The State Constitutional Commission, which was established on December 15, 2016, will hold a summing-up meeting at the end of the week. The NGOs in the Commission would like to briefly review the constitutional amendments proposed so far.
First of all, we would like to note that the Constitution as the Supreme Law of the State should be based on a broader public and political consensus that excludes disregard of expressly negative positions of the members of the Commission and other members of the public.
As a result of the discussions, the government has accepted some important positive changes:
Public Broadcaster – The law shall guarantee the independence of the Public Broadcaster from state agencies and its freedom from political and substantial commercial influences.
Prosecutor’s Office - The Prosecutor’s Office is defined as a body independent from the executive authority.
Judiciary – It has been defined that a judge shall be elected based on substantiated decisions of the High Council of Justice through open ballot, based on judge’s integrity and competence.
The fundamental direction of the work of the High Council of Justice has been defined - ensuring the independence and effectiveness of the courts, and that its rule of conduct shall be determined by an organic law.
Despite a number of positive changes, the draft law for revising the Constitution envisages many negative initiatives. Among them are:
Rule of Distribution of Mandates - The draft law for revising the constitution proposes granting all undistributed mandates to only one political party which takes the first place. Under the conditions where the number of unallocated mandates accounts for 10% or more, awarding these mandates to only one party will significantly increase the disproportion between the votes and mandates obtained by the party. This approach greatly weakens the purpose of abolishing the majoritarian electoral system and will compromise the principle of fair redistribution of mandates. We believe that along with the transition to the proportional system, the undistributed mandates should be allocated among the parties in proportion to their votes.
Abolition of blocs – The proposed changes provide for the abolition of election blocs for further development and strengthening of parties. We believe that the change is a radical measure and is not justified by the legitimate interest.
These change will be especially unfavourable if the 5% barrier is maintained.
Amendment of the rule of the Supreme Court composition- According to the proposed version, the Parliament elects Supreme Court judges by simple majority for life based on the proposal of the High Council of Justice. Bearing in mind the perennial corrupt practice of electing the first and second instance judges by the High Council of Justice, the deficient rule for the composition of the Council itself and other problems characterizing this institution, we believe that at this stage, expanding the powers of the Council will award it full authority to compose the judiciary (all three instances). This will seriously jeopardize the independence of the court and the ability of the system to be free from influence of powerful groups.
Probation period of Judges - According to the draft law for revising the Constitution, the probation period of judges is maintained, which according to the evaluations of local as well as international experts, is a significant risk for judicial independence.
With all the mentioned issues in mind, we consider that a number of issues envisaged by the draft law for the amendment of the Constitution requires elaboration and future refinement in order to ensure the adoption of the Constitution which will be in line with international standards and principles of democracy.
With respect to all problematic issues raised above, we will recommend alternative proposals at the Commission meeting tomorrow.
We hope that above-mentioned problematic provisions will be altered during the concluding session of the Commission and subsequent parliamentary discussions and all the positive changes will be preserved.