The 1921 Constitution VS The 1978 Constitution - Vol 5 - Sovereignty

Sovereignty is a distinguishing characteristic of a state, where, legitimized by the people, it exercises specific exclusive rights through which, and based on this legitimacy, it adopts and enforces laws. This authority also extends to the international arena, including in such a way that Georgian citizens are represented by elected, i.e., legitimized, persons, and that these persons collectively express the views of the citizens;

Article 1 of the 1921 Constitution states that "Georgia is a free, independent, and indivisible state." The legal understanding of sovereignty at that time might differ from today's; however, "free" should mean "acting without the dictation of others," and "independent" should mean "acting directly without the assistance of others." Accordingly, these two concepts were united by the 1921 Constitution. Among other things, it is interesting how the 1921 Constitution approached the international arena. According to Article 72(d), it was the right of the government to "defend the external interests of the Republic," and according to Article 72(c), to "report to the parliament on its actions and at least once a year present a report on the internal and external situation of Georgia. To also present a special report if the parliament requests it." Article 73 states that "The Chairman of the Government is responsible to the parliament for overall policy and is obliged to obey the resolutions of the parliament."

There is also a minor manifestation of popular sovereignty in the 1921 Constitution. Article 52: "Sovereignty belongs to the entire nation; the parliament exercises the sovereignty of the nation within the limits of this Constitution." Consequently, the Constitution itself indicated that it represented a "charter" adopted on the basis of the people's will, while sovereignty (authority, in today's understanding) belonged to the nation. If the nation was its owner, the nation had the authority to temporarily transfer this power to someone. This provision is very important, because in today's Constitution, according to Article 3.2, "The source of state authority is the people," but it does not belong to the nation. It is also noteworthy that "nation" as a concept is mentioned in several articles of the 1921 Constitution, whereas in the newly revised Constitution, the nation is found only in the preamble, and Article 3.2 declares the people as the source of authority;

Despite this, the 1921 Constitution does not change the inherent rule that sovereignty—that is, the supreme will to exercise actions in both domestic and foreign arenas—does not belong to the government; the government simply has this granted temporarily. The nation is the only subject to whom this can belong, and under no circumstances a person and/or persons, including a party or parties. Sovereignty is interpreted this way to this day: "dominion, power" is a manifestation of popular sovereignty. Similarly, Article 64 of the 1921 Constitution stated that "If thirty thousand voters request in writing, the parliament is obliged to submit a newly adopted law to a referendum of the people. The procedure for the referendum shall be defined by law." This is more a manifestation of direct democracy, where the people do not exercise governance through elected persons, but directly themselves;

This model is interesting because, in some cases, it can be or become a means of transforming certain public protests or rallies into civilized forms and/or a means of defusing political confrontation. However, this right to a referendum, unfortunately, was never even activated under the 1921 Constitution, and it is difficult to comprehend or discuss what it brings as a right in the Constitution. Under the currently active version today, the idea of a referendum is retained, but with this formulation: "A referendum cannot be held to adopt or repeal a law." In other words, under today's reality, we Georgian citizens have a right, but the right is not as broad as under the 1921 Constitution. This too has its explanation: the exclusive right must belong only to the parliament. However, even if such an argument exists, the spirit of the 1921 Constitution overpowers this argument as well: "Sovereignty belongs to the entire nation," because the sovereignty of the nation is the crown of the Constitution. Nevertheless, these issues belong more to the political agenda than to purely legal matters, because then one could demand, for example, an elected court or elected police chiefs. Electability is such an immense basis of legitimacy that autocracy or dictatorship constantly opposes it. There could be many arguments as to why there should be no manifestation of direct democracy, but what outweighs all arguments is that transferring a mandate is one thing, but this transfer does not mean the complete disappearance of the nation's right. This includes on laws or the discussion of the expediency of passing a law, because "sovereignty belongs to the entire nation" and to no one else, not even the elected parliamentarian. The elected parliamentarian is an instrument of the nation, meant to express the will of the nation;

Today, the Constitutional Court of Georgia repeats the exact same thing. In one of its cases, the Constitutional Court explained that "In a modern state, the legitimation of state organs acting on behalf of the people must stem directly from the will of the people." (Decision of the Constitutional Court of Georgia of May 28, 2015, No. 1/3/547 in the case "Citizens of Georgia Ucha Nanuashvili and Mikheil Sharashidze vs. the Parliament of Georgia," II-2);

It is also noteworthy that the thesis "Sovereignty belongs to the entire nation" should probably be an echo of a kind of social-democratic principle voiced by Noe Zhordania: "In a parliamentary system, as power passes from the people into the hands of the parliament, popular sovereignty turns into the sovereignty of the ruling classes." Consequently, this sort of restraining thesis reflected in the Constitution was directed at the government. Overall, the vision of the Social Democrats went so far that the social order had to fulfill the purpose of the Constitution, and accordingly, a mechanism had to exist that would constantly protect the principle "Sovereignty belongs to the entire nation." Under the 1921 Constitution, it was possible to revise the Constitution, specifically: "The right of initiative for a general or partial revision of the Constitution belongs to: a) not less than half of the members of the parliament, and b) 50,000 voters."
"The operation of the Constitution of independent Georgia effectively ceased after the Bolshevik regime was established here, but legally it remains in force to this day" (Karlo Inasaridze. The Constitution of Georgia and its Roots - Compilation: Karlo Inasaridze. Political Culture. Paris, 1992, p.69);

Having briefly reviewed the understanding of sovereignty according to the 1921 Constitution, it is interesting to see how the 1978 Soviet Constitution viewed sovereignty, and whether it recognized it as a phenomenon at all. It must be said that for communists, "sovereignty" was the very thing that ultimately caused the collapse of the USSR, because the so-called "parade of sovereignties" in the 1990s managed the final dismantling of the USSR;

Article 68 of the Soviet Constitution stated that "The Georgian Soviet Socialist Republic is a sovereign socialist state." There seems to be nothing wrong with this, however, the Soviet Constitution offers the following interpretation of sovereignty:
a) For the successful construction of a communist society – meaning the basic law set the goal of building society only in a communist direction; there could be no talk about the individual and/or other persons or another system;
b) For the strengthening of economic and political unity – meaning for the purposes of the communist society and system form;
c) For ensuring security and the defense of the state – meaning for the protection of the communist society;
d) The Georgian Soviet Socialist Republic on the basis of the free self-determination of the nation – and here this constitution introduces the biggest lie, for the basis of the nation's self-determination was not free will. Free will exists only if the nation chooses its path of development through elections, and moreover, these elections or choice must be freely evaluated by other nations. This did not exist in the 1978 Constitution, as it lacked legitimation, unlike the 1921 Constitution and the Constituent Assembly. In the assembly, every party that won votes was represented, whereas during the 1978 Constitution, all other parties were simply banned;
e) On the basis of equality and by its own will, unites with the other 14 Soviet republics in the Union of Soviet Socialist Republics, a unified multinational union state – such a choice never existed; on the contrary, an annexation occurred in 1921. Georgia never united into any union called the Soviet Union through elections; it did not even have the right to this choice. The provision itself indicates that no characteristic of the Georgian state existed, and unlike the 1921 Constitution, even the word "independent" is not used.

This provision regarding sovereignty does not represent any sign or even a hint of sovereignty whatsoever. The same article continues that "Proceeding from this, the Georgian SSR ensures in relation to the USSR the governance by its highest representative bodies and the law, which is interpreted by Article 73 of this same Constitution, and what is not indicated in Article 73 of this same Constitution, the Georgian SSR independently exercises as state power on the territory of Georgia." It is interesting what this so-called Article 73 was;

Article 73 of the 1978 Constitution indicated that "The Georgian SSR determines its district division and resolves other issues related to administrative-territorial division." It is noteworthy that under this same constitution, the Georgian state has no other rights besides administrative division. Under the 1921 Constitution, the Georgian state had an independent foreign policy, a multi-party system, and representation before other nations. This was simply taken away by the 1978 constitution of annexation. Including that Article 70 of the same constitution indicated that Georgia had the right for its territory not to be altered without its consent, but if it were to happen by agreement with another union republic, then the Supreme representative body of the USSR would confirm/approve it. If Georgia was a sovereign, then why was the so-called consent of the USSR needed? The entire essence of a Constitution is that it is the supreme law and beyond it there is no one and nothing, but for communists, this is the USSR;

Under the 1978 Constitution, the Georgian Soviet Republic had the right (at least it is written so) for its highest representative body to: adopt a constitution, ensure the execution of the constitution, protect the state system, etc. But conducting foreign policy independently is not found in the list; moreover, according to Article 75, it had the right to enter into relations with other foreign countries—meaning it had the right, but it did not have the right to conduct an independent foreign policy;

The most unimaginable, however, was Article 77 of the same constitution, which stated that "The laws of the USSR are binding on the territory of the Georgian SSR." In other words, on the one hand, a country is given the right, for example, to independent lawmaking, but the laws of the USSR are binding on it. Consequently, if the laws of the USSR are binding, it means it is supreme over the Georgian 1978 Constitution. And what happens in a conflict? If a Georgian law contradicts a USSR law? Under today's reality, the Constitution of independent Georgia states: Article 4.3. "The Constitution of Georgia is the supreme law of the state"; Article 4.5. "The legislation of Georgia complies with the universally recognized principles and norms of international law. An international treaty of Georgia, provided it does not contradict the Constitution of Georgia or a Constitutional Agreement..." And why is this indicated?
It is indicated because the Constitution is a manifestation of the will of the citizens of Georgia, and all other laws, including international agreements, must conform to it. The purpose of the Constitution is also to preserve what the nation desires; the nation, as a reality, manifests itself through the Constitution. If the Constitution is adopted freely, through choice and elections—why do I say choice? A choice must first exist for that choice to subsequently turn into elections. Regardless of what another state says or might say on this territory, the people living on this land establish the rules acceptable to them. Furthermore, these rules are the most important for them. And what value did the 1978 Constitution have in terms of sovereignty? In most cases, everything is saturated with slogans and not ideas, but the idea of choice does not exist in the 1978 Constitution;

The next equally astonishing provision is Article 78 of the 1978 Constitution, stating that "The sovereign right of the Georgian SSR, in accordance with the Constitution of the USSR, is protected by the USSR." What purpose this provision is supposed to serve is slightly incomprehensible, but if we delve into this too, we will realize that: true, Georgia as a reality is a sovereign (independent and free), but its sovereignty is protected by the USSR. That is, the right of the sovereign exists, but why is it necessary or essential to guarantee this right? The entire communist conception lies precisely in the protection of this right: Georgia may be a sovereign, but someone else protects this sovereign, and if a sovereign is protected, it is no longer a sovereign. A sovereign means independent. If a nation is independent, can anyone claim the right to protect it? Of course not, and it cannot exist. Using the term "sovereign" was necessary for the communists, but sovereign was not to be/should not have been interpreted as free and independent. After all, that would mean electability and, moreover, the thesis of the 1921 Constitution: "Sovereignty belongs to the entire nation." Wasn't the 1921 Constitution our choice as a nation? Of course it was, while the 1978 Constitution was never our choice; no Soviet constitution was ever our choice. Therefore, the communist constitution fears the words free, independent, and without these words and the substance of these words, a sovereign cannot exist.

The 1978 Socialist Constitution of Georgia points directly to the 1978 Constitution of the USSR, and the latter indicates in Article 172 that "The Constitution of the USSR has supreme legal force. All laws and other acts of state bodies are issued on the basis of and in accordance with the Constitution of the USSR." Meaning the 1978 Constitution of Georgia is subordinated to the 1978 Constitution of the USSR, and what sovereignty could exist? Unfortunately, there was none;

The only merit or success, if the 1978 Soviet Constitution of Georgia could have such a thing, was Article 69 of the Constitution, by which "The Georgian SSR retains the right to freely secede from the USSR." This article later even became the basis for seceding from a constitution that had no legal legitimation, because being in the Soviet Union was not the choice of the countries that were in the Soviet Union;

Overall, the 1978 Soviet Constitution of Georgia did not even recognize the sovereignty of the Georgian nation. The people were named as the source of authority, but the people exercised this only through the Soviets (Article 2). Regarding the issue of citizenship, it was regulated by USSR laws; moreover, there was a unified Soviet citizenship (Article 31), but military forces and the budget were entirely tied to the USSR. Sovereignty did not exist even legally. It is also interesting to look at the provision of Article 75 of the Constitution, where the Georgian language is the state language for the Georgian SSR, but simultaneously "The Georgian SSR ensures the use of Russian and other languages as well." Meaning the constitution recognized the Russian language alongside the Georgian language as a constitutional language. When you equate the language of the Georgian nation with the language of another nation, that is constitutional unconstitutionality;

Today, however, through the Constitution of our Georgian nation, via the Constitutional Court, we say that "The state possesses sovereignty over its territory, which means legal space" (Decision of the Constitutional Court of Georgia of June 26, 2012, No. 3/1/512 in the case "Citizen of Denmark Heike Cronqvist vs. the Parliament of Georgia," II-68). Additionally, "Popular sovereignty is largely exercised through the principle of representative democracy. In order for the 'rule of the people' to occur, the people must participate in politics, the best way for which is elections. Elections inherently create a feeling and belief in people that they are directly participating in the governance of the state—'by electing their chosen ones or by being elected themselves";

A constitution adopted on the basis of free will is a reflection of the nation's will. The fact that the 1978 Constitution was adopted without this will is evident from its articles, because unlike the 1921 Constitution, the 1978 Constitution does not resonate with the call of the Georgian nation: "Sovereignty belongs to the entire nation.";