Constitutional Court: Right to Aid

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Several years ago, a complaint was filed with the Constitutional Court challenging a matter of interest to me. The complaint made me question how many stupid people live in the world. I wondered how the idea of challenging such a matter in court would even cross anyone’s mind. Later, I was even more surprised to learn that the Constitutional Court had actually decided to consider the complaint. Quite some time passed. Convinced that there was no way that the case could possibly be resolved in favor of the complainant, I never inquired about the result.

About a month ago, I was in Mongolia providing advice to the Mongolian government. In support of my arguments, I cited the example of a Georgian law. I was trying to persuade the Mongolians to act, if not better, then at least as we had seven years ago in Georgia. Erring on the side of caution, I double-checked the text of the law to confirm its wording and… surprise! Instead of finding the text I was looking for, I found a sentence stating that, pursuant to a decision of the Constitutional Court on 27 August 2009, that provision of the law had been rescinded. My first reaction was anger, but then I realized just how ridiculous that decision was and I decided then to recount this ludicrous story to Tabula readers once I returned to Georgia. And here I am delivering on that promise to myself.

The law I am talking about is the Law of Georgia on Social Aid. For those readers who are unfamiliar with it, I will provide an explanation.

The Law on Social Aid authorizes assistance to the indigent population of Georgia in the form of a monetary allowance and health insurance. As experience has shown, identifying the poor is not an easy task. Each of us has our own understanding of what “poor” means. Before adopting the 2006 law, the state bureaucracy believed that only the elderly, handicapped people, war veterans and former employees of certain state agencies qualified for such assistance. So only those specific groups were initially designated to receive monetary allowances.

The post-Rose Revolution government attempted to devise a simple and more objective approach to social assistance. For years, the statistics service had surveyed revenues and expenditures of families for entirely different reasons, in particular to measure changes in the country’s economic situation. Households surveyed had no motive to conceal information. Consequently, data collected were considered fairly reliable. Statisticians started using those data to identify objective and easily detectable characteristics of the lowest-income families. Using those characteristics, statisticians would compare families with one another. Families with the worst characteristics would receive money from the government - money which the government, in the absence of such methodology, would have spent on the previously designated groups

Statistical values of hundreds of parameters were examined. Finally, some two hundred parameters were selected and each was attributed a different value, the so-called weight. I suppose that many may recall that, out of those two hundred parameters, the ones most relished by our intellectual journalists and politicians were a TV set and a fridge. They raised such a ruckus about those parameters for so long that the submissive bureaucracy finally withdrew a TV set from the methodology, even though that parameter would have lowered the score of those families that still had old black-and-white TV sets and thereby increased their chances of qualifying for the government allowance. That in itself was a ridiculous development, but that is yet another story.

In short, the combination of multiple-tested parameters provides a reliable measurement. True, time alters those parameters, but further work would be conducted periodically to update the measurement methodology.

At the time the Law on Social Aid was drafted, it was crystal clear that many people would be unhappy when they found out that the new measurement made them ineligible for the monetary allowance or any other benefit. There would always be private interests of various types and direction to ensure that desired people receive money. To avoid court claims based on subjective factors, the following provision was included in the Law:

“Assessment methodology of socio-economic conditions, as well as the level set by the Government of Georgia and the amount of social assistance is not subject to appeal.”

Translating it into simple language, that provision of the Law meant that it was not left to someone’s whim to determine, without an objective measurement, whom to call poor. Approval of the budget was the business of the Parliament, not the court, and the state was supposed to provide equal assistance to people living in nearly equal conditions. The righteousness of those principles was acknowledged by the Parliament and was not subject to appeal in court. Do not ask me, though, how many parliamentarians were aware of what that provision said when they voted for that Law.

We thought then that opponents of the Law would be as naive as we ourselves were. It turned out that their strategy was deep and comprehensive. It appears that, at some earlier time, their ideological fathers had envisaged in the Constitution that we should build a social state. That meant a permanent process of expropriating the property of one segment of the population in favor of another segment. In other words, receipt of social assistance was a fundamental right. Therefore, the right to social aid, similar to other constitutional rights, could be defended in court.

To cut a long story short, the Constitutional Court, after deliberation, resolved that it is unconstitutional if you do not give money to a beggar because you stick to your own method of measurement and decide that you do not want at all to assist that specific beggar. It is unconstitutional if your assistance criteria apply to elderly beggars alone and, based on substantiated ground, you consciously do not assist child or drunken beggars. Some other arguments could prove more convincing for a judge, couldn’t they? It is unconstitutional if you give twenty tetri when asked for a Lari. Personal belief may prompt a judge to decide that you have to give one Lari and to order you to pay compensation of eighty tetri together with interest accrued on that amount.

Is that normal? What shall I now say to the government of Mongolia?

 

This article first appeared in Tabula Georgian Issue # 92, published 19 March 2012.

 

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