The 1921 Constitution VS The 1978 Constitution - Vol 2 - Freedom of Speech

For the post-communist era, it is in most cases characteristic to ridicule various rights and/or to present them in such a way that these "rights" are not even necessary for a person to be an individual. Freedom of speech is nothing more than "having one's own opinion" and not being persecuted for this opinion; not being persecuted, first and foremost, by the executive branch of government, because freedom of speech, to a certain extent, gives every individual the opportunity to play the role of a "barking dog" (watchdog). At the same time, freedom of speech ensures that there is no "infallibility," no "idols," and no "uncriticizable" persons. The purpose of freedom of speech has never been an end in itself for the individual; freedom of speech is a means for exchanging information among individuals in such a way that society, observing this, decides the truth;

Freedom of speech has many, many problems, including: where does the line between freedom of speech and hate speech lie? Or, in the case of a country like ours, does absolute freedom of speech exist if a collaborator justifies the occupier? Or what is the boundary between freedom of speech and obscenity? Or can a boundary even be established between them? These issues will remain subjects of debate, if not dividing lines for society, for a long time, and so it should be. But in the present article, I will point out what was written for the Georgian state in the 1921 Constitution and what was written in the Soviet Constitution of annexed Georgia in 1978;

For the Soviet Union as a phenomenon, any individualism was unacceptable; consequently, freedom of speech was, of course, its enemy. Because if this constitution divided society into only three classes, would it have allowed these classes to say an independent word? Including criticizing the executive branch?

Freedom of speech can also be considered a continuous source of renewal, when in public life an individual forms their opinion on this or that issue and is independent of the state. Furthermore, freedom of speech is a determinant of political taste, because it is precisely within the framework of freedom of speech that an individual has the right to decide or to acquire/hire the bearer of the desired political idea. Freedom of speech is not an absolute right, but without its existence, even an absolute right loses its meaning. For if an individual sees torture and does not speak out for fear that they will be legally punished for doing so, even the prohibition of torture remains just torture and does not change. Therefore, freedom of speech is the cornerstone that creates a unity of successful individuals, who, in turn, through established rules of the game, create a successful state. Our ancestors knew this with certainty in 1921, and the 1921 Constitution knew it with certainty, which is why it is considered a model of Georgian law;

In most cases, the social contract, i.e., the Constitution, is more of a subject for me than an object, and it continues to live from the moment of its adoption—including after the amendments of 1995, 2010, and 2017: "Relying on the centuries-old traditions of Georgian statehood and the historical-legal heritage of the 1921 Constitution of Georgia, before God and the nation we declare this Constitution."

The 1921 Constitution of Georgia, as a progressive legal act, described freedom of speech in Chapter 3, "Rights of the Citizen." The main articles that can be considered as such are:
a) Article 32. Every citizen has the right to express and disseminate their thoughts verbally, in print, or by any other means without prior permission from the government. For every crime they commit in such a case, they are accountable only before the court;
b) Article 33. Citizens of the Republic of Georgia have the right to assemble publicly and unarmed, both indoors and outdoors, without the government's permission (this is more related to freedom of assembly, but in this case, it can also be understood in the sense of freedom of speech);

Apart from this right, it is also interesting that Article 37 of the same Constitution recognized the right to petition: "Article 37. The right of personal and collective petition is guaranteed." Given that the 1921 Constitution did not operate directly and immediately due to the annexation and subsequent military coup, it is interesting what prompted the existence of this right or how it was supposed to work in reality. Although this is probably a historical question that will have no answer, in theory, it is considered that this right is the right of an individual/individuals to appeal to the executive branch with a demand, request, and/or complaint, and the executive branch is obliged to respond according to the established rule (the Hungarian authorities in their constitution speak of the right to petition of both the population and the individual; the Spanish constitution grants this opportunity only to exceptional people, for example, soldiers, security personnel, etc.). Today, this right is more of a germ of the right to fair administrative proceedings and also of Article 3 (The source of state authority is the people. The people exercise power through their representatives, as well as through referendums and other forms of direct democracy), rather than just the right to petition. It should be taken into account that this right was adopted precisely in the form of a petition;

The 1921 Constitution, through Article 32, said the same thing that humanity would later say in Article 19 of the Universal Declaration of Human Rights (UDHR). It is also recognized in international human rights law, in the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the Universal Declaration of Human Rights (UDHR) states that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

Of course, it is difficult to predict what specific development these articles of the 1921 Constitution would have found in the independent courts of a subsequent independent Georgia. Naturally, with time, the interpretations of the content would have developed further and become more refined, but the Georgian court would probably have delivered such a decision much earlier (during the height of so-called communism): "Free speech is valued by the fact—that is, freedom of speech is expressed precisely in the fact—that it covers not only such opinions or statements that are acceptable to everyone, are perceived positively, echo the opinion and tastes of the entire society or even a large part of it, the majority, and are not considered offensive; but it also covers such ideas, thoughts, or statements that are unacceptable to the government, a part of society, or individuals, which are shocking, which may outrage society, people, even offend them, cause a stir of passions in society; it also includes criticism and sarcasm. Such are the demands of pluralism, tolerance, and broad-mindedness, which are an indispensable source for nourishing democracy" (Decision of the Constitutional Court of Georgia on the case N1/6/561,568). Or regarding freedom of assembly: "The said provision of the Constitution reinforces the right of people to peaceful, public assembly. It gives the person enjoying the right the opportunity to express their feelings and views (political, social, religious, etc.). Assemblies and manifestations can be an inseparable element of political activity, serving to express an opinion, receive and disseminate information, etc." (Decision of the Constitutional Court of Georgia of April 18, 2011, №2/482,483,487,502, II-4);

Instead, the 1978 Soviet Constitution of Georgia said the following, Article 47: "Every citizen of the Georgian SSR has the right to submit proposals to state bodies and public organizations for improving their activity, and to criticize shortcomings in their work" (I searched for a long time but could not find a single fact of this article being applied). By the same article, the relevant authorized person was obliged to respond to the said statement, and persecution for criticism was also prohibited. Let us not forget that at the same time, an act such as "the deliberate dissemination of false fabrications defaming the Soviet state and social system" was punishable by the Criminal Code. On the one hand, a person had the right to criticize, but what would be considered false information? If a person applied and had to receive information first, who would give it to them? In other words, on the one hand, the Constitution claimed one thing, while the Criminal Code did another; accordingly, the said article was a stillborn article;

Article 48 of the 1978 Constitution indicated that: "In accordance with the interests of the people and in order to strengthen and develop the socialist system, citizens of the Georgian SSR are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations. The exercise of these political freedoms is ensured by putting public buildings, streets and squares at the disposal of the working people and their organizations, by broad dissemination of information, and by the opportunity to use the press, television, and radio." This was the main novelty that distinguished the 1978 Constitution from earlier constitutions and was a step forward compared to them; but it was a massive step backward compared to the 1921 Constitution, because what we had in 1921 was returned to Georgians 57 years later during annexation in a functionless/contentless form. First of all, it must be pointed out that all main means, including television, radio, and print media, are the property of the state. That is, the means someone must use to speak freely is in the hands of the party—so what freedom are we talking about? The second most important part is that the article is divided into several parts, namely:
a) In accordance with the interests of the people – the interests of the people for the communists constantly meant the interest of the party. The interest of the individual did not exist; only and exclusively the interest of the party existed;
b) In order to strengthen and develop the socialist system, are guaranteed – meaning, freedom of speech could only and exclusively be used for the development of the socialist system. And if I am a capitalist? An anarchist? A Laborite? Do these rights not belong to me?
c) The exercise of these freedoms is ensured by putting public buildings, streets and squares at the disposal of the working people, and by the opportunity to use the press, television, and radio – when all these means, whether a building or a square, are the property of the state?  

Consequently, this provision is nothing. In the hierarchy of rights, a right that is unenforceable is not a right. It is the same as if a court decision had no force of execution; it would remain as a recommendation. And/or if there is no sanction for a crime provided by the Criminal Code, both the law and the court decision are recommendations to be "taken into consideration," without any force. To counterbalance this, the formulation of the 1921 Constitution regarding freedom of speech is close to our Constitution even today, for example:

1921 Constitution: "Every citizen has the right to express and disseminate their thoughts verbally, in print, or by any other means without prior permission from the government."
Constitution of Georgia after the 2017 amendments: "Freedom of thought and its expression is protected. Persecution of a person for thought and its expression is inadmissible. Everyone has the right to freely receive and disseminate information."
While the 1978 Constitution read: "In accordance with the interests of the people and in order to strengthen and develop the socialist system, citizens of the Georgian SSR are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations." Only the latter imposes an obligation on the individual, whereas the 1921 and today's Constitutions affirm (guarantee) a right;

And why is freedom of speech necessary? What is it about it that an individual cannot exist without? The best answer to this is that even one of the fathers of the evil empire, in his letter of 1951, emphasized how good freedom of speech is: "In no country is there such freedom of speech, press, individual, organizations and workers, peasants and intelligentsia as in the Soviet Union." Even he believed that freedom of speech was the most important, but there is one "but": this freedom was to be used only for criticizing capitalists. That is why when speaking about the Soviet Union, first and foremost, we are speaking about a country where criticism was prohibited and evil/violence against the individual in the name of individuals was permissible;

Even common courts, in some cases, make such an interpretation: "Freedom to disseminate information or ideas may be more a matter of public interest than the protection of the rights of an individual" (Decision on case №2b/1476-12). Accordingly, freedom of speech is not illusory, but on the contrary, a continuously active right, without which the free individual cannot exist—the very individual who was to be consolidated by the 1921 Constitution;