Legislative amendments, envisaging, among other issues, reform of High Council of Justice (HCoJ), will bring the law on common courts “closer to European standards” and “represent progress for the independence” of the HCoJ, the Council of Europe’s advisory body for legal affairs, Venice Commission, said.
It, however, also noted that some of the proposed measures were “controversial”; among them a provision envisaging pre-term termination of authority of sitting members of HCoJ. The Venice Commission recommended against complete renewal of the Council, even though the composition of the current HCoJ “seems unsatisfactory”.
Amendments to the law on common courts, which was developed by the Ministry of Justice and submitted to Parliament in December, has been heralded by new government as a major component on its drive to, as it puts it, secure independence of the judiciary.
The Venice Commission has been asked to assess the bill in early December amid controversy over some of the points of the proposed legislative amendments, in particular on termination of term of sitting members of HCoJ.
The government and Georgian Dream parliamentary majority initially seemed to be in hurry with adoption of the proposal and the Parliament even passed the bill with its first hearing on December 20; but further procedures were then suspended and the government agreed to wait for the recommendations from the Venice Commission, which adopted its opinion on the bill at its session on March 8-9 and made it public on March 11.
Changing rule of composition of 15-member High Council of Justice is the key part of the bill.
HCoJ is in charge of overseeing judicial system with the authority to appoint or dismiss judges, as well as to initiate disciplinary proceedings against judges.
Securing Opposition’s Role in Electing Non-Judge Members of HCoJ
Chairmanship of HCoJ automatically goes to a sitting chairman of the Supreme Court and this rule is guaranteed by the constitution, consequently it remains unchanged.
According to the current law, two out of fourteen members are appointed by the President and four seats are allocated to parliamentarians.
The proposed bill offers to change this rule by excluding the President from the process and scrapping lawmakers’ right to take seat in HCoJ.
The bill instead offers to fill these six seats by representatives from legal academic circles, legal advocacy non-governmental organizations and Georgian Bar Association (GBA).
According to the proposal these groups – relevant NGOs, law schools and law departments of various universities, as well as GBA will be eligible to nominate candidates, which should then be confirmed by the Parliament.
The Venice Commission welcomed this proposed change, but also recommended to ensure that the opposition has an influence on confirming candidates for these six seats.
For this purpose, the Commission offered either to make confirmation of candidates by the Parliament with two-thirds of majority or by some proportional method. The Venice Commission, however, also recommended that if the Parliament chooses two-third majority option, it should also envisage a mechanism against possible deadlocks.
“It is a matter for the Georgian authorities to decide which solution is appropriate, but the anti-deadlock mechanism should not act as a disincentive to reaching agreement on the basis of a qualified majority in the first instance,” the Venice Commissions said.
Judicial Component of HCoJ
Eight other members of HCoJ are judges, elected by self-governing body, known as Conference of Judges, which gathers at least once in a year. This principle remains unchanged by the proposed bill, but it significantly changes the way how judges are elected by their self-governing body.
Under the current rules Chairman of Supreme Court, Kota Kublashvili, has the exclusive right to nominate judges for HCoJ membership candidacy; then the Conference of Judges vote on nominated candidates; ballot is not secret.
In addition, the Conference of Judges elects nine-member Administrative Committee which has the authority to exercise some of the functions of the Conference in the period between the latter’s sittings.
Among those functions, delegated to the nine-member Administrative Committee, is election of a member of HCoJ – the power which the Venice Commission said seemed to be “doubtful constitutionality” because Georgian’s constitution says that it is up to the Conference of Judges to fill judicial component of HCoJ membership.
Currently there are three judges in the HCoJ, who took the seat in the council as a result of Administrative Committee’s decision, instead of being elected directly by the Conference of Judges.
The proposed bill offers change of these current rules. It offers to strip the Supreme Court Chairman of the exclusive right to nominate candidates and instead offers to allow every judge to nominate a candidate; it also introduces the secret ballot.
The Venice Commission said that these “significant changes are welcomed.”
Controversial Point – Limitations
In the judicial component of HCoJ membership, the proposed bill offers certain limitations on who can be elected.
In particular the bill is banning chairpersons of courts and their deputies, as well as chairpersons of chambers and collegiums to be elected as members of the HCoJ; the same applies to those who held these posts during the previous one year.
Six out of eight sitting judge members of HCoJ fall under this category.
The argument cited by the Justice Ministry behind proposed limitation is that it would prevent concentration of too much power in the hands of senior judiciary, as well as will help to avoid creating conflict of interests.
“It is easy to understand the desire to ensure that the High Council does not represent the senior judiciary only. However, if the Council is to represent the judiciary as a whole then in principle it seems wrong to exclude any member of the judiciary from the possibility of being elected,” the Venice Commission said.
The Venice Commission, however, also says it is possible to limit the maximum number of chairpersons of the courts and chambers who could sit on the HCoJ or alternatively, the law could provide that should a chairperson of a court be elected in the HCoJ, such member would have to resign from his or her position as chairperson of a court.
Controversial Point – Pre-Term Termination of Authority
The draft of legislative amendment envisages termination of authority of sitting members of HCoJ upon enacting the bill; it does not apply to Supreme Court Chairman, whose membership in HCoJ is guaranteed by the constitution.
The major argument cited by the Justice Ministry and GD coalition behind this proposal was that the existing rule of composition of HCoJ was so flawed and “undemocratic” that it would have been logical to completely renew composition of the HCoJ.
The Venice Commission said that it’s aware of “the dilemma which the Georgian authorities face.”
“Nevertheless, even though the composition of the current High Council of Justice seems unsatisfactory, the Venice Commission recommends that the members complete their mandate,” it said.
The Venice Commission stressed that an important function of HCoJ was to shield judges from political influence.
“For this reason, it would be inconsistent to allow for a complete renewal of the composition of a judicial council following parliamentary elections… When using its legislative power to design the future organisation and functioning of the judiciary, Parliament should refrain from adopting measures which would jeopardise the continuity in membership of the High Judicial Council. Removing all members of the Council prematurely would set a precedent whereby any incoming government or any new Parliament, which did not approve of either the composition or the membership of the Council could terminate its existence early and replace it with a new Council,” the Venice Commission said.
The Venice Commission has recommended “to delete” a provision in the bill which envisages termination of authority of the members of the HCoJ, except the chairman of the Supreme Court, upon enforcement of the legislative amendments.
It, however, also said that applying “transitory measures” might be possible in order to “bring the current Council closer to the future method of composition.”
The Venice Commission said that it could be done by providing that “incumbent chairmen of courts should resign as chair in order to remain on the Judicial Council.”
Another such measure, recommended by the Venice Commission, is to allow the Conference of Judges to ratify appointments made by the Administrative Committee – in practice such measure means that, if implemented, three judges, who became members of HCoJ by the decision of Administrative Committee, instead of being elected directly by the Conference of Judges, will require an approval by the judges’ self-governing body in order to continue their membership in the HCoJ.