RULE OF LAW IN THE JURISPRUDENCE OF “CHAMELEON COURT” – DECISION OF THE CONSTITUTIONAL COURT OF GEORGIA ON MANDATORY GENDER QUOTA IN LISTS OF POLITICAL PARTIES
Abstract
On 25 September, 2020 the Plenum of the Constitutional Court of Georgia delivered a judgement on the case “N(N)LE Political Unity of Citizens “New Political Center”, Herman Sabo, Zurab Girchi Japaridze and Ana Chikovani v. the Parliament of Georgia.”Applicants requested the Court to declare the norm of the Organic Law “Election Code” (2nd sentence of paragraph 2 of article 203) as inconsistent with the Constitution, according to which “political parties and electoral blocks have\ obligation to present lists in which every fifth person must be of distinctive gender.”
Although, the disputed regulation had a purpose of woman representation in the Parliament, it was elaborated by the legislator in a neutral language. Consequently, more generality with the aim to establish gender quota in the list of political party gave such content, that in altered factual circumstances, for instance, in case of political party list consisting of majority of women, it would require quota for men. The Constitutional Court did not value legislator’s expression of respect, even illusional, towards the constitutional ideal of formal equality.
The plaintiff did not have better choice, except that, by protection of general logic of the principle of formal equality, to argue about contradiction with the Constitution of both occasions of mandatory gender quota. Therefore, the operative part of the Court decision was containing plenty of irony, by which the complaint was partially approved and only requirement of possible male quota
in lists of political parties was declared as contradicting the Constitution, and the requirement of female quota was considered as a constitutionally necessary positive norm in light of paragraph 3 of article 11 of the Constitution.
By this court decision the constitutional principle of formal equality was damaged the most. It must be noted that jurisprudence developed during two decades of existence of the Constitutional Court of Georgia, mainly advanced in the area (scope) of this ideal. Despite the fact that standards created by the Court and evaluating constitutional tests lack doctrinal unity, consistency and completeness, content wise it is still possible to see ideal od formal equality in their fundament.
One of the factors, which determined such jurisprudential direction of the court was the texts of article 14 of the Constitution of 1995.The language of this constitutional norm corresponding to the classical ideal of formal equality gave possibility to the court to clearly distinguish concepts of essential equality, state (withoutexplanations) their fundamental inconsistency with the constitutional (formal) principle of equality.
Paragraph 3 of article 114 of the new edition of the Constitution enacted in 2018 made the jurisprudential work of the court more difficult. This amendment in the Constitution introduced the language of essential equality, and took from the court the comfort created by the constitutional text to avoid wrestling with the Heracles’s mission and try to unify conflicting principles of formal and essential equality in one constitutional doctrine.
In the decision discussed the court was not prepared for such heavy doctrinal burden and lost in its overcoming. Instead of developing consecutive standard and overcoming doctrinal obstacles, the decision discussed is making the content of the constitutional principle of equality and evaluating standards even more inconsecutive and contradictory. Deep value-based collisions, which derive from the conflict of constitutional principles opposed to each other before contradiction, will be showed as trivial by the court and will be hidden in this way, or will be declared decided with prepared formal argumentation, which belongs to more ideological genre, than to serious doctrinal constitutional law discussion.
As a result, the quality of legal certainty by the doctrine and constitutional rules, as well as quality of security decreases significantly. In such way the ground of the rule of law, fundament of constitutional order is even more rocked, which if not portrayed in the jurisprudence with proper consistency and completeness of essential link with the formal principle of equality, may be considered as next systemic failure of the Constitutional Court of Georgia.
Moreover, the establishment of doctrinal connection between formal and essential principles of equality within the frame if the Constitution of Georgia still remains undecided by the court, also determination of constitutional content of positive measures for attaining essential equality and determination of limits of discretion of the legislator upon their adoption with clear and distinct rules and/or standards. This situation exists not only in the direction of equality and in general, is the problem of the Constitutional Court of Georgia, as of the institute. This problem clearly shows its fragile institutional condition in the non-consolidated, non-liberal democracy.
In such regimes, similar to authoritarian and hybrid regimes, constitutional courts weakened by light/political institutional attacks5 are pressured by political and/or societal power centers. Sooner or later, they fall under the influence of diverse formal and informal power actors. It is ironic, but elites of the Constitutional Courts, as in authoritarian and hybrid, as well as non-liberal democratic
regimes, have “pragmatic” grounds for justifying their recruitment by the holders of power- they “protect” the institute of the Constitutional Court itself. In the benefit of power holders, “by pragmatic compromises” they leave to the Constitutional Court the possibility to fulfill its constitutional function in such cases, where “red lines” of interests of actors of the power are not defined.
By progressive and/or constitutionally correct decisions made beyond the “red lines” drawn by the power, such Constitutional Courts, on the one hand hold up to their remains of social legitimation, on the other hand by preservation of the remains of this legitimation they reinforce legitimation of the political power, which they serve basically. Such operative system requires mastering art of chameleon from the side of the Constitutional Court.“Red lines” change constantly even in consolidated authoritarian regimes.As for the non-consolidated , so called “non-liberal democracies”, here the centers of power change by themselves and therefore, the “red lines”, which are drawn by transient powers, are unpredictably changing too. Georgia after restoring independence falls more under this category.
Learning to be chameleon from the side of the Constitutional Court is inconsistent with protection of such constitutional values, as clarity, consistency, certainty, predictability. The rule of law is the first victim of chameleon, however, its sacrificing is not done publicly and completely. It is necessary to demonstrate minimum devotion to these values. Hence, their neglection is mainly done through hiding, abuse and strategic calculation.
In this view we will see the thing why we are criticizing the Constitutional Court with regard to the discussed decision, its modus operandi and mechanism of institutional self-preservation. Being constitutional chameleon damages the rule of law and gives possibility to the court to implement it selectively. Vague, contradicting standards, weak and inconsistent constitutional doctrine, chameleon is the core basis of the court. It gives possibility to court to adapt to varying and contradicting “red liners” and tasks defined by constantly changing power centers.
In order to use the analysis of this decision for discussing it in the frame of increasing literature existing about functions of the Constitutional Courts in authoritarian and non-liberal regimes, firstly we need to review main elements of the mentioned literature and outline theoretical basis.
In this regard, particularly important will be stressing attention on the central role of abusing practice of comparative constitutional law “borrowing” (norms and institutes, as well as arguments of normative justification) in the work of Constitutional Courts of authoritarian and non-liberal regimes.
After establishment of this frame, in following parts, we will discuss in details doctrinal inconsistency and superficiality of the decision of the Constitutional Court on gender quotas, by critical, normative-theoretical and comparative analysis of core doctrinal elements of argumentation of the Court, and we summarize conclusions in light of the ongoing and future state of the Rule of law and Constitutional Justice in Georgia.
The critical question, which is posed to such academic work is the following: whether the analysis of jurisprudence of Constitutional Courts obeying authoritarian/non-liberal regimes is justified, beyond the production of empirical evidence of their subordinate condition? In the conclusion of the article we will try to answer this question. Despite the fact that the value of such analysis in normative perspective is really small, especially in the direction of doctrine construction, the jurisprudence of subordinated court sti;; has value in normative theory for developing critical perspective.As for the empirical and practical value of such work, it is not doubted by critics.
