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The Constitutional Court of Georgia finds a Violation of the Constitution by the President of Georgia
On 16 October 2023, the Constitutional Court of Georgia adopted a conclusion on the case of the constitutional submission of the members of the Parliament of Georgia (Irakli Kobakhidze, Shalva Papuashvili, Mamuka Mdinaradze et al., a total of 80 members) (Constitutional Submission No. 1797) and found that the President of Georgia, Ms. Salome Zourabishvili, violated Article 52.1, subparagraph “a” of the Constitution of Georgia, the fact which was manifested in conducting working visits abroad and holding business meetings and negotiations with officials, without the consent of the Government of Georgia.
According to the arguments of the authors of the constitutional submission, under the conditions of the constitutional system and the parliamentary model of governance in Georgia, the only constitutional body exclusively authorised to implement foreign policy is the Government of Georgia. According to their position, such an approach of the constitutional legislator is reflected by the separation and division of powers between the branches of government as established by the constitution, as well as by a number of constitutional and legal norms, including, first of all, the provision of subparagraph "a" of the first paragraph of Article 52 of the Constitution of Georgia, according to which the President of Georgia, with the consent of the Government, exercise representative powers in foreign relations, negotiate with other states and international organisations. The authors of the constitutional submission appealed to the fact that the President of Georgia made three working visits abroad despite the absence of the mandatory consent of the Government of Georgia as established by the Constitution. According to the authors of the submission, during the above-mentioned visits, the President of Georgia, on the one hand, exercised representative powers in the field of foreign relations, and, on the other hand, held negotiations with Presidents of foreign states and international organisations, which constituted the violation of the Constitution of Georgia and, according to Article 48 of the Constitution, provided for the ground for impeachment.
The President of Georgia, who was invited to the session of the court hearing, did not attend. Accordingly, her representatives took part in the deliberation of the constitutional submission and presented the position of the President of Georgia to the Court. They separated the normative content of Article 52 and Article 49.3 of the Constitution of Georgia from each other and indicated that Article 49.3 of the Constitution implies and, in principle, allows the exercise of representative powers by the President in the field of foreign relations even without the Government's consent. According to the representatives of the President of Georgia, the President needed the consent of the Government only when his/her activity in the field of foreign relations would go beyond the official course of the Government and the main directions of the foreign policy. The representatives of the President of Georgia confirmed to the Court that Ms. Salome Zourabishvili's held working meetings abroad in her capacity as the President of Georgia. At the same time, they submitted to the Court that within the framework of the visits, negotiations in the field of foreign relations in the meaning of Article 52.1(a) of the Constitution of Georgia did not occur, since there were not any political or legal consequences for the country. Hence, according to the position of the representatives of the President of Georgia, the assertion of the fact of violation of the Constitution by the President was baseless, and during the working visits, the President was guided by Article 49.3 and Article 78 of the Constitution.
The Constitutional Court separately assessed factual and legal issues that formed the basis of the constitutional submission. The Constitutional Court, on the basis of the authentic, clear and convincing information provided by the authors of the constitutional submission, as well as obtained on its own initiative through publicly available sources, deemed it confirmed that the President of Georgia, Ms. Salome Zourabishvili, in her capacity as President of Georgia, without the Government's consent, held working meetings abroad on foreign policy matters.
The Constitutional Court analysed the status of the President of Georgia and their place in the constitutional system of the division of power. Based on the systemic interpretation of the structure of the constitution, powers of constitutional bodies and relevant constitutional norms, the Court indicated that the President of Georgia, taking into account the parliamentary model of governance, is a politically neutral figure who does not possess political power. Moreover, by interpreting Articles 49 (Status of the President) and 52 (Powers of the President) of the Constitution of Georgia, the Court underscored that the powers corresponding to the status of the President in foreign relations are provided for solely in subparagraph "a" of Article 52.1 of the Constitution, whereas Article 49 does not independently establish any powers of the President.
At the same time, the Constitutional Court, for the purposes of Article 52 of the Constitution, interpreted the constitutional meaning of the exercise of representative powers and negotiations in foreign relations, their main characteristics and criteria, and also emphasised the exclusive authority of the Government of Georgia in this field and confirmed that under the existing constitutional order, any activity of the President in foreign policy was subject to prior consent of the Government of Georgia.
The Constitutional Court deemed it confirmed that the President of Georgia, without the consent of the Government of Georgia, represented the State in foreign relations in the capacity of President, and in all three instances that were disputed as impeachable, conducted negotiations with foreign states and international organisations, without the consent of the Government of Georgia.
The Constitutional Court also indicated that the assessment of the constitutionality of the action of the President of Georgia could not be affected by the provision provided for in Article 78 of the Constitution of Georgia. Firstly, the Court indicated that despite the undoubtedly great importance of Article 78 as the country's foreign policy vector, it does not constitute a norm establishing any new powers for constitutional bodies. Furthermore, the Court explained that the aforementioned provision equips the constitutional bodies with the mandate to act only within the scope of “their competences”, and the powers of the President in the field of foreign relations in the exercise of representative functions are explicitly established by Article 52 of the Constitution of Georgia, and in each case, it requires the consent of the Government of Georgia.
The Court also explained that the reference to the legitimate purpose provided for in Article 78 of the Constitution of Georgia, as well as to the good intentions of the President of Georgia, could not be a sufficient basis that would neutralise the fact of violation of the constitutional provision or vitiate thereof so as to deprive the constitutional basis for impeachable accusation.
Based on all of the above, the Plenum of the Constitutional Court of Georgia confirmed by its conclusion that the President of Georgia, Ms. Salome Zourabishvili, exercised representative powers in the field of foreign relations during her working visits abroad on 31 August, 1 and 6 September, 2023, without the consent of the Government of Georgia, thereby violating Article 52, paragraph 1, subparagraph “a” of the Constitution of Georgia.
