Seth Myers, Harvard Kennedy School MPP '23, served as a Davis Center Summer Fellow at the Georgian Young Lawyers Association, a USAID-funded NGO that works to establish the rule of law and protect human rights in Georgia.
This March, supporters of democracy and the rule of law in Georgia achieved an important but potentially fleeting victory. In late February, ruling party Georgian Dream legislators proposed a new ‘Foreign Agents Law’ based on a comparable Russian bill which would degrade the power of civil society organizations (CSOs), contain dissent, and potentially derail the country’s Euro-Atlantic integration. Incensed at the draft law, tens of thousands of protestors took to Tbilisi’s streets to protest the bill’s adoption. Following several days of intense protests, the ruling party announced it would withdraw the controversial draft law and released over a hundred people who had been detained amid the protests.
While the Georgian Dream’s withdrawal of the proposed Foreign Agents Law is welcome news, supporters of Georgian democracy remain concerned. In recent years, the Georgian Dream-led government managed to implement arguably even more corrosive legislation that undermines the rule of law in Georgia and thwarts the country’s prospects for EU accession. The 2021 Amendments to the Organic Law on Common Courts are perhaps the most notable – and harmful – of these recently adopted anti-democratic measures. In light of Georgian CSOs’ successful March 2023 protests coupled with the U.S. State Department’s recent decision to sanction four Georgian judges, the 2021 amendments are worth revisiting due to their enduring capacity to derail Georgia’s Euro-Atlantic integration.
On December 27, 2021, six Georgian Dream members of parliament introduced the amendments in the Georgian legislature, which proposed several major alterations to the country’s Organic Law on Common Courts. The amendments were adopted just a few days later through an accelerated legislative mechanism. Opposition MPs as well as members of civil society were quick to condemn the process, objecting to the Georgian Dream’s use of the expedited vote mechanism at the end of the parliamentary session. Such a hasty process, opponents argued, meant the amendments were not sufficiently discussed or subjected to public consultation. This was further evidence of the Georgian Dream’s lack of accountability.
Civil society and opposition parties also objected to the content of the 2021 Amendments, which brought about significant changes to the regulations that govern the appointment, recusal, and formal sanctioning of judges. Specifically, the legislation lifted the ban on back-to-back term limits for members of the country’s High Council of Justice (HCoJ), lowered the quorum necessary for the HCoJ to make decisions on disciplinary proceedings to just a simple majority, and introduced several new grounds for disciplinary misconduct along with new penalties for judges.
The CSOs’ concerns about the lack of judicial independence in Georgia predate the 2021 amendments. For over a decade, there has been widespread consensus among proponents of democratic reform that governance based on the rule of law in Georgia has long been faced with challenges from a self-interested, clan-like group of judges. The members of “the clan” wield outsized control over judicial appointments and processes in the country, are able to dictate decisions at all levels of the judiciary, and show us that reforms which tackle informal as well as formal rules need to be introduced.
Most critics objected to the 2021 amendments. The Venice Commission published a detailed and highly critical report after their adoption. The report analyzes why – due to discrete socio-political factors unique to Georgia as well as existing informal mechanisms – the 2021 legislative changes to the Organic Law on Common Courts will further erode the independence of the country’s judiciary and constitute yet another instance of Georgian Dream-led democratic backsliding.
The 2021 amendments also conflict with internationally accepted standards for judicial independence. In terms of process, the legislation breaks with international best practice because its adoption was rushed and lacked meaningful public consultation. The bill’s provisions were also out of line with judicial best practices because they award further control over judicial operations and misconduct proceedings to the HCoJ, a de facto judge-only entity that lacks oversight.
At a more granular level, the individual amendments break with internationally accepted judicial standards. For example, the legislation empowers the HCoJ to transfer a judge to any court in the country without their consent for up to four years, regardless of their current position, location, or area of expertise. Though not technically considered a form of punishment in the revised Organic Law, consent-less transfers have routinely been employed in backsliding states to punish independent judges. One can reasonably expect that such consent-less transfers will be used as an unofficial form of sanction in Georgia, which is now the only European country that allows the arbitrary transfer of judges.
The restrictions on Georgian judges’ freedom of expression are also out of line with internationally accepted judicial standards. For instance, the United Nations’ “Basic Principles on the Independence of the Judiciary” advocates for the protection of judges’ individual rights except for extreme and obvious cases (i.e., prohibiting judges from running for public office or endorsing a specific candidate). The 2021 Amendments prohibit any public expression from judges that violates the so-called “principle of neutrality,” an undefined, Orwellian term included in the revised text that clearly violates European law and judicial norms.
The Georgian Dream’s withdrawal of the Foreign Agents Law showed that CSOs and opposition lawmakers can influence the trajectory of Georgia’s political future. This is cause for some optimism. Nevertheless, the adopted 2021 Amendments to the Organic Law on Common Courts continue to pose a significant barrier to achieving greater judicial independence and deeper EU integration. Revising the Organic Law on Common Courts, in order to bring its text (back) into line with international norms, must remain a top priority for Georgian CSOs. Such revisions to the Organic Law should be viewed – in Brussels and Tbilisi – as a necessary pre-requisite to attaining EU candidacy status, which is a vital steppingstone in the country’s long path toward EU accession.
Master's Student, Harvard Kennedy School
