Council of Europe with Heavy Critics over GERB's Draft of New Constitution
Venice Commission as integral part of Council of Europe published report on the proposed draft for new constitution by the ruling party GERB.
“We regret that a constitutional reform has been launched in Bulgaria without being preceded by a proper public debate. The draft of a new Constitution was prepared by the parliamentary majority and, it seems, without any other contribution outside. The reasons for certain amendments are not well explained, and where this is done, it’s not comprehensive.
The proposal to halve the 240 MPs seems to be randomly chosen and the number of 120 MPs is inserted without a detailed assessment of the impact of such a move on the Bulgarian political system.
Amendments to strengthen social and economic constitutional rights are to be welcomed, but clarification is needed on what is meant by the state's obligation to "support the birth rate", for example.
This should not be used as an excuse for discrimination against cultural and ethnic minorities or against women. A very general wording could be used to try to severely limit or ban abortions.
These are just some of the first assessments of GERB's draft for a new Constitution of Bulgaria, made by the European Commission for Democracy through Law, better known as the Venice Commission.
Part of the structures of the Council of Europe, it is the highest body of the continent for constitutional law. On Monday, the Council of Europe disseminated the interim assessment, made at the request of National Assembly Speaker Tsveta Karayancheva.
The text emphasizes that a significant part of the analysis is dedicated to the administration of justice, but the members of the commission are ready to comment in detail on other parts of the draft, if and while it is being discussed in Bulgaria.
"As the constitutional reform continues, the Bulgarian authorities must explain in detail the reasons behind each of the proposals and ensure significant participation of the public, experts and all political parties in this process," the commission said.
The preliminary analysis also contains positive assessments that the recommendations of the Venice Commission - especially those for the judiciary and the Prosecutor General - have been taken into account in the draft Constitution.
Constitutional experts also draw attention to such serious issues as how amendments to the new Constitution will be approved in referendums if it is adopted and enters into force. It is envisaged that there will be no more Grand National Assembly and this will happen after three votes in ordinary parliament and a referendum with the participation of at least 50% of those entitled to vote.
According to the commission, setting such a threshold for turnout in a very modest tradition of public opinion polls in Bulgaria calls into question the possibility of amending the Constitution. The explanation is that political forces which disagree with an amendment are effectively given a veto, even when they are in the minority, because they can campaign not to vote against it, but simply to have their supporters boycott such referendum.
GERB has already applied this approach in 2013 over Belene NPP referendum, when less than 1.5 million people appeared in front of the ballot box with a minimum requirement of just over 4.3 million people.
Another important question is how to determine which are the "important" and "regular" changes in the Constitution.
An example is given - in Art. 166 of the draft Constitution provides for a special procedure for changes in the form of government, but it is not entirely clear what is meant by this wording. "What would happen if changes in the leadership of the justice system removed all guarantees of the independence of judges and placed them under government control?" Why the adoption of a completely new Constitution requires a referendum with minimal participation, but there is no threshold for a referendum to amend the "change of the republic and parliamentary foundations of the state governing”?
It is advisable to very clearly define the powers of the Constitutional Court on such issues, the text says.
Secondly, the Venice Commission points out, we see no point in changing the procedure for amending the Constitution, it is not clear why the majority of MPs in Bulgaria decided to make it "more flexible", hence which important reforms have been blocked so far due to the current model of repairing the Constitution. Also it’s unclear why these reforms cannot be carried out in the current framework, requiring the convening of a Grand National Assembly.
The Venice Commission recalls that the issue of the responsibility of the Prosecutor General in Bulgaria has been discussed with it for years and that another legislative proposal was made almost a year ago - in December 2019. It envisaged the introduction of an independent prosecutor to investigate potential crimes committed by the Prosecutor General. In July 2020, the Constitutional Court issued a clarification on how such cases should be handled.
In the report commission "strongly recommends that the Bulgarian authorities include in the Constitution a mechanism whereby in the event of a potential conflict of interest, the Prosecutor General to be suspended. In such case will be appointed independent prosecutor accountable to other state authorities not the judiciary.
Apart from the fact that the independent prosecutor should in no way be subordinate to the chief prosecutor, the Constitution should also allow for the possibility of reviewing cases in which prosecutors refuse to initiate pre-trial proceedings. There are also recommendations on the idea of creating a separate Judicial Council of Prosecutors and a Judicial Council of Judges (to succeed the current Prosecution and Judicial College in the Supreme Judicial Council), such as the former to have members who are not and will not be hierarchical.
The Venice Commission also recommends that the competence of the prosecution outside the field of criminal law be reduced "to the minimum necessary". In addition, constitutional experts say, it would be appropriate to abolish probation terms for junior judges and prosecutors and to describe in the law very clear criteria for the grounds on which to reject their approval.
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