Draft Election Code Scrutinized by Venice Commission

Overall, the new draft Election Code is conducive to the conduct of democratic elections and has many positive features. Nonetheless, a number of provisions in the draft is of concern or raise questions due to the fact that the text is ambiguous or lacks clarity in certain areas. This was the conclusion of the Venice Commission, released on December 1.

The issues to which the Venice Commission paid attention and gave recommendations concerned mainly the overly stringent restrictions on the active and passive suffrage rights of citizens; the formation of electoral districts that undermines the principle of equality of suffrage; the absence of provisions allowing independent candidates to run for office; overly long residency requirements for candidates; lack of effective mechanisms to facilitate the participation of women in elections; remaining shortcomings in the regulation of political party and campaign finances; and shortcomings in the complaints and appeals process.

The most important among these issues according to the commission is the gross inequality in the size of electoral districts, which according to lawmakers is due to the fact that the boundaries of districts correspond to those of municipalities, which range in size. Hitherto, election districts in parliamentary elections ranged between some 6,000 and some 160,000 registered voters.

According to the commission, the draft of election code, like the existing one, allows the use of administrative resources – state-funded buildings, communication means, vehicles – for campaign purposes provided that equal access is given to all the candidates and parties.

“On the face of it, this provision appears to adhere to the equal opportunity principle. However, in practice such equality may quickly be undermined as political parties in government have easier access to such resources,” the commission says, continuing,

“This problem is due in part to the lack of clarity and specificity in the legislation, as reproduced in the draft [of the new election] code. The draft code provisions blur the line between the state and political parties and fall short of OSCE commitments.”

As for the financing of political parties, the commission found some inappropriateness in “the sums given by parties from their resources for the election funding”. This provision effectively removes the limits established in Article 55(4) & (5) on contributions to election campaign funds. Not only does such a provision give unfair advantage to wealthier political parties, it will also encourage contributions to be made in a manner that circumvents the very limits established by Article 55(4) & (5), as well as preventing the timely disclosure before the elections of the name of the person who originally made the donation.

The Venice Commission and the OSCE/ODIHR recommend that the ”exemption provided in Article 55(6) be deleted from the draft Code. Further, in order to enhance transparency, general reports of political parties, which are required on an annual basis by existing law, should also be filed within a reasonable period of time before the elections so that voters know the identities of contributors to political party funds.”

Another concern is the distinction established in Article 55(4) & (5) related to campaign contributions of natural persons and “legal persons” or “legal entities”. “Legal” persons or entities, which are presumed to include companies formed under Georgian law, can contribute three times as much to a campaign fund as a regular citizen. Not only does this provision discriminate against citizens, it will also encourage some contributors to create legal entities in order to at least triple the amount of a campaign contribution. The Venice Commission and the OSCE/ODIHR say that there is no articulated and justifiable basis for this discrimination, and that these provisions should be amended to provide the same contribution limit for natural persons as is applicable to “legal persons”.

There is one more article the commission recommends be deleted. The commission claims that Article 45(4) of the draft code prohibits non-citizens from participating in election campaigns and is also problematic: ”Even if non-citizens (stateless and alien residents) do not have the right to vote, they do have the right to freely express their opinion, associate and participate in political debates during election campaigns. Such a clause limits fundamental rights of non-citizens residing in Georgia and conflicts with basic human rights,” the Venice Commission said.

The biggest problem appears to be the size of voting districts however. During the 2008 parliamentary elections, variance ranged from less than 6,000 voters in the smallest constituency to over 150,000 voters in the largest one. That wide disparity between the constituencies will be partially addressed by the authorities as they intend to divide the ten largest constituencies with over 100,000 registered voters into two, thus increasing the number of majoritarian seats in the parliament from the current 75 to 83. The Venice Commission and the OSCE/ODIHR recommend that the code be amended to require single-mandate electoral districts to be of equal or similar voting populations. The code should specifically address how electoral districts are to be established in all types of elections, including the specific criteria that must be applied and respected. The code should require that those bodies responsible for creating electoral boundaries should be independent and impartial. The delimitation process should be transparent and involve broad public consultations. The code should also foresee periodic boundary reviews that would take into account population changes.

As the authorities state, the Venice Commission recommendations and the government’s attitude coincide on many issues such as the financing of political parties. However, the opposition party Our Georgia-Free Democrats representative, Irakli Chikovani mentioned there are direct indications in the recommendations that the draft law does nor ensure equal representation in the parliament, “which to my mind is the most serious issue, at the same time it is stated that the opposition and majority should be given equal TV time and at the same time it is underlined that administrative resources might be inadequately used,” Chikovani told The Messenger and mentioned that he has no illusion that the government would distort the picture for society: ”there is a tradition of changing the real picture into a desired one by the current authorities. In any democratic state, such recommendations [as the Venice Commission's] should be reflected in the law.“