Parliament passed with 88 to 2 with its second reading amendments to the law on common courts, which has been revised from its initial draft following recommendations from the Venice Commission.
Key component of the bill, developed by the Ministry of Justice, is to change the rule of composition of the 15-member High Council of Justice (HCoJ) – the body, which is in charge of overseeing judicial system with the authority to appoint or dismiss judges, as well as to initiate disciplinary proceedings against judges.
The draft, passed with its second reading, includes couple of provisions which were agreed between the government and the judicial system leadership, but which were initially opposed by some of the Georgian Dream lawmakers.
Differences within the parliamentary majority group over these two clauses, which concern some important aspects of judicial component of HCoJ’s composition, even required a last-minute intervention from PM Ivanishvili just before the vote in the Parliament.
UNM refused to support the bill, arguing that GD “ignored Venice Commission’s recommendations on key points” of the proposal.
The bill was passed by the Parliament with its first reading in December, but its further approval was suspended after the government and the GD parliamentary majority group agreed to wait for recommendations from Council of Europe’s advisory body for legal affairs, Venice Commission.
According to the bill eight members of HCoJ will be judges elected by the judiciary’s self-governing body, Conference of Judges (or Judicial Conference); the same rule applies now, but the proposed new plan envisages significant changes in the procedures of electing judges – among them cutting Supreme Court chair’s currently broad powers in the process.
According to the bill six members will be elected by the Parliament from candidates nominated by legal advocacy non-governmental organizations; law schools and law departments of various universities and Georgian Bar Association.
Under the existing rule, which is set to be changed, two members are appointed by the President and four seats are occupied by lawmakers.
One seat in HCoJ is occupied by Chairman of the Supreme Court – the rule, which is constitutionally guaranteed and for that reason the proposed bill envisages no change in this regard.
The Venice Commission, which said that the proposals were in overall representing progress for the independence of HCoJ, recommended against complete renewal of the existing HCoJ.
Initial draft envisaged pre-term termination of all the sitting members of HCoJ, except of Supreme Court chair, who is an ex-officio member. The initial draft also envisaged barring chairpersons of courts and their deputies, as well as chairpersons of court chambers and collegiums from being elected as HCoJ members by the Conference of Judges; in addition the initial draft envisaged banning those judges from being elected in HCoJ membership who held these posts in course of last one year.
The Venice Commission recommended that even though the composition of the current HCoJ seemed “unsatisfactory”, the members should “complete their mandate.” 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.” The Venice Commission also recommended against imposing ban on election of chairpersons of courts and chambers in HCoJ. It, however, also said it was possible to limit the maximum number of chairpersons of the courts and chambers who could sit on the HCoJ or alternatively, the bill 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.
The revised bill, discussed and passed with its second reading on March 22, allows chairpersons of courts and their deputies to be elected as members of HCoJ, but if elected, they should quit their posts.
The revised bill also allows chairpersons of court chambers and collegiums to be elected in HCoJ without quitting their posts, but number of such judges in HCoJ should not be more than three.
The bill still envisages pre-term termination of authority of those six sitting members of HCoJ, who were appointed there by President and the Parliament. It also envisages termination of authority of those judge members of HCoJ, whose current membership criteria do not comply with the new rules; these judges, however, will be eligible to again run for the seat in HCoJ and regain their membership if elected by the Judicial Conference under the new rules.
In practice, this latter provision means that seven out of eight judges, who now hold seats in HCoJ, will lose their membership, because they either are chairpersons of courts and deputy chairs or became members not by being elected in HCoJ directly by the Judicial Conference, but by the latter’s nine-member administrative committee. But the revised bill allows these judges to run for the seat and be re-elected as members of HCoJ by the Judicial Conference after the new rules go into force.
This latter provision, allowing sitting judge members of the council to be re-elected, was causing some of the Georgian Dream lawmakers' opposition. This clause makes it possible for sitting HCoJ judge members to retain their seats if again elected by the Judicial Conference.
Citing UNM’s refusal to support the bill, some GD MPs, among them parliamentary majority leader Davit Saganelidze, proposed to remove this clause, as well as the one allowing election of three chairpersons of court chambers. He argued that these clauses were included in the bill as it was a proposal of the UNM and represented GD’s compromise and if UNM was now refusing to support the entire bill there was no need for these clauses to be part of the bill.
UNM MP Mikheil Machavariani responded that inclusion of these clauses was part of the agreement between the government and the judiciary and UNM was not supporting the bill because GD refused to accept the opposition’s number of proposals, related to composition of HCoJ.
GD MP from the Republican Party, Tina Khidasheli, said that inclusion of these clauses was really a result of the agreement between the government and the judiciary; she called on her colleagues from GD parliamentary majority group “to respect an agreement” with the judiciary and to pass the bill with these clauses.
Those GD MPs, who were reluctant to accept the proposal, including MP Eka Beselia, who chairs the parliamentary committee for human rights, offered to pass the bill without these two clauses and to vote on them during the third reading of the bill.
Before taking any final decision a break was announced and after the break parliamentary majority leader, MP Saganelidze, told colleagues that he held consultations with the government and also personally with PM Ivanishvili. “I want to request each of you to support the bill as it is presented,” he told GD lawmakers after which the bill with its two clauses was passed with the second reading.
During the debates before the vote, UNM parliamentary minority group accused GD of ignoring Venice Commission’s recommendations on number of key points of the bill. In particular, UNM MPs spoke against pre-term termination of authority of absolute majority of sitting members of HCoJ. GD argued that most of the recommendations were taken into consideration and reflected in the revised bill by introducing mechanisms to bring the current HCoJ “closer to the future method of composition” as it was recommended by the Venice Commission.
The Venice Commission was also recommending introducing a mechanism through which the opposition lawmakers would have their say in electing those six members of HCoJ, which should be confirmed by the Parliament. In particular, the Commission offered either to make confirmation of candidates by the Parliament with two-thirds of majority or by some proportional method.
GD lawmakers and the Justice Ministry said that introducing two-third majority for such case was unacceptable. They argued such high bar was not envisaged for any other post in the country on which candidates are elected by the Parliament. Deputy Justice Minister, Alexander Baramidze, said that even the second highest ranking official in the country, Parliamentary Chairman, did not require two-third majority of parliamentarians’ vote to be elected on the post.
During the March 22 debates, UNM lawmakers were offering GD to allow Judicial Conference, not the Parliament, to elect six non-judge members of HCoJ among the candidates nominated by legal advocacy non-governmental organizations, law schools and bar association. GD lawmakers rejected the proposal, citing that such arrangement would make the judiciary dominant in the process of composing HCoJ, which was not in line with checks and balances principle.
In an interview with Imedi TV late on March 22, President Saakashvili spoke out against the bill. Back in December, after the Parliament passed the bill with its first reading, Saakashvili threatened with veto.
Asked whether he still thought of vetoing the bill, the President told Imedi TV to wait and see what the final decision of the Parliament would be; the bill has yet to be approved with its third and final reading. Saakashvili, however, also added: “I will use all the resources available if the bill is approved in its current form.”