The Selection of Candidates for the Supreme Court Judges is Arbitrary and Unfair

• Thursday, 24 June 2021
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On June 17, 2021, the High Council of Justice held a ballot for the Supreme Court candidates to be nominated to the Parliament. As a result, nine candidates were selected.[1] The process of selecting candidates in the Council was largely problematic as the assessments made by the members gave an impression of inconsistency, unequal treatment of candidates, and a pro forma approach.

For years, local and international actors, as well as field experts have been actively talking about influences and cronyism in the justice system. The High Council of Justice, a conduit of all important processes in the court system, is the main axis of the Clan’s power and wrongful management. Severe problems in the system directly affect public trust. Recent polls show sharp alienation of the society from the judiciary and an apparent crisis of trust.[2]

For many years, the High Council of Justice, as well as the self-governing body of the common courts, has been operating in the face of such public sentiment and criticism. As a result, fairness, impartiality, and independence of their decisions are constantly questioned. In this context, it is not surprising that despite several waves of reform and constant legislative/institutional change, the judiciary has failed to be perceived by the public as a truly independent and just institution.

The process of selecting judges of the Supreme Court was also conducted in this environment. Amid fundamental criticisms of the current composition of the Council and distrust towards the judiciary, the process of judicial selection was seen as another step in strengthening the Clan's power and deepening existing problems. In the face of the current level of public criticism of the management of the court system, the ongoing process has entered a crisis of legitimacy.

It should be noted that this issue was exacerbated by the fact that the High Council of Justice did not consider the Venice Commission’s recommendation released on the 28^th of April. The Venice Commission has proposed to the Georgian authorities to re-announce the competition for judges, taking into account the need for reforms and ensuring equality of candidates.[3] Nevertheless, the process of selecting candidates continued and the High Council of Justice published individual evaluations on June 1, and by the June 17 decision, nominated the top nine candidates to the Parliament. The analysis of the contestants’ evaluations reveals shortcomings in a number of areas and raises questions regarding the general fairness and credibility of the competition:

Pro forma assessments:

The members of the Council evaluate Supreme Court judicial candidates individually, based on their integrity and competence. The candidates with top scores automatically advance to the next stage. It should be noted that the introduction of this rule was a positive development in the legislation, though the process of selecting the Supreme Court judges demonstrated that the current composition of the Council does not have the will to assess candidates fairly and transparently.

The evaluations of candidates' qualifications, with rare exceptions, were entirely duplicative. Council members mostly applied ready-to-use terminology and phrases to justify high or low scores assigned to a candidate. Consequently, the reasoning sections were short and poorly written. They were not based on an in-depth and detailed examination of candidates' qualifications, strengths, weaknesses, and personal characteristics revealed during interviews. This conclusion is further supported by the fact that in some cases the assessments of candidates by different evaluators were identical or similarly formulated.

The assessments of candidates’ integrity were also pro forma. The evaluations by different members of the High Council of Justice include scattered factual information about candidates, such as information on their political activities, disciplinary proceedings, business activities, media appearances in connection with different cases, criminal charges etc. However, these facts are rarely evaluated and even then, the evaluations are duplicative and superficial.

The duplicative nature of evaluations revealed two problems: 1) it showed that the Council members reduced the requirement to provide reasoning to a technical task and therefore did not make an effort to give it the meaning it actually has -- promotion of reasoned, fair, foreseeable and objective decision-making. Thus, the process of selecting Supreme Court judicial candidates has not established any substantially new standard of fairness. 2) This approach also did not explain the standards of integrity and qualifications guiding the Council to outside observers. Consequently, the process has further deepened the distrust in the current composition of the Council and decisions taken by the members. These problems also became apparent in the inconsistency of reasoning provided by the evaluators.

Inconsistency of Reasoning

The assessments are not only pro forma, but also inconsistent. In particular, the Council members often assigned substantially different scores to different candidates despite providing similar reasoning.[4] In addition, in some cases, it is impossible to see any logic in how scores are awarded for particular criteria. For example, both maximum and lower scores assigned in the “Writing Component” were supported by identical arguments. In particular, no critical remarks were made by the evaluators, although the scores were significantly different from each other.[5]

Similarly, there was a clear inconsistency in the assessment of the candidates’ compliance with procedural time limits in their professional work, which was reflected in different scores.[6] Generally, the assessments also do not reveal differences in the level of candidates’ legal knowledge and argumentation skills, which eventually would justify considerably different scores assigned to them. Overall, there were a number of cases where no critical remarks were made in any of the components, but significantly lower scores were assigned to a candidate.[7]

It should be mentioned that this issue is closely related to the content of the evaluation criteria and how the evaluators themselves view them. For example, it is unclear how evaluators approach to the components of academic achievements and professional activity. After reviewing the evaluations, it remained unclear exactly what type and degree of academic and professional achievement should be considered appropriate for a Supreme Court judge candidate. This issue is especially relevant given that, for example, some of the selected candidates have not published a single scientific article or publication.

It is important that the scores and reasoning given to candidates by evaluators are consistent, based on substantially similar methodological approaches, and show no signs of bias. In this regard, unfortunately, the way the evaluation criteria were interpreted and justified in relation to each candidate does not provide a basis for trust in the process. At the same time, it should be noted that the duplicative nature and inconsistency of assessments increase risks of discrimination and unequal treatment of candidates.

Information retrieval and reliability

The evaluations revealed the information on candidates are not retrieved from similar sources, and the members of the Council do not make an effort to create a comprehensive and complete picture of the candidate's biography by researching the relevant information. It is unclear what fact-finding mechanisms are used by the High Council of Justice. For example, evaluators refer to respondents (other than recommenders), who were interviewed to receive information about a candidate, although it is unknown who these individuals are and what methodology is used when interviewing them. Also, when evaluating the competence of the candidates, the assessments of the Independent Board of the High School of Justice are used.[8] In this case, too, it is not clear how much attention is paid to when the Independent Board evaluations are prepared and to what extent the candidate has the same professional challenges and/or advantages that are discussed in the evaluation.

It is also problematic that evaluators rely only on the decisions or scientific papers submitted by candidates. This information is obviously insufficient to draw conclusions on candidates’ legal reasoning and writing skills, and professional principles. These circumstances raise questions regarding credibility and relevance of information the Council members rely on when assessing the integrity and qualifications of the candidates.

Conclusion

The assessment system is an important tool for a transparent and objective judicial appointment process. However, the selection of Supreme Court candidates has demonstrated that it cannot ensure a substantively fair process, under the conditions of mistrust towards the justice system, internal corporate culture, and wrongful management and administration practices. The introduction of an assessment system has failed to create a turning point in building trust in the High Council of Justice and its decisions.

The observation of the process has once again revealed that without fundamental changes in the High Council of Justice and the judiciary as a whole, all important processes (especially the appointment of judges) go through the same circles of mistrust, cronyism, and clan-based power. Consequently, without initiating radical changes in the justice system, any further process will fail to provide an escape from this circle. As the competition for the judicial candidates in the High Council of Justice is carried out in a flawed and unfair manner, it is necessary that:

• the Parliament of Georgia appoints the candidates to the Supreme Court based on a political consensus with the parliamentary opposition.
• If a consensus with the opposition is not achieved, the Parliament refuses to appoint judges until a systemic justice reform is executed.