President Saakashvili threatened on December 20 to veto government-proposed package of legislative amendments on reforming High Council of Justice if Parliament approved it.
Saakashvili’s statement came shortly after the Parliament, dominated by Prime Minister Bidzina Ivanishvili’s Georgian Dream coalition, passed the bill with its first reading on Thursday evening.
“If the draft law remains in its current form I will use the presidential right and veto this bill, because it will amount to burying independent judiciary in Georgia once and for all,” Saakashvili said at a news conference.
The package of legislative amendments, which among other issues, envisages change of rule of composition of the High Council of Justice was proposed by the Justice Ministry.
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.
The proposed bill envisages making the Council less dependent on Parliament and totally non-dependent on President; in addition the proposal, if approved, will cut Supreme Court Chairman’s powers in the process of electing judges as Council members. Supreme Court chairmanship is held by Kote Kublashvili, who is brother of a senior lawmaker from President Saakashvili’s UNM party Pavle Kublashvili.
“The draft law… has been initiated according to which the [High] Council of Justice and the judiciary system will completely and formally fall under the control of executive government,” Saakashvili said. “There is a threat that the judiciary in Georgia may completely be left without any independence.”
Can GD Override Veto?
Votes of three-fifth of sitting lawmakers is required in order to override a presidential veto.
Currently there are 147 sitting lawmakers – three seats are vacant after three Georgian Dream majoritarian MPs moved to executive government.
It means that Georgian Dream (GD) will need votes of at least 89 lawmakers to override presidential veto.
Although GD now has 83 lawmakers, it can count on support of a newly formed six-member faction, which is made up of MPs who have quit UNM’s parliamentary minority group.
If GD attracts support of this faction, which is not unlikely, it can potentially have 89 votes required for overriding possible veto.
Proposed Reform of High Council of Justice
Speaking at the news conference on December 20, President Saakashvili also said that despite of “many shortcomings” and despite of “problems with level of independence”, under his leadership “institutional guarantees” for independence of the judiciary had been created in Georgia.
He said that now attempts were underway by the new government to deprive the judiciary of “all of its formal attributes of independence.”
The High Council of Justice is composed of 15 members, including its chair which is held by Supreme Court Chairman Kota Kublashvili. Members of the High Council of Justice hold seats for a four-year term; it however, does not apply to ex officio members.
Two members of the Council, according to the current rule, 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.
Rest of the eight seats in the Council is filled by judges, who are elected as Council members by Judicial Conference, a self-governing body uniting judges, which gathers at least once in a year.
At the Judicial Conference only the Chairman of Supreme Court has the right to nominate judges for the membership of High Council of Justice.
The proposed bill offers to change this rule of composition of the Council.
According to the bill, there should be no MPs and no President appointees in the High Council of Justice, but it will still be chaired by the Supreme Court Chairman as it is envisaged by the constitution.
Six members of the Council – those seats which are now occupied by two members appointed by the President and four members who are lawmakers, according to the proposal should be all elected by the Parliament, but none of them should be an MP.
According to the bill these six candidates for the Council membership should be representatives from legal academic circles, legal advocacy non-governmental organizations and Georgian Bar Association (GBA). According to the proposal these groups – relevant NGOs, law schools and law departments of various universities, as well as GBA will be eligible to nominate candidates, which should then be confirmed by the Parliament.
Eight seats of the High Council of Justice will still be filled by judges, elected by the Judicially Conference. The proposal, however, offers to strip the Supreme Court Chairman of his exclusive right to nominate candidates; every judge will have the right to nominate a candidate, according to the bill. It also proposes to make ballot at the Judicial Conference secret, which is not now the case.
There are number of issues in the bill that causes controversy.
The proposed bill envisages banning chairpersons of courts (except of Supreme Court Chairman) and their deputies, as well as chairpersons of chambers and collegiums to be elected as members of the High Council of Justice; the same applies to those who held these posts in the course of recent one year.
The Justice Ministry claims that this provision is required in order not to give those judges who already hold various judicial posts extra powers by being elected in the High Council of Justice.
This provision of the bill is strongly opposed by Chairman of Supreme Court, Kote Kublashvili, who says that this clause was “discriminative” against those judges, who will be prevented from being elected as members of the High Council of Justice.
Local legal advocacy and watchdog groups, which in overall have praised the proposed package of legislative amendments as an important step forward, say that at least chairpersons of chambers and collegiums should be allowed to be elected as members of the Council.
Another issue that triggers controversy is the term of termination of authority of the sitting members of the High Council of Justice.
According to the bill, term of all the currently sitting members of the Council will be terminated upon the election of new members under the new rules.
The Chairman of Supreme Court, who says that the bill in overall is a positive proposal, argues that this particular clause is unacceptable because pre-term termination of authority of sitting members will not contribute to an institutional continuity.
Legal advocacy and watchdog group, Georgian Young Lawyers’ Association, has proposed authors of the bill to terminate the authority of only those members of the Council who were appointed by the President and the Parliament and to keep those judges as members of the Council who had already been elected by the Judicial Conference.
The proposed bill has been submitted for review to Council of Europe’s advisory body for legal affairs Venice Commission.
Lawmakers from the UNM, who did not participate in the discussion of the bill on December 20 as they have temporarily suspended their parliamentary work, has earlier called on GD not to discuss the proposed amendments and wait for the recommendations from the Venice Commission. UNM MPs have also been citing calls from the monitoring committee of the Parliamentary Assembly of Council of Europe recommending the Parliament to wait for the Venice Commission’s conclusions.
Addressing this issue during the parliamentary hearing on December 20, Alexander Baramidze, the deputy justice minister, said that Venice Commission’s recommendations were not expected before March, 2013. He said that the proposed reform was urgent.
“I do not think that the Venice Commission will have any major recommendations, but if it has I think it will be possible to review the law” when the recommendations are tabled, the deputy justice minister said.