On December 30, 2021, in the pre-New Year period, at an extraordinary session, without public involvement and consultations, the Parliament of Georgia hastily adopted legislative amendments to the Organic Law of Georgia on Common Courts, which address such sensitive issues as:
1. Transfer of judges from one court to another;
2. Reducing the quorum required for a decision by the High Council of Justice on disciplinary proceedings;
3. Repealing the ban on electing the same person for the High Council of Justice membership twice in a row;
4. Introducing a new regulation regarding the removal of a judge from proceedings.
The changes clearly weaken individual judges and strengthen intra-corporatism and clan influences within the system. They contradict the government's commitment to fundamentally reform the justice system with an aim to create independent and accountable courts and to restore trust in the judiciary. The changes further strengthen the High Council of Justice and make individual judges more vulnerable to the power of this institution. It can be confidently said that all the above-mentioned will have a negative effect on critical and dissenting opinions in the judiciary, which are already deficient.
At the initiation stage, the Bill was critically evaluated by civil society organizations and international actors, as well as by some of the judges. Making such changes, even in established democracies, requires a wide public discussion. In Georgia, where the level of trust in the judiciary is extremely low, such decision-making processes should be even more inclusive and open.
The amendments abolish positive legislative guarantees that were introduced by the regulation of transfer of judges adopted in 2012. As it is well known, for years transfers were used as an effective mechanism for punishing disobedient judges. Consequently, with the deterioration of legislative guarantees, the government is trying to restore the same problematic practice of managing judges, which it tried to eliminate only a few years ago. In particular, the maximum term of transfer increases to 4 years. At the same time, it is possible to transfer an Appellate Court judge to a first-instance court. In addition, the principle of territoriality according to which an involuntary transfer of a judge was made to the closest court, is being abolished, as well as the random selection of judges for the transfer. The situation is aggravated by the fact that the grounds for transfers are expanding, and it is possible to send a judge to another court without his/her permission (in fact, compulsorily) for general reasons such as ‘the interest of justice’.
One of the few positive legislative changes that used to reduce the risk of concentration of power in the High Council of Justice was the ban on electing the same person as a member twice in a row. The Amendments are lifting this ban. Given that the High Council of Justice is mainly criticized for corporatism and clan-based governance, allowing the same persons to continuously hold such an important administrative position is another step backward.
In order to increase trust in the High Council of Justice and ensure public involvement, the civic sector, for years, has been calling for introducing the consensus-based rule and strengthening the involvement of non-judge members in the Council’s important decisions. Consequently, reducing the quorum to a simple majority instead of the 2/3 majority for disciplinary decisions is clearly at odds with this approach and makes the presence of non-judge members in the Council even less effective. Moreover, it should be noted that when five non-judge members of the High Council of Justice are not yet elected, the support of all ten current members is needed to impose disciplinary sanctions. This in itself can significantly complicate the decision-making process. The ruling party has so far refused to appoint five non-judge members because it does not have enough parliamentary seats to make unilateral decisions on this matter and needs the opposition parties’ support. Instead of appointing politically unbiased professionals who enjoy high public trust, the government is trying to remove the inconvenience faced by the dominant group of judges through legislative changes that would allow the Council to impose disciplinary sanctions by a simple majority.
It is also problematic that the process of initiation of the Bill was closed and its discussions in the Parliament were not sufficiently inclusive. The draft law was developed without even minimal engagement of experts, civil society organizations, representatives of the judicial administration, and individual judges. For no reason, the Parliament considered the Bill through an expedited procedure and the participation of stakeholders in the Committee hearings was extremely restricted. Although the civil society representatives had an opportunity to express opinions during Parliamentary hearings, the process was not cooperative and the participation of the society in the discussions was not meaningful. The discussions demonstrated the ruling party’s lack of receptiveness of critical opinions and the unwillingness of the authors of the Bill to engage in a comprehensive discussion of critical issues and questions raised during the hearings.
Considering all of the above, we call on the President of Georgia to apply her constitutional authority, veto the Bill and return it to the Parliament with a rationale for veto.