Journal of Constitutional Law - Vol. 1 (2023)
Issue date: September 2023
Merab Turava: Foreword
Author: Andrew Koppelman
Abstract
A growing number of scholars think "religious liberty" is a bad idea. The unfairness objection is that singling out religion for special protection is unjust to comparable nonreligious conceptions of the good. The distraction objection asserts that religious liberty is a misleading lens: oppression sometimes occurs along religious lines, but the underlying conflicts often are not really about religious difference. Both objections are sound, but under certain conditions religious liberty should nonetheless be regarded as a right. Law is inevitably crude. The state cannot possibly recognize each individual’s unique identity-constituting attachments. It can, at best, protect broad classes of ends that many people share.
Paper: How Could Religious Liberty be a Human Right?
Pages: 9-32
Author: Lela Macharashvili
Abstract
The exercise of legislative authority and, consequently, the determination of the country's policy while regulating public relations, constitutes the constitutional prerogative of the direct representative of the people - the Parliament. Nevertheless, considering the extensive nature of legislative activities and the intricacies of contemporary governance, there are instances where entrusting legislative functions to the executive branch becomes unavoidable. In scholarly literature and judicial practice, the delegation of the law-making function seldom sparks dissent. Although the extent and scope of delegation itself are permissible for constitutional purposes, it remains a subject of fervent debate. The Constitutional Court of Georgia has also established specific standards concerning the delegation of law-making competence. However, judicial decisions on this matter are not abundant. This paper is dedicated to exploring the delegation instrument and analyzing relevant international standards.
Paper: Constitutional Limits of Delegation of the Law-making Competence
Pages: 33-52
Author: Sopho Verdzeuli
Abstract
The interrelation between the law and politics permeates contemporary discussions of constitutional and statehood issues. Law and legal formalism have penetrated many areas, which were traditionally considered political, which has created a trend of juridification of politics globally. Juridification at the expense of reducing the role of political institutions, is provided by strengthening formal-legal systems. The struggle and change of balance between the “political” and the “legal” are characterized by a number of complex and contradictory outcomes.
The aim of the presented work is to investigate the trend of juridification in Georgia in the light of the reform of the justice sector. For this purpose, the paper examines changes implemented in the judicial and prosecution systems within the framework of the 2017-2018 constitutional reform. The paper tries to answer two main questions: whether the constitutional reform strengthened juridification trend in Georgia, and what problematic/contradictory results may be associated with such a reform strategy.
Paper: Juridification of Politics – Contradictory Results of the Justice Sector Reforms in Georgia
Pages: 53-77
Author: Davit Abesadze
Abstract
Constitutional review of norms is a mechanism established by the Constitution of Georgia, the use of which naturally places the Constitutional Court of Georgia in a kind of institutional conflict with other branches or organs of the government (such as the Parliament, the Executive Power, the President), and at the same time, it is a serious interference in the democratic process, as it implies annulment of the act adopted by the body with democratic legitimacy. This is why constitutional review bodies, both in Georgia and foreign countries, exercise caution when using the mentioned mechanism. The practice of recognizing the normative content as unconstitutional, introduced by the Constitutional Court of Georgia in the last decade, is indicative of its dynamic interrelation with political branches. This practice provides the Court with the opportunity to eliminate constitutional flaws in the norm without revoking the entire norm.
Recognizing the normative content as unconstitutional gives the Constitutional Court the opportunity to localize the potential constitutional violation and to satisfy the constitutional claim/submission in such a way as to restrict its decision to the factual circumstances/reservations related to a specific case.
Despite the fact that the Constitutional Court of Georgia first used the mechanism of rescinding the normative content in 2011, there is still no unified analytical framework or standard guiding the Court when considering the constitutionality of the normative content, rather than the entire norm. From this point of view, the observation of the practice reveals, that identification of the normative content to be declared void requires judicial judgment and a creative approach to some extent, which should be covered by the appropriate framework, related to assigning the specific role to the Constitutional Court and defining related limitations within the scheme of distribution of power.
The aim of the paper is, on the basis of theoretical-practical observations (including comparative research) to outline the principles, which should serve as a basis for the constitutional review of the normative content. According to the opinion presented in the paper, when assessing the constitutionality of the norm, the focus on the normative content should be based on the assumption that there are situations in which the application of the entire norm would not lead to a violation of the Constitution. Also, a review of the normative content should not essentially turn into an assessment of the constitutionality of an individual decision. Separation of the normative content from the norm should not be contrary to the purpose of the legislator and should not be based on an exaggerated hypothesis regarding the application of the norm in this or that context. And finally, when recognizing the normative content as unconstitutional, the line drawn between the invalidated content, and the content, which was found as valid, should, in turn, comply with the requirements of the Constitution.
Pages: 79-108
Author: George Goradze
Abstract
It is acknowledged truth in the sphere of legal hermeneutics, that when interpreting a legal norm, we should not always rely only on grammatical and word-for-word interpretation, and we should also refer to other ways and methods of interpretation, because sometimes the norm may seem simple, but in reality its understanding requires a complex approach. We are dealing with such a case in relation to the issue of holding a referendum in Georgia. In this case, no one disputes the democracy of the referendum, the issue only concerns the admissibility of holding a referendum under the conditions of occupation of a part of the country's territory, which is aggravated by one norm of the Organic Law of Georgia "On Referendum", literal interpretation of which leads to the only conclusion, that holding a referendum in Georgia is not allowed before the restoration of territorial integrity. The present article is an attempt to answer this question not only with one approach but in a comprehensive manner, applying the main methods of legal hermeneutics.
Pages: 109-125
Authors: Tea Kavelidze
Abstract
In the constitutional legal space of Georgia, coexistence of the subjects with the right to represent the country in the field of foreign relations is a very problematic issue. In the wake of the constitutional reforms implemented in Georgia in 2004, 2009-2010, and 2017-2018, the forms of state governance of Georgia were changing, which, in turn, led to changes in the powers of the President of Georgia and the executive power in the field of foreign relations. According to the Constitutional Law of October 15 2010, which came into effect from the moment of swearing-in of the President elected as a result of the next regular Presidential Elections of October 2013, the form of state governance of Georgia was changed. The change of the main characteristics of the governance model led to the risk of overlapping of competences and conflict of powers in the field of foreign relations not only between the President of Georgia, the Prime Minister, the Minister of Foreign Affairs, and other ministers, but also in the executive power itself. In addition, as a result of the constitutional reform of 2017-2018, the Constitution was revised again, which shaped differently both the governance model and the powers of the President of Georgia in the field of foreign relations.
Ensuing from the above, the article will discuss the constitutional status of the President of Georgia in accordance with the constitutional reforms implemented in the field of foreign relations and the current edition of the Constitution. The article shall overview the intersecting powers of the President of Georgia and the Government of Georgia in the field of foreign relations in conditions of the current governance model of Georgia and the constitutional experience of the countries with a governance model, similar to Georgia in terms of the President's foreign powers.
Paper: Constitutional Status of the President of Georgia in the Field of Foreign Relations
Pages: 127-153