Introduction

On December 3, the Constitutional Court of Georgia published the inadmissibility decision made by plenum on November 29 on the constitutional lawsuits filed by the president and 30 members of the parliament, which concerned the constitutionality of norms regulating the parliamentary elections and the election of October 26 held on the basis of these norms.[1]

Judge Teimuraz Tughushi submitted a dissenting opinion on secrecy of voting and the possibility of voters abroad to participate in elections. Judge Giorgi Kverenchkhiladze also wrote a dissenting opinion on the part of the claim, which concerns the possibility of voters abroad to participate in the elections.

The main claims of the president and the members of the parliament were related to the recognition as unconstitutional of the following normative content of the electoral legislation, according to which:

1. The Central Election Commission (CEC) is not obliged to ensure access to participation in elections for voters living abroad without unreasonable obstacles, including by creating polling stations, taking into account their location;
2. The CEC is not obliged to conduct the voting procedure in such a way that the principle of vote secrecy is respected and normative content created the possibility of violation of vote secrecy due to the failure to consider the technical information about the ballot paper, frame-envelope and special marker;
3. The summary protocol on the 26th October 2024 Parliamentary Election Results were constitutional;
4. The CEC is authorized to register the newly elected members of the Parliament and issue a temporary certificate of their election as a member of the Parliament in the event that the case on the constitutionality of the electoral norms and the elections held on their basis is pending before the Constitutional Court.

The president and the members of the parliament also demanded to suspend the validity of the disputed norms until the final decision on the case was made, arguing that the convening of the newly elected parliament based on the summary protocol of the Central Election Commission (which does not reflect the real will of the voters) before the final decision was issued would make its implementation impossible.

Social Justice Center believes that the said ruling of the Constitutional Court is completely unfounded, is in direct contradiction with the well-established practice of the Constitutional Court and the rules of constitutional proceedings, and is a demonstration of the Court's abdication of its most important competence, which is another dangerous precedent in the conditions of the absolute concentration of power in the hands of the ruling political party.

Context of the Case on the Unconstitutionality of Elections

According to the assessment of the authoritative local observation missions, large-scale and fundamental violations were revealed during the October 26 elections, including the systematic violation of vote secrecy and influence on the will of the voters, breach of the basic voting procedures and interference with the activities of the observers,[2]  voter recording and organized mobilization, voter coercion and intimidation, bribery of voters and multiple voting, manipulation of polling stations. According to the assessment of the observation missions, the mentioned violations called into question the legitimacy of the conducted elections.[3] According to the OSCE International Monitoring Mission, the secrecy of voting was often compromised and there were reports of intimidation and voter pressure.[4] The results of the elections were not recognized by the opposition parties and the President of Georgia. According to the resolution of the Parliament of the European Union on November 28, the parliamentary elections held in Georgia were not free and fair, and the authorities called for holding new elections.[5]

Filing of the constitutional lawsuits with the Constitutional Court was preceded by proceedings in common courts regarding gross violations identified by political parties and local observation missions on the Election Day. In particular, on October 29, the Georgian Young Lawyers’ Association (GYLA) started a legal dispute with the request to invalidate the results of the elections in all 73 election districts (in total 2263 polling stations) due to the violation of vote secrecy. The satisfaction of the lawsuits regarding vote secrecy would form the basis for holding new elections. However, out of 24 first instance courts, only Tetritskharo district court found the violation of vote secrecy. In the rest of the cases, the lawsuits of GYLA and other observation missions were not satisfied. These decisions were upheld by the appellate courts.

Thus, after the common courts rejected the lawsuits about vote secrecy and other serious procedural violations, the only avenue to legally resolve the political crisis caused by fundamental doubts about the legitimacy and fairness of the October 26 elections was to appeal to the Constitutional Court.

The president and the members of the parliament appealed to the Constitutional Court on November 20 and 21. The newly elected parliament convened for the first session on November 25, and on November 28, it expressed confidence in the government. It should be noted that the position of the Constitutional Court regarding the case under consideration became clear when, instead of scheduling a court session on admissibility of the case immediately after the registration of lawsuits or reviewing the admissibility of the lawsuit, the court met the assembly of the newly elected parliament with silence. With this inaction, the Constitutional Court practically made the further case consideration devoid of meaning.

Manifest Lack of Substantiation

An important competence of the Constitutional Court is the consideration of disputes regarding electoral rules and the constitutionality of the elections conducted based on these norms. In addition, the recognition of disputed norms as unconstitutional by the court is the basis for invalidating the results of the conducted elections, if the normative act had a significant and decisive influence on the outcome of the elections and in the absence of it or its part, the result would have been different.[6] Throughout 28 years since its establishment, the Constitutional Court has not set a precedent on the recognition of election results as unconstitutional. Therefore, in addition to solving the political crisis, the said case gave the court the opportunity to provide the interpretation of this constitutional competence. However, the Court abdicated its authority.

Alongside abdicating one's own competence granted by the Constitution of Georgia, the reasoning developed in the court's inadmissibility decision cannot withstand criticism.

As already mentioned, several issues were disputed in the constitutional lawsuits, in particular, enjoyment of the right to vote by Georgian citizens living abroad; the secrecy of voting; the time limits for appealing the decisions of the precinct, district and central election commissions or their heads, and for considering the appeals; rules on the registration of the newly elected members of the parliament and on the issuance of temporary certificates for them by the CEC; recognition as unconstitutional of summary protocols on election results held on the basis of these norms. However, clearly, the essence of the dispute was related to the declaration of the results of the 2024 parliamentary elections as unconstitutional, to which end the plaintiffs pointed out various aspects of the entire process of conducting the elections. It is also obvious that despite the diversity of the disputed issues, an alleged violation of one of the 5 fundamental principles of democratic and fair elections (universality, equality, freedom, secrecy, directness)[7] played a crucial role in this dispute. If confirmed, the constitutionality of the parliamentary elections would be questioned, as according to the plaintiffs, the violation of vote secrecy concerned approximately 90% of the voters.

In the ruling, the Constitutional Court devoted most of its reasoning to 2 assertions: a) the constitutional claims are unfounded, as the plaintiffs failed to provide relevant evidence; b) In terms of vote secrecy, problems may exist in the actions of the election administration, but not in the content of the disputed decisions and legislative norms. Thus, according to the Court’s reasoning, it was deprived of the opportunity to discuss the constitutionality of the disputed norms and, accordingly, the elections held on their basis. 

First of all, it should be noted that the logic of the reasoning developed in the ruling reveals that the Constitutional Court not only refused to recognize that the dispute was about democracy, and more so, the constitutionality of parliamentary elections in a parliamentary democracy, but its reasoning did not even minimally touch on the fundamental electoral principles, namely, the right to vote (active suffrage) and the Constitutional Court’s competence in protecting it. The court devoted a significant part of its reasoning not to discussing the existing legal standards and constitutional guarantees on the right to vote, and to determining the compatibility of the disputed norms with them, but to listing the possible circumstances limiting the exercise of this right. For example, regarding the right to vote for Georgian citizens living abroad, the court explained that "...citizens' participation in elections, in itself, is related to meeting certain requirements, citizens naturally have to go to polling stations, possess a valid identity card, go through marking procedure and so on. Accordingly, meeting certain requirements for voting is inevitable, and in some cases, it is a necessary prerequisite for ensuring fair elections. Thus, setting a certain barrier to participation in the elections, including the non-opening of the polling station in one or another place, does not in itself indicate a violation of the right to vote. The violation of the right may occur if it is established that the state, under the conditions of providing reasonable resources, had the opportunity to cover a wider electoral geography abroad, to open polling stations in additional locations under the condition of properly organizing the elections, and it did not implement it... for proper fulfillment of the right to vote, it is not enough for the voter to be formally given the opportunity to vote by opening the polling station. At the same time, it is necessary that the choice be made in a free environment, without undue pressure."[8] Paradoxically, the court paid attention to the review of the state's positive obligations under the right to vote only in this part, and eventually, the plaintiffs were asked to demonstrate whether the state had a reasonable opportunity to ensure the enjoyment of the right to vote and did not implement it.

First of all, with the above reasoning, the court does not discuss the admissibility of constitutional complaints, but the proportionality of the interference with the right, which is the next stage of constitutional proceedings. An even more problematic part is the Court’s ignorance of the nature of constitutional proceedings and its mandate, according to which, when identifying the constitutionality problem of a norm, it has the opportunity to investigate this issue itself in a public session, with the participation of both parties and by finding the necessary evidence. Constitutional proceedings are not strictly adversarial, where the court is only bound by the positions of the parties and the evidence presented before it. The Court has the opportunity and even the obligation to investigate all the necessary issues important for the resolution of a dispute and make a final decision on a specific issue by properly interpreting the existing constitutional and legal standards and by assessing the compliance of the disputed issue with them. This was more so, once again - as this dispute fundamentally called into question the constitutionality of the most important instrument of democracy - elections.

The court's argument was also unfounded as to the issuance of temporary certificates by the CEC to the elected members of the Parliament after announcing the summary results of the election as well as to the alleged irreparable consequences of recognizing the mandates of the new Parliament before the decision of the Constitutional Court. As the practice of the Constitutional Court on the constitutionality of the conducted elections is practically non-existent, and in the case of other competences, decisions do not have a retroactive effect, the Court should have been the first to be aware of the validity problems of the final decision, which once again related to proper perception and interpretation of own competences. The court's silence on the fact that, despite the lawsuit’s registration, Georgian Dream did not wait for its consideration itself regulated by a tight deadline (30 days), convened the first session and recognized its mandate in a one-party mode, is also directly related to the Court’s problematic understanding of its own competence and, more broadly, constitutional mandate. It is true that the chairman of the Constitutional Court, Merab Turava, as a representative of the constitutional body, did not attend this session, however, he explained this decision by the need to work on complaints,[9] and not by the fact that the decision of Georgian Dream was the manifest expression of the total political disregard of the competence granted to the Court and it as a constitutional body.

As for vote secrecy, the Constitutional Court considered that the problem indicated by the plaintiff was not related to the content of the contested norms, but to the actions of the election administration (ballot and/or marker selection). In addition, according to the court's reasoning, if the problem was the indeterminacy of the disputed norm and their interpretation „by itself implied“  the violation of vote secrecy, then the plaintiffs could challenge the so-called „establishment norms“ rather than the procedures. Accordingly, the constitutional complaints were held to be unfounded in this part as well.

First of all, it should be noted that the court reasoning does not mention the disputes in the common courts on mass violations of vote secrecy filed by the monitoring organizations, or the results of these disputes, which were reflected in the final decisions, despite the fact that this issue was discussed in the constitutional lawsuits. Neither did the court take into account, among other things, the explanations from the election administration available through public sources, which appeared in the disputes in the common courts. A thorough investigation of these issues would have been possible through an oral hearing, if the court had decided to conduct such a hearing, which it refused to do. Accordingly, in the end, in the process of interpreting the disputed norms, the Constitutional Court was only guided by their literal meaning, which does not meet even the basic requirements of constitutional-legal interpretation and reasoning.

Beyond the discussion of the disputed norms, subject to criticism is also the approach of the Constitutional Court ignoring the firmly established court practice on the consideration of not only literal meaning of the contested norms, but also the contents assigned to them by common courts.  The basis for the recognition of the specific normative content of the disputed norms as unconstitutional by the Constitutional Court was laid years ago precisely because, otherwise, the results of bad faith and unconstitutional interpretation of the norms by various branches of the government would be left beyond court mandate. In this case, the present content was given to disputed norms in practice precisely through the interpretations of election administration and common courts. Thus, by disregarding this explanation and through such superficial reasoning, the Constitutional Court openly ignored its own established practice and its goal to ensure that the constitutional control is in accordance with the basic values, principles and norms of the Constitution and is in fact operational.

In summary, it should be noted that the majority of the Constitutional Court Justices responded to this precedential dispute regarding the constitutionality of the 2024 parliamentary elections with unsubstantiated and narrowly legalistic arguments and did not even hold a public, oral hearing on it. In this manner, the court itself formally undermined its own constitutional status and the core competence of assessing the constitutionality of elections, soon after Georgian Dream had politically ignored its role, which the court, unfortunately, did not even react to.

Degradation and Capturing of the Constitutional Court

Unfortunately, the ruling of the Constitutional Court on November 29 was not an unexpected exception, but a logical continuation of its practice in the recent years, even a kind of its culmination.

The Constitutional Court was one of the first constitutional bodies that Georgian Dream tried to capture shortly after coming to power, during its first term of government. Georgian Dream finally achieved this goal during the following years by using the different methods that modern authoritarian regimes have created through the abuse of constitutional-legal principles and mechanisms for undemocratic and illiberal purposes.[10] In 2012-2016, the Constitutional Court made a number of precedential and progressive decisions focused on a broad definition of human rights, which had a significant effect on its practice until recently. However, this practice was unacceptable to the governing party. As a result, the authorities first resorted to a discrediting campaign against the judges who authored these decisions,[11] and then through legislative amendments,[12] tried to limit the powers of the court or to modify it in a way that they created an advantage by giving disproportionate powers to its appointed minority members.[13] At the same time, with the appointment of the Court’s new members, whose integrity and qualifications raised legitimate questions in public,[14] the ruling party finally created a favorable environment in the constitutional body, which, alongside the protection of human rights, should be the main institution responsible for effectively ensuring the separation of powers and checks on the political branches.

Therefore, it is not surprising that as the Constitutional Court’s obedience increased, so did the number of cases in which the court failed to protect the above-mentioned fundamental values ​​and preserve for itself the public trust and institutional reputation that it had gained in the previous years. The first signs of the increasing capture were shown by unjustifiable delays in considering and deciding important constitutional complaints[15] and passively, "weakly" supporting the political aspirations of the government. However, in the last 5 years, in parallel with the completion of the appointment of Constitutional Court judges and the growing political crisis, the court has shifted from a passive, silent acquiescence to active reinforcement of the government’s authoritarian aspirations due to political expediency. The latter not only blatantly contradicts the most basic principles of the rule of law, but also causes irreversible erosion of the constitutional order and democratic institutions.

Examples of strong forms of support for the authoritarian aspirations of the government have become even more visible in the recent practice of the Constitutional Court. For example, in the so-called "Covid cases",[16] the court upheld the constitutionality of practically complete delegation of the parliament’s powers to the government, thus, failing to ensure effective constitutional control over the balancing of competences between the legislative and executive branches.[17] In the case on the „State Inspector Service" related to the accelerated disbanding of the said independent institution by the Parliament and the violation of the rights of the head of the same service - Londa Toloraia, the court first delayed the consideration of the dispute in such a way that it actually lost its meaning, and then partially satisfied it in a way that there was no remedy in practice.[18] The more recent example of such a sad transformation of the court was the public hearing of the constitutional lawsuits presented by the civil society and media organizations against the "Russian law" and the interim decision.[19] These proceedings already showed the Court's loyal, non-critical attitude towards the executive and legislative authorities, not to mention the unsubstantiated decision rejecting the suspension of the disputed norms. In this manner, the court refused to effectively protect the fundamental rights of civil and media organizations, their members and beneficiaries.

The Opportunity Lost to Return to the Constitutional-legal Framework from the Crisis

As mentioned above, in view of the well-founded doubts expressed by authoritative local and international organizations regarding the legitimacy of the results of the October 26 parliamentary elections, none of the opposition political parties, and the president, recognized the results of the conducted elections. As a result, the newly elected parliament was composed of one party and a deep political crisis ensued. The situation was further aggravated on November 28, when the ruling party decided to suspend the negotiations on joining the European Union until 2028 against the declared will of the Georgian people and the large-scale public protest started in response to it.

The unique function of the Constitutional Court as the guardian of the Constitution in the constitutional order manifests during political crises when the Constitutional Court creates instruments for legal resolution of the crisis. In this case, such an instrument would be the recognition of disputed electoral norms and election results as unconstitutional, which would become a prerequisite for holding re-elections reflecting the real will of the Georgian people in the parliamentary mandates. In contrast, the Constitutional Court, refused to admit the case for consideration on its merits with inappropriate legalistic arguments and without conducting an oral hearing. With this decision, the only legal means of overcoming the current acute political crisis was practically lost. Moreover, the Constitutional Court in its judgement in fact recognized the results of the illegitimate elections conducted with fundamental flaws as constitutional.

Conclusion

The Constitutional Court's ruling of November 29 is a continuation of the policy of obedience to the ruling political party, firmly established by the Court in the recent years, and is another indication to citizens and other subjects that this Court has completely abandoned the judicial activism established in the past decade. Instead, the Court is actively normalizing the elements of authoritarianism formalized by the legislative acts under the constitutional-legal regime, thus, creating a paradox that the principles of the democratic and Rule of Law state affirmed in the constitution acquire the contents of growing authoritarianism in practice. Over time, along with the growth of the authoritarian aspirations of the government, the coexistence of such formal democracy and factual authoritarianism becomes more and more complicated. If this severe political crisis is resolved in favor of the constitutional democracy, in order for the court to regain its real function, the Constitutional Court must become one of the central targets of the democratic reforms to be implemented.

Share