31 October 2023Georgia

The Fight for the Justice System in Georgia

‘Majoritarianism’ and ‘juridification’ in the service of clan governance

by Vakhushti Menabde
© ifact.ge

Judicial independence is a key issue for Georgia. Despite immense international support (the German Society for International Cooperation, among others, has for many years helped the judicial reform in Georgia) this issue was not resolved either after the Rose Revolution when the revolutionary government failed to resist the temptation to subdue the judiciary, or after the coming to power of the Georgian Dream party that created its own model to bring about the subjugation of the judiciary branch. (Ironically, Georgia's Parliament speaker Shalva Papuashvili worked for a long time with the German judicial reform project). In his article, civic activist and associate professor at Ilia State University Vakhushti Menabde writes about the model of ‘clan governance’ of the judicial system. This article has been the first attempt to describe the history and structure of the ‘clan governance.’ Vakhushti Menabde also exposes the invisible internal ‘shadow governance’ structures, typical not only for the judicial branch or only for Georgia but also for most post-Soviet countries.

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Judicial independence has always been crucial to Georgia's domestic policy even though in recent years it began to assume importance in foreign policy as well. On June 16, 2022 the European Commission gave Georgia twelve recommendations in order to to obtain an EU candidate status. One of the recommendations related to the justice system.

Today Georgia’s justice system is under the full control of an influential group of judges (the so-called ‘Clan’). There is an unspoken agreement between the Clan and the political authorities under which any court case the Georgian authorities deem important is to be decided upon in a way favourable to the ruling Georgian Dream (DG) party. In return, the party almost never interferes with the judicial system or affects decision-making in most cases. This may create the feeling that the judicial system is autonomous but in reality individual judges are far from being independent.

GD came to power in 2012 and has been ruling the country ever since. It took over the administration of the judicial system from the United National Movement (UNM). It was GD that contributed to establishing clan governance in this system and reaching an unspoken agreement with it. The present day model is totally different to that under the UNM. Before, everything was directly subordinated to the ruling group. Now the Clan enjoys autonomy but employs it not in society’s interests but rather to gratify its own ambitions and to achieve its own prosperity. The other side of the bargain is that the Clan members must rule on important cases so as to please the ruling party.

The purpose of this article is to describe the Clan governance of Georgia’s judicial system, to reveal how it came about, how it developed and how it is functioning today.

1. The Background to the Reform

In the first half of 2012, when the UNM was still in power, the Coalition for an Independent and Transparent Judiciary comprising over thirty non-governmental, business and media organisations published a detailed report presenting a systemic analysis of the disastrous situation of the judicial system which was at the time controlled by a ruling group that included the Minister of Justice Zurab Adeishvili. The fundamental problems singled out in the report were the ‘inadequate involvement of the corps of judges in the processes’ and the ‘concentration of powers into the hands of one entity.’ Accordingly, solutions to the problem were proposed through promoting internal democracy and ensuring the independence of judges, both of which measures would lead to political disengagement.

Georgia is a unitary state. Within the then legal network an elected president and a majority in the single-chamber parliament were able to directly and freely control the judicial system’s authorities that had the powers to appoint and remove judges. The main problem was ‘majoritarianism,’ (a logic of distribution of authorities in which the opposition cannot influence the processes).

Based on these premises, the then oppositional GD explicitly stated in its election programme that the UNM was in control of the judiciary system which became a ‘section of the Prosecutor’s Office.’ The new authorities immediately began to reform the judicial system which at the time was headed by the Minister of Justice Thea Tsulukiani.

2. The Defeat of Georgian Dream and the Formation of the Agreement

The three-tier general court system in Georgia consists of city courts, appeal courts and cassation courts as well as over three hundred judges. According to the Georgian Constitution, the system is governed by the High Council of Justice (HCoJ). A majority of its fifteen members are elected by a conference of judges. Out of the lay members of the HCoJ one is appointed by the President, five by the Parliament (by a 3/5 majority) whereas the chairman of the Supreme Court holds an ex officio membership. The HCoJ appoints and removes judges of the two lower courts. The Supreme Court judges are appointed by the Parliament on representation of the President, and since 2018 on representation of the HCoJ.

The reform started in 2013 году and its ‘first wave’ was approved by the Parliament on May 1 of that year. The changes for the most part were based on the Coalition’s recommendations. However, the authorities could not avoid criticism of their attempts to bring the judicial system under their influence. Most of the criticism was directed towards the premature removal of judges and the appointment of the HCoJ judges. In both cases, the judiciary and the parliamentary majority had decisive votes whereas the parliamentary minority was deprived of the opportunity to influence the process. The majoritarianism remained in place.

Instead of creating institutional guarantees to staff the HCoJ with members who would be unbiased and hence capable of consensus (thus creating a system that would be entirely free from external influence and resistant to internal influence) the leaders of GD from the very beginning chose to look for ‘reliable’ candidates which was detrimental to the reputation of the reform. Supposedly, the new government was thus trying to cleanse the system of people loyal to the old regime and replace them with those loyal to the new one.

Despite that, the parliamentary majority did not achieve its goal and subdue the judicial system. In a few weeks after the new law was passed the judges held a conference and elected new HCoJ members in a victory that was won by judges who were in opposition to GD. The government had to take the next step towards its goal. That is why it decided to reduce the influence of the majority in the HCoJ, to limit its power and to delay the lifetime appointment of opposition-minded judges.

At the end of 2013, the amended Constitution went into effect. It introduced the lifetime appointment of judges instead of the ten-year judicial term provided for in the previous Constitution. However, the constitutional amendments stipulated a three-year probationary term before lifetime appointment which was exactly the loophole GD took advantage of. As a result, the HCoJ was no longer able to directly appoint judges for life.

This was an essential part of the judicial reform’s ‘second wave’ that elicited criticism from courts as well as internal and external observers. At the same time, the events took a dramatic turn at the HCoJ where a confrontation began between the elected judges and the lay members appointed by the new authorities.

A fundamental change to the strategy of the authorities came during the third stage of the reform. In the spring of 2015 the Ministry of Justice prepared a package of amendments three of which deserve attention: (1) chairmen of courts were to be elected by the judges; (2) the quorum required to elect lay members of the HCoJ was to be reduced to an absolute parliamentary majority; (3)  the number of the Supreme Court members was to be raised to twenty-eight. The first of these amendments was meant to weaken the vertical structure working against GD; the second one was aiming to make deciding on the HCoJ members appointed through the parliamentary quota dependent on the tastes of the political majority; the third one was making it possible to create a new balance of power in the Supreme Court. Only the first amendment was appreciated by the Coalition.

The first parliamentary hearing on the draft amendments was held in October 2015. The consideration of the amendments was soon suspended and only continued a few months later. It is beyond doubt that the authorities and a group of influential judges reached an agreement within that period. Remarkably, the package of amendments had at that point been significantly changed to give more power to influential judges. The ‘third wave’ of the reform was finally approved in early 2017.

By that time, it was clear that the confrontation between the authorities and the Clan was over. There was an agreement that enabled the political authorities to influence the judicial system whereas a group of influential judges had received guarantees of immunity and a carte blanche for internal governance control.

The main goal of the ‘third wave’ of the reform was to remove legislative barriers placed in the way of the clan governance of the judicial system. All the ensuing legislative reforms – be it the ‘fourth wave’ (2017–2019) or the legislative adoption of the Supreme Court judges’ appointment procedure – only served to create the illusion of progress. The leading role in this process went from the Ministry of Justice to the Parliament which was in favour of pursuing ‘juridification’ (i.e. replacing political processes with legal procedures and using technocratic methods to resolve political issues) but left the majoritarian logic intact.

That was also the period when the constitutional reform started (it was approved by the Parliament in late 2017). Despite positive changes (such as appointing lay members of the HCoJ based on consensus) the proposed measures did not prove to be sufficient to achieve a breakthrough in the judicial reform, especially since the entire constitutional system remained within the majoritarian logic.

An important stage of the reform was the adoption of the cassation courts staffing procedure which was followed by the long and intricate process of approving the Supreme Court judges first at the HCoJ and then at the Parliament amidst the confrontation between the authorities and the Clan on one side and the opposition, the civil society and international players on the other side. This process soon turned into a farce because ‘newly enacted regulations could not stand in the way of the “Clan” sending such candidates to the Parliament as were acceptable to them’. The Parliament approved fourteen out of twenty candidates nominated by the HCoJ.

Everything had come full circle. Originally, there was hope, albeit groundless, that GD would not cede the cassation courts to the Clan, but then it became obvious that the Clan and the authorities simply divided the vacancies between themselves. At the beginning, the ruling group tried to cleanse the system of people loyal to the old regime and replace them with those loyal to the new one, but then it took measures to guarantee ‘Clan governance’ of the judicial system and at the same time to create the illusion of progress.

3. Shifting the Reform Paradigm

The idea of subordinating the judicial system to the interests of the political authorities was flawed from the very beginning but it took observers a few years to understand that fact. Although the first Coalition report criticised the majoritarian system, the second comprehensive report did not.

The leading judicial reform paradigm for GD initially was that of juridification. The early criticism of the judicial system was aimed at the identification and elimination of the political power support instruments within the system. However, after the change of power in 2012, the reform was redirected at elaborating procedures and improving technocratic elements. Since 2014, the principal sponsors and supporters of this paradigm have been Georgia’s foreign partners, the Ombudsman and the majority of the civil sector who have been basing their model on the belief – shared by the Venice Commission (the European Commission for Democracy through Law of the Council of Europe), the OSCE and other international organisations as well as the expert community – that the transparency and legitimacy of judicial decisions or the compliance with the rules of appeal can alone provide the country with an independent justice system that will serve the public interest. On the contrary, the strategy of the political authorities and the Clan to tailor the judicial system to their interests proved to be realistic. The political authorities and the Clan fairly soon realised that the concept of judicial reform developed by the civil society would work in their favour because, as judicial system researcher Sopho Verdzeuli put it, ‘legislative reforms only specify the forms of the use of power and fail to influence the logic of power distribution’.

The civil sector started to adapt to the situation as late as in the second half of 2015, after the existence of an agreement between the political authorities and the influential group of judges became obvious (however, all the details of that agreement remained unclear until 2019).

The judicial system faced a political problem. No technocratic reforms could counter the alliance between the political authorities and the Clan. The solution to this problem would imply taking aim at power hubs. After this became clear to the civil sector, it took the civil sector and its international partners four more years to find appropriate solutions. On March 24, 2017 the Coalition issued a statement calling on the authorities to profoundly reform the judicial system and offering guidelines for that. In early May the Coalition published a detailed report analysing the deplorable present state of affairs. The report stated that ‘the government made certain concessions in the face of resistance from the judicial corps’ and expressed ‘serious suspicions about clan-based governance in the judicial corps.’ There soon followed the Coalition’s opinion on the draft of the Constitution of Georgia approved by the State Constitutional Commission at that time.

In connection with the constitutional changes the Coalition recommended (1) to change the rule of election of the five lay members of the HCoJ by the Parliament in a way that would ensure ’participation not only of the ruling but also of the opposition political forces’; (2) to abolish the probationary period for judges; (3) to appoint the HCoJ judges based on an open ballot and reasoned decisions; (4) to abolish the election of the Supreme Court judges by the Parliament on nomination by the HCoJ.

These recommendations still remained within the framework of the old juridification paradigm and provided neither a solution to the political problem of subordination of the judicial reform or a way to dismantle the system. The Coalition came a long way before it managed to adapt its vision to the changed realities. The turning point on the way to this happened at the end of 2018 when the HCoJ nominated ten candidates for the Supreme Court judges in a manner that offended everyone.

From that moment on, the civil sector and the international community began to tacitly admit previous mistakes and shifted focus from technical problems to political ones. This shift was reflected in their recommendations. Despite the juridification discourse remaining dominant, the recommendations began to raise more and more issues calling into question the existing system of power and offering to discuss issues important for consensus democracy such as the HCoJ’s decision making on the nomination of the candidates by double majority (with support of 2/3 of the judge members and a 2/3 majority of the lay members of the HCoJ) or appointing the Supreme Court judges based on a consensus between the ruling party and the opposition. In this context, especially important was the open letter by members of the civil society that openly stated: ‘It is fallacious to assume that drafting selection procedures and criteria for the Supreme Court judges could straighten the crisis, which the justice system is facing. The only way out of this dire situation is the resignation of members of the so called “Clan”, alongside with their 11 supporters sitting on the High Council of Justice and only afterwards could we truly talk about the reformation of the Council.’

The last straw that overflowed the patience of the civil society with regard to the technocratic approach was the law adopted in September 2020. The Parliament reinitiated the process of amending the rules for the Supreme Court composition, essentially following the recommendations of using a meritocratic approach to the appointment of judges. The Coalition decided that it had to fundamentally change its approach because the hitherto relied-upon theory had not paid off. ‘The problems of the Georgian justice system do not originate from the lack of procedures, but from government influence and the uncontrolled power of an informal group’, stated the Coalition which had for six years focused on procedural issues.

A democratic reform of the judicial system was outlined in two important documents issued by the Young Lawyers Association of Georgia in May and June of 2021. One document gave a conceptual framework different to the previous leading judicial reform paradigm. The other document provided specific recommendations in relation to the reform and a description of a democratic reform based on the transition from the majoritarian approach to the consensual approach. Of interest is the fact that the section of the ‘Charles Michel’ agreement (the agreement proposed by European Council President Charles Michel to the authorities and the opposition of Georgia on April 19, 2020) dealing with Georgia’s judicial system was still within the framework of the juridification paradigm and did not explicitly call for substantial reforms.

Very soon the Coalition developed a final concept of the judicial reform in the document entitled A New Perspective on Judicial Reform. The document included four points. The first two were related to the consensual composition of the HCoJ and other courts, the third point called for an investigation into and an assessment of the ‘Clan governance’ by a parliamentary commission; the fourth point pondered the possibility of ‘vetting’, i.e. re-establishing trust to the appointed judges by way of an additional assessment and, if necessary, replacing some of them. The Coalition did not see the point in discussing other issues before these four had been resolved. The main achievement of that period was that in its resolution focused on giving a meaningful role to lay members in the decision-making of the HCoJ, the Venice Commission for the first time brought up the need for consensus.

In conclusion, it must be noted that the confrontation between the juridification paradigm and the political paradigm was also a struggle for judicial power. Whose interests it was such judicial power intended to represent: the people or the power elites? In this unequal struggle, the Clan and the political authorities emerged triumphant because they were quietly building a network of power while the civil society and its allies spent all their energy on minor reforms. It took them nine years to realise the fact that it was the network of power and its hubs that had to be changed. During that time, they squandered their initial advantages.

GD and the Clan, on the contrary, did not waste their breath on defending unimportant outposts but instead strengthened the power hubs and system control centres. They conceded on a lot of issues that their opponents demanded within the juridification paradigm, but in return, bargaining on these issues, they bought themselves time to strengthen and complete the formation of the system.

4. The Solution: Consensus Democracy

A complex and difficult-to-describe problem needs a special approach. Therefore, there has been a fundamental paradigm shift in the approach of the civil society and international players to the judicial reform in Georgia.

Today no one doubts that discussing technical issues with the political authorities, such as procedural improvements, appeals, substantiation of judicial decisions etc., is but a game on a foreign field. All the main players both in Georgia and abroad agree that the liberation of the judicial system from Clan governance, its current subordination to the authorities’ orders and its future return to the service of the people, requires political reflection upon the question of power.

This creates a good opportunity to begin a discussion about a democratic system in the country. Today the political system is majoritarian which excludes broad segments of society from forming policies and exercising power. The above mentioned approaches that the Coalition’s concept of judicial reform and the agreement of April 19th rely upon, strengthen the support of the reform in the spirit of consensus democracy in Georgia.

It is the consensus democracy model that provides an instrument to help the country overcome the polarisation grounded in the zero-sum game logic. This model should bring a positive change not only to the justice system but also to all other political spheres across the country so that the state might at last serve the interests of the people and not of the elites.

Translated from Russian by Alexander Stoliarchuk

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