The FINANCIAL — This report addresses one of the fundamental problems of Georgian justice system. Unfortunately, independence of the Georgian judiciary is questionable and the attorney’s role in the judicial system is not as strong as it should be in a democratic society. The Government must reform the justice system to tackle mentioned problems but not in a way, it has been doing until now.
Most of the reforms implemented so far, created or heightened the barriers to entry into a judiciary. A declared goal was to make judges more competent and independent. However, these reforms seem to be counterproductive and constitute a threat to judicial independence.
Under the current “reformed” system, the judiciary is isolated from the private practice. The way system is designed makes it impossible for private practitioners to become a judge. The law students have to pick their career path right after their graduation. The ones, who pick judiciary, start as interns or clerks in the court. If they obey the system and in the words of late Justice Scalia, “keep their nose clean and do not make waves”, they get promoted to the position of a judge. Others who pick private practice will likely remain there for the rest of their life.
The reason why only insiders manage to become a judge is the system that consist of various formal barriers that are inconvenient and troublesome for private practitioners. A candidate has to pass a special qualification exam for judges that requires memorizing some formal, bureaucratic procedures. The next step is completing ten-month intensive course in the High School of Justice. After that, the Council of Justice will interview candidates and assess their competence and good faith based on vague standards.
The Council of Justice appoints the judges for three-year probation period. Again, if they “do not make waves” within the probation period they will get lifetime appointment. From the private practitioner’s perspective, it is not worth investing so much time and effort to meet with mentioned bureaucratic requirements, especially when the chances of an outsider to succeed in this system are very low. Due to this system, it is almost impossible for even the most successful, reputable attorneys to get into the judiciary.
The mere fact that the vast majority of the newly appointed judges in Georgia are former clerks, court recorders and other court officials speaks for itself. Virtually none of them has ever worked as private practitioners. Their professional skills have never been challenged on a highly competitive job market. This fact raises serious concerns about independence of judiciary. It is highly likely that judges, who have never worked outside the court system, will be afraid of losing their job. They seem to be vulnerable because they have no other place to go. Due to this systemic error, the independence and impartiality of the judiciary is inherently questionable.
Unfortunately, it is not prestigious to be a judge in Georgia. It is hard to find a successful partner or even an associate of an international or successful local law firm, who would be willing to become a judge in Georgia. This unfortunate fact adversely effects the independence and impartiality of the judiciary. If the judges were prominent lawyers, with remarkable background and well-developed legal philosophy, their independence would hardly be questioned.
Therefore, due to mentioned artificial and unnecessary barriers the judiciary is becoming isolated and bureaucratic institution.
Unfortunately, Georgian Bar Association is making exactly the same mistake. Instead of advocating for integrity of legal profession and freedom of lawyers to choose their career, GBA initiated new barriers for entry into private practice. In addition to the bar examination, the recent changes in the Law on Attorneys require the candidates to complete the special one-year “adaptation program“ otherwise, GBA will not admit them to the bar. Requirements like this prevent former judges from starting private practice and constitute a threat to judicial independence, because again the “disobedient” judges will have no place to go.
In old English legal system, which is predecessor of the US legal system, the term “bar” meant the whole body of lawyers, not merely the association of the private practitioners. The origin of the term “bar” is from the barring furniture in the courtroom that separates the spectators from the participants in a trial as lawyers. The example of arguably the most well-developed Anglo-American judicial system proves that the integrity of the legal profession and less or no barriers within it ensures independence and reputability of the judiciary. Everyone beyond the bar is a member of the legal profession, equally important for the entire justice system.
What shall we do? The government and the Council of Justice should stop implementing more and more formal requirements for judicial appointment and open up the profession instead. The Georgian Bar Association and every single private practitioner should be advocating for freedom and integrity of legal profession. In other words, we must stop building new walls and tear down the existing walls built around the judiciary and bar association.