The Parliament rejected the Bill on Common Courts (with 45 votes against 17) introduced with the initiative of Eka Beselia, Levan Gogichaishvili, Gedevan Popkhadze, Otar Chrdileli, Zviad Kvachantiradze, Koba Narchemashvili, Alexander Erkvania, David Chichinadze and Levan Koberidze envisaging suspension of lifetime tenure of the judges to the Regional (City) and Courts of Appeal till December 31, 2024.
“I believe that this initiative is one of the most important considered ever in the Parliament and the part of the process to define our attitude towards the judicial system and justice”, - Eka Beselia noted.
As to the 4th wave of the judicial reform: “I would like to see the challenges of the judiciary system addressed. These are the challenges lingering in the Court after all 3 waves of the reform but the ultimate goal could not be achieved – change of the composition of the judicial authority to ensure compliance with the democratic and fair attitudes of the society”.
In case if the idea is acceptable for the Majority, though the main argument envisages incompliance with the Constitution, then we can agree on the formulation: “If we do not oppose to the idea and the principle, at that the formulation in fact creates the discomfort in terms of compliance with the Constitution, then you are free to offer your proposal and your formulation”, - E. Beselia noted.
However, there is the Article in the Bill based on paragraph 3, Article 2 of the Constitution. “The law provides that till December 31, 2024, in case of the initial appointment prior to the life tenure, the judge can be appointed with 3 years. The reservation of lifetime tenure for the judge appointed with the established term shall apply under the organic law in case of his/her life tenure. The transitional provisions provide the certain legal reservations. The Constitutional change envisages the exceptional term for the judges of two categories till 2025. The first applies to the judges appointed with 3 years and with the established term”.
Moratorium, she noted, on life tenure of the judges is the temporary remedy.
She introduced the arguments entailing the Bill. The opinions of the Venice Commission share the idea of the initiators on exceptional rule. “Venice Commission clarifies that the reform of the High School of Justice shall be accomplished for 2025 and it shall enjoy the capacity to issue the judicial personnel of due qualification”.
The EU recommendations do not share suspension of the life tenure. According to her, the Bill does not aim at dismissal of the judges from the system and does not suspend requirement of the new judges. “This initiative does not suspend recruitment of the new judges and does not dismiss either. This initiative is an important step to the reform. It is not enough to speak about justice, to speak about the reforms. I am committed to hear the concerns of my colleagues and the reasons why the Bill shall not be adopted. It is the Parliament of Georgia to manifest that it expresses the public interests”, - she noted.
“We have in details analyzed the Bill rejected by the Legal Committee as considered it undue developed for the plenary session”, - Anri Okhanashvili noted.
“The Authors offer to put the Constitution of the country, the supreme law developed by Georgian people with their intact will to protect the Constitutional order and legal state principles, aside. So, I ask the society how fair we will be and how legitimate we are to make the decision in contradiction with the Constitution. All legal acts shall comply with the Constitution”.
The Bill is the sub-law envisaging changes to the superior law which is inadmissible as it violates the Constitution and if adopted, it will violated the fundamental human rights.
“We tell the people that the qualified and honest candidates willing to become the judges, are prohibited from occupying the public position”.
He emphasized the consequences of adoption of the law. “The Bill will entail collapse of already overloaded judicial system. If adopted, the consequence will be that for 2021, the judicial system will be reduced with 100 judges. We will have the reality that under the reduced number of judges, the Constitutional right – consideration of the case within the reasonable terms – will be even further violated. At that, we are in contradiction with the Article 6 of the Human Rights Convention – the right on the fair trial obliging us to create the system for the citizens to ensure rapid and timely justice. As to the body text of the Constitution, paragraph 6 of the Article 63, the Constitutional clearly provides that the judges are appointed with lifetime tenure. This record is based on the recommendations of the Venice Commission and CoE. Venice Commission hailed lifetime tenure of the judges, as it is the guarantee of their independence”.
According to A. Okhanashvili, the author of the Bill admits the Parliament to adopt the law in contradiction with the Constitution.
“Eka Beselia a priori admits that the Bill may contradict with the Constitution, it is her position. During the Committee consideration, this position was declared that although we may adopt the law in contradiction with the Constitution but the Constitutional Court shall discuss it. It poses the greatest risk and threat as if we admit this precedent that the Parliament, limited under the supreme law, based on the intact will of the country and the citizens to protect the principle of legal state – with this exception allow many other exceptions putting the Constitution aside. It is a very hazardous tendency and incorrect attitude contradicting with the Constitution and the idea of justice towards the judges being competent and honest and deserving lifetime tenure”.
The floor was given to the Factions.
“I dislike such targeted interventions in the judicial system but today, when the country is on fire, we understand that the fire can be extinguished with similar intervention even though we dislike this form”, - Salome Samadashvili noted.
“We are in a weird situation when the opposition supports the Bill by the Majority MPs which in system terms in the judicial system cannot ensure the changes necessary, but as a temporary intervention – it will play the crucial role”.
Otar Kakhidze offered the model envisaging appointment of the new judges and temporary postponement of re-appointment of the judges in office. “I offer the model to appoint the new judges but to temporarily suspend re-appointment of the judges in office unless accomplishment of the reform. When the political consensus is achieved, the reform can be considered accomplished. It may be followed appointment of the current judges but it does not apply the new inflow. We share the aspiration of the Bill and are ready to approve the Bill”.
According to Koba Narchemashvili, he approves the Bill out of necessity of the institutionally improved judicial system. “Let’s use these years for release of the system from the problems accumulated. We do not oppose the lifetime tenure as it is of the highest democratic context. Due to the certain circumstances, we support postponement. I can see the opportunity to postpone it for a certain period”.
According to Gia Zhorzholiani, lifetime tenure of the judges is not expedient in the current situation. According to Levan Gogichaishvili, the principal decision shall be made: “This decision is the test for us to estimate the situation. It is the solution at some extent to lead us out of this deadlock we have created”.
The Patriots supported the Bill: “we will not allow the people owning the country, who with their decisions have killed the innocent citizens. We will not support such judges to the judicial system”, - Irma Inashvili noted.
The Speaker, Irakli Kobakhidze elucidated the reasons for rejection of the Bill: “After 98 years of adoption of the first Constitution, the Parliament of Georgia shall first of all ensure erudition, can construe of the Constitution and thus, approval of this Bill against this background is totally inadmissible”.
He stated that the Bill is in gross contradiction with the Constitution and the political and legal aspects of this issue shall be dissociated. “The Majority has formulated the position regarding the political issues, namely it was stated that the Majority is committed to consider and discuss this issue within the Constitution. Moreover, Mme. Beselia recalled it: last year, when we have been discussing it within the working format, one of our international colleagues has raised this issue and I personally expressed my positive position. Correspondingly, the political position is clear as it was declared in the statement of the Political Council”.
Speaking about the legal aspect, the Speaker noted that first of all, compliance of the initiative with the Constitution shall be taken into account. “There are the cases when determination of compliance of the law with the Constitution requires significant legal and even scientific scrutiny. But it is not this case when we deal with the textual incompliance with the Constitution. In this case, we deal with the type of textual incompliance with the current edition of the Constitution which is represented today”.
He elucidated the technical aspect noting that the transitional provisions of the Constitution, namely paragraph 3 of the Article 2 has been communicated with the Venice Commission.
“We have paragraph 3 of the Article 2 in the transitional provisions where the very first sentence provides that in case of the initial appointment, prior to lifetime tenure, the judge can be appointed with the term of 2 years till December 31, 2024. Every word in this sentence was communicated with the Venice Commission, has been filtered and discussed. It is the key record, which means that the judge is a priori appointed with the presumption that he/she will be appointed or not after 3 years but consideration of this issue is not mandatory deriving from this very record. Correspondingly, we cannot introduce the norm to any of the law to restrict discussion of this issue after 3 years as it will be the direct violation of the Constitution. We also have the second sentence concerning the judges appointed with 10 years. The position was expressed today that the main and transitional provisions envisage two cases: direct lifetime tenure; and lifetime tenure with the probation term of 3 years. No 10-year appointment was envisaged, which was provided in the practice based on the law till 2013. In 2013, this practice has been terminated and today, there are the judges appointed with 10 years and these are the judges that the Constitution provides the record for: about the judges appointed with the certain term. Reservation of the lifetime tenure, the second condition, shall apply in case of lifetime tenure under the organic law - it is as well clear. It means that the record is crystal clear and envisages that if the judge is appointed with 10 years, he/she shall not considered automatically appointed with lifetime tenure deriving from the Constitution. Theoretical admission of this fact existed to exclude this. The record was introduced in the Constitution that these judges appointed with 10 years shall not automatically considered for lifetime tenure but they need the special act of the High Council of Justice and it is provided in the transitional provisions of the Constitution. There are three records: one concerns direct lifetime tenure; the second – lifetime tenure with the 3-year reservation; and the third – the 10-year judges. Everything is crystal clear. And this record provided, excluding lifetime tenure of the judges automatically without the reservations is in direct contradiction with these records. Besides, Anri Okhanashvili mentioned Article 25 of the Constitution concerning the main human right – it is not only the transitional provision or any other record, it means the main human right, the right to occupy the public position. This record creates the reality – there is the person appointed 2 years ago with 3 probation years. His/her authority is to expire next year and according to this record, he/she cannot be appointed till 2025. It means that this person has changed the sphere of his/her professional activity, for instance he/she was employed in the academic sphere and moved to the Court for which reason he/she has passed the test, left the previous position and now, you tell him/her that next year his/her authority not only expires but this authority cannot be even extended. Naturally, when this person goes with it to the Constitutional Court, he/she will win this dispute in an instance. In other words, we do not speak about the scrutiny but we deal with the textual contradiction with the Constitution. Let me also reiterate that on February 21, the 98th anniversary of adoption of the first Constitution, we cannot seriously discuss about adoption of the law which contradicts with the Constitution”.
He underlined that the Constitution is developed in line with the recommendations of the Venice Commission and two only recommendations have not been shared. The Constitution is based on the principle of judicial independence and shall not be revised.
“First of all – the Parliament is engaged in appointment of the judges to the Supreme Court and we have considered the context; and besides, we did not consider the fact that the transitional provisions provide the 3-year reservation in case of the lifetime tenure. It was objected by the Venice Commission, though we still introduced it into the Constitution. The main factor is that we deal not with the Constitution or contradiction therewith but we deal with the judicial independence principle serving the basis for the Constitution and the Venice Commission recommendations also are based on this principle. Today, we discuss whether the current judicial corps deserves independence. Naturally, the Constitution cannot be guided under these principles but under the principle of judicial independence as it is purposed for the decades and centuries. Correspondingly, the Constitution cannot be based on the principle that in a certain case somebody can dislike the judges. The Constitution is based on the judicial independence and thus, the Constitution or at least the transitional provisions cannot be revised”.
It is the subject of the Legal Issues Committee to discuss as there is the textual incompliance with the Constitution. “As to the Parliamentary assessment, when for instance, the Parliament indicates the number of MPs in the Election Code, we shall discuss whether indication of 200 MPs is Constitutional. First of all, it is the responsibility of the Legal Committee and the Parliament. When we deal with the textual incompliance, it is also the responsibility of the Parliament and the Legal Committee. And let me underline that we speak about a mere thing – the basis of non-approval of this Bill, which is that it is in direct contradiction with the Constitutional text and if we aspire to higher standards after 98 years of adoption of the first Constitution, we shall aspire to erudition, we shall be able to construe the Constitution and against this background, approval of this Bill is totally inadmissible”.
The Speaker responded to Majority MPs stating that the consensus in this hall between some of the Majority MPs and the National Movement speaks about the situation. “The initiators were well aware that the Bill had no perspective as it is not legally and contextually formulated and result-oriented. It makes me think that the initiators aimed at violation of the reputation of the Majority MPs fighting for improvement of the independence of the judicial system”, - the Chair of the EU Integration Committee, Tamar Khulordava noted.
The Bill does not serve solution of the real problems: “The judges mentioned today in this hall and entailing fair appall of the society, are already appointed with life tenure. We speak about the judges not appointed yet. There are 310 judges in the system and 154 of them are already appointed with life tenure, including the people you are so concerned about”.
After initiating the Bill, the Council of Justice appointed 8 judges. “These were 8 judges with the probation term expiring on February 15. Without this decision, these judges would be dismissed although they are highly qualified and respected judges”.
The Parliament shall not adopt the law and then allow the Constitutional Court discuss it. “We are the supreme legislative body and shall be guided under the Constitution”.
She called on her colleagues and the working group to intensify activity regarding the judicial reform: “We shall, at maximal extent and as soon as possible, in cooperation with the international and local partners, outline the clear criterion for selection of the judges to the Supreme Court. We shall be prepared for the protracted processes”.
The HCJ members shall be distanced form the political process: “I appeal to them to hold their judiciary activity, manage the judicial system and pledge the legislative process to the law-makers”.
According to the First Vice Speaker, Tamar Chugoshvili, the process of proper administration of judiciary lies through the Parliament. “The moment we encounter now shall be properly used to achieve the real and due jurisdiction process in the country. This process lies through the Parliament and the Parliament shall assume the responsibility”.
She spoke about the reasons of the “heavy and acute discussions” in the Parliament stating that the judicial reform is delayed due to the Parliament over-considering the judge-members to the HCJ. “The fact is that the laws to define appointment of the judge, imposition of the disciplinary responsibility thereto, the decision-making by the Council, these laws have been delayed and it led us to this outcome”.
She does not consider lifetime tenure as improper but the key factor is the form it shall be ensured. “I believe that the form we use for appointment and decision-making is improper. The High Council of Justice did its best to create the crisis for the political situation. I well realize the concern of each of us right now and the importance we attach to the decision we are to soon make. There are the judges – dignified and honest – still waiting for appointment due to the HCJ decision, they are on the probation period”.
If the Bill is adopted, the situation of the judges already appointed will not change. “This Bill will change nothing. They were and still are conducting their activity, however we will have no other life tenure judges till 2024. The Council of Justice is the agency to make the decision and state that until the Parliament adopts the laws, they will not appoint the judges with life tenure. The judges, without the members we have appointed, cannot make the decisions. They appoint the judge with support of the Council members we have approved”, - she noted.
The high quorum is established for non-judge members: “Now, let me address the opposition – the quorum constitutes 3/5 and it is too high in this situation. In case if the Council, until adoption of the law by the Parliament, keeps appointing the judges and they fail to pledge to suspend the process and wait for the Parliament, will manifest the institutional respect we have many times mentioned in the Council. We shall appoint 5 people with high quorum with high level of confidence by the society and the decisions of which we will trust in because we lack the mechanisms to take these people out of the system, the judges with high protest of the society”.
Despite high respect to her colleagues, the Bill is not the solution. “It is not the real path. The real path we shall take is what we sincerely offer”.
It will cease the tension: “If the Majority takes this path, it will maintain unity and lead the process in due direction. I believe it as the only solution”.
MPs also considered and approved the draft resolution on Endorsement of the Composition of the Parliamentary Competition Commission of the Candidate for the Trustee – Member of the Board of Trustees of the Public Broadcaster. One member has left the Council elected with the Majority quota. “Correspondingly, we need to fill the vacant position. Thus, we offer set-up of the Competition Commission”, - the Speaker noted.
The candidates are: Soso Galumashvili, Goderdzi Sharashia, Bondo Mdzinarashvili, Eter-Baia Gadabadze, Nino Akhvlediani, Salome Ugulava, Ermile Meskhia, David Tskhadadze and Natia Kuprashvili. MPs rejected with 45 votes against 16 the draft resolution on Declaration of the National Movement as the Culpable Regime of Saakashvili-Bokeria by the Patriots.
“We agree with the pathos and context of the resolution, share the idea that the regime of 2004-2023 was culpable, we support the common pathos and context, though we have remarks regarding the legal aspect. It these parts are revised, we will discuss it again”, - the Speaker stated.
The next plenary session will be held on February 22 at 12h00.