The 1921 Constitution, or Georgian True Justice

When we discuss Soviet rule and the totalitarian regime it established, which led to the physical destruction of millions of dissenting individuals, it is absolutely essential for us, as citizens of independent Georgia, to realize what exactly the Soviet system changed, and what rules and orders it dismantled;

The Soviet system, in its essence, proved to be unacceptable, not least because it prohibited private property, business activities, political activities, political parties, freedom of movement, and doing business independently of the state. It banned assembly and manifestation; even protesting was prohibited. Imagine a state where everyone and everything was saturated with the dictate of the state, and whether you wanted to or not, you had to obey the state alone. In other words, the individual as a given, or the individual as the highest legal good—that is, the human being as the supreme subject of protection—did not exist in the Soviet Union. The state or state interests constantly stood ahead of the individual or their rights;

Today it may seem ridiculous, but in the Soviet Union, it was forbidden to teach karate without permission. Imagine a legal reality where the state demanded that it be informed of this, and you could only carry it out with its permission. In contrast, in 1921, we adopted a Constitution based on which, had we continued our independent existence, we would be a completely different country today. A different country in the sense that we would certainly possess our historical memory, an independent judiciary would have been established, along with a corps of lawyers, the value of property, business practices, etc. All this was affirmed for the citizens of Georgia by the 1921 Constitution. Consequently, the Soviet Union completely absorbed such pillars as the court, the prosecutor's office, the bar, and the execution of sentences, leaving the individual face to face with the state. Therefore, I will try to minimally explain the merits of the 1921 Constitution and the rights it guaranteed to the individual, i.e., the citizens of Georgia;

First and foremost, I will touch upon the court as the most important institution of the 1921 Constitution. According to the 1921 Constitution, there was one supreme court—the Senate, which reviewed cases in cassation proceedings and was staffed by the parliament (it is telling that it took us about a century to return this same rule to our legal space):

The competence of the Court of Cassation included two matters:
a) To oversee the observance of the law (in today's terms, the court of cassation reviewed a case only on the grounds of whether the law was violated; that is, the court of cassation was not a fact-evaluating court but functioned as a court interpreting the law);
b) To administer the judicial branch as a court of cassation (this implies the principle that an appeal against a decision of a lower court had to be submitted to a higher court in order to check the legality of that decision).
Furthermore, after 1919, the Senate consisted of a General Assembly, a Joint Council, and Cassation Departments of Criminal and Civil Law. The Cassation Department of Civil Law included an administrative section;

In addition, the highest structural body of the Senate of Georgia was the General Assembly (the ancestor of today's High Council of Justice), which carried out the most important functions. It was authorized to appoint judges to the common courts of Georgia, court chairpersons, and their deputies, to conduct disciplinary proceedings against judges, including senators, and to review cases under a special procedure. The most complex issues were reviewed by a large group of senators at the General Assembly of the Cassation Departments.

The field of law was divided into three parts: civil, administrative, and criminal law. Regarding the independence of the judiciary, according to the Constitution, the court obeyed only the law and was independent from any branch of government; moreover, a court decision could only be altered by the court itself. The legislator (the parliament), the executive branch, and the administrative body could not do this (this is also an echo of legal principles that was later reflected again in the new 1995 Constitution of Georgia);

It may be astonishing to talk about this today, but one of the major achievements was the establishment of elected justices of the peace. In the democratic republic of 1919-1921, the people elected the judges. The electability of judges was an unprecedented step taken after achieving independence from the Russian Empire, and it remains unprecedented today. In addition, there was an institution of jury trials (for serious criminal, as well as political and press offenses, the institution of jury trials exists). Moreover, court hearings were public, except in exceptional cases.

Imagine, as early as 1921, the Constitution of Georgia stipulated that in the event of a person's arrest, they had to be brought before a court immediately, but no later than 24 hours (exceptionally within 48 hours). After this, the court had to decide whether to extend the person's detention (a standard higher than today's European standard). If this deadline was not met, the judge was authorized to release the detainee immediately (unlike the Soviet reality, where pre-trial detention could last 10 days). Today this may seem normal to us, but even a century ago, our constitution recognized that principles not explicitly written in the constitution exist if they inherently derive from the principles of the constitution itself. For example: the guarantees and rights enumerated in the Constitution do not negate other guarantees and rights which are not mentioned therein, but inherently derive from the principles recognized by the Constitution;

Furthermore, the state and the church were separated. As many European countries later did, the state and the church were separated at the constitutional level (Article 142. The State and the Church are separated and independent). No single faith enjoyed superiority, and the most important provision, which is not even reflected in today's constitution, was the following: expenditure from the state treasury and from the funds of local self-governments for the needs of religious affairs is prohibited;

Whenever we touch upon issues of faith or religion, we must first of all remember and comprehend that when religion and the state enter into an agreement, this agreement inevitably leads to the disappearance of a state governed by the rule of law. Because paying funds and receiving support from religious organizations in return creates interdependence, which inevitably leads to a theocratic state that does not recognize the individual as the most important entity. 

While the 1921 Constitution recognized administrative proceedings, administrative proceedings meant that you could appeal an action of the state in court, and the court decided whether the executive branch acted correctly. To put it simply: you want to build a house, and the mayor's office or the municipality denies you. This constitution gave you the right to appeal this refusal. But the Soviet constitution declared that:
a) Land is the property of the state, and therefore, the citizen has property rights only to the building;
b) Not only did you not have the right to a building permit, but you did not even have the right to appeal the action of the executive branch.
Imagine a legal reality where the state refuses to allow the court to verify decisions made by the state. Administrative law did not exist in the Soviet Union. That is, the individual in the Soviet Union did not even have the right to an unjust trial, let alone a just or unjust decision;

While the 1921 Constitution recognized, for instance, property rights and did not allow the forced deprivation of property except in exceptional cases, the Soviet constitution destroyed the classical understanding of property rights. While the 1921 Constitution prohibited the death penalty, the Soviet Union, on the contrary, introduced the so-called "Troika" and the death penalty, recognizing it as a common form of punishment;

If independence as a given is necessary for the individual at any time and under any circumstances, it is essential to remember that what the 1921 Constitution offered was the development of the individual. There is much skepticism here regarding what this changes for society. It changes everything in the sense that if your right is violated, you must have a court to defend yourself from the state; if you are denied the right to work, you must be able to defend yourself from the state.Imagine, the 1921 Constitution granted the right to 50,000 people to petition the parliament to revise the constitution. Moreover, another provision of a different scale causes admiration (which we do not have in our constitution even today): "The government has a chairman, who is elected by the parliament for a term of one year. The same person may be elected consecutively only twice." In other words, to prevent any kind of concentration of power in the hands of one person, the constitution prohibited appointing a person as head of government for more than two consecutive terms. This lever was a purely democratic principle embedded in the constitution from the very beginning, a reality we lack today;

Today there is much talk about the judicial system, but the greatest value of the 1921 Constitution was that a judge could be elected by individuals (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 local district zemstvo assembly). When we talk about what the memory of Georgia or the Georgian legal system is and/or could be, it must be noted right there that back in 1921, we, as citizens of the country, had the right to elect judges, and this right was our constitutional right, which we do not have today. When we talk about the 1921 Constitution, it is traditional for us, and this traditionality means one of the main things: the individual must have the right to elect a judge.

Besides this, it is possible to talk about many other merits of the 1921 Constitution. However, even the short list provided here (including equality between the sexes, granting voting rights to women) makes us think that our ancestors, including our legal ancestors, chose approximately the state structure we have today: a democratic state governed by the rule of law, where everyone is equal before the law, and most importantly, the "individual" is paramount. Therefore, this is precisely the tradition of the Georgian state, a legal tradition that the Soviet Union did not allow to exist;

Why "true justice" and not just justice? For me, this constitution resonates with The Knight in the Panther's Skin, where justice does not exist merely as a given, but rather as "true justice" (მართალი სამართალი). Because justice may exist but not be righteous/true, whereas true justice is a completely different dimension saturated with universal human values. Accordingly, the 1921 Constitution was, is, and will be "true justice";