New anti-discrimination law: Challenges and achievements

17 June, 2014

 

Table of Contents

1. Preliminary Process
2. Process of Debating the Draft Law
3. Analysis of the Draft Law

a. Supervision and Raising of Public Awareness
b. Mechanisms for Elimination of Discrimination
c. Mediation and Other Mechanisms
d. Burden of Proof
e. Repressive Mechanism
i. Equipping Public Defender with a Repressive Mechanism
ii. Effectiveness of a Repressive Mechanism
f. Granting the Public Defender Authority to Represent Victims of Discrimination in Court
g. Reservation on the Constitutional Agreement
i. Reservation on the Public Order
j. Reservation on the Protection of Public Morals
4. Conclusion 

As part of the EU-Georgia Visa Liberalization Action Plan, in 2013 Georgia became obligated to adopt a law aimed at eliminating various forms of discrimination. The Ministry of Justice of Georgia started working on the draft Law last year and submitted it to the Government. In April 2014 the Government has submitted the draft to the Parliament, which has adopted the Law on 2 May 2014. On May 7, following the President's signature, the Law of Georgia "on the Elimination of All Forms of Discrimination" has entered into force officially.

In view of the high public interest, provided below is a brief analysis of processes related to adoption of the Law, offered mechanisms and submitted recommendations and/or comments.

1. Preliminary Process

The Government of Georgia has identified the Ministry of Justice as an agency responsible for developing the draft Law. The Ministry of Justice has ensured public participation during the work on the draft Law. The Minister of Justice has stated several times that she had had meetings in the Patriarchate of Georgia over the draft Law. Certain amendments were made to the draft Law once the Government received it from the Ministry of Justice. The civil society learned about these amendments only after the draft Law was registered in the Parliament. The draft Law submitted to the Parliament was somewhat different from the original version drafted by the Ministry of Justice. In particular, the Ministry's draft empowered the state to fine persons committing discrimination. Owing to this, non-governmental and religious organizations have criticized this amendment to the draft Law and have provided the authorities with recommendations. Clerics have also protested against certain language of the Law. Prior to examination of the draft Law the Government of Georgia has not taken measures to raise public awareness on the draft Law, which consequently turned into a problem. Namely, a large part of the society did not know what the draft Law was about and did not know its chief objective. Clerics and politicians opposing the draft Law have abused all of the above-described.

2. Process of Debating the Draft Law

Once the draft Law was sent to the Parliament, the forms of discrimination included in its Article 1 have caused the biggest turmoil. Individual MPs, representatives of non-parliamentary opposition and especially clerics demanded for the Law not to specify the forms of discrimination. Language on sexual orientation and gender identity was especially problematic, viewed as legalization of “Sodomy” by the clerics who at the same time warned MPs of losing public support should they have voted for the Law in this form.

At the hearing of the Committee for Human Rights and Civil Integration, where the draft Law was debated, deacon Davit Isakadze has stated that “turning homosexuality into a norm” is unacceptable and threatened supporters of the draft Law with anathema.

The Catholicos-Patriarch of All-Georgia Ilia II has addressed the Parliament and urged it to postpone the adoption of the draft Law:

“Introducing the definitions of “sexual orientation” and “gender identity” in this important draft Law for the country’s development causes huge turmoil among the public because the individual rights of our citizens are equally protected by the current legislation of Georgia. Based on  God’s Commandments, religious society fairly views non-traditional sexual relations as a deadly sin, and finds the draft Anti-Discrimination Law submitted in this form as propaganda and legalization of this sin.”

Such warnings exerted certain influence on several MPs. For instance, a member of the parliamentary majority, Gedevan Popkhadze, has stated that he as an Orthodox would not vote unless the draft Law gained the Synod’s support.

Representatives of non-parliamentary opposition have also actively campaigned against the draft Law, including Jondi Baghaturia:

“The Parliament will probably adopt the draft Anti-Discrimination Law, because Bidzina Ivanishvili has interfered unlawfully and by breach of law. This is a gross and sheer violation of the law that forces the MPs to support this draft Law through an expedited procedure. As for the reaction of the Georgian society and myself – we won’t let them go off like this. There is no way back now, this must be over once and for all. People will take to the streets. I urge the Georgians, Russians, Armenians, Azerbaijanis: let’s put our ethnic differences aside at the moment and let’s defend our country and our families all together.”

Vice-Speaker of the Parliament Manana Kobakhidze was against specifying the forms of discrimination:

“My position is that in a day or two any sign can emerge, by which a person can be subject to discrimination. Why are the details needed when discrimination on any grounds is already prohibited?!”

Further, the clerics and the Orthodox parish were organizing periodic rallies in front of the Parliament, at which they demanded from the Parliament to refuse to adopt the draft Law.

In parallel, consultations between the Parliament and clerics were underway behind closed doors. Shortly before adopting the Law, the authorities managed to convince some of the clerics of the necessity of adopting the Law. After the consultations were over, clerics returning from the consultations called on the people gathered by the Parliament to be dismissed. According to their statements, they were persuaded that the Law does not endanger Orthodox  values.

Prime Minister Gharibashvili has made a significant and constructive statement on April 30:

We are talking about the rights enshrined in our Constitution. Accordingly, I do not personally recognize and understand the need for so much stirring. This is my position and opinion as a citizen as well as Prime Minister of Georgia. Of course we will adopt this Law and I would like to once again assure our population that our Government and myself are responsible for never adopting a law that would endanger our country’s national interests, national security or traditions and values.”

The comments of the Chairman of Parliament Davit Usupashvili and his involvement in the process are equally important:

“The issue is as follows: we either go towards Europe and acknowledge that we shouldn’t be going after people with a stick in our hand or stay in Russia, where it is possible to throw those you don’t like out of the city, and in general [it is possible] to go and conquer the territory you like. We must make a decision of weather we want to be the part of civilized world, or stay with uncivilized part of the world.”

According to the Chair of the Committee for Human Rights and Civil Integration, Eka Beselia:

“This Law is nothing but recognition of a human as a key value. The Law says we must not oppress anyone no matter what s/he is like. If the right of expression of some group contradicts public morals or its interests, it will be restricted.”

The process was distinguished also in that the parliamentary majority and parliamentary opposition have unanimously supported adoption of the Law:

“This Law must definitely be adopted. In order to avoid such a disgraceful fact in our country as dismantling of the Chela minaret. It is strange to me that the church, which during the 20th Century suffered from discrimination and persecution, can be against the anti-discrimination law,” – member of the parliamentary opposition Sergo Ratiani has said.

Reaction of MP Tamar Kordzaia to the comments of clerics at the committee sittings was worth noting. She said:

“If my resence in this room irritates you, I will leave this room for your comfort, but whatever is taking place here is an act of violence against the Parliament and for me, as a member of the Parliament, this is unacceptable.”

The speech of MP Nino Goguadze in the Parliament was also remarkable, she has noted that to introduce the rule of law all humans must be equal before the law.

Finally, on May 2 the Parliament has adopted the Law at the third hearing. Due to unyielding protest of the clerics, reservation on the protection of public morals was added to Article 2 (see below).

The Patriarchate has released a statement on the same day, saying that the Patriarchate found it necessary to examine the Anti-Discrimination Law thoroughly, because the "situation had changed" and negative aspects of the Law were not obvious anymore.

The Patriarchate has denied the reports of alleged acceptance of the Law following the amendments. In the released statement the Patriarchate noted also that it did not have "an opportunity to analyze the final version", and that "the church's premature assessments" on such a serious topic "would be improper".

Notably, Article 1 of the draft Law, which specifies various forms of discrimination including gender identity and sexual orientation, has survived in the Law, thus making it one of the biggest achievements of this Law.

3. Analysis of the Draft Law

a. Supervision and Raising of Public Awareness

Under the Law, the Public Defender supervises the elimination of discrimination, collects and analyzes statistical data, drafts opinions on relevant legislative amendments to be submitted to the Parliament and carries out various events aimed at raising public awareness on the discrimination-related issues.

Positively, the Law has granted to the Public Defender not only the responsive function, i.e. reaction only in case the application on discrimination is submitted, but proactive function as well so that the holistic picture of the problem is drawn through analysis of relevant data. This is crucial for developing the policy of elimination of discrimination. Further, it is to be hailed that the Law views discrimination as a problem of public awareness and obligates the Public Defender to carry out measures to raise public awareness in this respect.

Provision of relevant funds from the state budget to implement these measures is crucial. Yet, the explanatory note of the draft Law did not include information on the allocation of relevant financial resources. Failure to allocate relevant financial resources in the future will not only endanger effective enforcement of the Public Defender's statutory powers but exposes disorganization of the public policy management process in general, which in this case translates into a lack of focus on the enforcement phase.

b. Mechanisms for Elimination of Discrimination

As noted above, the draft Law submitted in the Parliament was different from the draft prepared by the Ministry of Justice. The institute of Inspector is removed from the original version of the draft Law, which would have been able to examine complaints, conduct the inquiry and impose sanctions on the offenders. Instead of this institute the Law offers other mechanisms that do not focus on punishing the offender but strive to conciliate the parties and restore the breached rights of victims.

c. Mediation and Other Mechanisms

Pursuant to the Law, the Public Defender probes into facts of discrimination at his/her own initiative and/or if the application/complaint is filed. Ombudsman invites a victim of discrimination and a person who potentially committed discrimination, and tries to settle the case. In case settlement cannot be achieved and the other party is an administrative authority, the Public Defender addresses the court pursuant to the Administrative Procedure Code and requests invalidation of a respective act, issuing of a new act or suspension of actions.

At the same time, a victim of discrimination is entitled to address the court at all stages of development of the case and request from a person who committed discrimination, material and moral compensation.

It is positive as well that the Public Defender plays the role of a mediator. Alternative dispute resolution methods, such as mediation, are actively applied to civil disputes worldwide. Nevertheless, the institute of mediation is actively thriving in other fields of law as well. For instance, mediation plays a rather considerable role in legally leading states where restorative justice becomes increasingly popular.

This is triggered by the effectiveness of the mediation institute as in terms of prevention of offences, as well as taking the parties' interests in maximum consideration. Mediation enables the parties to understand each other's condition, share each other's grief and voluntarily reach agreement on the most optimal terms for them.

Therefore, correct administration of mediation will facilitate the achievement of purpose of the Law, i.e. elimination of discrimination. On the other hand, if in the concrete case the Public Defender's efforts to settle the case fail, a victim of discrimination can resort to the court at any stage of the development of the case. Notably, a victim can also go to court directly, without addressing the Public Defender.

In addition, the Public Defender's authority to demand from an administrative agency the elimination of discrimination through the judicial authority must also be hailed. Yet, it would have been more rapid and effective to grant the Public Defender the power to issue a mandatory act on elimination of discrimination in respect of a relevant agency without the need to address the court, and for the administrative agency to challenge such acts in court.

Remarkably, for the Public Defender to discharge the conciliation functions effectively, it will be necessary to train or hire relevant mediators, which requires respective financial and human resources. However, the explanatory note of the draft Law is also silent on the relevant funding for this particular issue.

d. Burden of Proof

A respondent carries the burden of proof when establishing the fact of discrimination as in the case of addressing the Public Defender, as well as during the judicial proceedings. The Labor Code applies a similar approach with respect to discrimination related disputes.

Such approach is justified because otherwise, owing to the asymmetric information, it would have been almost impossible for a potential victim of discrimination to prove the fact of discrimination. Thus, by switching the entity carrying the burden of proof the law made effective protection of rights of a victim of discrimination more realistic.

e. Repressive Mechanism

Some NGOs and religious organizations demanded to set up under the Public Defender's mandate a special independent group against discrimination, which would have been equipped with repressive functions.

i. Equipping Public Defender with a Repressive Mechanism

Those opposing the idea of granting the Public Defender repressive functions mostly appeal to the fact that the Constitution entitles the Public Defender to identify violations of human rights and freedoms, but that punishing the offenders is beyond its constitutional mandate. Further:

  • If the Public Defender will be authorized to fine the offender, s/he will not be able to effectively discharge mediation functions, because a person who potentially committed discrimination will totally distrust the mediator, thus making mediation ineffective. In addition, such approach contradicts the essence of mediation in general;
  • The Public Defender himself/herself may become the offender of human rights while discharging repressive functions. Imposing sanctions on private individuals always implies penetration into the domain of human rights. A fined person can appeal the imposed sanction, and there is always a probability that the court finds the Public Defender's actions illegal, hence negatively affecting the Public Defender's image.

Accordingly, to discharge this function it would have been expedient to set up an authority equipped with repressive function independent from the Public Defender, which would fine the offenders as provided in the original version of the draft Law.

ii. Effectiveness of a Repressive Mechanism

Yet, as noted above, the problem of discrimination arises out of public consciousness. Therefore, there is a certain risk that fighting the facts of discrimination with punitive mechanisms (unless we deal with the crime) may not prove to be effective and may bring about reverse effects expressed in the hatred of persons with different signs and strengthening of radically-minded forces.

We believe that should the mechanisms granted to the Public Defender - including mediation and efforts to raise public awareness, and procedural mechanisms (a victim of discrimination addressing the court with a request to terminate the breach or receive moral/material compensation) - be applied duly, it will be possible to protect the rights of a victim (prevention of breach of rights, restitution of violated rights and compensation) as well as to raise the degree of tolerance among the public.

In case the existing legislative mechanisms prove to be insufficient for eliminating the discrimination despite their due enforcement, pursuant to Article 6 of the Law the Public Defender is authorized to develop more efficient mechanisms and submit a legislative proposal in the Parliament of Georgia.

f. Granting the Public Defender Authority to Represent Victims of Discrimination in Court

Several NGOs and religious organizations demand to grant the Public Defender authority to represent victims of discrimination in court. We find it more reasonable if another authority discharges this function and not the one charged with supervision over enforcement of the law and conciliation of the parties.

It must be also taken into account that free court representation will be a public service, thus meaning that everyone should have equal access to such service. This may be related to vast human, managerial and accordingly financial resources. Nevertheless, such service will definitely assist a victim of discrimination in protection of his/her rights.

g. Reservation on the Constitutional Agreement

Paragraph 2 of Article 5 of the Law makes a reservation that no provision of the Law can be interpreted so as to contradict the Constitution and the Constitutional Agreement between the state and the Georgian Apostolic Autocephalous Orthodox Church.

Some NGOs and religious organizations have criticized this wording and found it legally unjustified and invalid: "The Constitution itself acknowledges the primacy of universally recognized principles and norms of international law in the field of human rights and fundamental freedoms over the Constitutional Agreement," - they have claimed.

Pursuant to Article 6 of the Constitution and the Law of Georgia on Normative Acts, hierarchically the constitutional agreement is prevalent over any legal act, including a law, international treaty, etc. Accordingly, the stipulation in Article 5 is simply a repetition of this legal reality, with no apparent need of it.

Article 9 of the Constitution requires that the constitutional agreement fully complies with universally recognized principles and norms of international law. However, this Law is not a universally recognized norm of international law but is a just an usual law within the Georgian legislative system. Accordingly, in case of conflict of norms the constitutional agreement will always enjoy hierarchical supremacy over it.

i. Reservation on the Public Order

Paragraphs 1 and 3 of Article 5 of the Law stipulate that the exercise of rights by certain groups or actions aimed at elimination of discrimination must not infringe upon public order.

Public order (ordre public) is a rather broad term and includes, inter alia, conventional morals (moral values dominating in the society). "Public order" is applied during the enforcement of decisions of foreign courts or arbitration institutions, and if such decision contradicts public order, the state has the right to refuse enforcement.

As a rule, unwritten principles of public order (i.e. what is not stipulated in the law) are applied only if they do not contradict the law, whereas Paragraph 3 of Article 5 reverses this principle, thus causing the risk of justification of some restrictions in respect of equality and through referring to public order.

j. Reservation on the Protection of Public Morals

The draft Law submitted in the Parliament prohibited both direct and indirect discrimination. Discrimination is defined as follows: "Such treatment or creation of conditions, which during the exercise of rights set by the legislation of Georgia places a person in a disadvantageous situation based on any of the grounds stipulated in Article 1 of this Law compared to other persons in similar conditions, or places the persons in substantially unequal conditions in equal situation."

Due to a persistent protest of the clerics, it was decided at the parliamentary hearings to supplement this paragraph with an exception: "protection of public morals, when an action is reasonably and objectively justified". Yet, because such formulation provided for a quite broad interpretation, final formulation was agreed as follows: "... except when such treatment or creation of conditions serves the legitimate purpose of protecting public order and morals, is objectively and reasonably justified and is necessary in a democratic society, while the applied methods are proportionate to the achievement of such purpose."

We find that the wording: "... treatment or creation of conditions serves the legitimate purpose of protecting public order and morals" - is an additional guarantee against unreasonable interpretation of public order and morals, and that the restrictions aimed at protecting the morals without due legislative grounds are less expected.

4. Conclusion

We believe that irrespective of dissenting opinions over individual mechanisms or norms of the Law, its adoption is a clearly progressive step towards protection of human rights and fighting against discrimination in particular. It must be also taken into account that allocation of relevant resources and adequate efforts of the Public Defender along with other state agencies are required for achieving the objectives of the Law. It is equally important to raise civil self-awareness on discrimination-related issues. The Government and the society play an extremely large role in this process.


[1] Remarkably, since 2012 Article 53 of the Criminal Code views discrimination based on sexual orientation, gender orientation or other signs as a circumstance aggravating the liability.

[2]  Several institutes of restorative justice in Georgia are applied to offences committed by juveniles (minors).

Author: TI Georgia