№1-2 / 2021 Issue date: December 25, 2021
Merab Turava: Foreword
Author: Paata Javakhishvili
The 1918 Act of Independence of Georgia is the first act of constitutional significance, which defined the Democratic Republic as a form of the political structure in Georgia. The main factors that led to the change in Georgia’s traditional form of monarchical government were the fear of restoring the monarchy itself and the need to shift to a form of state governance that would establish the principle of public representation in the governmental system and would ensure the realization of the idea that the people are the government’s source of authority. It is noteworthy that this choice was solid and acknowledged by the political authorities, which is confirmed by the recognition and assurance of the Democratic Republic as an immutable form of the Georgian political structure in the 1921 Constitution of Georgia.
The purpose of this article is to discuss the form of the political structure of the state defined by the First Constitution of Georgia, to assess of the major normative features of the constitutional norm and to analyze of the determinants of the establishment of the Democratic Republic as a permanent and an immutable norm of the Constitution. The paper discusses the political and legal preconditions, goals, and the legal nature of the establishment of a democratic republic as an immutable norm. As regards to the immutable norms a parallel is drawn between modern states’ constitutions and the corresponding conclusions are presented in article.
Paper: The Issue of Unamendable Norm in the First Constitution of Georgia
Author: Nika Arevadze
Social rights hold a distinct historic place in the Georgian constitutionalism. Chapter 13 of the 1921 Constitution of Georgia ‘socio-economic rights’ encompassed many progressive provisions such as norms on unemployment reduction, social assistance for persons with disabilities, labour rights and emphasized the necessity to guarantee these rights for national minorities. In conformity with this tradition, Article 5 of the modern Constitution declares Georgia a social state. This constitutional principle encompasses a wide array of progressive social objectives and lays the foundation for social rights under Chapter 2 of the Constitution.
Despite their central role in the Georgian Constitution, the justiciability of social rights is linked with conceptual and practical difficulties. This article discusses the approach of the Constitutional Court of Georgia to social rights. With this purpose, the article reviews the case-law of the Court and concludes that it has developed bold standards in specific cases but its overall approach to social rights is restrained and cautious.
In addition, the article analyses conceptual and practical issues that the Court encounters in its case-law on social rights and finds that the challenges identified by the Court pertain to the nature of social rights as well as the mandate and function of the Constitutional Court. These questions are not unique to the Georgian judicial reality and have been often raised in the theory of social rights and international practice alike. Accordingly, the article discusses these conceptual issues and offers theoretical and practical ways of overcoming them based on the practice from various jurisdictions.
Paper: The Social State Principle at Play: Constitutional Case-Law on Social Matters
Author: Revaz Khoperia
The external control of the educational institutions for political purposes had been a regular practice in the Soviet Union. As a result, political propaganda used to substitute the reality. Any opinion contradicting the established regime was prohibited, punished and banned from the educational institutions.
Prior to the forced Sovietization of Georgia, there were progressive safeguards established to ensure freedom in the field of education. Freedom of teaching was recognized by the Constitution. However, the rule enshrined in the first Constitution on academic freedom has never been applied in practice due to the conquest of Georgia by Russia.
After the restoration of independence, the 1995 Constitution set forth the right of education. However, in contrast to the first Constitution, it did not enshrine the rule on the freedom of teaching and research. The recent constitutional amendments recognized academic freedom as a constitutional right and hence it gained more importance to realize the legal substance of academic freedom.
This article reviews the importance of academic freedom, as a constitutionally guaranteed right, as well as its substance and standards of restriction on the basis of analysis of legislation, the opinions in the academic literature and the case law of the Federal Republic of Germany, the United States of America and Georgia.
Paper: Academic Freedom as a Constitutionally Guaranteed Right (Comparative Legal Analysis Based on the Law of Germany, the United States and Georgia)
Author: Ana Beridze
The Constitution of Georgia of 1921 did not directly guarantee environmental human rights (environmental issues gained particular importance only in the second part of the 20th century), however, it recognized the human being as the main value, and required the state to ensure the well-being of the people and their right to live with dignity. Nowadays, the main threat to the enjoyment of human rights are climate change-related environmental problems and risks. The rights to life, human dignity and environmental protection are now directly guaranteed by the Constitution of Georgia of 1995, which draws aspirations from the Constitution of Georgia of 1921. Thus, Georgia has the positive obligations to protect human health and life, guarantee environmental protection and ensure that people live with dignity in the context of climate change.
Paper: The Right to Life in the Context of Climate Change
Author: Guliko Matcharashvili, Tamar Oniani
The 1921 Constitution of Georgia supported through the content of Article 45 the idea that the rights explicitly enumerated in the Constitution are not exhaustive and final and that the enumeration of some rights does not deny or disparage the existence of other rights. Such a clause can be compared to the outcome of the ‘fear and acceptance’ concept by András Sajó. In a system, where the building of democracy does not have a long history, there is always this fear that the state will try to find a leeway out of the human rights structures. The rationale behind the Ninth Amendment of the US Constitution was exactly the fear of the Founding Fathers, that the rights enlisted in the Constitution could diminish the scale of human rights protection in the future.
The present academic article aims to elucidate the question, whether transferring Article 39 of the 1995 Constitution (the version prior to 16 December 2018), which was the legal successor of Article 45 of 1921 Constitution, from the Second Chapter to the First Chapter diminished the substantive and procedural safeguards for the protection of rights. To answer this question, this article reviews the meaning and the case law regarding the Ninth Amendment of the US Constitution, as well as the case law of the Constitutional Court of Georgia in relation to Article 39. The present article also reviews Article 35 (formerly Article 45) in the light of the ‘living constitution’ mechanism. As a conclusion, the article summarizes the question, whether the legislator defied the legacy of Article 45 of the 1921 Constitution with the constitutional amendments of 2018.
Paper: Constitutional Memory: Did the Legislator Forget the Way Paved for Human Rights by Article 45 of the 1921 Constitution of Georgia?!