Waves of Judicial Reform That Cannot Reach the Shore

The Georgian judiciary has been in the process of ongoing reform since Georgia gained its independence. However, to this day, we have not created judicial institutions that will resist internal and external influences. We could not make a system free from internal corporate, financial, or party interests.

We have seen two ultimately different strategies of judicial reform after the last two changes of government. The United National Movement (UNM) government sought to tackle systemic corruption through rigid judicial reform after the Rose Revolution, which included a radical overhaul of the judiciary, replacing old staff with new judges, and structural changes in the court. The judiciary was indeed significantly renewed in the early years of the UNM government. Still, with weak institutional guarantees and less individual independence of judges, the court came under the influence of the executive, particularly the Ministry of Justice and the Prosecutor’s Office.

Unlike its predecessor, the Georgian Dream’s (GD) approach was more transformative and aimed at creating an opportunity for the judiciary to develop itself independently. In 2012, the GD refused to harshly interfere in the court, dismiss the High Council of Justice, and radically renew the judiciary. However, it soon became clear to the political team that came to power under the slogan of “restoring justice” that it could not restore justice through a court “abandoned” in the hope of self-development. The danger became especially apparent after the courts began to issue acquittals in the cases of former high-ranking officials in which there was high public interest. Consequently, since 2013, the Georgian Dream has been searching for and strengthening allies within the judiciary. It naturally led to the weakening of alternative centers of power which could have a transformative effect on the judiciary.

Finally, judicial reforms implemented since 2013 concerning a broader goal to promote the judiciary’s independence and create conditions for the self-development of the system were laid out only on paper, at a verbal declaration level. It does not mean that the reforms carried out during this period were in vain and had zero effect. As a result of four waves of reform, some legislative provisions have been significantly improved, for example:

• the lifetime appointment of judges.
• a special body, the Office of the Independent Inspector was established for ensuring the discipline of judges.
• the competencies and composition of the High Council of Justice were newly formed.
• an electronic system of random distribution of cases between judges was introduced to ensure a fair workload for judges and the correct distribution of cases among them.

As noted above, these changes had some positive effects. However, they lacked systematization and an understanding of the specific context within the court. Alongside some particular improvements, fundamental problems in the courts, such as internal corporatism, threats of external influence, and politicization, remained unresolved. No wave of reform was directed at their solution.

The superficiality of the waves of reform has been studied in-depth in numerous studies, and today we can clearly say that the strategy of justice reform has always been aimed at beautifying the façade of the system so that its foundation remains unchanged. The process of selecting judges for the Supreme Court is enough to prove this, especially since this issue has become very topical recently. It was included in an agreement signed between the government and the opposition on April 19, 2021.

The Appointment of Supreme Court Judges

One of the major areas of legislative change since 2013 has been to improve the rules for appointing judges. It is natural because these judges are elected through a fair and transparent process that ensures qualified and impartial justice. The appointment of judges is very complex, and in this case, we will only touch upon the appointment of judges to the Supreme Court. There are several reasons for this:

• The appointment of Supreme Court judges is particularly relevant at this time and was part of the April 19 agreement. As a result, in addition to high interest at the national level, this issue is also very important for international actors.
• The process of appointing judges to the Supreme Court combines professional (selection of candidates for judges in the High Council of Justice) and political (final decision by Parliament on the appointment of candidates) components.
• Since the High Council of Justice submitted a 10-member list of judges to Parliament in 2018 without any justification or explanation, some legislative changes have been made to significantly improve the selection/appointment of Supreme Court judges and increase the transparency of the issue.

As a result, today, the Council can no longer arbitrarily appoint anyone to the Supreme Court and submit names blindly written on paper to Parliament. The current process of selecting/appointing judges at higher instances of the judiciary includes several stages, and it starts with receiving candidate applications. The High Council of Justice formally evaluates the applications and then begins individual interviews with candidates who meet the formal requirements of the competition. Based on the interviews and the submitted documentation, each board member writes a reasoned assessment and evaluates each candidate in the competition with specific scores. The candidates with the best scores will be presented to Parliament, where they will also be interviewed in open, public sessions. During the interview with the candidates in Parliament, academic and professional groups are allowed to ask them questions, together with the deputies, the Public Defender, and representatives of civil society organizations.

At first glance, it is even theoretically impossible to think of a more transparent, scrupulous, and democratic procedure. However, the two major decisions in this process, (a) the evaluation of candidates for the positions of judges in the High Council of Justice, and (b) their appointment by Parliament, are made in such a way that all transparency and perfectly paper-based procedures are meaningless. The current arrangement of the High Council of Justice greatly encourages corporatism (as it is often referred to as the problem of clan). It strengthens the influence of a particular group of judges. Out of the 15 members of the Council, 9 are judges, and they need only one additional vote to make appointment-related decisions. This body has never had difficulty finding one other vote, and in recent years there has been no case where the board has been unable to make decisions on essential staffing issues due to insufficient votes. As for the decision-making stage in Parliament, the legislature decides on the appointment of judges by a simple majority. Consequently, it is unnecessary to have a broad political consensus on specific candidates, even in this case. Hence, the political force in the parliamentary majority can appoint judges to the vacant positions based on party interests.

The fact that the detailing of procedures and the strengthening of the transparency component do not automatically lead to better staffing decisions has been confirmed by the last two Supreme Court judge competitions. For example, in the 2019 competition, the Council picked several candidates for Supreme Court judge positions who did not even have the proper education documents to reach the next level of selection. Further refinement of the procedural rules in the spring of this year did not prevent the arbitrary and unreasonable decisions of the Council. As a result, at the next stage of the competition, the Council presented nine candidates to Parliament whose integrity and independence are seriously questioned in society.

As for the decision-making in Parliament, in 2019, the legislature appointed judges to the Supreme Court based on a one-party decision. The qualifications and political neutrality of these judges could not be confirmed at any stage of the competition. The same trend continued at the next competition of candidates, which ended on July 12, 2021. In this case, Parliament appointed six of the nine candidates nominated by the Council to the Supreme Court as judges. The identities of the six nominees say nothing more than that all six of them are men, and none of them have any facts in their biographies that would convince us that the mantle of a judge should suit them.

The last two competitions for judges at the highest instance of the judiciary have clearly shown the superficiality of justice reform. They have rightly deserved harsh criticism from both national and international actors. There was no high public confidence in the process led by Parliament, which is why the Public Defender of Georgia, a large part of the parliamentary opposition, and civil society organizations refused to participate in individual interviews with candidates. At the same time, the hasty conduct of the competition in Parliament was considered a violation of the April 19 agreement,[1] as the appointment of judges in such proceedings did not serve the goals of ambitious justice reform.

It is noteworthy that the Georgian government responded to local and international criticism with a technical argument in this case as well. Parliament had already made legislative changes several months ago in connection with the selection of Supreme Court judges, taking into account the recent recommendations of the Venice Commission. The government’s position is not supported by the argument of the qualitative improvement of the court or by the conviction that it had selected candidates who have high professional authority and public trust. In this case, the focus is also on improving the procedures, which illustrates the court’s problems even stronger.

Reforms and Progress

What explanation can there be for a justice reform strategy that focuses only on facade improvements and does not aim at fundamental change in the system?! The simpler the answer to this question is, the risk of erroneous conclusions is greater. The ruling party, in general, is constantly tempted to further increase its tentacles of power and influence, including in the branch of government that must be independent of the political party’s influence. However, beyond this temptation, several factors influence the content and quality of reforms.

Facade reforms effectively create illusory progress and show that a particular political force is actively working to rectify the problem. The pragmatism of such a strategy is also reflected in the fact that local civil society organizations, international partners, and professional and academic groups are involved in the endless waves of reforms. By deceitfully engaging these actors in the labyrinths of reform and directing their time and energy on particular details, it is easier to avoid focusing on the big picture and leave real problems beyond the agenda. At the same time, the ostensible strengthening of the independence of the judiciary serves to relieve the burden of responsibility and provide the government with an argument that the court itself is solely responsible for the ongoing events in the justice system.

All the listed factors had different degrees of influence on Georgian justice reforms at different times. However, throughout this period, some nuances do not change, which always substantially determines the content of judicial reform. The first nuances are the general political system of the country and the rules of the political game. A distribution of power and co-responsibility between political entities is not even minimally encouraged in the current political system. The winning force in the elections is given absolute power, which naturally shows an interest in arranging all state institutions according to the interests of the winning party. For the political entity, this interest is an instinct of mere self-preservation because in case of defeat in the next elections, another political party will take over such absolute power. Under the rules of such political games, a judiciary beyond the party interest is an unattainable dream. A court can’t withstand the pressure of absolute power, especially since Georgia has never had the historical experience of functioning independent institutions and judiciary.

At the same time, the quality of justice reform is constantly influenced by the prevailing opinion about the judiciary in general. In the multi-year reform process, the court has rarely, if ever, been seen as a source of law, a determinant of justice, and a guarantor of trust in the law. As a rule, the political dimension of the judiciary and the fact that we are dealing with an independent branch of government are ignored. Instead, the court is perceived as a body of the technical administration of law, and the judge is presented not as an interpreter of the law but as a literal reader of the legislation. The effect of all this is that judges have also come to believe that their function is to administer the law. Their main task is to follow procedural accuracy and the content of the law closely, even if this leads to substantially unfair consequences.

To illustrate this, the following quote from Levan Murusidze, the judge reviewing the murder of Sandro Girgvliani, one of the saddest and most tragic cases of Georgian justice, can be used: “It would have been good if I hadn’t had the occasion to deal with the Girgvliani case, but what can I do, it happened that it was me who was appointed to discuss it, and I should have discussed it, right? In the end, I made the only right decision I had to make by law. Just in the end, now that I look at it, they say that Levan Murusidze may have done some kind of heroic act, or taken off his mantle in protest, or some other action. Yes, sir, I do not claim to be a hero, and I should have done any act of heroism...”

In Conclusion

As mentioned, the deceitfulness of such a reform strategy is also reflected in the fact that it constantly gives us a false sense of progress and diverts our attention from the main problems to non-essential issues. While in 2012  there was a consensus in society and the political spectrum on the need for fundamental change in the judiciary, the four waves of reform and other accompanying legislative changes were so superficial that not only did they not solve systemic problems in the judiciary, they also cloaked them in an imagined veil of procedural scrupulousness and transparency.

Today is precisely when the superficiality of the implemented reforms has become apparent, and the broad public consensus on this issue creates a good precondition for an honest, tangible reform of the judiciary. At the same time, the mainstream ideas proposed to improve the situation are also highly problematic. In the run-up to the 2020 parliamentary elections, almost the entire opposition spectrum agreed that we should seek the salvation of justice in foreign or popularly elected judges. These ideas are appealing at first glance, but in reality, this way too is a continuation of the wave of reforms that only changes the exterior facade or procedure but not the heart of the problem. It is unlikely that a foreign judge will fully understand the existing political and legal order, the socio-cultural context in which decisions are made. The only guarantee of the credibility and legitimacy of such a judge is his/her foreignness. As for the elected judges, in addition to the fact that this approach theoretically contradicts the principle of the separation of powers, it is practically easy to imagine how populist or partisan candidates can be appointed as judges.

It is necessary to change both the rules of the political game and the visions of the existing political actors in the judiciary to get rid of the current vicious circle. Judgments on issues related to justice (e.g., the appointment of judges, staffing of the High Council of Justice, and evaluation of the existing system) should be based on broad public and political consensus, and the instrumentalization of the judiciary should be rejected. At the same time, the judiciary must be perceived as an independent branch of government directly involved in the reform process, which deals with the technical administration of justice and instantly creates fair law and ensures the country’s democratic development and political stability. The judiciary should be perceived not as an extension of political power but rather as an institution that stands aside from it, ready to defend the interests of the weak, the oppressed.