Independence, impartiality, and the judiciary
13 December, 2012
For the first time I can remember in my fifteen years of watching Georgia, judges have publicly disagreed with prosecutors on high profile cases. This is something new and important, and I'm surprised that there is little conversation about it in the media.

In the Soviet Union, the state controlled whatever it wanted and was able to. Things have been more or less the same same since then. Under Shevardnadze, when a state employee asked you for money, you had
to pay them. Otherwise, they would make your life very complicated. It was a very feudal system but one in which the state would win when it felt like it. I have heard people connected with Georgian Dream say that all businesses were controlled by the state under the National Movement. This is not true, but it is true that the state could control any business it wanted to.

The same was true for those picked up by the police: once you were in jail, you were at the mercy of the state. There was practically no chance of a fair trial. The criminal code had extremely strict sentences under the pretense of deterrence and limiting the discretion of judges to prevent corruption and zero tolerance of crime. But in reality the effect was to help prosecutors force people into "plea bargains" as this ransoming came to be known. And it worked. When somebody was brought in, whether they were guilty or not, they would be forced into a hostage payment situation: pay money and serve a shorter sentence. The overwhelming number of individuals who went to prison went not via a fair trial but via a brief, confused, and frightening negotiation with a prosecutor. Those who went to trial lost. Trials and the behavior of judges became so biased that the state passed laws to conceal what happened in court from the population and the international community. And in this way, the state maintained control.

Many judges under Shevardnadze were corrupt, maybe most were, because the whole system was corrupt. When the National Movement came into power, judges were replaced. All of them. And this was not a pretty process. The narrative the National Movement promulgated was that they were all corrupt. And even those who weren't corrupt were replaced too. The priority was to put those with no connections with the Shevardnadze regime in power. When that was achieved, step by step, prosecutors were put in charge.

But so far Georgian Dream has not fired the judges. They have said that they will work with the current judges. Prosecutors have asked that bail not be granted in several cases involving senior officials of the former government and judges have posted bail anyway. That never happened under the previous government. The actual trials have not started yet, and it is not even clear yet if trials will be significantly more transparent than they have been for the last several years, but this is a good start.
One of the symptoms of the state controlling whatever it wants, is that it encourages people to choose sides. If the state has complete control, many will support it out of fear or ambition. And many others will see whoever controls the state as a dictator. Those who are clearly on one side or another tend to be blind to the faults of those they support and to see everybody who is not a supporter of their side as biased against them. But when prosecutors can lose a high profile case in the courts, it begins to interfere with that. People will see that judges can be independent. If judges can be independent, then it is at least hypothetically possible for others to be independent. Judges can set an example for the rest of society in that they can decide things based on the merits of the case and the law. In fact this is how it is supposed to be.

What is interesting is that the new government has chosen not to choose its own people "to be independent" the way the former government did. This is a big risk for, but one that has to be taken at some point. If the new government replaced all the judges, then these judges would surely be as compliant as the current ones were under the former government. People aren't corrupt; they are as honest or corrupt as the system will allow them to be. And if there is political pressure to make biased decisions and little transparency, it is easy to predict how some appointee will act. If everybody can see what is happening, things are open, and there are clear rules about the preservation of independence, then the law will rule and decisions will be impartial.

So in the end institutions are what matter. And if the judiciary becomes transparent and independent, then it will be impartial. Then others will be impartial and individuals will both feel a greater sense of security and at the same time a greater sense of responsibility. Where the judiciary goes is likely to be where Georgia goes, so watch carefully, particularly the trials of those recently arrested and also the fate of the council of justice. The council of justice was responsible for the previous judicial system that the government controlled and one could argue for that reason need to be replaced. But that is a very slippery path.