Increase of number of seats in the Parliament from 150 to 190 without holding a new referendum will be a violation of law, Avtandil Demetrashvili, former chairman of the Georgian Constitutional Court, said on June 29.

One of the key parts of an electoral system reform deal, signed by the ruling National Movement and several other parties on June 27, envisaging increasing number of lawmakers to 190 is facing a legal hurdle because, as opponents say, it would contravene 2003 referendum result in which voters said number of MPs should not be more than 150. Georgia’s law on referendum says, that a decision, taken as a result of referendum, can only be revised or canceled through new, separate referendum.

“There is only one way to increase number of MPs and that is holding of a new referendum. If that change is not carried out through this path, it will be a gross violation of the law and I do not rule out that it will be a violation of the constitution too,” Avtandil Demetrashvili told Civil.ge on June 29.

Demetrashvili was the Chairman of the Constitutional Court in 1996-2001; in 2009-2010 he chaired the state commission, which led drafting of a new constitution to be enforced in late 2013. He is now head of the Batumi-based Regional Centre for Research and Promotion of Constitutionalism, established by the President in 2011 with a goal to provide consultancy and advice on legal and constitutional affairs.

Demetrashvili says the fact that the 2003 referendum result has never been appealed to the Constitutional Court and the fact that the referendum result was then reflected in the constitution through amendments passed by the Parliament in 2005, explicitly shows that “this decision still stands.”

The only issue that can now be appealed to the Constitutional Court is the fact that the Parliament passed constitutional amendment putting number of MPs in line with the referendum result in 2005, long after the deadline of one month after the announcement of 2003 referendum result expired, Demetrashvili said. He said that such an appeal could be brought before the Constitutional Court by any individual citizen.

Demetrashvili, however, said that even if such appeal was brought it would hardly change anything, because maximum what the Constitutional Court might do is to overturn the Parliament’s 2005 decision on the ground that it was passed with violation of deadline; but even in that case, the result of the referendum will still stand, Demetrashvili said.

“If I were a judge I would not rule in favor of such appeal, because the will expressed by people through referendum is higher, than the decision made by the legislative body,” Demetrashvili said.
 
One of the arguments of the ruling party and some of those parties, which have joined the electoral system reform deal, is that holding of 2003 referendum in itself was unconstitutional and for that reason there will be no legal obstacle on the way towards increasing number of MPs without holding a new referendum. The ruling party claims that 2005 decision of the parliament to amend the constitution and set number of MPs 2005 formally was not based on the referendum result, but was a separate decision of the Parliament, formally not related to the referendum result.
 
The ruling party politicians are citing article 74 of the Georgian Constitution which says that “the referendum shall not be held with the view of adopting or repealing law.” The question asked in 2003 referendum was consequently requiring amending of the law, not “adopting or repealing” the one. But “amendment” to a law itself has a status of being a separate law.

Demetrashvili, however, disagrees with such interpretation of the article 74 of the Constitution, saying that formulation of the question in 2003 referendum was not at all asking voters whether they wanted or not to change, cancel or to adopt a law.

“Holding of 2003 referendum was legitimate and annulment of its result, I think, is impossible” through means other than a new referendum, Demetrashvili said.