Election Code Goes into Effect
The election code, passed on December 27 went into force after being published on the state online registry of legal acts on January 10.
Below are some of the key points of the code under which the next parliamentary elections will be held this October.
The system remains largely the same. The new code has only slightly redesigned the next Parliament’s structure by scrapping two majoritarian seats from Akhalgori and Liakhvi single-mandate constituencies - the both were under Tbilisi’s control in breakaway South Ossetia before the August, 2008 war. Number of seats allocated through party-list contest will increase by two at the expense of scrapping two majoritarian constituencies.
As a result in the next Parliament 73 seats will go to majoritarian MPs elected in 73 single-mandate constituencies and rest 77 seats will be allocated proportionally under the party-list contest among political parties and election blocs, which will clear 5% threshold.
The code introduces new rule of allocating seats under the party-list contest. Any political party or an electoral bloc will automatically endorse six of its members into the next Parliament if it clears 5% threshold; so if a party receives 5% or more but if it translates into having only one or two MPs, this party, under the new rule, will anyway be able to endorse six of its members in the Parliament at the expense of taking seats from other parties having better results in elections. It means that clearing of 5% threshold will automatically give a party or a bloc opportunity to establish a faction within the parliament, which requires having at least six lawmakers.
The new code does not address, as the U.S. embassy put it in its statement last month, “lingering perceptions on inequality within the electoral system.”
The Council of Europe’s advisory body for legal and constitutional affairs, Venice Commission, has long been recommending Georgia to secure equality of vote through establishing approximately equal sized single-mandate, majoritarian constituencies. The commission said wide disparity between the constituencies - ranging from about 6,000 voters in the smallest constituency to over 150,000 voters in the largest one – “undermines the principle of equality of suffrage.”
Under the system, wherein a majoritarian MP is elected through winner-takes-all rule (but a candidate should garner at least 30% of votes), the ruling party endorsed its candidates in 71 out of previously existing 75 single-mandate constituencies in 2008 parliamentary elections. In addition the ruling party endorsed 48 lawmakers through proportional, party-list system after receiving 59.18% of votes. As a result, although the National Movement in party-list contest received 59.18% support, it managed to take total of 119 seats, which makes 79.3% of seats in the 150-member legislative body.
The next Parliament, elected in October, 2012 polls, will be a sitting legislative body when new constitution, envisaging increase of Prime Minister’s powers, goes into force after the presidential elections in late 2013.
A prime ministerial candidate will require support of more than half of lawmakers in 150-seat Parliament. Under the new constitution two-third of votes will be needed to override presidential veto on constitutional amendments; to override presidential veto on prime ministerial candidate during constructive non-confidence vote Parliament will need three-fifth of votes (for details see Key Points of New Constitution).
According to constitutional amendment, passed in December, a higher bar for constitutional amendments will be introduced starting from late 2013. According to this provision a three-fourth, instead of current two-third of votes, will be required after 2013 presidential elections for passing constitutional amendments. It means that support of 113 lawmakers, instead of current 100 will be needed to amend the constitution.
The election code re-introduced a provision allowing an independent candidate to run for a majoritarian MP seat, as well as for City Council (Sakrebulo) membership and Tbilisi mayoral office in local elections.
According to the previous election code only a candidate nominated by a political party or an election bloc could run for these offices. It was the Venice Commission’s recommendation to remove this restriction from the code. Opposition parties have always been reluctant towards such change, because they believed it would give the ruling party more room for maneuvering during majoritarian contest in single-mandate constituencies. One of the reasons for such perception is that allowing independent candidates to run will increase an overall number of candidates contesting in a single-mandate constituency, which may further split an overall opposition vote. Before 2008 parliamentary elections independent candidates were allowed to run for the majoritarian seat in single-mandate constituency and in the Parliament many of such candidates were believed to be in fact pro-government.
In an attempt to preclude underdog independent candidates, who might be willing to enter into the majoritarian race without even having an intention to win, the new code imposes a requirement, as requested by the parliamentary minority, for all the independent candidates to post GEL 5,000 as deposit, which they will only be able to retrieve if they garner at least 10% of votes.
A five-member initiative group will be eligible to nominate an independent candidate, according to the code.
Removing Blanket Ban on Voting Right of Prisoners
As recommended by the Venice Commission, for the first time, the election code will allow convicts serving a prison term for “less grave offences” to cast ballot in elections and referendum; the criminal code defines “less grave” crimes as those for which no more than five-year prison term is envisaged as punishment.
According to official statistics, there were total of 22,600 inmates as of October, 2011 with 5,686 of them serving prison terms for “less grave offences”.
Incentives for Having Women Candidates
The code envisages, also for the first time, financial incentives to ‘qualified political parties’ (those, which have won at least 4% of the vote in the last parliamentary elections and at least 3% of the vote in the last local elections) to encourage them recruit women candidates in their party lists for parliamentary and local elections. A party which will have at least two women among every ten candidates of its party-list will receive additional 10% of state funding to which they will become eligible if clearing 5% threshold.
Rule of composition of Central Election Commission (CEC), which is the main body administering elections, and lower level administrations remains unchanged under the election code.
CEC is composed of 13 members, including its chairman Zurab Kharatishvili, who was elected on the post by the Parliament in January, 2010.
Seven members of CEC are from following political parties: ruling National Movement party; European Democrats (a small party within a parliamentary minority group); Christian-Democratic Movement (a leading party in a small parliamentary minority group); Christian-Democratic People’s Party (a virtually unknown party which during the 2010 local elections was in a bloc with Christian-Democratic Movement); Conservative Party (its leader Zviad Dzidziguri is now an ally of billionaire opposition politician Bidzina Ivanishvili); Industrialist Party and Labor Party.
Five other members of CEC were nominated by the President and approved by the Parliament.
There are 73 District Election Commissions (DEC) – middle-level election administrations and over 3,600 Precinct Election Commissions (PEC), which are the lowest level of election administrations, but of crucial importance as they are in charge of administering polling stations and are first bodies to count votes in their respective precincts. Like CEC, each PEC and DEC has 13 members and distribution of seats in PECs and DECs among the political parties is similar to the one in CEC.
The CEC will have to summarize results of parliamentary elections no later than 19 days after the ballot. The election code allows CEC chairman to take a decision regarding registering of an electoral subject. Such decision previously was taken collectively by CEC members.
Like in previous code, the new one also envisages that secretaries of the precinct election commissions should become one of the members of precinct commission, who represents political parties other than the ruling party.
The Central Election Commission will still have to announce total number of voters prior to elections (the provision was not part of the initial draft).
A state-funded commission, chaired by a representative from opposition New Rights Party, which is in charge of verifying accuracy of the voters list, will have August 1, 2012 as a deadline to complete its work. The commission has been boycotted by most of the non-parliamentary opposition saying that it was not an effective tool for creating reliable voters list. Instead they were offering drawing up the voter registry based on biometric identification system.
The code authorizes the voter list checking commission to monitor the list even after submitting it to the CEC in August, 2012. The CEC will have to “immediately” notify the commission if the voter list is modified. List of those voters residing in regions, predominantly populated by ethnic minorities, should be posted on CEC’s website on a language spoken by those ethnic minority groups.
Deadlines for Filing Complaints Not Increased
The June, 2011 agreement between the ruling party and some opposition parties on electoral system reform envisaged increasing deadline for appealing and consideration of electoral complaints from two to four days. The election code, however, does not envisage such increase of deadlines. The ruling party said it was done in agreement with the opposition parties working on the code in order not to shorten timeframe for adjudication of complaints. The code allows to appeal a decision of precinct election commissions not only to district commissions (within two days), but also directly to the court.
Rules for donations to political parties are regulated by the law on political unions and monitored by the state audit agency, Chamber of Control. The election code envisages covering of campaign cost from the state budget for a party and an election bloc, which will clear 5% threshold in an amount of no more than GEL 1 million. GEL 300,000 of this sum is specifically allocated for covering political TV ad cost. A separate, annual funding from the state-budget is also envisaged for parties which receive at least 4% of votes in the parliamentary elections and 3% in local elections.
The code obliges broadcasters to set equal prices on political ads for every political party. The broadcasters will still be obliged to allocate 90 second of free airtime in every three hours for ‘qualified political parties’ and the public broadcaster – 60 seconds in every hour.
The election code partly took into consideration recommendations from the Venice Commission, banning use of communication means by the state agencies for campaigning purposes. Use of office cars by public officials free of charge or with preferential terms for campaigning purposes is also banned; it, however, will still be allowed for President, members of Parliament, Prime Minister, other ministers and their deputies, as well as members of City Councils (Sakrebulo), heads of Adjara Autonomous Republic’s government and members of the Autonomous Republic’s legislative body.
The use of state-funded buildings for campaign purposes, provided that equal access is given to all election subjects, is still allowed. But as the Venice Commission said although this provision appears to adhere to the equal opportunity principle, such equality may quickly be undermined as governing political parties have easier access to such government facilities. According to the ruling party it was decided not to impose blanket ban on use of government buildings for campaign purposes upon the recommendations from opposition parties and observer organizations, because at some places in the provinces local government buildings represent the only venue where such campaign meetings can be held.
The election code still allows provincial governors and heads of regional districts to take part in the campaigning. Foreign citizens are banned from taking part in campaigning in favor any political party.
According to the election code, Secretary of National Security Council, Giga Bokeria, will be authorized to establish an inter-agency task force before July 1, 2012 with a purpose of “preventing of and reacting to violations of electoral legislature by public officials.”
‘Qualified political parties’ (those, which have won at least 4% of the vote in the last parliamentary elections and at least 3% of the vote in the last local elections), as well as those parties, which will notify the commission about alleged violations will also have the right to take part in the commission’s sittings. Representatives from local and international election observer organization can also be invited at the commission sittings, according to the code.
In case of violations, the inter-agency task force will “recommend” state agencies or CEC to take “relevant actions in a reasonable timeframe.”