President of the Venice Commission told about the drafts of the Constitutions of Ukraine, Georgia and Moldova

Strasbourg: President of the Venice Commission Gianni Buquicchio in an exclusive interview to Front News told about the process of amending the constitutions of three countries: Ukraine, Georgia and Moldova, as well as negotiations with delegates from countries on key issues of constitutional reform. He also shared his views on corruption in Ukraine, the monarchy in Georgia and Moldova’s desire to change its electoral system.

 

Front News : How do you assess the proposed options for the current electoral system? Do you have any doubts that both initiatives ultimately lead to the same purpose?

 

Gianni Buquicchio: We indeed the Moldova authorities decided to change the electoral system. This is not the first time because they tried again back in 2013 to switch from the proportional to mixed system but that time we were requested their opinion and we gave…we recommended not to change the system and to stay with proportional system. And they did so. Now again they would like to switch towards to mixed system but have exactly the same objections that last time. First, we must say that the choice of an electoral system is a sovereign choice. Every country can choose its own electoral system: proportional, mixed, majoritarian etc. And all the systems could be good. Of course we have a preference for the proportional system which ensure more the equality of voting for all the citizens. But other systems can be also introduced. For Moldova the problem is that in the present situation the mixed system, in our opinion, is not the best solution because for the majoritarian part of the system there could be a big influence of business and other interests in the politics. This is the most important reason. But from that we have also identified some improvements – if they will introduce the system in order to improve in general electoral process. There was an important delegation of Moldova in Venice last Friday. We had intensive discussion with the speaker, with the minister of justice and with representative of several political parties and we adopted the opinion which, as I said, is not much different from the previous one.

 

FNI: President Dodon introduced an initiative to amend the Moldovan Constitution. We know that for this reason the delegation of the Venice Commission has been to Moldova. Evaluate this initiative, which Moldovan NGOs and pro-European parties call the new PR campaign of Dodon.

 

GB: I don’t know whether is PR campaign of president Dodon. I was in Moldova in March. It was the end of March and I’ve had meetings with him. And indeed, he was in favor of increasing the reasons for the dissolution of the parliament. He requested European Venice Commission and the opinion recommended not to introduce too many reasons for dissolution because Moldova is a parliamentary system. So in parliamentary systems there is of course a balance between the powers. But the president should have an impartial neutral role and in this sense we think that they should stick to the present constitution, which foresees some reasons for dissolution but not many more. That is the result of our discussion on Moldova.

 

FNI: As for the draft constitutional amendments, there are still disagreements between the president, the opposition, the non-governmental sector and the Georgian authorities. The opposition claims that the Venice Commission has taken into account all the claims of the Georgian people over these amendments. The ruling party says that the recommendations of the Venice Commission have many positive nuances. What can you say about specific comments? You also stated that you need to reach a consensus, but the consensus did not take place, I understand that the recommendations of the Venice Commission have great power, but what do you personally think about this?

 

GB: We are cooperating with Georgia since early 90th on many issues but also importantly on the constitution drafting. We were there already for the first democratic constitution of Georgia. Then for other amendment in 2010 etc. And now we are approaching this new constitutional reform. I would like to say since 1993 every constitutional reform has been a progress in Georgia. And now I can say that we are approaching full conformity with international standards. So, I’m very happy of this initiative. It was an idea to revise the constitution already during the last legislature with the Usupashvili commission but dentition didn’t succeed because it was not the necessary majority to adopt the amendments. Now the present executive as that majority they can adopt a new constitutional reform. They established constitutional commission which worked quite well, quite extensive. Many people from the expert side, civil society, institutions etc participating in this commission there’s been broad enough public consultation concerning the main elements of the reform. There some things which could be improved but globally I was saying until now that the reform is going in the right direction. One thing I would like to comment on specifically. For the first time in history of the Venice Commission a country say that they will not adopt any amendment if this amendment is objected by the Venice Commission. This is very fair from the Georgia side and we are very grateful to the authorities. Now we are approaching the final stage, we have a discussion with the Georgian delegation in Venice last week also, we had also speaker and other members of the Georgian delegation and we discussed on the main points. Now the last some points which should be improved, we have also received comments from the opposition parties, from the president etc. And we have taken to account all this comments. And when these comments went in the good direction for the conformity of the new revise constitution with international standards, we pushed for their adoption. So, now what are the main problems left? My opinion, the most important one is the distribution of the unallocated seats and we have proposed different solutions to avoid this problem. Because what is important is to issue that the largest possible pluralism in the parliament and not the domination of one single party. So, the proposal which consisting in giving to the main party all the unallocated, undistributed seats is not the good one. So we proposed to share proportionally these seats or to decrease detrition for accessing the parliament from 5% to 2%. So in this way you will have much less unallocated seats, wasted seats and the results would be better. The third proposal which I think on which the speaker and the parties will work in the next days is to put sealing to the premium to give to the winning party. Could be reasonable but of course the sealing should not be too high and not the ensure the equality of voting and the good distribution of the seats among the parties and more pluralism in the parliament.

 

FNI: What does the recommendation of the Venice Commission on unallocated mandates mean? What will happen if Georgia does not take into account recommendations on the issue of mandates and barriers, and leaves the old majority system?

 

GB: I’ve already commented on this issue, of course you know my position. If they don’t follow our recommendations, you mean. But as I said there was a clear commitment to follow our recommendations. So, in a way or another, they will try to remain…they will choose among the recommendations of the Venice Commission. So, I am confident that they will find a good solution which in confirmative with our recommendations.

 

FNI: Regarding the procedure for the election of the President of Georgia. Under the proposed recommendations, will the president be tantamount to the government and the parliamentary majority? How would you evaluate the statements of the ruling party of Georgia that “If President Margvelashvili continues to make incorrect statements” – then they will think to change the procedure for presidential elections from next year?

 

GB: I didn’t know this statement and I don’t approve it because we need and we wish the best possible cooperation between the Georgia authorities and not confrontation etc. Concerning the system, the indirect election of the president, we are in favor because Georgia with this last constitutional reform is going for a full parliamentary system which was already initiated with the reform in 2010. In a parliamentary system usually the president the head of state is indirect elected by the parliament. I thing that the solution for seem by the Georgian authorities to collegium is also in line with the standards. The only thing which we are incised is that this change should take place not immediately, not for the next president elections in 2018 because the next elections should be dealt with the system which exist during this present legislature because the parliamentary elections will come after the presidential elections. We recommended to the Georgian authorities to introduce this new system but for the 2023 elections and not immediately.

 

FNI: The ruling party claims that the Venice Commission has no complaints about the abolition of the Security Council. How do you think the importance of the presence of the Security Council in Georgia? Another topic that has caused controversy and conflict is the issue of the judiciary, what do the recommendations of the Venice Commission on this matter mean?

 

GB: In the amendments there is any mention of the national security council so we didn’t comment explicitly on that. We assume that it will belong to the Georgian Political Forces to decide whether or not to have national security council. And in this case it should be structured in ordinary legislation.

 

FNI: The conclusion of the Venice Commission states that “According to the current Constitution of Georgia, the introduction of same-sex marriage by law (or constitutional interpretation) will be in accordance with the Constitution. “This decision, which allows the ordinary legislator to decide for himself, is satisfactory. Marriage, it should be clarified that this does not apply to same-sex partnerships. George, like any other member state of the Council of Europe, is obliged to comply with the standards of the European Court of Justice (For example, civil unions or registered partnerships for same-sex couples.) The Article 30 (1) of the draft amendments does not exclude the introduction of civil partnership (for same-sex couples and for mixed sexes) in accordance with the Civil Code of Georgia and in no case should be interpreted as prohibiting same-sex relationships.” How important was it to give such a recommendation? What caused this? This recommendation, many in Georgia, was not very positive.

 

GB: This is an important problem, society problem which is… for many countries, for all European countries and not only European. In Europe at present we have 13 countries which accept and admit the same sex marriage. 13 out of 47. We have 14 countries where the same sex partnership is admitted, not a marriage but partnership. At the same time, we have jurisprudence of European court for Human rights which says that same sex partnership should be admitted. I think if Georgian authorities, Georgian society…because it is the problem of society…wants to introduce the interdiction of same sex this should not mean or should not be interpreted as against the possibility to have same sex partnership. Because if you don’t accept the same sex partnership you will in violation of the European convention for Human rights and jurisprudence at the Canceler of the European court.

 

FNI: The Patriarch of Georgia suggested to consider the possibility of transition to the Constitutional Monarchy and the ruling party stated that they do not mind to consider this issue. What do you say to that?

 

GB: This is new for me and in principle… you know the trend is towards republics more than monarchy. There are of course traditional monarchies in Europe and in the world, and in many countries they are very much appreciated but the problem is that monarch should be really above everything, should not be involved in any political matters. But I think it’s not serious issue, this one.

 

FNI: As far as is known, the next conclusion of the Commission on Ukraine has already been announced for consideration at the 111th session, which was held in June. It concerned the bill on amending the law on the regulations of the Verkhovna Rada of Ukraine. Can you say any conclusions on this draft law?

 

GB: This already happened last week, because last week we had the 111-th session of Venice commission and we discussed this issue. But adoption of the opinion on the rules of procedure of the Verhovna Rada will take place at our next session in the beginning of October. We had already exchanges of views on the issue with the chairperson of the committee of the Verhvna Rada, which is dealing with this issue. I think they are to be not difficult to modify, to change the rules of procedure of the Verhovna Rada at this first level. Then, perhaps, there should be another second level of discussions in order to improve even more the rules of procedure, in order to simplify the decision-making, the functioning of the parliament etc.

As you know in Ukraine quite often there are crises during the parliamentary debate and some draft laws, which are important and in principle good ones, are blocked by one or another party. The last example on laws, for instance, draft law on the constitutional court, which was not adopted by the Verhovna Rada as foreseen but fortunately it is being sent to committee of Rada. I hope that this important draft will be adopted as soon as possible.

 

FNI: Anti-corruption bodies have been set up in Ukraine, such as NABU, NACP, SAP, but so far we have not seen that someone from high-ranking officials was really punished, although serious violations in the same declarations of people’s deputies were noticed. Should this be attributed only to the fact that there is no Anti-Corruption Court in Ukraine? What is the problem of inefficiency at the moment of these bodies?

 

GB: This is not topic on which Venice commission works, because as you probably know, in the Council of Europe there is a special body for this kind of questions, which is called GRECO. And I’m sure that GRECO will deal with this issue. It is already dealing with it. Concerning your question, I think all these anti-corruption bodies are good ones, but it is not easy in Ukrainian context to make an efficient one. That’s why, as you said, we don’t see many cases of punishment of corruption etc.

Concerning an anti-corruption court: in general, I’m not in favor for proliferation of courts, but perhaps in Ukraine it could be a good idea if it is confirmed, that it would be an added value to the existing anti-corruption body, which you have mentioned.

 

FNI: Now Ukraine is at the final stage of the contest in the highest judicial body of the Supreme Court. The activists closely monitor this process and already report that the contest held by the High Qualifications Commission of Judges of Ukraine has many questions because the past candidates are not just with a dubious reputation but already with confirmed facts of their dishonesty. In addition, most of them are acting judges. What is the risk of failure of judicial reform, in particular, in the creation of an independent Supreme Court?

 

GB: You know, with the problem of corruption the judicial system in Ukraine is the second, or I would say, even the first main problem with the country. And I’m very pleased that we succeeded with Ukrainian authorities in order to pass amendments to the constitution in order to improve the judicial system. A good impartial, independent judicial system is important for citizens, for individuals, but also for the economy, because foreign investments will not come to Ukraine if the system is not independent and impartial. That’s why we attach a lot of importance to the amendment of judicial system. The amendments were good. We accepted, which is exception for us, the vetting of the present members of the judiciary, which prove to be partial and not independent.

Now the vetting is going on. There is this process of appointment of judges to the members of supreme court and I hope that the supreme court will be composed of good lawyers, independent and impartial.  The fact that some of the candidates were already judges in the previous administration is not surprising, because you know, it’s not easy to train a judge. So they have most probably good experience in order to be in Supreme Court it should be welcomed. The only problem is that, of course, they must be honest and again, I underline, impartial and independent. Because if they’ve been dishonest they should not become members of the Supreme Court.

 

FNI: Two bills can be adopted in Ukraine, according to which the state can regulate the affairs of the church, which is prohibited by the Constitution of Ukraine. How do you feel about such bills?

 

GB: I’m not aware of this issue. We didn’t receive any request for opinion on this draft law and we are available to give an opinion. I don’t remember what the Ukrainian constitution says concerning the churches and the regulation of churches. But, of course, if constitution forbids this kind of regulation it would be unconstitutional. But the fact that churches are regulated by law happens in several countries. In Italy, for instance, there is a special system for regulation of the affairs between the state and the church and in other countries also. So regulating the church is not in principle impossible on the condition, that constitution foresees this possibility.