A New Theory of Change for Failed Judicial Reform
- Sopho Verdzeuli – Independent researcher, Master’s degree in Constitutional Politics, Law and Theory at Birkbeck University
- Vakhushti Menabde, Associate Professor at Ilia State University School of Law, Director of the Democratic Institutions Support Program at the Georgian Young Lawyers’ Association
The frustration with the results of the judicial reform is clear, and the radical change in strategy is necessary. But before formulating the vision of the future, we must first analyze the strategy that guided the institutional reforms in the judiciary in recent years.
The victory of the Georgian Dream in the 2012 parliamentary elections created a precondition for substantial transformation in the judiciary. A system, that was directly tied to the executive was given the opportunity to free itself from the factual direct influence of the Minister of Justice. The new ruling team soon launched the first wave of reform, which was followed up by subsequent staggered waves of reform.
The mainstream vision for justice sector reform in these years has been based primarily on the following ideas: Detail the legislative acts; Formalize procedures and distance the judiciary from political branches. Recommendations developed by international organizations and/or international legal circles have become the main measure and source of legitimacy for reforms. As a result, over the last nine years, the critical direction of reform in the Georgian context – the necessity to curb the role of the formal political authorities and of the informal influential groups in the judiciary – has virtually disappeared from the reform strategy.
The predominance of such an approach of the authorities became particularly evident since 2015, after the failure of the first wave of judicial reforms. From this time on, it became even clearer that the independence of the judiciary became primarily a matter of institutional design: the mainstream vision cast aside the discussion about the redistribution of powers, the democratic organization of the system, and the logic of governance. This period coincides with the “reconciliation” and “truce” between the political leadership and the influential groups of the judiciary. Subsequently, both politically and legally, influential groups of judges have been given the opportunity to use modernized legislation for advancing their own interests and increasing their influence.
The legislative changes of 2013-2021 created a pretense of institutional modernization, which was incomplete. Ultimately, the result was an imitation of a positive transformation rather than a real and systemic change.
Moreover, the steps were taken, that on the one hand, allowed the influential group of judges to consolidate their power over the long term, reinforced the pre-existing mode of management in the judiciary, and made it difficult to address the root causes of the problem.
Excessive legalization, which meant the intrusion of a formal legal regime into politics, gradually and purposefully squeezed out the issues of politics and power from the public discussion. By creating legalistic labyrinths, such intrusion has narrowed the area of political responsibility of the government and reduced the problems to the shortfalls of specific officials, to the isolated legislative or normative inadequacies, ultimately narrowing the political responsibility to the responsibility of individuals. This became a predominant view in the judiciary, but also wider – in the field of the rule of law. This view skews the balance between politics and law in favor of the law. But in so doing, it does not actually engender the political neutrality of the judicial institutions – instead, it leads to the ejection of the systemic/political problems from the sphere of public politics.
This is the main problem with the current vision of judicial reform. In the name of judicial independence, this strategy has virtually isolated major judicial bodies, strengthened the professional privileges of influential judges, and retained the old system of governance and decision-making.
The implemented reforms, which were essentially in the interests of influential groups in the judiciary, only succeeded in clarifying the ways and means in which the ruling majority exercises its power. As a result, we now have judges who are appointed using “better procedure” and “better argumentation,” but still loyal to the given political system.
Eventually, the reforms have beautified the façade of the clan government and thus created the illusion of progress. Legislative innovations seemed to provide a better and better framework, but at the same time, an influential group of judges was solidifying its position more and more.
This view of the reform lost its last supporters among independent experts a few months ago, when the government took into account virtually all the recommendations regarding the selection and appointment procedures of Supreme Court judges, however, at the same time, it became clear that such a legislative framework could not create even the slightest discomfort for the plans of the Georgian Dream negotiated with the clan of influential judges, to appoint those who would silently follow the instructions from “above.”
This situation has shown us two things: one is that the system will soon exhaust its internal resources to portray the illusion of progress. The concept of reform that the Georgian government is now pursuing is just a few steps away from creating an “ideal” model. Once these steps are taken, the legislative framework will come into absolute conflict with its implementation. The “merit-based model” of appointing judges to office will become fully operational, but it will take into account only the merits of loyalty to the clan, not the judiciary. Another realization is that we will need to be ready to meet this full-fledged crisis with a new strategic concept that will shift the axis by addressing the problem of power in the judiciary.
The pivotal point of this shift in paradigm should be changing the balance of power in the High Council of Justice.
Currently, only five of the 15 members of the council are to be filled. The parliament has to elect 5 non-judicial members at the current session, which requires 90 votes according to the constitution. The ruling party has only 84 MPs.
The government’s strategy will be simple, it will try to negotiate with small political groups, where it will offer one or two positions at the HJC to them in the form of a deal. The Georgian Dream will be completely satisfied with a reality where an insignificant part of the council will be controlled by the opposition because it will not endanger the existing balance of power in HJC.
In such conditions, the task of the opposition remains to reach an agreement that the parties remaining outside the majority should refrain from trading with the members of the council and should clearly support the staffing of this body by independent persons, rather than those under control of any political party. The opposition should take reasonable steps to force the government to make concessions and support the appointment of such people to vacant positions. This will significantly change the balance of power in the High Council, will create a new center of gravity in the form of 5 independent members, and will leave “the clan” with only a flimsy, 1-vote advantage.
The next step is to strengthen the principle of consensus in the procedure of appointment and dismissal of judges.
The main lever that the clan has on the court system is related to the appointment of judges, disciplinary procedures against them, and the nomination of candidates for the Supreme Court.
Currently, all these decisions need 10 members of the Council, which does not give non-judicial members effective mechanisms to influence the processes. The judge-members of the HJC require only one vote from the non-judicial members (there are a total of 6 non-judicial members, including the one appointed by the President). It is necessary to change this rule to a double 2/3 – that will require the consent of 2/3 of the members of the judiciary and 2/3 of the non-judges. This will take all important powers from the clan – the influential group of judges. The logic of consensus should be strengthened at the stage of the appointment of judges of the Supreme Court by the Parliament as well, (the principle of bilateral appointment should be introduced, which excludes the staffing of the cassation panel without the consent of the opposition). This will require a change in the mechanism of the decision-making by the majority which is in force now.
After that, a political assessment of clan governance in the court system will be needed, which Parliament must take upon itself.
It is understandable that for most of the political groups represented within the parliament today, in the majority and in the ranks of the opposition, the assessment of the past and present of the court creates severe discomfort and highlights their role and responsibility in this regard. However, it is this shared responsibility that can become the basis for participating in the multilateral political evaluation process. In this part, the parliamentary levers are as follows: The opposition can set up a commission of inquiry (this requires 50 deputies) to investigate violations committed under clan rule, but the creation of ordinary commission is more effective, for which, unlike the first, the consent of the majority is required. This will not be difficult, as the commission of inquiry will cause more inconvenience to the authorities, so it is conceivable that it would rather be involved in the process of setting up a regular commission than being out of the game in setting up an investigation. The commission will have the opportunity to work for several months and prepare a report on clan governance. The culmination of this stage will be the recognition of clan rule by Parliament in a special resolution and the promise of real changes in the judiciary.
If this is achieved, nothing will stop the last and decisive step, which should finally remove the foundation for the rule of an influential group of judges in the Georgian judiciary. This step is an upgrade of the existing court system, which can be developed in several directions: Filling the existing vacancies with new staff by the upgraded Council with the reformed decision-making procedure; Abolition of unfounded “privileges” for the leaders of the influential group of the judiciary; For some of the existing judges (who were unfairly appointed to the position), the procedure of re-declaration of trust with a changed rule and high consensus. The newly formed Council and the new rules for decision-making in the Council and Parliament will enable us to retain those judges who can gain the confidence, while the rest will leave the system.
Only such a complex approach will bring results, this approach consists of 4 points:
- Appointment of independent non-judicial members to the Council;
- The establishment of a double 2/3 for the appointment and dismissal of judges by the Council and strengthening political consensus in Parliament;
- The political assessment of clan governance by the Legislature;
- Upgrading of the corps of magistrates in accordance with the amended procedures.
This approach brings back the factor of power into the equation of the reform of the judiciary, tries to understand it, and addresses it. On the basis of this assessment, it hopes to change the existing system and free the judiciary from both political influence and clan rule. In our opinion, this should end the first phase of the liberation of the court and of putting it in the service of the people, which must then followed by a second, more detailed change. This approach will uproot the provisions that give even a small chance of re-emergence of the clan of judges.
This post is also available in: ქართული (Georgian)