The Bill on Constitutional Court is Detrimental to Interests of Constitutional Justice and Falls Short of International Standards

18 May, 2016

On May 10, 2016, the Parliamentary Committee on Human Rights and Civic Integration passed a bill about the Constitutional Court at second reading. Although certain improvements had been made to the bill as it moved to the second reading to address issues that were detrimental to interests of constitutional justice in view of the Coalition for the Independent and Transparent Judiciary, certain problems remain. In addition, some harmful new regulations were introduced in the draft law.

The fact that changes made in the draft law following the first reading and new initiatives voiced during the second reading were not made public ahead of the committee meeting is damaging to transparency of the process and hinders public discussions, which is unacceptable in view of importance of the matter.

We would like to reiterate that we are neither critical nor surprised by the need to reform the system of justice, including the Constitutional Court. However, it is imperative that it doesn’t seem like these changes initiated by the government are the result of their disapproval of any particular decision of the Constitutional Court and represent a sort of retribution for activities of the Court.

Differences between the initial draft and the draft adopted at second reading by the parliamentary committee

The Coalition for Independent and Transparent Judiciary highlighted several key problems with the initial draft, including: 1) decisions of the Constitutional Court will come into effect immediately after they are published in the Georgian Legislative Herald; 2) members of the Constitutional Court will no longer be authorized to participate in consideration of new cases if less than 3 months remain prior to expiration of their term of office; 3) Prior to making final decision by the Constitutional Court, the disputed provision can be suspended only by the Constitutional Court with its full composition (Plenum);

Below are the views of Transparency International – Georgia about the pending changes to the Law on the Constitutional Court of Georgia, passed at second reading:

1. The draft law was revised to address the first concern  - decisions of the Constitutional Court will come into effect after publishing of the full text on the Court’s website, instead of the Georgian Legislative Herald.

Our assessment: we welcome these changes; however, we also think that the law should provide alternative procedures for entry into force of the Court’s decisions, in case the website is experiencing any technical difficulties.

2. The limitation placed on the last three months of the judge’s ten-year term guaranteed by the Constitution remains in force; however, certain modifications have been made to allow consideration of admissibility of new cases, as well as suspension of impugned norms. In addition, during the last three months of their term of office, judges of the Constitutional Court will be authorized to consider the merits of new cases that should be resolved within a special limited timeframe, as prescribed by applicable legislation.

Our assessment: limiting judge’s powers during the last three months of her/his term is certainly a problem, because it limits the ten-year term of office guaranteed by the Constitution. However, changes made in the draft law have substantially mediated the threats prosed by blanked prohibition that the initial draft contained.  

3. The draft law was not amended to address the third concern and suspension of impugned norms will be possible only by the Constitutional Court with its full composition (Plenum);

Our assessment: this may hinder effective functioning of the court.

Problematic new regulations adopted by the parliamentary committee at second reading

At second reading the parliamentary committee supported: 1. Increase of the quorum for decisions of the Constitutional Court; 2. Termination of remuneration for judges whose term was extended after expiration of the ten-year term of office, until rendering final judgment on the cases that already had been under consideration.  

1. Under the existing law, the Court may hear cases as a full bench in a composition of 6 out of 9 judges. The bill envisages increasing this number to 7. Quorum for adopting decisions will also be increased – in particular, under existing legislation judgments require a simple majority of the judges sitting, while under the proposed new rule 2/3 of qualified majority of all members will be required to adopt decisions or to find impugned laws to be unconstitutional.

Our assessment: We believe that the new rule is detrimental to interests of constitutional justice and complicates protection of constitutional rights. It also falls short of international standards. When identical changes were proposed in Poland, in its March 12, 2016 report the Venice Commission stated that a decision quorum of two-thirds is clearly not the general rule for constitutional courts in Europe. Such a very strict requirement carries the risk of blocking the decision-making process, rendering the Constitutional Court ineffective and making it impossible for the Court to carry out its key task of ensuring the constitutionality of legislation.

2. Another new rule abolishes remuneration prescribed for judges by law if after expiration of the ten-year term of office their term is extended to allow them to deal with cases that they already have under consideration. During the committee discussions it was explained that the rationale behind this rule is to avoid judges from procrastinating adjudication of cases for which their term was extended.

Our assessment: the Constitution mandates that the state must create all adequate social guarantees to support work of judges, which serves the purpose of ensuring independence of the judiciary as an institution.  Therefore it is unacceptable that guarantees provided by law not to apply person who carries out judicial authority.

As an alternative MP Giga Bukia proposed to abolish the rule that allows extension of the ten-year term of office until rendering final judgment on the cases that already had been under consideration. The initiative was approved by the committee chair.

Our assessment: adoption of the initiative by the parliament will harm interests of certain claimants because it will require re-consideration of cases that have already been considered. This may also be harmful for legal interests of justice and may result in overloading of court because new judges will have to deal with old cases in addition to new ones. Notably, extension of judge’s term of office under similar circumstances is allowed by Protocol No. 14 of the European Convention for Human Rights. The members of the Court are elected for the term of 9 years but the term is subject to extension in order to allow them to deal with cases that they already have under consideration.

In light of the importance of issues surrounding the draft law, including issues discussed above, we urge the government to request the Venice Commission to prepare an opinion about the draft law, and to suspend the parliamentary discussions before then. 

Author: TI Georgia