The Parliament of Georgia is hearing proposed amendments to the legislation regulating judicial probation, with the view of complying with the Constitutional Court decision on the subject. The amendments are important for ensuring that competent and honorable judges populate the judicial system and also the accountability of High Council of Justice (HCOJ), since the law should determine the circle of judges who will be exempted from the probation period and set the procedure for their lifetime appointment. The imperfect rules and opaque legislation on the selection and appointment of judges and on the evaluation of the judges on judicial probation, as well as the appointment of judges without any justification, has been harming the independence of justice and the public trust in the judiciary and presents the HCOJ with opportunities for arbitrary actions.
Considering the above situation it was crucial to ensure public engagement on these matters of high public interest from the stage of drafting the amendments onward. Unfortunately, the draft amendments were prepared without engaging the interested community. Additionally, since the Parliament must manage to enact the amendments by the July 1, 2017 deadline, Parliament is hearing the amendments using expiate procedures. It is worth noting that while the Supreme Court issued its decision on February 15, 2017, the draft amendments were initiated in Parliament on May 29, and on May 30 hearings on the amendments started in the human rights and legislative affairs committees of the Parliament. On June 1, the amendments were passed in first reading at a plenary session. The authors of the draft had more than three months to engage the public in the drafting process, however they failed to do so for inexplicable reasons.
Regarding the contents of the draft amendments, we must point out that chaotic and non-systemic amendments in the laws regulating selection and appointment make the legislation’s structure considerably more complex and affect the ability to analyze it. This will undoubtedly result in contradictory readings of the law when it is put in use and will damage the process.
Regrettably, the draft still does not clearly and unequivocally establish the HCOJ’s obligation to substantiate its decision of appointing acting and former justices of the Constitutional and Supreme Courts for life and still leaves broad opportunities for arbitrariness for the HCOJ. Additionally, the draft contains numerous problematic and vague propositions. Among them:
• The draft proposes the secret ballot for appointing judges for life by the HCOJ. Introducing a secret ballot in the law is completely unjustified given that in the past few years civil society observing the activities of the HCOJ has been very critical of ballot secrecy during judicial appointment, since it gives even greater opportunities for arbitrariness by the HCOJ. The HCOJ’s position on this subject is known – with a secret ballot the HCOJ members rule out the possibility for substantiating their decisions on appointment. Additionally, ballot secrecy conflicts with the point-based system of judicial selection, the selection criteria and procedures proscribed in the Organic Law. The current legislation proscribes using open vote procedure for appointing judges for life and introduction of secret ballot will worsen the existing standard.
• The draft sets different rules for appointing first and appeals instance former and acting judges on the one hand, and the former and acting judges of the Constitutional and Supreme Court on the other. Neither the draft nor its explanatory note mentions the reasons for differing approaches to these two groups. According to the Constitutional Court’s decision, judicial probation is eliminated for sitting and former judges because relevant information and material already exists for the HCOJ to assess their candidacy against the set criteria. In this regard there is no differing approach among the former and sitting judges of the lower, appeals, Supreme and Constitutional Court. If the legislature plans to regulate the appointment of these groups differently from each other, this must be reasoned and clearly described in the legislation.
• The draft does not specify the rules for appointing sitting and former judges of the Constitutional and Supreme Courts, while it clearly points to a relevant procedure for the sitting and former judges of the first instance and appeals Courts. Hence, the draft leaves open the issue of which criteria and procedures the HCOJ should use for deciding on the lifetime appointment of the sitting and former judges of the Supreme and Constitutional Courts.
• The draft only generally regulates how to assess the judicial candidates who have experience working as judges but whose work experience and record cannot be assessed due to objective circumstances. The law must clearly and unequivocally state what such circumstances are. Having only broad regulation of this issue gives unreasonably large discretion to the HCOJ, and this may become the basis for subjectively appointing judges in the future.
We call on the Parliament of Georgia to ensure effective engagement of the public during the second hearing of the draft law and take into consideration the feedback offered.