Civil.Ge | Revised Constitutional Court Bill Adopted, But Controversy Remains

Revised Constitutional Court Bill Adopted, But Controversy Remains

Civil Georgia, Tbilisi / 3 Jun.'16 / 20:52

Higher quorum still remains on organic laws and some other cases;
Limiting mandate of judges during last three months of their term removed;

Parliament adopted on June 3 presidential objections to amendments in the law on Constitutional Court, partly revising original bill, but failing to fully remove controversy surrounding the issue.

The bill, proposed by the ruling GDDG party, increasing the quorum required for the Constitutional Court to decide cases was adopted by the Parliament on May 14.

President Giorgi Margvelashvili vetoed the bill on May 31, few days after the Council of Europe’s advisory body for legal and constitutional affairs criticized those clauses of the bill, which were source of concern for many watchdog groups, and because of which opposition lawmakers were strongly against of the bill; MPs from the Republican Party, who remain in coalition government with GDDG party, were also against of the bill.

President’s objections, adopted by the Parliament on June 3, were drafted as a result of consultations between the President, PM Giorgi Kvirikashvili, Parliament Speaker Davit Usupashvili, and senior GDDG lawmakers.

Although the president’s office and ruling party MPs insist that the objections were drafted fully in line with the Venice Commission’s preliminary opinion, opponents argued that the revised bill was a product of political compromise resulting into failure to fully incorporate all the recommendations from the Venice Commission.

While the revised bill no longer envisages higher quorum for all types of cases when the 9-member Constitutional Court sits in the full bench, it still keeps this strict requirement when adjudicating disputes related to organic laws, and some other cases.

In its preliminary opinion the Venice Commission has “strongly” recommended removing a clause increasing quorum needed for the Court to decide cases, warning that decisions “can easily be blocked” by a minority of judges if this strict requirement is kept.

Coalition for Independent and Transparent Judiciary, a coalition of dozens of legal advocacy and rights groups, said that the high quorum on organic laws, and some other “problematic” issues remaining in the revised bill “harms strengthening of constitutional order and efficient work of the Constitutional Court.”

“Regrettably, despite conclusions from local [Georgian] organizations and experts, as well as from the Venice Commission, political stakeholders failed to neutralize those risks,” Coalition for Independent and Transparent Judiciary said in a statement and added that it would appeal the bill to the Constitutional Court.

The revised bill was also criticized for the same reasons by MPs from the Free Democrats and UNM opposition parties, although lawmakers from the latter were not present during debates on June 3 as they continue boycotting the Parliament over the Kortskheli violent incident.

MPs from the Republican Party, who were against of the original bill, supported the revised one. They acknowledged that the revised bill still keeps strict requirements in terms of high quorum when deciding cases on organic laws, but it’s better than the original bill.

Quorum

Parliament-adopted bill was increases quorum required for both the Court to be able to sit in full bench and for taking decisions.

President’s objection partly revised this provision keeping the increased quorum on certain cases.

According to the existing legislation, when adjudicating a case in full bench, the 9-member Constitutional Court is eligible to proceed if at least 6 judges are present.

The bill, adopted by the Parliament and then vetoed by the President, envisaged increasing this number to 7 judges.

The existing legislation requires support of simple majority of judges for taking a decision – that is 4 judges in case minimum required 6 judges are present, and 5 judges if all nine are present.

Under the bill, adopted by the Parliament and vetoed by the President, decisions should have been taken by at least 6 judges – no matter whether minimum required 7 judges or all nine were present.

The revised bill, based on president’s objections envisages keeping the high quorum (presence of at least 7 judges and taking decisions with six votes) when the Constitutional Court adjudicates cases involving organic laws; disputes related to elections or referendum; impeachment of President, chief justice, government member, head of the state audit agency and central bank board member; as well as cases involving revoking of the judicial immunity of a Constitutional Court judge.

Decisions in all other cases, according to the revised bill, will need presence of at least 6 judges and support of simple majority of the full bench - that is at least 5 judges, even if 6 of them are present.

Interlocutory Decisions

In one of the controversial changes, according to the bill, decisions on suspending a disputed legislative clause as an interim measure pending final verdict should be taken by full bench; currently such interim decision can be taken by a panel of four judges.

The Venice Commission said on this issue: “It is not logical that an interlocutory decision which is urgent by its very nature should be taken in a more complicated procedure, which includes a transfer of the case from the board to the plenary session and then back to the board for the decision on the merits.”

President’s objection and consequently the revised bill keeps this clause, but envisages taking an interlocutory decision in the plenary with a simple majority.

Judges’ Mandate Near End of Term

According to the Parliament-adopted original bill, which was vetoed by the President, during the last three months of his or her 10-year term, the judge would not be allowed to participate in new cases, except in cases relating to electoral disputes, impeachment cases against high officials, and when deciding admissibility cases.

The Venice Commission said that “from a European perspective, the introduction of a three-month period seems arbitrary.”

The presidential objections to the bill reflect fully the Venice Commission’s recommendations and as a result the revised bill removed this controversial clause.