The 1921 Constitution VS The 1978 Constitution - Vol 6 - The Judiciary

We probably all know from Shota Rustaveli: "The execution of true justice makes a dry tree bloom." We all agree that the main value of the state must be a free and independent judiciary that is independent of politics and operates solely on the basis of the Constitution and the law. What the law is, or why the Constitution is the way it is, is not a question to be asked by the court. The main question is always: what form must the court take as a balancing mechanism and a lever for the inadmissibility of power usurpation, in order to fulfill its purpose—to give society justice?
Justice is not the subjective attitude of an individual toward a fact. Justice in the court begins with "I shall be heard." A fact, as a given, cannot be changed; accordingly, the primary purpose of the court is to establish the fact, while evaluating this fact is precisely the purpose of the court. If the state is to exist as a fact, this fact is confirmed precisely by the court, because the individual, left facing the state as something smaller than it, needs this smallness to be overcome so that their "dry tree blooms.";

These passages or references are necessary because today's independent Georgia must be independent precisely so that the individual is free from dictation. Dictation can exist in many forms, but understanding our Soviet experience as a state—what justice meant in the Soviet era—gives us the foundation for society to agree on what kind of justice we want as a state. The 1921 Constitution, which was the first Georgian constitution, intended to make justice the property of the individual, unlike the 1978 Soviet Constitution. No one knows what the 1921 Constitution in action would have caused or what kind of society it would have been the foundation of, but even today's Constitution is the heir to the 1921 Constitution, and it is precisely relying on it that we present ourselves to other countries. And a state cannot be fair without an independent judiciary.

Chapter 6 of the 1921 Constitution was dedicated to the judiciary. The highest court was elected by the parliament, and the highest court was called the Senate (Article 76). The Senate had only two purposes:
a) To oversee the observance of the law;
b) To manage the judicial branch as a court of cassation;

The Constitution subsequently refers to the Senate as the Court of Cassation (as it is today), however, the most important part of this article is that the Supreme Court was elected by the parliament. Why was this important? Based on the foundations of indirect democracy, members of parliament receive their mandate from society. That is, society, through elections, gives a mandate to individuals so that these individuals, in their name, with their mandate and legitimation, elect the persons who will provide justice to this state. This is a very important issue because if a judge and their justice lack legitimation, they can never be the ruling truth of society;

Article 77 of the 1921 Constitution divided the competence of the courts into three parts: criminal, civil, and administrative law. Furthermore, jurisdiction—meaning which part should determine which case—was subject to the law, and the organization of the court also had to be determined by the law. An important part here is that in 1921, the law, as the main language of the state, was divided into three parts: criminal law (when a person commits a crime according to the criminal code, and the state is obliged to react to it), civil law (when two private individuals dispute with each other), and administrative law (when an individual disputes with the state that an action carried out by the state is illegal). It might seem there is nothing new in this for today, however, the 1978 Soviet Constitution did not recognize administrative law in its classical sense. Why?

Could a Soviet citizen have a claim against the state created for their protection? However unimaginable it may be, this was unacceptable and unthinkable for Soviet citizens and for the Soviet Union as well. Why? Because for Marxist-Leninist ideology, a priori, their ideology's ultimate goal was the withering away of the state. Consequently, if the state must disappear, no one defended it in their ideology because the state was supposed to be a "transitional" stage of development. However, could the state violate the law? There was no answer to this. Moreover, could the state act incorrectly? The answer to this was also negative. Administrative law in Georgia, which already existed under the 1921 Constitution, reappeared in Georgia only after 1991. So, what we had in 1921, we regained only 70 years later. And why is administrative law so important?

It is considered that administrative law is a kind of continuation and declaration of constitutional law, because it most clearly expresses how the state is governed. Furthermore, summarizing/checking this is carried out by the court—meaning not the party, but the court. This court, as in most developed countries, is considered one of the branches of government that balances the relations between the state and the individual. Moreover, the court, on the one hand, balances, and on the other hand, limits/restrains the government from complete "usurpation." The state is subject to inspection, meaning any action issued by the state is checked not by the issuer itself, but by another "independent" player. This also means, and is, the security of the individual—an individual alone before the state a priori has a legal ally against the executive branch. All these reasonings that could possibly exist about administrative law not only did not exist in the 1978 Constitution but were rejected by the Soviet constitution;

According to Article 166 of the 1978 Soviet Constitution, "The hearing of civil and criminal cases in all courts is carried out collegially." Article 174 stated: "In judicial proceedings during the hearing of civil and criminal cases, participation of public organizations and labor collectives is permissible." In other words, the constitution did not divide the law into parts at all and, on the contrary, rejected the existence of administrative law as a branch.

According to the 1921 Constitution, the court was independent and obeyed only the law ("The court is independent and obeys only the law. Justice is administered in the name of the Democratic Republic of Georgia" - Article 78). Why was this provision important? The court does not create the law; the court protects the law. The court ensures the operation of the law and its fairness because the law is adopted by persons granted a mandate from the people living in this state. Accordingly, the court is independent so that it is not confused with the executive branch, because if there is no independent court, it means there is a dictatorship. The independence of the court can be a broad topic, but the most important are three main principles:
First – the making of impartial decisions by judges;
Second – the binding nature of court decisions;
Third – the protection of the judge from outside interference;

Many others could be added, but these three are the most crucial, allowing the court to be a "court." At the same time, the independence of the court may also involve the rule of electing judges itself. For example, according to the interpretation of the Venice Commission, an appropriate mechanism for ensuring the independence of the judicial system is the existence of judicial councils or equivalent bodies independent of the political branches of government, which must have a decisive influence in the decision-making process regarding the appointment and career of judges;

The independence of a judge—carrying out their activities solely in accordance with the Constitution and the law—along with institutional guarantees, significantly depends on their personal and professional qualifications. Only an exceptionally qualified, conscientious, and principled person has the ability to properly perform the function of a judge, and to administer justice impartially and competently. According to the interpretation of the Constitutional Court of Georgia, appointing competent persons to the honorable position of a judge serves to ensure independent and qualified justice (see Decision of the Constitutional Court of Georgia of February 15, 2017, No. 3/1/659 in the case "Citizen of Georgia Omar Jorbenadze vs. the Parliament of Georgia," II-36).

True, according to the 1978 Constitution, Article 163 stated "Justice in the Georgian SSR is administered by the court," and Article 167 indicated that "judges and people's assessors are independent and subject only to the law." But accountability was not to the Constitution, as the 1921 Constitution indicates, but rather: "judges and people's assessors are responsible to the voters or the representatives who elected them, are accountable to them, and may be recalled by them in cases defined by law." At first glance, there might be nothing dangerous, but there is one "but": in this state, there is only one party, and it only participates in elections. Therefore, if there is no other party besides the one party, who can recall an elected judge? Of course, the party, through its voters. Thus, even the so-called facade provision of judicial independence is not mentioned in the 1978 Constitution;

According to the 1921 Constitution, "No verdict or decision of the court may be annulled, modified, or suspended by a legislative, executive, or administrative body." This is a kind of constitutional self-defense effect that the court possesses: neither the executive nor the legislative branch has the right to revise its decision. Why? Because the government, whether executive or legislative, has the obligation to execute the decision, but under no circumstances to review it. No one should have the right to check why the court's decision is the way it is. If any branch other than the court has this right, there will be subjugation of the court. Such a protective mechanism is not found for the court in the 1978 Soviet Constitution; on the contrary, in most cases, how the law should be interpreted was determined not by the court but by the Presidium, and this was binding on the court. The court, one might say, did not even interpret the law; it merely confirmed what had already been decided;

During President Shevardnadze's tenure, there was a case, Assanidze v. Georgia, where contrary to the decision of the Supreme Court of Georgia, an investigative commission was created in the Parliament of Georgia and assumed the function of the court. Strasbourg's position on this was strictly negative (the applicant in the case, despite being acquitted by the Supreme Court of Georgia, still remained in the custody of the local authorities of Adjara). The Court indicated: "In any event, the Court notes that the principle of the rule of law and the notion of a fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of the dispute" (Raffineries grecques Stran et Stratis Andreadis c. Grèce, arrêt du 9 décembre 1994, série A no 301-B, p. 82, §49); "The Court would be gravely concerned if the legislation of a Contracting State granted a non-judicial authority, however legitimate it might be, the power to interfere in the judicial determination of a case or to call into question the findings of a court" (mutatis mutandis, Cooper c. Royaume-Uni [GC], no 48843/99, §130, CEDH 2003-XII);

Article 80 of the 1921 Constitution indicated that "court hearings are public; only in exceptional cases, when the interests of protecting morality and public peace require it, may the hearing be closed by a resolution of the court itself." Partially aligned with this article is the 1978 Soviet Constitution, which stated that "the hearing of cases in all courts is open. A closed court hearing is permissible only in cases established by law, provided that all rules of judicial proceedings are observed." The 1921 Constitution referred only to exceptional cases, establishing that these exceptional cases are morality and public peace, and only the court determined the closure. However, the 1978 Constitution entrusted this to the law and not to the judge who had to decide this;

Article 81 of the 1921 Constitution indicated a very important provision: "For serious criminal, as well as political and press offenses, the institution of a jury trial exists." That is, the Constitution singled out three cases so important that the institution of a jury was mandatory. And what was the purpose of this?
In order that the political agenda does not entirely consume justice, and/or question marks are not directed at the judge, the decision-making is carried out directly by society, because the accused person "shall be heard by their own society." It is also noteworthy that today's Civil Procedure Code considers a cassation appeal admissible in all cases if it concerns freedom of speech and expression: "in non-property disputes, a cassation appeal is admissible on disputes related to freedom of speech and expression" (Article 391 of the Civil Procedure Code);

Here, a little about jury trials, or imagining what it could have been like according to the 1921 Constitution. In 1919, the Provisional Government adopted the Law of Georgia on the Introduction of Jury Trials. The court consisted of one judge and 12 jurors, as well as 2 reserve jurors. Jurors had to meet the following criteria: 1. Citizenship of Georgia; 2. Conversational knowledge of the Georgian language and the ability to read and write in any language; 3. Not younger than 25 years; 4. Must reside for at least 1 year in the district where the selection is taking place. It is also noteworthy that one of the most high-profile cases heard by a jury was the case of Shalva Maghlakelidze and his associates, which, if we trust the press of that time, caused unprecedented interest. The prosecutor's speech was no less significant: "This is the first great case that the conscience of the Georgian people must judge." As for the jury system in the 1978 Constitution, it simply does not exist according to that constitution;

According to Article 82 of the 1921 Constitution, "A judge is elected for a term. The rule of election and the conditions a judge must satisfy are determined by law." This was a novel guarantee of judicial independence and entrusted this authority to the law, because it is one thing when a judge is elected for a certain term, and another when a judge is elected for life. However, it is noteworthy that the 1978 Constitution explicitly specified terms. Namely, according to Article 164 of the Soviet Constitution, "judges are elected for a term of 5 years, and people's assessors for two and a half years.";

An important guarantee of judicial independence was also Article 83 of the 1921 Constitution, which indicated that "the transfer of a member of the court from one place to another against their will is not permitted, except by a resolution of the court. Their temporary suspension from office may occur only when they are committed for trial or under investigation. Full dismissal – only by virtue of a court verdict." In contrast, the same 1978 Constitution indicated that judges and assessors could be recalled by the voters—meaning, if a judge did not or could not fulfill the desire of the party, they could be recalled upon demand. What the court could have been like later according to the 1921 Constitution is unknown, but as of today, we can think about this based on the situation between 1918-1921. Namely, today's magistrate judge was elected by a direct electoral rule; the first instance was divided into two parts: justice for minor disputes and less serious crimes was administered by Justices of the Peace, while relatively large disputes and serious crimes were heard in conciliatory districts, which, as a rule, were located in the city. The most important aspect regarding Justices of the Peace is their electability: Justices of the Peace were elected by local self-government (in Tbilisi, they were elected by the city council, and in the uyezds (districts) by the uyezd assembly). The appellate instance was called the Congress of Justices of the Peace, and the third instance was called the Senate, which under the 1921 Constitution was already elected by the parliament, and its legitimation derived from there;

The 1978 Constitution not only failed to provide such provisions for the independence of the judge but did not even indicate the binding nature of the execution of a court decision. On the contrary, according to Article 170 of the constitution, "the accused was guaranteed the right to defense," but according to the same constitution, there was no presumption of innocence. Overall, the 1921 Constitution was far ahead from a legal standpoint than the 1978 Constitution. The 1921 Constitution resonates even with the constitution in force today, namely: the mandate of the judicial branch determined by the Constitution of Georgia differs significantly from that of political power. Courts make decisions solely on the basis of the law. A judge does not have the authority to determine the legal consequences of a dispute in accordance with their own desires or values, to base decision-making on their own views, or to be guided by the criterion of expediency (mutatis mutandis, Decision of the Constitutional Court of Georgia of December 29, 2016, No. 3/5/768,769,790,792 in the case "Group of Members of the Parliament of Georgia and citizens of Georgia vs. the Parliament of Georgia," II-111);

The fact that the court, in its essence, was completely ignored by the Soviet system caused it to be named not just, but an empire of evil. Whereas the main purpose of today's Georgia or Georgian law must become: "The execution of true justice makes a dry tree bloom.";