1921 Constitution vs. 1978 Constitution – Vol. 7: Human Rights

When we, the citizens of Georgia, discuss the current Constitution of Georgia, in certain instances we perceive this supreme body of laws as a mere document devoid of tangible influence on our daily lives. In reality, however, the legal impact of the Constitution is so substantial that, in specific circumstances, its direct application either guarantees our fundamental freedom or, conversely, reduces us to a mere appendage of the collective, as was characteristic of the Soviet era. A constitution, designed to unite the nation and its populace, cannot remain alien to Georgian citizens; citizenship inherently denotes an individual whom the constitution safeguards, affirming a comprehensive range of fundamental rights. The Soviet regime manifested as the historical evil it is recognized as today precisely because it deprived the individual of rights, leaving them defenseless before the state. Consequently, for a country with early democratic roots, it is imperative to internalize that democracy and constitutionalism represent its own historical achievement, whereas the Soviet period represents an imposition that deprived the nation of its future for seven decades;

The Constitution of 1921 was adopted merely days prior to the Soviet annexation, preceded by provisional decrees. Although the 1921 Constitution was in force for an extremely brief duration, it clearly demonstrates the nature of the state that would have developed absent Soviet injustice. Chapter 3 of the 1921 Constitution, entitled "Rights of Citizens" (Articles 16 through 45), was dedicated to fundamental rights. By contrast, the 1978 Soviet Constitution addressed this domain in Chapter 6, entitled "Basic Rights, Freedoms, and Duties of Citizens of the Georgian Soviet Socialist Republic" (Articles 37 through 67). Crucially, the Soviet Constitution incorporated civic duties, whereas the 1921 Constitution recognized exclusively civic rights. This distinction highlights a fundamental paradigm shift: does an individual bear legal obligations toward the state per se? An individual cannot be deemed to possess inherent duties toward the state; an obligation toward the state arises solely from a voluntary civic commitment to serve it. The duties of an ordinary individual do not constitute the core of a constitutional framework. On the contrary, an individual retains the prerogative to be free from state-imposed obligations; otherwise, the primary constitutional mandate—to secure individual liberty—is compromised, yielding to mandatory submission to an authority that curtails rights. The incorporation of civic duties inculcates a societal perception that an individual is obligated from birth toward a legal abstraction, whereas, in a constitutional democracy, the state bears the primary obligation toward the individual;

One of the most profound achievements of the 1921 Constitution is enshrined in Article 19: "Capital punishment is abolished." This undeniably progressive constitutional mandate protected the right to life and explicitly denied the state the authority to execute its citizens. The 1921 Constitution placed human life at its core. Conversely, the 1978 Soviet Constitution guaranteed rights such as rest, health protection, and housing, yet notably omitted the prohibition of the death penalty. Thus, the Soviet Constitution permitted capital punishment—a mechanism that inherently serves as an instrument of state oppression, particularly under non-democratic regimes.

Notably, while the Council of Europe adopted Protocol No. 6 to the European Convention on Human Rights abolishing the death penalty in April 1983, followed by Protocol No. 13 in May 2002 prohibiting capital punishment under all circumstances, the 1921 Constitution of Georgia established this principle 81 years earlier. The Council of Europe subsequently designated the abolition of the death penalty as a mandatory prerequisite for membership, resulting in zero executions across its 46 member states since 1997. The abolition of capital punishment is not merely an act of humaneness; it acknowledges that judicial systems are not infallible. Beyond the principle that the state ought not to decide who shall live or die, capital punishment carries the irreversible risk of executing the innocent. Thus, the abolition of the death penalty stands as one of the paramount achievements of the 1921 Constitution.

Equally significant were Article 16 of the 1921 Constitution ("All citizens are equal before the law") and Article 17 ("Class distinctions do not exist"). While Article 32 of the 1978 Soviet Constitution similarly proclaimed equality before the law, it replaced the universal declaration of "all" with an exhaustive, conditional enumeration of specific categories deemed equal. Furthermore, Article 45 of the 1978 Constitution specified that "Citizens of the Georgian SSR are guaranteed freedom of scientific, technical, and artistic creation in accordance with the goals of communism." While seemingly recognizing creative freedom, this provision simultaneously constrained it within an ideological framework. Freedom subjected to the objectives of a specific political doctrine ceases to be genuine liberty, as the framework restricts the essence of creativity. True creative freedom inherently encompasses the right to oppose doctrines such as communism; subordinating artistic expression to communist objectives renders creative practice subservient to state ideology.

Conversely, Article 36 of the 1921 Constitution affirmed that "The free development of intellectual, commercial, and socio-industrial professions is guaranteed by the laws of the Republic." Consequently, unlike the 1978 Constitution, the 1921 Constitution reserved the legal and personal space essential for individual self-actualization within the state. The contemporary Constitutional Court of Georgia advances this principle further, holding that "the protection of free entrepreneurship and the development of competition ensure the operation of viable economic agents in the market, which is an essential prerequisite for the establishment of a free market. To achieve this, the state is obligated to create an appropriate legislative framework" (Judgment of the Constitutional Court of Georgia No. 2/11/747 of December 14, 2018, in the case "LLC Giganti Security" and "LLC Security Company Tigonis" v. the Parliament of Georgia and the Minister of Internal Affairs of Georgia, II-2). Additionally, the Court noted that "for personal development, it is essential for an individual to feel like a full-fledged, necessary member of society, which significantly defines their personality. Accordingly, this right is intertwined with the right to free development of personality. The exercise of freedom of labor is naturally not the sole, yet one of the significant factors for an individual's independence" (Judgment of the Constitutional Court of Georgia No. 2/2/565 of April 19, 2016, in the case "Citizens of Georgia – Ilia Lezhava and Levan Rostomashvili v. the Parliament of Georgia", II-35).

While the 1978 Constitution strictly prescribed societal development without alternative, the 1921 Constitution was entirely devoid of forced ideology, recognizing unconstrained liberty as the foundation of human development. Article 32 of the 1921 Constitution protected freedom of speech and expression: "Every citizen has the right to express and disseminate their thoughts verbally, in writing, or by any other means without prior governmental authorization. For any offense committed through such acts, a person shall be held accountable solely before a court of law."

By contrast, Article 48 of the 1978 Constitution asserted that "In accordance with the interests of the people and for the purpose of strengthening and developing the socialist system, citizens of the USSR are guaranteed freedom of speech, press, assembly, meetings, street processions, and demonstrations." This raises a critical question: if an individual opposed the socialist order, did the Soviet Constitution guarantee them the right to demonstrate? The article explicitly conditioned the exercise of rights upon the goal of "strengthening and developing the socialist system." Had an individual refused to comply with state dictate, exercising a natural right would render them a lawbreaker. Conversely, the 1921 Constitution imposed no ideological conditions on freedom; it recognized that individual liberty is vital to prevent the human being from becoming a mere cog in the state apparatus, affirming that "man is the foundation of the state."

The modern Constitutional Court of Georgia reflects this democratic doctrine, noting: "In legal systems based on the principles of a free marketplace of ideas, the expression of individual citizens may not always be acceptable to broad segments of society; however, this circumstance does not place such expression outside constitutional protection" (Judgment of the Constitutional Court of Georgia No. 1/3/421,422 of November 10, 2009, in the case "Citizens of Georgia – Giorgi Kipiani and Avtandil Ungiadze v. the Parliament of Georgia", II-7). The Court further emphasized: "Freedom of expression protects not only the dissemination of ideas and information that conform to prevailing societal views or are deemed beneficial, acceptable, and/or harmless, aimed at encouraging debate on critically important public issues, but also information that may be considered unacceptable, offensive, disturbing, and/or shocking to the state and society" (Ibid., II-7). Thus, the jurisprudence of the contemporary Constitutional Court of Georgia aligns directly with the constitutional tradition of 1921 rather than that of 1978. Georgia's historical identity as a constitutional state relies on the pluralism of 1921, rather than the single-party regime of 1978 that left the individual defenseless against state power.

Furthermore, Article 35 of the 1921 Constitution established: "Citizens of the Republic of Georgia have the right to establish trade unions and any other associations without prior authorization of the government, provided their purpose is not prohibited by law. The dissolution of an association may occur solely by a judicial decision." In contrast, Article 49 of the 1978 Constitution conditioned the right of association on "the development of the socialist system and political activity." Defining mandatory objectives for civic association contradicts the core purpose of a constitutional democracy. Had individuals sought to form an independent political party under the 1978 regime, such an act would constitute a constitutional violation.

Subjecting natural rights to state ideology renders a constitution inherently unjust, incapable of expressing the national will or fostering a free society. Present-day jurisprudence rejects state paternalism over personal autonomy. As the Constitutional Court of Georgia ruled: "Determining mandatorily what may be eaten, drunk, or smoked, and imposing punishment for such actions, represents an interference in the sphere protected by personal autonomy that can only be justified for the protection of legitimate public interests. Punishing an individual solely for causing harm to their own health constitutes a form of state paternalism incompatible with a free society" (Judgment of the Constitutional Court of Georgia No. 1/13/732 of November 30, 2017, in the case "Citizen of Georgia Givi Shanidze v. the Parliament of Georgia", II-50). The primary function of a constitution is not to prescribe personal choices or dictate ideological development to the individual.

Regarding labor rights, Article 38 of the 1921 Constitution explicitly affirmed: "The strike of workers is free." Conversely, Article 3 of the 1978 Constitution recognized the right to work but omitted any reference to the right to strike or protest, operating under the legal fiction of universal societal contentment. Omitting the right to strike directly impaired labor protections, as any industrial action fell outside the constitutional framework.

In reality, peaceful protest and strikes serve as essential mechanisms through which citizens advance social progress and accountable governance. As the Constitutional Court of Georgia observed: "According to the practice of the Constitutional Court, expressing protest in an acute form is frequently the sole or most effective means of attracting the attention of the authorities and/or society; accordingly, in specific instances, a delay in public reaction may prove entirely ineffective for achieving the intended goals, depriving the delayed reaction of its purpose" (mutatis mutandis, Judgment of the Constitutional Court of Georgia No. 2/482,483,487,502 of April 18, 2011). Depriving individuals of the right to protest reduces citizenship to mandatory submission, whereas a constitutional state achieves stability through civic consolidation and lawful expression.

A constitutional order must not function as a restrictive mechanism against public feedback. Absent constitutional checks and balances, state dictation in any domain inevitably subjects society to the ruling political party.

Additionally, Article 57 of the 1978 Constitution declared that the exercise of rights was inseparable from civic duties, beginning with the mandate to "upheld the high calling of Soviet citizenship with honor." These obligations included compulsory labor (Article 58), the protection of socialist property and the authority of the USSR (Articles 59–60, designating treason as the most grave crime against the people), compulsory child-rearing duties (Article 64, effectively mandating state-enforced familial affection), environmental protection duties (Article 65), and the "internationalist duty" to foster friendship with other nations (Article 67).

By contrast, Article 41 of the 1921 Constitution extended international protection to political dissidents: "A political exile who has sought refuge on the territory of the Republic shall not be extradited to another state." The Soviet Constitution completely repudiated such protections.

In conclusion, this comparative analysis illustrates the fundamental divergence between the Constitutions of 1921 and 1978. While the long-term jurisprudence of the 1921 Constitution remained unrealized due to the Soviet annexation, its core principles set a democratic standard fully compatible with modern constitutionalism. The 1921 Constitution did not seek to impose an alien legal structure upon the nation; rather, it sought to reflect authentic Georgian public life, embodying the principle articulated by R. Arsenidze: "In drafting a constitution, we must not merely copy foreign constitutions, but adapt legal norms to actual life."