The rule that puts part of the members of the Council of justice in an "offside" position

The increased influence of the courts has led to the need for a new institutional arrangement to ensure a proper balance between judicial independence and accountability¹ in the process of seeking this balance, a number of countries have rejected the model of governance subordinated to the Ministry of Justice and instead introduced a new form of judicial governance² – Judicial Councils.

Ensuring judicial independence and effective administration of justice in Georgia is the prerogative of the High Council of Justice. In order for the council to perform its constitutional role in a functional manner, its activities must be based on democratic principles – the process by which the supreme judicial body makes decisions must be expressive of independence, equal participation, transparency, and accountability.

What is the composition of the High Council of Justice of Georgia?

The High Council of Justice of Georgia consists of 15 members. The majority of the council – 9 members are judges: the chairperson of the Supreme Court of Georgia is a member of the High Council of Justice.³ other 8 Judge members are elected by the self-government body of judges of common courts (Conference of judges). The court of each instance must be represented in the composition of the council.

The council has 6 non-judicial members. 5 of them are elected by the Parliament of Georgia with 3/5 of the total composition and one member is appointed by the president.⁴

5 members of the High Council of justice can make a decision

What is the general rule of decision-making in the High Council of Justice?

Despite the fact that discussions are mainly devoted to the rule of decision-making on judicial appointments and/or disciplinary issues, the general rule of decision-making by the High Council of justice is no less problematic.

The High Council of Justice is authorized if more than half of the council members attend its session.⁵ accordingly, the attendance of 8 members is sufficient to discuss the issue and make a decision. And if out of 8 members present at the council meeting, 5 support the issue, the decision is considered adopted.⁶ thus, one-third of the total composition of the High Council of justice can decide general issues falling within the authority of the council.

Such a rule completely violates the principles of work and issue resolution of the collegial body. Even at the minimum level, it fails to ensure that decisions are made on the basis of broad consensus and due consideration. In addition, this rule practically excludes the possibility of influencing the decision-making process by non-judicial members.

How does the High Council of Justice solve important issues?

According to the amendments to the organic law "on common courts" on the first of May 2013, the number of votes required for making decisions on disciplinary issues increased to 2/3 of the total composition of the council.⁷ With the amendment of December 7, 2021, 30, the number of necessary votes has been reduced again and according to the current rule, the High Council of justice makes a decision on disciplinary issues by a majority of the full composition.⁸

The High Council of Justice appoints a person as a judge if the decision is supported by at least 2/3 of the total composition.⁹ similarly, with the support of 2/3 of the total composition, candidates for the position of a judge of the Supreme Court are presented to the parliament.¹⁰ in addition, 2/3 makes a decision on the inviolability of judges, dismissal of judges from office (except for the Supreme Court), cancellation of the legal act on the issue of lifetime appointment of a judge and conducting interviews with judges, On the annual report of the High Council of Justice, approval of the rules of procedure of the High Council of Justice and dismissal of an independent inspector.

For a two-member majority, only one non-judge member is enough to support. Such a system cannot properly ensure the functional participation of non-judicial members even in the process of making particularly important decisions.  This approach excludes management by the council, based on the principle of pluralism.

What happens if the composition of the council is incomplete?

In 2021, 5 non-judicial members elected by the Parliament of the Council expired their term of office. So far, the parliament has not elected new members and for almost a year, the council with incomplete composition continues to work as usual. The council is represented by only 9 Judge members and 1 non-judge member appointed by the president of Georgia. This circumstance does not prevent the council to make decisions on important issues. With the existing composition, he can also appoint new judges.

What needs to be changed?

In order to balance the powers in the council and ensure fair distribution of power, the Organic Law shall create legislative guarantees for equal participation of all members. In particular, to determine how many votes of Judge members are needed and how many of the non –Judge members are needed when making a decision. 
The general rule of decision-making should be changed, which allows the council to make decisions by a simple majority of the members present at the meeting (which is 1/3 of the total composition).

A well-known foreign expression is applied to the assessment of the activities of the Council of Justice: "Balance is not what can be found" in its regulatory framework; "balance is what can be created" with the corresponding amendment. 

Accumulation of the authority to manage the entire branch of government in the hands of one body creates a high risk of abuse of this authority. Participation of various sources – three branches of government in the composition of the council is envisaged to insure this risk. The existing rule of decision-making by the board puts part of the composition in an "offside" position and removes their status from the actual content. Along with this legal situation, the current factual situation is alarming, when the council "functions" in such a way that 1/3 of the number of its members does not even exist nominally in its composition.



Footnote

1. K.Sipulova, S. Spac, D. Kosar, T. Papuskova; " Judicial Self-Governance Index: Towards a better understanding of the role of judges in governing the judiciary”; Regulation and Governance 2022, Judicial Studies Institute, Law Faculty, Masaryk University, Wever 70, 611 80.
2. Nearby.
3. Organic Law of Georgia" on common courts", art. 47 (2)
4. Nearby.
5. The same, art. 50 (1)
6. Organic Law of Georgia "on common courts", art. 50, pun. Two
7. Organic Law of Georgia of May 2013, 1st, on amendments to the Organic Law of Georgia on common courts, art. 50. Pun. Three
8. Organic Law of Georgia" on common courts", art. 50 (3)
9. The same, pun. Four
10. The same, art. 341 (13)

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