Georgia Constitution
It is known that constitutional building is a way to resolve internal conflicts (ethnic, religious, and so on), with the help of certain guarantees of human rights, the democratization of society, as well as attracting the maximum possible number of participants in the political process. In addition, in the process of constitutional construction, it is necessary to take into account the realities of today, and not only internal political processes, but also events in the world arena. All versions of the Georgia state constitution represent an interconnected process of constitutional building in that state. Being made dependent on various factors (geographic, social, political, and economic), the term “constitutional building” is right to be defined through the process of designing the foundations of the constitutional order according to the actual social and political relations. In this regard, below, there is a proposition of a hypothetical modification of the Georgia constitution by the current situation in the United States and the world – for example, it is possible to propose to enshrine the concept of sustainable development in the constitution.
Bill of Rights
The articles of the constitution should not only guarantee “equal rights for all citizens,” but also prohibit discrimination on any grounds – race, color, political, religious and other beliefs, gender, ethnic and social origin, property status, place of residence, linguistic, and so on. The racial issue is especially important for Georgia given the historical past of this “Imperial state” of the South, as well as the racial unrest and political activities of the far-right that has intensified in the last decade. In addition, the current version of the constitution states that “No person shall be convicted of treason except on the testimony of two witnesses to the same overt act or confession in open court” (Georgia Const. Art. I, section 1, § XIX). This provision is obsolete, as two witnesses are not enough to convict a person in state treason.
The modern constitution lays down fundamental rules in all areas of public life. The environment is no exception. Sustainable development is both the most general and universal concept in this area. The constitution should establish the right of everyone to an environment that is conducive to health and a natural environment in which productivity and diversity are ensured. Public authorities must pursue policies that ensure the environmental safety of current and future generations.
Voting and Elections
It should be noted that the state structure is described in sufficient detail in the articles of the Georgia constitution, ensuring the proper level of autonomy. At the same time, it should be noted that the prohibition to vote for convicted persons contradicts the Convention for the Protection of Human Rights and Freedoms, therefore, it seems necessary to exclude from the Constitution the clause prohibiting the right to vote for prisoners, no matter for what crime they are convicted, especially for immoral (“moral turpitude”), as indicated in the current text. The concept of immorality is not legal and even less constitutional. In addition, the list of persons who can be elected to public office should be expanded by reducing the restrictive provisions on former criminals – “at least ten years have elapsed from the date of the completion of the sentence” (Georgia Const. art. II, section II, § III).
Legislative Branch
US government is built on a system of checks and balances, and this, of course, should be enshrined in the state constitution. An important role in the system of checks and balances is played by the division of powers between the federal and state authorities, but it is not described clearly enough, which creates the possibility of conflict between them.
Executive Branch
Executive power is exercised by the Governor of Georgia and the Lieutenant Governor of Georgia, who is the chairman of the Georgia State Senate. The constitution describes in sufficient detail the procedure for the formation of the executive branch and the implementation of its functions. However, the notion of disability is not clearly defined, which in the modern context of the extension of disabled rights can potentially lead to corresponding challenges.
Judicial Branch
The status of the judiciary is somewhat controversial. On the one hand, this is a very strong branch of power, since it alone has such competence that neither the legislative nor the executive branch has. However, on the other hand, in comparison with the other two branches, the judiciary is weak, since it is not based on the support of the voters, like the legislative power; it does not have those power mechanisms that are inherent in the executive power. At the same time, the strength of the judiciary lies in the indisputability and universality of judicial decisions for everyone, which is enshrined at the constitutional level. Therefore, for a correct understanding of the concept, purpose, and powers of the judiciary, it is important to understand the relationship of the judicial branch of state power with its two other branches – legislative and executive, as well as with other bodies that are not part of either of these branches. This relation should be clearly stated in the constitution. At the same time, the court must not only correctly apply laws and other normative legal acts, but also evaluate them from the point of view of their compliance with the Constitution, as well as generally recognized principles and norms of international law, which is relevant in modern conditions. Thus, compliance with international law should be also enshrined in the constitution.
Taxation and Finance
This section should mention, in particular, the rights of corporations and non-governmental organizations. The constitutional foundations of the legal regulation of the activities of corporations are a set of constitutional norms based on a holistic concept based on the recognition of the balance between economic freedom of entrepreneurial activity and the duty of the state for public purposes to regulate this activity within certain limits. The supporting structures of this concept should be the following constitutional provisions:
- Freedom of economic activity;
- Private by nature, the economic activity of corporations cannot develop in contradiction with publicly significant goals; its implementation should not violate the rights and freedoms of others;
- The state establishes the legal framework for the single market.
- In the process of establishing the legal foundations of the single market, the state may impose restrictions on the freedom of economic activity of corporations, which must be strictly proportional (the principle of proportionality) and be implemented in the form of federal law.
It is possible to formulate the thesis, very important for determining the limits of legal regulation of the activities of corporations, that the constitutional right to entrepreneurial activity underlying the activities of each corporation should have its main content, that is, a list of powers guaranteed by the Constitution. At first glance, this provision seems banal, yet it is not so obvious and is of fundamental importance.
As for non-governmental organizations, it seems appropriate to formulate the legal properties of NGOs, which create the legal basis for their participation as an integral link in the system of legal relations between the state, society, and the individual. It is necessary to establish the qualitative distinctive characteristics of the aggregate of NGOs and then formulate, on this basis, a legal and theoretical definition of the concept of “non-state organization” that can cover their totality in full, regardless of the boundaries of activity and the range of subjects that belong to certain types of NGOs. It is also necessary to determine the areas of public relations in which NGOs have the right to participate and to identify the place of the totality of NGOs in the system of subjects of constitutional and legal relations in Georgia.
Given the enormous importance of intellectual property and rights to it in the modern world, it seems appropriate to include in the constitution a definition of intellectual property, rights to it, and the corresponding general principles of taxation. The obligation of taxpayers to simultaneously maintain accounting and tax accounting of intellectual property rights for tax purposes is unreasonable and entails a significant complication of the procedure for calculating various types of taxes. All this testifies to the need to unify the procedure for recording and assessing rights to intellectual property for tax purposes. Given the increase in the share of taxable items related to intellectual property in the total amount of tax items as a result of the development of science and technology, the study of legal regulation of taxation of intellectual property to amend the constitution is currently especially relevant and is of great interest, both from the point of view of constitutional law and from the position of tax practice. In this context, it is also important to protect goodwill – the monetary expression of a corporation’s business reputation – like any other property, including compensation for moral damages for damaged business reputation. Here it is also necessary to stipulate the guaranteed right to compensation for moral damage caused by illegal decisions, actions, or inaction of state authorities, local authorities, their officials, and officials in the exercise of their powers. Reimbursement should be made at the expense of the state or local governments.