Changes in election and political party legislation do not meet democratic standards - საერთაშორისო გამჭვირვალობა - საქართველო
GEO

Changes in election and political party legislation do not meet democratic standards

28 December, 2020

 

On December 16, the Parliament of Georgia registered the legislative initiatives[1] of the ruling Georgian Dream MPs, which envisage amendments to the rules of political party funding and free advertising time, as well as the abolition of election registration for parties. The presented legislative package has already been adopted by the Parliament in the first hearing, and the second hearing has been temporarily postponed.

We believe that the major part of the proposed changes in the rules of party funding is against European standards of state funding of political parties and will worsen the financial conditions of opposition parties on an illegitimate basis, negatively affecting political pluralism and a competitive political environment. At the same time, the abolition of election registration for an election subject because of the participation of an unauthorized person in the election campaign is a disproportionately severe sanction and carries a great risk of its use for political purposes.

State funding of political parties

According to the submitted draft law, the state funding will be given to a party that, together with the support of at least 1% of the voters in the parliamentary elections, will realize at least half of the mandates allocated to it. In addition, a political party that is cut off from state funding will not be able to receive free airtime either.

The mentioned initiative was submitted by the members of the parliamentary majority who requested accelerated consideration of the package. In the explanatory note the initiators state the goal of the draft law: “political parties get state funding for effective and constructive participation in the democratic political process. In a situation where a party opposes a democratic political process and the country's main democratic institution, sabotages the parliament, its funding from state budget plays a counterproductive role and is fundamentally against the legal task of funding."

Article 3 of the Constitution of Georgia deals with democracy and the activities of political parties are covered by this article. According to the Constitution: "Political parties participate in the formation and implementation of the political will of the people." Accordingly, the Constitution directly links the activities of political parties to the existence of democracy in the country, and any legislative restriction that affects the activities of political parties and weaken them are considered a step backwards for democracy.

Funding is one of the most important basis for the functioning of a political party. In Georgia, due to a grave economic and social situation, obtaining funding from private sources is very hard, consequently, political parties largely depend on state funding. The European Court of Human Rights notes: “State funding for political parties is aimed at preventing corruption and avoiding excessive reliance by parties on private donors. It follows that this funding is intended to strengthen political pluralism and contributes to the proper functioning of democratic institutions."[2] The abolition of state funding will be a severe blow to opposition parties, which in turn will negatively affect political pluralism and make the political environment even more uncompetitive. The abolition of state funding will significantly worsen financial conditions of opposition parties and negatively affect political pluralism and a competitive political environment.

In Georgia direct funding of political parties from the state budget was introduced by the Law on Political Associations of Citizens in 1997, and its acquisition has never been linked to party's entry into parliament. Conditions have changed several times since the introduction of state funding. The last amendment was made on July 2, 2020, and under current legislation, state funding can be received by a party that gets the support of at least 1% of the electorate participating in the parliamentary elections. Prior to that, in different years, the funding threshold was lower than the threshold for parliamentary seats. For example, in 2016, a party had to get at least 3% in the parliamentary elections to receive state funding, and had to cross the 5% threshold to enter parliament. Moreover, a party could receive funding without running in the parliamentary elections - based on the results of the local self-government elections.

As mentioned above, state funding of political parties aims to lay the groundwork for their ability to present their ideas to the public in the face of scarce resources and to compete with large, and primarily ruling parties. Such funding cannot be directly and imperatively linked to the acquisition of parliamentary seats, as its function is not to support parliamentary activities (for which there are other types of funding, such as MPs' salaries, reimbursements of expenses and other types of additional privileges), but party activities. Political activism can take many forms, including the use of a form of protest such as a parliamentary boycott or rejection of mandates. Therefore, the presented initiative contradicts this principle.

The legislative initiative also runs counter to the recommendations of the Venice Commission, which considers receiving state funding and obtaining a parliamentary mandate as an unrelated concepts. According to a Venice Commission’s recommendation issued in 2010 with the OSCE / ODIHR: [...] 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”.[3] The lack of a link between receiving funding and obtaining parliamentary seats is a widespread practice across Council of Europe countries. The European Court of Human Rights in the judgment already mentioned above (ÖDP) v. TURKEY notes: “In the member States other than Turkey, the minimum share of the vote a political party must obtain in order to qualify for public funding varies between 0.5% and 5% of the votes cast in the preceding election, and is often lower than the electoral threshold required in order to secure seats in Parliament. Hence, in addition to the parties represented in Parliament, new political parties which have a minimum level of support among citizens also receive public funding in proportion to their share of the vote.[4]

It is noteworthy that once in the history of Georgia there was a case when the opposition parties were deprived of the right to receive state funding through legislative changes due to the non-recognition of the parliamentary elections in 2008 and the refusal to accept parliamentary seats. This change was then negatively assessed by the Public Defender of Georgia, who noted that it was a direct blow to the development of democracy and pluralism. Irakli Kobakhidze, the current executive secretary of the ruling Georgian Dream party, also criticized the change in his book. [5] Due to sharp criticism, the amendment was repealed by Parliament the same year.

Abolition of registration for an election subject

According to the draft law, if a person who does not meet any of the qualifications established by the Constitution of Georgia for the exercise of active suffrage (for example, if a person is a foreign citizen) participates in the pre-election campaign of an election subject as its political leader, the election subject can be de-registered by the Central Election Commission (CEC). This decision can be appealed in court.

 

According to the current legislation of Georgia, there is no violation of election campaigning rules, in case of which the CEC is authorized to cancel the election registration of a political party. Cancellation of election registration is used as a sanction based on the court decision only in case of voter bribery. It is clear this is more serious election violation, which at the same time is a criminal offense.

In addition, by the decree of the CEC chairperson, the election registration of a party may be revoked if a political party was abolished by the Constitutional Court of Georgia due to its unconstitutionality. Therefore, it is unjustified to equate the participation of an unauthorized person in election campaign with the gravity of the violation such as voter bribery or the unconstitutional activities of a party and to cancel its election registration for this reason.

At the same time, the draft law is vague and does not clearly foresee what is meant by the participation of a person in the pre-election campaigning as a "political leader", due to which the election subject can be deregistered. It is also unclear why the whole party should be punished with the most severe sanction because of a violation committed by an individual.

Based on all the above, we call on the Parliament of Georgia not to adopt the presented initiatives.

 


[2] CASE OF ÖZGÜRLÜK VE DAYANIŞMA PARTİSİ (ÖDP) v. TURKEY, Judgment of the European Court of Human Rights, 10.05.2012, Paragraph 37

[3] Guidelines on Political Party Regulation by OSCE/ODIHR and Venice Commission, CDL-AD(2010)024, Par. 185.

[4] CASE OF ÖZGÜRLÜK VE DAYANIŞMA PARTİSİ (ÖDP) v. TURKEY, Judgment of the European Court of Human Rights, 10.05.2012, Paragraph 40

[5] Excerpt from the book: p. 135: "It is inadmissible to repeal state funding to a political party due to its boycott of the Parliament."

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