Reinstatement of Justice or Justice of Victors?

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The promise on which the Georgian Dream is trying most zealously to deliver now that it has come to power is the “reinstatement of justice.” For their part, voters who supported Georgian Dream seem also to be waiting very enthusiastically for fulfillment of that promise.

That very priority is a matter of great concern among those outside the ranks of the Georgian Dream. I am not referring here only to former public servants who might have personal reasons to be nervous. The international community is also closely watching unfolding processes with suspicion: It scored Georgia high in the way it conducted elections in October, but it is apprehensive about the new Georgian government vis-à-vis the Ukrainian scenario; that is, authoritarianism in future developments.

Internal Conflict

There is no argument that everyone must be equal before the law, including top brass. Nor can one exclude from the realm of possibility that a member of the Saakashvili team may be personally responsible for a wrongdoing.

On the other hand, we have every reason to reprove the former United National Movement (UNM) government for failing to convince people that the system of justice stands above political interests.

When the new Georgian government speaks of “reinstatement of justice,” it implicates both those issues: Guilty former civil servants must bear punishment. After that, as we are told, both public officials and ordinary people will “once and for all” understand that being in the government does not mean being immune from requirements of the law. At the same time, however, the justice system must operate independently of political interests.

The point is that efforts focused in those two directions threaten to conflict with one another. Freeing the justice system from political interests is incomparably more important than meting out political punishment. Until that first priority is satisfied, the punishment of members of previous governments is nothing other than the justice of victors – “We are now in power and will bring to justice those whom we think necessary to punish.”

Judicial Independence: Magical Transformation or Real Solution

No one argues that courts are as trusted in Georgia as they are in developed democracies. Everyone repeats as gospel that the executive branch has used levers to influence the judicial branch and that that has been apparent from rulings of judges. There are other reasons too for that lack of trust: before the elections, the then-opposition (that is both opposition politicians and “non-political” society with oppositional sentiments) consistently touted the opinion that the courts in Georgia are not merely deficient, but that they are absolutely undeserving of any trust whatsoever. Therefore, among other objective reasons, the lack of trust in the judiciary is also the result of that relentless disparagement.

Now that it is in power, the Georgian Dream coalition promises to “reinstate” justice by imprisoning supposedly bad members of the former government. But its particular brand of reinstated justice must be done by the same Prosecutor’s Office and the same court system which the Georgian Dream has so vehemently thrown to the ground. If the Georgian Dream believes that the justice system deserves zero trust, then why should it now trust the impartiality of that justice system?

The new government assures us that we can now place our trust in the justice system because the person newly appointed as Justice Minister is good and competent and, even more so, has work experience in Strasbourg. But the former government was not short either of people who had Western educations and/or work experience, including the immediate predecessor of new Justice Minister Tea Tsulukiani. Why then was that not sufficient?

I have read very attentively an interview in which Ms. Tea Tsulukiani explains how she intends to magically transform an absolutely unfair court into an inherently fair one. She plans to perform that feat by prohibiting her employees from exerting influence on the courts. Splendid, but let us recall that it was the former government that first criminalized telephone calls to judges. In other words, the new government is not breaking new ground in acknowledging the problem and/or in taking some measures to solve it. Why should we trust Tea Tsulukiani’s words more than those of her predecessors? Why should we believe that she or any other official will not stoop to influencing a court decision when, say, the new government politically needs a specific court outcome? Should we do that because of personal sympathies? But, even if one concedes that Tea Tsulukiani is an absolutely spotless person, where is the guarantee that her successor will not instruct judges again on how to rule? Or, even assuming judges receive no explicit political instructions, then what is to prevent judges, who are used to unprincipled behavior, from anticipating exactly what ruling the government expects them to render? Judges know – don’t they? – that the government still has sufficient levers to determine their fate, including, for example, which judges will be appointed to indefinite terms and which will not.

When a judge is really independent, it no longer matters who calls that judge or for what reason; an independent judge will always follow the law and not succumb to political pressure. The overarching question is, “How do judges achieve that state of independence?” Political will is very important during the transitional stage; however, at the end of the day, the key to judicial independence is ensuring that the judiciary is not dependent on the good will of the political authority. For that to happen, institutional reforms are needed. The former government (and the one before that too) implemented a number of institutional reforms and planned others as well. For instance, enshrined in the Constitution of Georgia is the principle of lifetime appointments of judges. The main reform for which the previous government was criticized for not implementing was ensuring a higher degree of independence of common court judges from the Supreme Court. Fine, let us now implement that reform as well. Still, as we have seen, institutional reforms do not automatically bring about desired results. Parallel with those reforms, the judiciary must gradually develop a sense of dignity and solidarity, a sort of esprit de corps, which will make anyone think twice before daring to influence a judge’s decision.

On Which Side is Political Interest?

In the absence of a fully independent system of justice, it is very difficult to believe that the government’s prosecution of its political opponents is not politically motivated. True, the prosecutor must produce strong evidence that a crime has actually been committed. Yet, even that is not enough to dispel serious doubt that justice is other than selective or that the initiation and timing of the investigation of political opponents is itself determined by anything other than political motives.

Here, the new government can learn a valuable lesson from the experience of its predecessor: Not even solid evidence in a concrete case can clear the government of suspicion of exercising selective justice. Let’s recall the case of former Defense Minister Irakli Okruashvili. Very few – even among critics of the government – doubted that corruption charges brought against him were substantiated. But even fewer believed that his arrest, after he switched to the opposition, was not politically motivated. The government defended its action, claiming that Okruashvili only switched to the opposition because he feared charges would be brought against him by the ruling authority. Maybe that was indeed the case. That still did not provide any reassurance that arrest of a political opponent was a quest for justice and not a thirst for retribution – not when the government holds influential levers over the law enforcement system and certain political interests push it toward concrete actions.

Critics of Ukrainian President Viktor Yanukovich do not assert that former Prime Minister Yulia Tymoshenko, whom Yanukovich incarcerated, has never breached the law. Yet, not even his supporters doubt that Yanukovich used “justice” to damage his prime political rival. The same holds true for the prosecution of Mikhail Khodorkovski by Vladimir Putin. The concern with that Russian prosecution was not whether or not Khodorkovski honestly paid taxes, but whether that was the real reason for his imprisonment.

Political interest is clearly evident in how Bidzina Ivanishvili’s newly installed government selected the first victims of its purported “reinstatement of justice.” The new Prime Minister and his supporters have not concealed their irritation that their election victory did not give them control of every level of authority. They are none too happy that President Mikheil Saakashvili has refused to cede his power to appoint the chief-of-staff of the joint armed forces. Municipal bodies, including the mayor’s office of the capital, are still in the hands of the “enemy.” Nor can Ivanishvili replace the heads of the National Bank, State Audit Service or Georgian Public Broadcaster. What to do? Use levers of justice? No one is really innocent, are they? If the President turns down a candidate for the post of armed forces chief-of-staff proposed by new Defense Minister Irakli Alasania, then what’s the problem? Arrest the incumbent office holder. If the head of the Georgian Public Broadcaster refuses to step down, then send in the financial police. And so on and so forth – until those who need to understand the political reality come to realize that they would do better to step down timely.

Recognizing the Dilemma

So what? Should we just condone the situation in which a defense minister or top generals manhandle soldiers? By no means. I will deliberately abstain from assessing whether or not charges brought against former Defense Minister Bacho Akhalaia and two top generals are substantiated. I do not doubt that there is a general problem in the treatment of soldiers or that that problem must be tackled or that the appropriate remedy depends on context and methodology.

When it comes to possible wrongdoing by members of the former government, every new government faces a difficult dilemma: It’s damned if it investigates political opponents suspected of wrongdoing and it’s damned if it doesn’t. At a minimum, the new government must recognize and acknowledge that the “reinstatement of justice” is never a simple, linear or an “immediate” process. The steps taken so far by the new Ivanishvili ruling team will, most likely, further strengthen people’s convictions that the Prosecutor’s Office and the courts are tools in the arsenal of the winning political party. If public officials learn any lesson at all from that, it should be this: We must not repeat Saakashvili’s mistakes or else we risk not only losing our chairs and salaries but our heads too.

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