former high officials

What’s Wrong With Questioning Former President(s)?

Ghia Nodia
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T he summoning of former President Mikheil Saakashvili for questioning is a new milestone in the campaign that the Georgian government calls the "reinstatement of justice." This move was sharply criticized not only by the political opposition (which taken alone would be too trivial to be of note), but also by the international democratic community. The US Department of State issued a special statement to express its concern over this fact, and Štefan Füle, the European Commissioner for Enlargement and European Neighbourhood Policy, explicitly expressed his dissatisfaction.

Those reactions did not just come from center-rights predisposed towards the United National Movement (such as the US Republican Party or the European People's Party). One can hardly accuse the Obama administration or Mr. Füle of bias in favor of Saakashvili. The question is thus: how come the assessments of the democratic West and the Georgian Dream coalition appear to diametrically oppose each other?

The analysis can be conducted in two directions: the first concerns democratic values, the other the geopolitical context. I will discuss both directions, one after another.

The former president and the rule of law

The Georgian government counteracts the international criticism by referring to the principle of the supremacy of law. This argument is advantageous: the law applies equally to everyone, including the former-president-turned-ordinary-citizen Mikheil Saakashvili. If an investigation has questions to direct at him, why should he then not arrive at a specified place and time to answer them?

We instantly start citing examples of former high officials in Western democracies who have appeared before courts: French President Jacques Chirac, Italian Prime Minister Silvio Berlusconi. US President Bill Clinton nearly lost his job because of a sexual relationship with a White House intern. While we have been debating on the Saakashvili issue, an Israeli court has found former Prime Minister Ehud Olmert guilty of corruption. What, then, is so unusual about Saakashvili's case? After all, he was not threatened with the detention and was merely summoned for questioning and, even more so, at the end of the day this would be via Skype alone. Do the leaders of democratic countries have no scruples when criticizing the Georgian government? How should the government explain to its citizens that the West, which is so often praised for its democracy, is impeding the reinstatement of justice?

Those expressing the above opinions forget that the declaration of a correct principle is not always enough: everything depends on the context. To justify the questioning of the president with the expression of the rule of law, one should first ensure the rule of law. Trust must be established that the law enforcement agencies (including the police and the prosecution, let alone the courts) act more or less independently of the political leadership. Otherwise, any criminal case initiated against opposition leaders will automatically be regarded as the use of the law enforcement system for political aims.

Even in the above cited Western cases, the initiation of criminal proceedings against politicians triggered allegations of bias. This is natural: prosecutors and judges are ordinary people and no one can swear that they are absolutely free from political motives. However, those allegations were not universal because over many decades or centuries the law enforcement systems of those countries had gained the trust of their citizens for being capable of acting independently of government.

Unfortunately, such trust cannot yet exist in Georgia. A segment of society may believe that good and fair people have now come to power, those who will not stoop to use the law enforcement system politically. However, prosecutions or courts that are independent simply because the government "does not stoop" to influence them, are round squares. You are independent when you can resist political pressure and not when you, for whatever reason, are not pressured. If law enforcement institutions are, in principle, subject to the government's instructions, the government will hardly be able to resist the temptation of using them against its dangerous opponents.

Doubt or belief?

The summoning of the former Georgian president for interrogation is not, however, an isolated fact. This episode is just one stage in a long process. When our Western partners diplomatically warn us not to give rise to doubts about political motivations, this warning implies that there is a belief, not doubt, that what is happening in Georgia does show signs of targeted political retaliation.

Arguments proving this have been expressed so many times that repeating them has become rather boring. The criminal proceedings launched against Chirac, Berlusconi or Olmert were each focused on individuals, whereas the summoning of Saakashvili to the prosecutor's office is a symbolic crown to the systemic persecution which is underway against the leaders and activists of the government's main opposition party. This persecution is accompanied by the rhetoric tying the "reinstatement of justice" to the current activity of the opposition and announcements of the aim of the total annihilation or marginalization of the United National Movement (UNM) as a political party. The political nature of the campaign can be proven with mathematical precision by employing simple quantitative indicators: out of the two large groups making up the representatives of the former government, the first comprising those remaining loyal to the party and the second those who sided with the victor in the elections, those who are suspected of wrongdoing exclusively fall within the first group.

This is compounded by a number of separate scandalous episodes: the story of the highest-level political prisoner, Vano Merabishvili, being taken out of his prison cell late at night to meet with the Chief Prosecutor – an event that the government verbally denied, but indirectly confirmed by refusing to investigate this incident; the release of videos exposing the UNM at those moments when the government feels the need to prepare society for yet another justice-restoring step (the delivery of a guilty verdict against Vano Merabishvili or the arrest of Levan Chachua, a forensic expert in the case of Zurab Zhvania's death). Against this backdrop it becomes very difficult to believe that the government and its subordinate law enforcement system are playing an honest game.

Should they get away with it?

Ok, let's assume that the Georgian law enforcement system is not able to investigate politically sensitive cases impartially and independently of the government. At the same time, we are generally aware that the former government allowed numerous injustices. Should they get away with that? Until we have an impeccable law enforcement system, should we not try criminals? Which would be worse: to leave criminals unpunished or to allow Europe and Georgian society to perceive that the prosecution and courts are not completely free from political motivation?
Generally, this absolutely legitimate question is a topic of so-called "transitional justice." Numerous books, articles and conferences have been dedicated to this topic. Supporters of a strict approach believe that without "doing justice" (and not "reinstating justice") a society cannot undergo a "spiritual catharsis," thereby impeding the establishment of strong democratic institutions. On the other hand, in countries that lack the tradition of an independent judiciary, these institutions will continue fulfilling the political instructions of a new government just as they did under the previous government. The punishment of former leaders will thus degrade into retaliation pleasing for the mob, which will also impede the establishment of a pluralistic and inclusive democracy.

One common solution to this dilemma is the use of special mechanisms – "truth commissions" or tribunals – in which a decisive voice is given to independent, trusted and respected members of society or even foreigners. Such proposals were also made for Georgia (both by the opposition and foreign friends), but the government did not take them seriously, thereby indirectly proving that its interest is political retaliation and not the supremacy of justice.

That is in general. In particular, to what extent is the Saakashvili government comparable to those "bloodthirsty" regimes of societies that will not be able to move forward unless the mass crimes committed by those regimes are exposed and punished? I do not doubt that the UNM did many things incorrectly and definitely cannot exclude that some of their actions might fall under the criminal code. The UNM government had no force inside the country to check and balance it and, in such a situation, it was difficult for that government not to become overly arrogant or to overstep the limit.

But even a cursory glance at the criminal cases initiated against the former UNM officials is enough to see that after a year and a half's work, the prosecution has failed to present reliable and concrete evidence to convince us that the UNM leaders were either engaged in systemic so-called "elite corruption" or had been involved in serious mass human rights violations. I have not yet seen any serious, independent assessment of these cases and thus have to rely on my own, possibly subjective, impressions. The former Prime Minister Vano Merabishvili has been imprisoned for political clientelism when, according to the prosecution's theory, he and the former health minister, Zurab Chiaberashvili, employed supporters of their party in public jobs on a mass scale (the claim made against former Tbilisi Mayor Gigi Ugulava is analogous). This is not a good practice, but it is, unfortunately, familiar to many democracies – and to the Georgian Dream government in particular. Merabishvili was also sentenced to another term in prison for the failure of the police to properly disperse a rally that needed to be dispersed. When former National Security Council Secretary Giga Bokeria was interrogated on why he spent money on lobbying for Georgia's interests, the situation finally went beyond the boundaries of common sense.

Against this backdrop it no longer matters whether, for example, a former head of a penitentiary facility will be proven guilty of some appalling actions. Quite the contrary, the year and a half's activity of the prosecution already serves as indirect evidence that although the UNM did many wrong, even very wrong, things, portraying its government as a "bloodthirsty" and systemically corrupt regime is an extreme exaggeration.

The geopolitics of the "reinstatement of justice"

Let's now look at the foreign-political aspect of the issue. In Georgia, many people have considered the summoning of the former president to the prosecutor's office not as a wrong action in itself, but an action undertaken "not at the right time," because such a move might impede Georgia signing the Association Agreement with the European Union.

According to this logic, although the Europeans are unfairly biased in favor of the UNM, we must obey Europe for the time being. But why do they have to be so biased? It actually seems to me that things are the other way around: the current geopolitical situation prevents the West from being much stricter and more principled towards the incumbent Georgian government.

The situation today is conditioned by the Ukrainian crisis and the tension between Russia and the West. How will this affect the issue we are interested in? After Viktor Yanukovych refused to sign the Association Agreement with the EU, representatives of the Georgian government declared that this situation was advantageous for us. This is strategically wrong: the deviation of Ukraine from the European path would put us in a difficult situation vis-à-vis Russia. But in the short-term perspective and from the standpoint of current government, there is a grain of truth in that. The rules of game between the EU, on the one hand, and the partner countries, namely, Ukraine, Georgia and Moldova, on the other, have fundamentally changed. Earlier it was believed that these countries were much keener to come closer to Europe than vice versa and the EU could therefore easily put forward any such demands to those countries that it deemed necessary.

But now Europe has realized that it is in a geopolitical confrontation with Russia and it has thus become a matter of esteem for it to sign the agreement with partner countries as soon as possible.

That, however, has weakened the levers of the EU in the relationship with the Georgian government. The latter can easily ignore specific demands from Europe, whilst Europe is less capable of punishing Georgia for its unsatisfactory standards of democracy and human rights. For example, once Yanukovych declared his refusal to sign the Association Agreement, the EU withdrew its demands for the release of Yulia Tymoshenko in an effort to have Ukraine revert the decision.

It seems that our government has drawn the corresponding conclusions: the West will criticize us, but it cannot seriously punish us at this stage. Today, the weakening of the West provides a good setting for stepping up the "reinstatement of justice."

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