Rule of Law in the "Chameleon Court" Jurisdiction
This working paper advances several theses based on the critical analysis of the Constitutional Court’s judgement under review. Firstly, in this case, the Constitutional Court was required to establish clear and consistent standards on the constitutional status of gender related affirmative action and its relation to the constitutional principle of formal equality.
Instead of developing a consistent standard and overcoming doctrinal contradictions, the decision under consideration makes the content of the constitutional principle of equality and relevant standards of review even more inconsistent and contradictory. As a result, the degree of legal certainty and security provided by the constitutional rules and doctrine is significantly diminished, undermining the rule of law - the foundation of Georgia’s constitutional order.
This observation is not restricted to the constitutional court’s equality jurisprudence, it is a general characteristic of the Constitutional Court of Georgia as an institution. It clearly demonstrates Georgian constitutional court’s fragile institutional position in an unconsolidated, illiberal democracy where constitutional courts are weakened by political attacks and more broadly, come under strong pressure from political and / or centers of social power.
Under these circumstances, constitutional courts are inclined to render at least some progressive and / or constitutionally correct decisions beyond the "red lines" drawn by the political authorities or other powerful actors, in order to save the remnants of their own public legitimacy. On the other hand, by preserving the remnants of that legitimacy, they also strengthen the power of those in power to whom they ultimately serve. Such an operational mode requires from the Constitutional Court to master the art of chameleonry.
Practicing chameleonism by the Constitutional Court is incompatible with the unwavering adherence to such constitutional values as clarity, certainty, foreseeability. Vague and conflicting standards, shallow and inconsistent constitutional doctrine, are the hallmarks of a “Chameleon Court”. It allows the court to adapt to the ever-changing "red lines" and tasks commanded by the centers of power.
In the present working paper, after critical discussion of the judgement of the constitutional court in the case of mandatory gender quotas, it is concluded that the case is decided based on inconsistent and contradictory constitutional grounds, pursuant to the overall strategy of the “Chameleon Court”.
Note: The full document is available only in Georgian.
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