Issue date: September 2019
Author: András Sajó
Irrespective of the advantages or negative consequences of social rights, and unrelated to the textual recognition of such rights in a given constitution public opinion and a great number of scholars and politicians take such rights for granted. Most constitutional and supreme courts in welfare states have to operate (and in certain cases are willing to operate) as if these rights were part of constitutional reality. In this paper I take this point of departure as part of constitutional reality. This is, however, an open reality, i.e. even with strong textual recognition in more recent constitutions, it is to a great extent a matter of constitutional policy, a matter of judicial choice how these references will be used. The following remarks intend to review some of the applicable judicial strategies arguing that strong substantive recognition of such rights is justifiable only in very exceptional circumstances.
Paper: Possibilities of Constitutional Adjudication in Social Rights Matters
Note: This article was first prepared by Prof. Sajó in 2009 and was presented at a Conference held by the Constitutional Court of Georgia “Justiciability of Social Rights in Courts of Constitutional Jurisdiction and the European Court of Human Rights”. Since the issues brought up in the paper are still relevant, it was edited and prepared for publication in the Journal of Constitutional Law with collaboration with the Author. The paper is representative of the reality at a time of its original drafting and does not reflect changes that took place after 2009. We hope the readers of the Journal find the views and the work interesting. Printed by the permission of the Author ©. This article is not included under the Creative Commons Attribution (CC BY) 2.0 License of this Journal. This article is distributed under the terms of the Creative Commons Attribution Non-Commercial License, which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited. Terms of license are available here: http://creativecommons.org/licenses/by-nc/3.0.
Author: Jeremy Waldron
In this article the author explores the relationship between homelessness, the rules of public and private property, and the underlying freedom of those who are condemned by poverty to walk the streets and sleep in the open. The author focuses on the fundamental question of legal and moral philosophy: how should we think about homelessness, how should we conceive of it, in relation to a value like freedom? Some of the most fundamental and abstract principles of liberal value are at stake in any discussion of homelessness.
Paper: Homelessness And The Issue of Freedom
Note: Reprinted from: Jeremy Waldron, Homelessness and the Issue of Freedom. Originally published in 39 UCLA L. Rev. 295 (1991-1992). Reprinted by the permission of the Author. This article is not included under the Creative Commons Attribution (CC BY) 2.0 License of this Journal. This article is distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.
Author: Mariam Mgeladze, Murman Gorgoshadze
The present paper addresses the necessity of creating legal regulations regarding a technological novelty - robots; it discusses the issues of freedom of religion, freedom of expression and the right to personal development in the context of domestic legislation, as well as international regulations. The paper focuses on the issue of potential applicability of the said constitutional rights to robots, and the role of the Constitutional Court and the Supreme Court of Georgia with respect to this subject. In addition, the paper addresses the case-law of the Supreme Court of the United States and the European Court of Human Rights.
Paper: Applicability of Legal Regulations to High Artificial Intellect – Robots
Author: Tamar Baramashvili, Lela Macharashvili
Suspension the operation of a disputed act is an essential instrument, which aims to serve efficient protection of human rights and fundamental freedoms in the process of constitutional review. According to the case law of the Constitutional Court of Georgia, this particular role of the mechanism of suspension of the norm is caused by several important factors. Most importantly, suspension the operation of a disputed act is the ability to establish the basis (legal capacity) for the Constitutional Court of Georgia, to provide an instant response when there is an urgent need. Irreplaceable nature of this instrument gains particular importance, not only in practical terms but academic as well. Within this paper the basic essence of suspension, the certain precondition for suspension well-established by the case law of the Constitutional Court of Georgia case law, particular issues such as the interrelation between entail irreparable consequences to one of the parties and the restriction of the rights of the others is discussed. Further, the paper analyses the non-systematic approach of the legislator in the legislative amendments to the instrument and the shortcomings identified in the constitutional review of the court.
Paper: The Institution of Suspension of The Disputed Act within The Constitutional Review
Author: Salome Samkharadze
The current Civil Procedure Code of Georgia does not determine the courts’ competency or their obligation to suspend legal proceedings whenever the Constitutional Court is considering the constitutionality of the law applicable to the said legal proceedings. Similarly, the law does not specify grounds for suspension of legal proceedings in cases where during the proceedings before common courts, a party to the case believes that an applicable legal norm does not comply with the constitution and hence, the party brings a claim before the Constitutional Court.
The present article addresses the effectiveness of individual constitutional complaints, as of a mechanism aiming to guarantee the protection of violated rights in the context of the lack of definition of the suspension of legal proceedings before the common courts.
Paper: Effectiveness of Individual Constitutional Complaints during Legal Proceedings before The Common Courts
Pages: 89 -101
Author: Nino Chochia
While performing the constitutional review, constitutional courts often have to assess the constitutionality of legal provisions, which grant a privilege concerning social benefits, tax exemptions or similar matters to a certain group of the society. Such cases can be problematic with regard to the right to equality when a particular group of people are excluded from above-mentioned privileges without appropriate rational justification. The main challenge for constitutional courts in these cases is to declare the provision granting a privilege unconstitutional in such manner, that does not go beyond the scope of its authority and role as a negative legislator. To resolve this issue, constitutional courts apply various mechanisms established by the relevant legislation or the case law and the Constitutional Court of Georgia is no exception for that matter.
Paper: The Remedies of Elimination of a Statutory Privilege Incompatible with the Right to Equality And Non-Discrimination by the Constitutional Courts
The Journal of Constitutional Law continues to offer the readers brief summaries of the latest significant cases resolved by the Constitutional Court of Georgia. For this Volume four judgments adopted by the Court within 2019 were selected for publication, some of which have had high resonance not only within Georgia, but globally in the legal field. The Journal hopes the notes will bring more interest towards the case-law of the Court and will motivate further discussions around its practice.
LLC SKS v. the Parliament of Georgia
N(N)LE "Media Development Foundation” and N(N)LE "Institute For Development of Free-dom of Information” v. Parliament of Georgia
The Public Defender of Georgia v. the Parliament of Georgia
Alexandre Mdzinarashvili v. the Georgian National Communications Commission
Paper: Case Notes of the Constitutional Court of Georgia