The Parliament passed with 82 votes to 24 with its final reading on April 5 amendments to the law on common courts in which reforming of High Council of Justice (HCoJ) is the central issue.
The bill has been passed after multiple revisions and more than three months of discussions, involving parliamentary debates, talks between Georgian Dream and UNM and expertise from the Council of Europe’s advisory body for legal affairs Venice Commission.
The bill will go into force if President Saakashvili signs it into law; lawmakers from his UNM party were strongly against of the bill.
GD parliamentary majority is capable of overriding presidential veto, as it has once already done in respect of amnesty bill.
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The High Council of Justice is in charge of overseeing judicial system with the authority to appoint or dismiss judges, as well as to initiate disciplinary proceedings against judges.
There are 15 members in HCoJ, which is chaired by Supreme Court Chairman Kote Kublashvili; the latter will retain his chairmanship of HCoJ as it is guaranteed by the constitution.
All other members of HCoJ hold their seats for a four-year term; the same rule applies under the new system.
Now two members of HCoJ are appointed by President Saakashvili.
Four members of the Council are MPs – one of them should be a lawmaker not representing parliamentary majority; one seat is designated to an ex officio member and automatically goes to a chairman of the parliamentary committee for legal affairs – now it is Georgian Dream MP Vakhtang Khmaladze and in previous Parliament the post was held by UNM MP Pavle Kublashvili, brother of the Chairman of Supreme Court.
The new system scraps this rule and there will be no parliamentarians and President appointees in HCoJ.
According to new rules, these six members will be elected by the Parliament with secret ballot from candidates nominated by legal advocacy non-governmental organizations; law schools and law departments of various universities and Georgian Bar Association.
These six members should be confirmed by the Parliament with two-thirds majority; in practice it means that votes of UNM parliamentary minority lawmakers would also be required. But in order to avoid a deadlock, the bill envisages holding of second round of voting in case in the first round candidates fail to garner support of the two-third of parliamentarians; a simple majority – that is 76 votes – will be enough for a candidate to be confirmed as HCoJ member.
The bill, however, also envisages that no anti-deadlock measure should apply to two out of six seats, meaning that two candidates should definitely be confirmed with two-thirds majority; it means that two seats in the HCoJ will remain vacant as long as the Parliament fails to select a candidate enjoying support of at least 100 parliamentarians.
Remaining eight seats in HCoJ are filled by judges, elected by judiciary’s self-governing body, Conference of Judges; the current rule, however, also makes it possible a judge to be elected not directly by this Conference, but by its nine-member administrative committee – the rule that will be scrapped in the new system.
The new system also introduces number of other significant changes in this judicial component of HCoJ’s composition; it strips the Supreme Court Chairman of his current exclusive right to nominate candidates for HCoJ membership; every judge will have the right to nominate a candidate. It also envisages making ballot at the Conference of Judges secret.
Chairpersons of courts and their deputies will be able to run for HCoJ membership, but if elected they will have to resign from these posts. Chairpersons of court chambers and collegiums will also be able to run for the membership and if elected they can retain their posts, but, according to new rules, number of such judges in the HCoJ should not be more than three.
Membership in HCoJ of those judges, whose current membership criteria do not comply with the new rules, will be terminated. They, however, will still be able to again run for membership and regain their seat in HCoJ for a new four-year term if elected by Conference of Judges.
It means that seven out of eight judges, who now hold seats in HCoJ, will lose their membership, because they either are chairpersons and deputies of courts or became members not by being elected directly by the Conference of Judges, but by the latter’s nine-member administrative committee.
According to new rules, the Conference of Judges should elect members under new criteria within one month after the bill goes into force. The same applies to the parliamentary component of HCoJ.
UNM lawmakers refused to support the bill, claiming that it was failing to fully take into consideration recommendations from the Venice Commission. UNM claims that GD wants to “subdue judiciary” with this bill. UNM MPs also complained that the bill was envisaging pre-term termination of authority of absolute majority of sitting members of the HCoJ.
Parliamentary Chairman Davit Usupashvili said: “This bill is 99% in line with the Venice Commission’s recommendations.”
Usupashvili said on April 4, that instead of hasty reform path, the GD chose lengthy discussions locally and internationally on the proposed bill, which actually delayed with delivery of one of its key pre-election promises about “free and fair judiciary.” He said that politically this lengthy process was “damaging” for GD, because it was receiving lots of criticism from its own supporters about delaying this reform.
“But we are politicians and it should be us to take this damage in order to deflect it from the society and the state,” he said.