The Coalition for an Independent and Transparent Judiciary is deeply appalled by the legislative amendments on Constitutional Court adopted by the Parliament. The Coalition believes that the actions of the legislative body are directed not only against the Constitutional Court bench or/and specific judges, but these actions intend to paralyze the work of the Constitutional Court and diminish its important role thereby jeopardizing the values of fundamental importance for a democratic state such as rule of law, acknowledgement and protection of human rights, division of power and adequate, and effective and impartial fulfillment of constitutional justice.
The legislative process
It needs to be noted that the Parliament adopted these changes in a rush, though a process which lacked openness and transparency. The draft amendments were not accessible to the public prior to the hearing at the Committee. This practically prevented public discussions and exchange of opinions on the issues of high public interest.
On May 11, 2016 Parliamentary Assembly of the Council of Europe (PACE) rapporteurs published a statement in which they welcomed the stated intention of Parliament of Georgia Human Rights Committee Chair to submit the draft amendments on Constitutional Court competences to Venice Commission that would provide an opinion prior to the second reading of the bill.
The Parliament did not only break this promise, but also rushed the adoption of the drafts through the plenary session second reading and few hours later through the third reading at the Human Rights Committee (during non-business hours). The changes were later adopted in the plenary session.
It is also important to note the state bodies initiated and adopted these changes in reaction to the Court’s specific judgments oriented toward the protection of human rights, which they considered undesirable. Prior to the legislative process, certain groups violated law in relation to the Constitutional Court bench members. These violations were not properly addressed by the state.
These changes jeopardize the following processes:
• Timely decision making by the Plenum (full bench) – the Plenum is authorized to render judgments if 7 out of 9 judges are present. Judgments (including the ones on the suspension of norms) are made if they are supported by 2/3 of the full bench. Such a high quorum comes at odds with international standards, including the Venice Commission assessments and is highly probable to paralyze the court.
• Adequate operation of a Panel composed of 4 judges – any member judge with a dissenting opinion is authorized to refer a case to the Plenum. Thus a Panel may not be able to render judgments in a timely and effective manner.
• Decision making on any specific issues – according to the proposed version, any dispute concerning constitutionality of an organic law in relation to human rights, has to be considered by Plenum in accordance with the quorum related requirements described above. Such issues include disputes concerning statutes on elections, statutes governing the work of the Constitutional Court, suspension of a disputed norm and many other important issues, which require Constitutional Court’s timely and effective action.
• Rights and interests of parties – after expiration of the 10 year tenure a member of the bench automatically leaves his office. Due to this rule cases considered by the previous composition of judges in a main hearing have to be referred back to the preliminary stage of considerations. In view of the nature of constitutional justice, this rule will have a considerably damaging effect on parties. It may also increase a caseload in the Court, because newly appointed judges will have to consider the already examined cases in parallel with new ones.
In light of these arguments, we believe that the legislative amendments under discussion grossly violate fundamental principles of a democratic state and endanger its democratic development. These changes intend to diminish Constitutional Court’s authority and by introducing complicated procedures reduce its effectiveness and paralyze it in practice.
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