’s consent as defined by Article 1121 of the Constitution of Abkhazia. On 20 August 2013, the Supreme Council adopted a constitutional Law on the Introduction of Amendments to the Constitution of the Autonomous Republic of Abkhazia. Following the amendments, Subparagraphs 3 to 5 were added to Article 1121 of the Constitution of Abkhazia which introduced a new position of an Acting Head of the Government. In the case of the Head of the Government’s resignation, the Supreme Council of Abkhazia was given the authority to appoint the Acting Head without the President’s consent based on the Supreme Council Presidium’s proposal. Amendments did not abolish the existing procedure but solely introduced an additional institution. FactCheckcontacted Nodar Jalagonia, Head of the Legal Service in the Government of the Autonomous Republic of Abkhazia. As we were informed by him, the Acting Head is granted the exact same authority as the Head of the Government.
In his statement Zurab Kharatishvili claimed that the Constitution had been amended arbitrarily. As noted previously, due to its very status the Autonomous Republic of Abkhazia was entitled to the right of amending the Constitution independently but still another circumstance is noteworthy in this case; in particular, whether or not the adopted amendments were in accordance with the regulations of the Autonomous Republic of Abkhazia.
Firstly, it is to be emphasised that the indicated amendments were adopted at the ad-hoc session of the Supreme Council. Part 1 of Article 71 of the regulations authorises the Head of the Government to convoke an ad-hoc session based on his own initiative or a written request of the Chair and/or at least one-third of the Supreme Council. Notwithstanding this fact, on 20 August 2013, 48 hours after the submission of the request, the convocation act of an ad-hoc session was not issued. For this precise reason, as prescribed by Part 3 of Article 71, after 48 hours the Supreme Council started its work.
Sixteen deputies supported the constitutional amendments while in accordance with the resolution of the Parliament of Georgia, the Supreme Council of Abkhazia is comprised of 34 members. Part 1 of Article 102 of the regulations specifies that a constitutional draft law is considered to be adopted if it is supported by two-thirds of the total composition of the Supreme Council. Hence, the signatures of at least 22 deputies were required for the approval. As clarified by Tamaz Sanikidze, Legal Service Head of the Supreme Council of Abkhazia, presently the Council has only 24 members (some have passed away, others have left their positions). Due to this circumstance, two-thirds required for the approval of the constitutional amendments were defined considering only 24 deputies and not 34. This interpretation of the law clearly violates the regulations.
On top of this, according to Article 89 of the regulations, the draft law needs to be accompanied by a conclusion of the Justice Department of the Autonomous Republic of Abkhazia on the conformity of the presented draft law with the Constitutions of Georgia and Abkhazia and with the superior normative acts. Tamaz Sanikidze reports that such a conclusion indeed existed but the Justice Department’s evaluation of the presented amendments was negative.
It should also be noted that at the beginning of 2013, following the resignation of the former Head, Gia Baramia, Vakhtang Kolbaia became the Acting Head of the Government. Tamaz Sanikidze explains that the Supreme Council tried to acquire President Saakashvili’s approval for the candidacy of Kolbaia but all the attempts were in vain, “the Government was completely paralysed, as the suspension of authority of the Head entailed the suspension of authorities for the whole composition of the Council. Although no position of an Acting Head existed at that point, Mr Kolbaia was given this authority in order to preserve the Government. After the constitutional amendments, this breach was fixed.”
Conclusion
The Supreme Council of the Autonomous Republic of Abkhazia has indeed introduced amendments into the Constitution of Abkhazia which allowed the appointing of the Acting Head of the Government without the consent of the President of Georgia. Zurab Kharatishvili is misled claiming that the abovementioned amendments had stripped the President of his authority to form the Government as the Government never held such authority in the first place. It is also worth pointing out that the regulations of the Supreme Council of Abkhazia were violated during the adoption of constitutional amendments. Despite the abovementioned, the presidential candidate’s statement, asserting that with such an act Abkhazia leaves the Constitutional area of Georgia, is still overdrawn. The status of the Autonomous Republic of Abkhazia is regulated by the Constitution of Georgia and this fact cannot be changed by the amendments introduced by the Supreme Council of Abkhazia owing to Article 7 Paragraph 12 Subparagraph ‘a’ of the Georgian Law on Normative Acts which defines the normative acts of Georgia to have a legal force superior to those of the Autonomous Republics.
Consequently, we conclude that Zurab Kharatishvili’s statement, “The legitimate Abkhazian authorities leave the Georgian constitutional area, which legally will provide them with a possibility to form the Abkhazian Government, without the consent of the President,” is HALF TRUE.-Tamar Jikia
