So, everyone seems to agree that the new constitution, that comes into effect at the time of the appointment of the next President, will give more power to the parliament and the Prime Minister. By implication people seem to be suggesting that this means the new PM will have relatively little power until that time. There is some truth to this. The President does have a lot of formal power in the current constitution. Although the constitution presents the creation of the government as the decision of both President and Parliament, the President can force the parliament to accept the PM and Ministers that he wants.
However, given the political realities of the current situation, that seems unlikely to happen. The UNM has already signalled their preparedness to essentially forgo some of the powers of the president and allow the parliament to have the ministers they want. Even if this happens, it would be unwise for Georgia's Dream to ignore the constitutionally mandated powers of the President.
A quick review of the process for government appointment shows that under normal circumstances the President is expected to come to a consensus with the PM-nominee and Parliament to get the whole government approved.
Chapter 4: Article 73 of the Constitution lays out the powers of the President. Most relevant for our purposes are sections:
‘b) appoint the Prime Minister, give the Prime Minister consent to appoint a member of the Government – a Minister
c) be entitled, on his/her own initiative or in other cases envisaged by the Constitution, to dissolve the Government, dismiss the Ministers of Internal Affairs, Defence and Justice of Georgia’
Article 81 explains the relationship between the President and the PM in appointing a government (a government is defined as the PM and Gvt Ministers). Basically, the old government is annulled when the new parliament is declared (which has to happen within 20 days of the election), the President then has 7 days to nominate a PM. The PM-nominee then gets to 10 days to pick a cabinet.
The President then presents both PM-nominee and Ministers to the Parliament for approval and the parliament has three days to approve them. Approval needs a simple majority. The constitution does give the President the power to dismiss the MIA and MoD but does not seem to provide him with special powers in their appointment.
If approval is not forthcoming then the whole process starts again. If the President’s choice for PM combined with the PM’s choice of ministers is rejected three times, then the President can choose to appoint his own PM and Ministers without the approval of Parliament.
If this happened midway through a parliamentary session then this would immediately trigger a new Parliamentary General Election. However, article 51 says that the parliament cannot be dismissed by the President within 6 months of a Parliamentary election, or less than 6 months before a Presidential election.
Therefore, the President could, in principle, force the parliament to accept a government they don’t like. This could only be overturned by a vote of no confidence by the parliament, which would need 90 votes to pass.
All of this seems to give the President the constitutional edge in deciding on the new government.
However, it seems unlikely that the President Saakashvili will fully exercise his ability to ignore the parliament. If the President does not allow the parliament to select the government they want, then this may trigger a constitutional crisis and would certainly damage the positive image that the President and UNM have gained for allowing a graceful transition of power.
That said, GD/the parliament would also be unwise to try and ignore the President. If either side act unreasonably and trigger a constitutional crisis the ultimate arbiter will almost certainly be the electorate. Therefore, conciliation and negotiation seem to be the order of the day, at least for the next year. And that cant be a bad thing.
Note that this blog was rewritten based on detailed review of the constitution and discussions with Vakhushti Menabde, an expert on Constitutional Law. An old version of the constitution can be reviewed at www.parliament.ge. The latest version of the constitution is not available in English, as far as I can tell.
Please email corrections or comments to george.welton - at - gmail.com