Proposed law amendments threaten to stall judicial reform effects in Georgia

Ken Stier 6/12/02

Proposed amendments to a law concerning Georgia's legal establishment threaten to upend a decade of judicial reform efforts. If adopted, the changes would effectively prevent the establishment of new professional and ethical standards for lawyers, thus leaving the legal system prone to corruption.

The proposed amendments to the Law on the Bar, which was adopted last June, would inhibit the formation of a Western-style Bar Association to oversee the conduct of the country's lawyers. Legal observers say the amendments are an indicator of backtracking in Georgia's overall reform process. They also highlight the inherent fragility of legal reform achievements in former Soviet republics. "This is very bad, worse than anyone can imagine," says Tina Khidasheli, of the Georgian Young Lawyers Association.

The amendments are now scheduled for a second reading in the Georgian parliament in mid-June. There is little chance the amendments can be defeated outright at this point, some observers say. "This is a fight over who will control the bar association – it's really between the old guard, the old psychology and a new movement," says Gia Getsadze, an attorney working in a USAID-funded legal reform project.

The old guard is the reputedly corrupt Collegium of Advocates, a Soviet-era, state-run organization of public defenders. It is currently the country's largest grouping of attorneys. "The Collegium doesn't want to lose its power. If it succeeds [in retaining control of the legal establishment], it will stop the legal reform process," Getsadze said.

The Law on the Bar requires all Georgian lawyers to pass a new bar exam – developed with help from the American Bar Association – by 2003. The exam is designed to ensure that Georgian lawyers are familiar with sweeping changes in the country's legal codes that have occurred since the collapse of the Soviet Union.

Experts envisioned that those passing the bar exam would form the backbone of a new Bar Association that would assume broad powers over the legal profession, including setting and enforcing ethical standards. Many of the 800 students studying for the exam are younger lawyers.

Faced with the impending threat to its authority, the Collegium drew up amendments that would exempt most of its members from taking the new bar exam. Those exempted would include lawyers with three years of litigation experience or 20 years of legal practice, and any attorney over 65 years of age. The amendments would also position the Collegium to dominate any new association of lawyers. In addition, the amendments would limit penalties for unethical behavior – with the maximum length of a suspension being one year.

"Collegium members have a single objective: they want to continue practicing as they did during the Soviet time," says Ketti Kvartskhava, a leading commercial lawyer with Business and Legal Counsel.

According to a USAID legal assessment released in 2000, Georgia's legal system is riddled with corrupt practices, such that the merits of a particular case has little connection with the verdict. Bribery often determines the outcome of a trial or other judicial proceeding.

"Within this circle [of advocates, prosecutors, and police], self-interested state agents make decisions every day that direct outcomes of cases, often with no consideration of the legal positions of either the defendant or the victim," the USAID report said.

The Collegium's president, Nugzar Birkaia, denied that the Collegium sought to maintain a corrupt status quo. "Of course that is not true," he said in an interview at his office located at the Ministry of Justice.

The Collegium's opposition to reforms has grown more determined in the wake of an earlier overhaul attempt of Georgia's judges, who have also been compelled to pass new exams, observers say. To date, there has been a turnover of more than 80 percent of the country's 360 judges. There has also been a drastic drop in the median age of judges.

In arguing that many Collegium members should be exempted from taking a new bar exam, Birkaia alleged that the testing process itself has become tainted by corruption. He cited the experience of qualification exams given to judges. He alleged that some members of the 12-member Council of Justice, which was responsible for administering the judicial exams, took bribes in return for granting passing grades. Anecdotal reports indicate that up to one-third of newly minted judges purchased their passing grades. Rates reportedly ranged from $5,000 to $10,000 – somewhere between two and five times the country's annual per capita income.

At the same time, the high turnover of judges has not had a perceptible impact on reducing bribery in the legal system. "From the standpoint of ethics the judges have not improved, the whole system still stands on bribery, the new ones might be just more clever in hiding their corruption," says Kvartskhava.

World Bank-organized focus groups consistently show that members of the public (as opposed to lawyers, judges, etc.) are not impressed with the judicial reform efforts to date. So profound is the disillusionment that donors – who have so far focused on improving the 'supply-side' of the justice system – are now planning to stimulate 'demand' for impartial justice from the public. The concern, say some of those involved, is to calibrate a balance between demand and supply.

The prospect of the amendments to the Law on Bar winning legislative approval has already had a demoralizing effect on Western legal advisors. Carolyn Clark Campbell, who, as the American Bar Association's country director has played a central role advising Georgia on reforms for attorneys, is among those holding a bleak assessment for the medium term. "I am afraid this means the energy has gone out of the legal reform process," she said. "It will probably be years before there is another chance."

Editor's Note: Ken Stier is a freelance journalist who has worked in several countries.

Posted June 12, 2002 © Eurasianet