Part 2: Does the appointing of Judges work for Georgia?

The first half of this article left off with an open question – what can be done differently this time in organizing the Judiciary branch of the Georgian Government to avoid the type of “elite corruption” witnessed in the last years of the UNM rule. To be clear, the reference here is made to the corruption caused by the political influence, by the Judges ending up not biting the hand that fed them. 

One might say the independence of the Judiciary cannot be achieved without the members of the other two branches having a strong self-discipline and moral sense of what’s right. I would agree to this statement and view it as the expression of their political will. While they might demonstrate such a desire for the first few years of their governance it would be unnatural to expect them to sustain it. We can’t assume our elected officials will stay crystal pure over a long period of time; in fact the experience of many generations before us shows quite the contrary. Hearts of men are easily corrupted. Longer the most men and women are in the position of power more likely it is for human vices to chew off their integrity as moth slowly eating away an old coat. We can’t ignore this reality. We have to factor it in.

The cardinal goal then is to make sure the men and women interpreting the law for laymen are fully insulated from political turmoil. They will at times have to make unpopular decisions infuriating the masses or preventing the other two branches of the government to overstep themselves. On the other hand one could argue no matter how far the judges are stationed from the whims of politics they will eventually succumb to the follies of all men if left unchecked. Jefferson put it eloquently: “The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them”. 

How do we consolidate these two opposing concerns? I put forward the following suggestion of amending the Constitution of Georgia:

1. Supreme Court Judges should be appointed by the head of the executive branch (it seems like this is now PM’s office after the 2010 changes) with the Parliament’s approval. They should be appointed for life.
2. Appeal Court Judges should be appointed in a similar way although the process might be relaxed a bit (e.g. they might need a simple parliamentary majority while Supreme Court Judges might need more than this). They should also be appointed for life.
3. The Parliament should have a constitutional procedure for impeaching these high court Judges under extraordinary circumstances (e.g.  Undeniable evidence presented in front of the Parliament). The process of impeachment should be complicated and designed to fail unless there’s true determination from the legislative body. The idea here is to give the Parliament a rein of sorts over Judiciary but a very slippery one.
4. Regional Judges should be appointed. Supreme Court should oversee the process (I am not saying they should be intimately involved in the process, the logistics can be delegated). Regional Judges should be appointed for 24 years.
5. This is the part of the suggestion that irks my lawyer friends the most – retention elections for regional justices. I believe they are the most influential to the lives of ordinary people. Most individuals never have to deal with higher courts while regional ones are the primary arbiters in their respective communities. They are the face of Justice in each region. As such the members of the community should have a say in keeping the officials bestowed upon them. This is not a political election. There are no multiple candidates assailing each other’s credibility trying to confuse the voters, this is not a popularity contest where the prettiest face rules the day. This is a vote of confidence. 
6. Large scale application of jury trials – these have been instituted for couple of years now but their usage has been very limited. It also seems unclear under what circumstances they are used. I believe it is every citizen’s right to request a fair trial by jury for serious charges (e.g. threatening to incarcerate them for 6 months or more). To me this right is fundamental and it should be spelled out in the Constitution.

One more comment regarding item 5 - retention elections is not some untested innovation. Almost half of US States use them. Naturally there are arguments for and against it. It would be impossible within the scope of this article to cover them all but here’s one fact I found very interesting – the opponents often state more than 90% of times the Judges get to keep their positions , then what’s the point of these elections? Well, wouldn't this be what one would expect? Retention elections are the tool of very last resort to be used very rarely. 

The final note goes to the Constitutional Court of Georgia. I left it out on purpose. While I understand its purpose I have doubts about its constitution. I am also not sure why Supreme Court can’t or shan't do what these triage experts are supposed to do. Well, this might be a topic for another post.

Part 1: Does the appointing of Judges work for Georgia?

One of the most hotly debated questions on how to organize judiciary branch is whether to elect or appoint judges. The diversity of opinions is clearly visible across the democratic spectrum - while most European nations use appointment there are notable exceptions like US, Switzerland and Japan. It seems what works well for one nation might not work for the other. In the past years we, citizens of Georgia, have clearly demonstrated our strong disdain to selective treatment and refusal to live in an unjust society. Justice, as the previous government learned the hard way, is paramount to our sense of well-being. 

When I was twenty-two I had my first brush with the far-reaching hand of the American law. It was a trivial matter of speeding really, I was doing good 25 miles over the limit when the blue-and-red lights flashed in my rear mirror. I don't know why I was speeding. Maybe because I was young and bored, maybe it had something to do with the way that particular vehicle drove itself or maybe I wasn't speeding at all as claimed on the traffic accident report. Who knows. The important thing is I was pulled over, identified, questioned, warned and finally a gaunt officer in his middle ages scribbled something on his notepad and handed me a small, yellow piece of paper. The paper stated I was to appear in the court of law and contend my claim against the People of Illinois. The date for appearance was not given but the fineprint on the other side promised  there would be further communication on this.

I wasn't thrilled with the prospect of going mano-a-mano with the People of Illinois. I didn't really see how it would help my carefully calibrated sense of well-being. So, I did what any rational human would do - hired a sleazy lawyer to poof the problem away. His name was Mike and he was as slick as a whistle. We met in a coffee shop a few days after the incident. He listened to my story with an unreadable grin, then cheerfully informed me I would probably have to pay a hefty fine plus 6 to 12 months of probation. "It is in DuPage county, you see, their Judge is a pain in the rear, he actually has his office call the cops to come to the traffic case hearings" - he said and then proceeded with inspecting the little, yellow scrap of paper. "Good news!" - he whistled in a moment -"It's not in DuPage, it's in Cook county. You got lucky! That intersection was right at the county boundary". "Does it make a difference?" - I asked. "Oh, yea, tons. Cook county will be a cinch, they got real criminals there" - he laughed dubiously. That was that. Mike took the papers and left. I went home and checked out his story. It was true. DuPage was notoriously known for going overboard with petty misdemeanors. Cook county, on the other hand, was as lax as a Vegas AA meeting. In a week the whole thing was settled - no fines, no public records, no traffic schools, no insurance nonsense. I didn't mind it but this got me thinking - how was it possible for the same law to be upheld so differently literally across the street? How could these two judges have handled the same case so unequally? I didn't think think about it for too long though, I was twenty-two and my vehicle wanted to drive itself.

Many years later the same question came back with irksome somberness. In 2003 Rose Revolution brought a new power in charge of Georgian state - UNM. It made many promises but above all promised to fix the country's ailing Judicial system. The plan was  to drag it out of the swamp of corruption and incompetence it's been in for eternity. UNM had all the judges pass a well-publicized test to make sure it was merit that put them on the bench not favoritism. We all waited patiently. Hoping for the Judiciary system which would truly upheld the rule of law, bring justice to all and strike down corruption at any level of public life. Nine long years passed. Where are we now? Georgian prisons are overpopulated, inmates are treated beyond inhumanity, the first PM has been murdered under suspicious circumstances, horror stories of wealthy business owners being coerced into surrendering their profitable enterprises abound. In 2012 Heritage Foundation wrote the following assessment about Georgia - "The rule of law is not strongly enforced. Despite some reform efforts, the judicial process remains subject to political influence and corruption. The effectiveness of the court system has not improved notably as a result of the requirement that judges be tested before appointment. The protection of intellectual property rights is erratic and largely ineffective. Corruption continues to undermine all facets of economic freedom". The truth is we ended up where we started, the only difference is the scale. 

Apparently having Georgia's judges pass a merit test was not enough. Once all was said and done they ended nodding their heads to the hand that put them on the bench. Why didn't it work? Where did the system fail? What can we do differently this time?  

2012 US Presidential Election results will be mostly inconsequential for Georgia

Motion

Some citizens of Georgia believe Republican US President will be more beneficial for Georgian foreign policy than his Democratic counterpart. I claim this to be untrue. I don't necessarily argue the Democratic ticket-holder will be better, I just say it is largely irrelevant which party, Republican or Democratic, puts its candidate in the office.

Argument

The final 2012 US presidential debate was refreshingly civil and substantive (maybe it just looked as such after its predecessors turned into mindless bitch-slap fests). Each candidate appeared well-informed on the issues and offered constructive takes on the United States role in International affairs for the foreseeable future. Sure, at times there were aggressive barrages of accusations, particularly from the incumbent, but over the 45 minutes actually spent on to the subject of the debate, two things became abundantly clear - these men have very similar, at times near identical, positions on variety of foreign policy issues and they'll do what they can to steer the country away from getting involved into another regional conflict. At least for the next four years. Romney largely surrendered his campaign rhetoric that Obama made the nation appear weak abroad, at times nearly admitting there wasn't anything beyond what the administration is already doing, he would be able to do. If elected, Romney is unlikely to change the current course. If anything he might even show himself as a passive player on the world stage. Romney has little experience in international politics (saving Olympics doesn't really cut it) and, as a careful businessman, he might simply choose to let the things he doesn't understand drift along. I also believe both men were somewhat sincere in expressing their true intentions regarding  foreign policy since they both understand this subject won't be a deal-breaker in November. The ignorance of masses sometimes allows for surprising fragments of honesty in the usual stream of political double-talk.

Since the United States foreign policy is likely to continue as is regardless of the next president, we can look at what's on the table to understand what's coming (unless, of course, some unexpected global development drastically alters the course of event in the World). In no specific order, here's a short list:

1. Ending the war in Afghanistan with some resemblance of saving face
2. Learning how to work with the new forces in middle east emerging after Arab spring
3. Keeping Syrian civil war from erupting into a region-wide nightmare
4. Stabilizing the relationship with Israel
5. Keeping Iranians from getting their hands on Nuclear warheads
6. Counterbalancing Chinese rise in the Global Economy
7. Increasing cooperation with the rising economies of South America
8. Keeping European Union from falling apart - financially, culturally, militarily
9. Adhering to the long standing US military doctrine of being able to conduct two conventional conflicts at the same time

On top of everything there are other nasty difficulties to resolve - keeping gas prices artificially low to avoid public uprising in Bible Belt, out-competing the rest of the World in R&D, curbing job outsourcing, fixing immigration policy and more. And all of this to be achieved with an absurdly partisan Congress with a 7% approval rating.

Where is Georgia in this list? Not in the top ten, I am afraid, probably not even in the top fifty. The relationship with Georgia will be largely shaped by the relationship with Russia. The latter will most likely stay where it is now regardless of who is elected to the office of presidency - we will see more of formal, cool mutual respect with an occasional show of strength. Post-Reset US and Russia are like two 20's style bootleg gangs uneasily tolerating each other in hopes of outliving the rival and taking over their turf. The events unfolding in Syria offered a clear example of what this relationship looks like - US is weary of getting entangled into another regional conflict while Russian Federation carefully flexes its muscle pushing the red line as far as possible. Obama hasn't done much to counter their push and Romney made it clear there is not a single thing he can or will do differently.

International politics is an exercise of assessing realities. Bush-era neoconism is dead. Nobody is resurrecting it. It has done enough damage - US nearly lost its credibility with its longtime allies and allowed countries like Russia and China show little respect in establishing the new "permitted". The time of carrying a police baton is behind us. For Georgia there's not much to do about it other than understand this new geopolitical reality and do as the most cunning player of the game, America, does - speak softly, hide the stick in the robe and wait for the enemy to slip up. We won't beat Russia with tanks or Georgian hospitality  Our only chance is to work hard, build a better society and wait for the greedy bear to trap itself.

Georgian Parliament should stay in Kutaisi

Motion

Georgian Parliament was recently moved to Kutaisi - the second most populous city in Georgia. There are now talks of moving it back to Tbilisi. I claim this idea to be amiss and urge the representatives to stay in Kutaisi.

Argument

To understand why we are where we are we must know where we have come from. Contemporary Georgia carries Soviet legacy. This is not a choice or fate it is historical reality. Soviet stigma manifests itself everywhere - from social norms and civil expectations to geographical configuration of governing institutions. Within Soviet Union Georgia was formally one of the Republics, on paper an equal partner of the Union of fifteen members. In practice, it was a province. As a province it was organized the Empires have historically organized their provinces - an overblown local capital with comforting elite (cynically referred to as intelligentsia) carefully honed to oppress the rest, less developed parts of the estate. I don't know if this was done intentionally. I can't claim some great oppressing mind, say Stalin, meticulously planned for days how to enslave masses in the far reaches of his realm by systematically depleting them of their best minds. It might have happened on its own - the system needed to suppress autonomous tendencies in its corners and gradually found the way. The important thing is when the most atrocious experiment of our time ended in the beginning of 90's, we were left with a state poorly suited for the decentralization of power, at least geographically. There was an overpopulated capital which has accumulated social and economic benefits while the rest of the country was effectively underdeveloped. Little has changed since. Tbilisi now holds near half of Georgian population. The number is staggering.

Let's not confuse this layout with the urban vs. rural discrepancy often present in most Western societies. We're not taking about city vs. country. We're talking about one city vs. the rest of the country. This must end. The deurbanization of Tbilisi must commence and other cities must grow into their own right. There is much Georgian Government can do to aid and promote this process. First and foremost it must reorganize its constituting bodies across the country, emphasizing the notion that governance occurs on all geopolitical levels, not just from some distant center. This will ensure all citizens, regardless of their locality, feel included. There are at least three major reasons:

1. The separation of political and economical powers - the reality is Tbilisi will continue to maintain its hold on the macroeconomic decision-making for long. If we really want to build a form of governance where political capacity to affect progress is clearly separated from its economic counterpart, why not physically separate them?  The model seems to work well for the United States, it might work well elsewhere.

2. Turning the country from one-city-has-it-all to many-cities-share-it-all configuration will undoubtedly accelerate further development of infrastructure, transportation, cultural life and acceptance of diversity.

3. It will greatly benefit Georgian military doctrine - shall we need to defend our land from an invading force, we will have multiple strongholds to rely on. Hopefully such a day will never come but hope is a poor substitute for foresight. We all remember those unforgiving days of August 2008, when the entire country hung on a brink of capitulation - if Tbilisi where to fall the rest would as well. Nobody considered any serious resistance after that. Why should we applaud to such a layout when the surrender of one city implies the rest must kneel?

I am sure there are good counter-arguments to this motion.The debaters against it will put them forward but I wholeheartedly believe the reasons listed above are very strong - Tbilisi must deflate and if the first step in this process is to move the legislative body elsewhere, so be it. I long for the day when Georgia boasts several major cities competing with each other, challenging each other, overdoing each other. The day when being a city person does not necessarily mean occupying several square feet in Tbilisi. The day when it means living in one of these great Georgian polises - the strongholds of independent thought, innovative ideas and self-governance.

The rule of law can not be ignored for the sake of effective build-up of democracy

Motion

When a society embarks on building up a democratic state at times pundits say it is admissible to downplay or outright ignore the importance of the rule of law it in the name of moving forward faster, at least early on. The thinking is lengthy debates and legal procedures can slow down the progress of a well-organized, focused group leading the reform. To use an analogy, consider two caravans crossing an unexplored desert - the first one, call it Alpha, is led by an energetic, charismatic head merchant who leads with a conviction, shows no signs of hesitation, keeps an eye on the target, squashes squabbles with an iron fist and leaves the weaklings behind in the name of speed and efficiency. The second one, call it Beta, is led by a group of elder merchants, they often stop, argue about the direction, provisions, cargo, each representing separate faction, rarely reaching a consensus and often having to cope with an uneasy compromise. Which of these groups has a better chance in establishing successful trading routes? I claim it the latter, Beta.

Argument

To most people it might be appear intuitive that Alpha should succeed over Beta. Just consider the amount of fiction - books, plays, films - piled up over the years depicting some likable protagonist leading good but reluctant individuals to victory over scheming evildoers. Most people enjoy these plotlines more than some boring exploration of how a large group of people managed to build a sustainable enterprise with none of them being particularly interested in being a hero. Why is that? Why do we like heroes so much? 

There are many complex social factors are at play here but I believe the key is in our evolutionary psychology. We evolved as pack animals, we strive for strong leadership and once available, readily follow it. Without this trait we would never succeed in defeating the nastiest predictors of cave-days who has an dubious luck of crossing our path. For the same reason we befriended wolves early on. They are also pack animals. We made sure they knew well who was running the show though, patiently weeding out any claim of leadership we turned them into dogs. As far as homo-sapiens is concerned a good wolf is a dog.

The coin has another side though. As primates we evolved in a complex social web of interactions where the ability to read another's mind is as crucial for survival as having a really big stick readily available for casual skull-bashing. In that respect we are individualists. Down deep we know it is ultimately up to us, as individuals, to succeed. We tolerate the group not because we see ourselves as some insects building a hive society but because we see union as primary mechanism for survival, both on physical and emotional levels. It is not surprising then the only other species we truly befriended in our onerous path were cats. Arguably the most individualistic of all quadrupeds. We never tried to teach them who is the boss though. Or maybe we tried and learnt better. I am not even sure they are truly domesticated. I think they just tolerate us for time being because it helps them win the big game. Either way a good cat is a respectful cat. 

I hope the metaphor of cats and dogs is not too cheesy and expresses the dualism of human character adequately. The key here is we are quite unique in this respect - we learned to live our days in an uneasy truce between strong leadership and level-headed pluralism. Call it Yin and Yang if you will. The good news is these two traits are opposite and complimentary at the same time. Alpha approach works for short risky endeavors - hunting expeditions, military campaigns, natural disaster relief efforts and such; Beta approach is more suited for long-term projects - planning where to build a village, negotiating with neighboring tribes, electing village elders. One targets to achieve short-term (often one-time) goals while the other strives to create sustainable institutions.

Where does the matter of building a democratic state based on the rule of law belong then? I think the answer is self-evident. How can it be possible to successfully execute one of the most challenging long-term projects - building a state capable of outliving its founders - with the same approach hunters use to bring down a beast or generals - to eliminate an enemy force? 

Returning to the caravan analogy while Alpha might succeed several times in a short run but beta will eventually out-compete it. The problem with the Alpha here is it only takes one mistake of one leader to cause a disaster. While Beta might make many mistakes collectively they are unlikely to amount to a comparable disaster. The history of humankind is full of lessons how the most well-intending young men turned into vicious beasts once the burden of single-handed leadership was bestowed upon them. On the flip side there are certainly some cases of the opposite being true (nothing ever black and white with humans, is it?) but such cases are so rare they are often viewed as near-paradoxical exceptions. 

Building democracy starts with the inclusion of all voices not by expecting some authoritarian core to goad docile masses around in hopes of finding promise land. Justice is never passed down from high above. It is earned and sweated and cherished ground-up. When we outsource this task to well-meaning gray-haired men, they tend to climb up the nearest mountain and bring down ancient-looking stone tablets. We all know how that movie ends - forty years of wondering followed by settling down on the only part of the desert with no natural gas or oil.

The timing of the “Prison Rape” was not a deciding factor in the Oct 1, 2012 elections outcome

Motion

The argument is often made had the Prison Rape videos been released earlier, say several months ago, UNM would manage to contain the political damage and still win the elections. I maintain this argument is false. I don’t profess GD would necessarily win, I merely maintain it is not given UNM would manage to contain the damage.

Argument

Public polls done during the summer of 2012 showed UNM had a lead but GM was getting closer. Some of these polls were probably biased one way or another but collectively they pointed to a trend.

The electorate in Georgia at the time could have been broken roughly in 3 camps: GM supporters, UNM supporters and undecided voters. The last category is of particular interest since it played a crucial role in the end. The undecided voters had no strong feelings one way or another but would prefer to see their more-or-less established lifestyle not altered. Let’s call them Status Quo voters for now.

Since 2007 there have been strong opinions voiced publicly against UNM. Arguing it had failed to uphold the Rule of Law for all. While many suffered legal prosecution, there formed a selected circle around the President, which grew increasingly reckless over the years, at times acting with virtual impudence. The ruler, the voices claimed, has forgotten his promise to bring Justice to the ruled. He acted as Demosthenes outwardly but truly he was Nero growing drunk with power with each passing day. These voices grew louder and at times credence was given by some well-respected members of the Government itself (e.g. Irakly Alasania). To be clear I am not claiming these rumors were justified (Justice should be established in the Court of Law, not on political blogs), I merely point out the voices were there.

One such particularly disturbing story circulating around (call it a political rumor if you will) was about Bacho Akhalaia – there were talks of him torturing prisoners, including political opponents or rich businessmen, ruthlessly, at times beating them to death. On the political arena Bacho was the latest favorite of the President, having run the Penitentiary System for long and recently made the Minister of Interior affairs, arguably the most influential ministerial post in Georgia.

What did Status Quo voters thought about these rumors? In some ways they preferred to downplay them for as long as there was no hard evidence. The reasoning was simple – most people will tolerate for their friends and neighbors to be taken to undisclosed destinations at night hoping nobody will come for them. I have talked to this lot quite a bit, some even admitted the country had turned into a police state but as long as it was possible to wait out, as long as things didn’t get worse, as long as the progress made by UNM in its early years could be maintained they were willing to sacrifice… their friends and neighbors and fellow men. Such is human nature. They would vote for UNM for they hoped the rumors were just rumors or exaggerations or were simply an ugliness which would come to pass.

The videos offered an undeniable truth these rumors were not just rumors. They were an indisputable truth staring in the face of every Status Quo voter that at least one of these rumors (about the prison abuses) was true. And the truth was ugly, very ugly. This realization tore off the fragile veil so laboriously dressed around the ugly truth. It snowballed quickly - if this one was true, possibly the ugliest of them all, what about the other ones? Was the system really as tarnished as The Voices claimed? Was it really beyond repair? Was the day of reckoning much closer then they feared? I believe this realization is what truly shocked most people - the problem was real and was not going to fix itself. If left unchecked it could destroy the one thing these voters cared for the most – Status Quo.

Georgian citizens are not such naive fools to assume prison is a nice place. Those who take them for such fools should have their arrogance levels checked. People were shocked by the realization their hard-earned peace of mind was in peril. This is what tipped the scales. I doubt it would just subside by some skilled PR campaign, had it come earlier. The fear of losing this uneasily achieved comfort is too primordial. In fact it might have grown stronger over time, evolving into something somber and dangerous since no relief path would have been offered.

I will finish with a quote from Irakly Khaburdzania: “The tapes blew the fuse, but the fuse was put there by UNM in the first place”. His full article and follow up discussion can be found here.