by Mariam Begadze*
Yesterday, after intense street protests, lawmakers from the ruling Georgian Dream (GD) party pledged to unconditionally withdraw Law on Agents of Foreign Influence dubbed as ‘Russian Law’. Today, on the fourth day of its adoption in a first reading, in the shortest Parliamentary session recorded, the bill was voted down while protesters outside were celebrating the first real victory of civil society since GD came to power.
The bill was fiercely defended by GD and oddly, the good news was also announced by GD MP, while the bill itself was formally sponsored by the newly formed GD splinter party People’s Power (PP) shedding light on the fictitious splitting of the party in the first place. The bill was adopted in a first reading in an accelerated manner, two weeks after its registration in Parliament following noisy and even violent confrontations in a peculiar abundance of law enforcement officers restricting movement in the Parliament building. The pledge of withdrawal by GD came about as a result of the two days of continuous mass demonstrations dispersed and resuming all over again, and numerous statements from sports teams to public servants, the cultural elite, as well as former GD MPs, Ministers, and Prime-Ministers.
In an established political tradition of reneging on political promises often to quell public outrage – famous examples of which include the sudden scrapping of the plan for a fully proportional electoral system in November 2019 and the withdrawal from the so-called Charles Michel’s agreement concluded to end the political deadlock since the 2020 parliamentary elections – public celebrations that followed are cautious. GD’s plan to hold consultations with the public to dispel negative propaganda against the draft bill, “once the emotional turmoil passes” does not remove those fears.
The now failed draft bill aimed for “transparency of the funding of any non-profit organization operating in Georgia” provided that more than 20% of its entire budget comes from abroad. Foreign sources include foreign states and their structures, any juridical person not established under Georgian law, and any other entity established under foreign law or international law. Apart from acquiring the power to sanction non-registration as foreign agents as well as non-compliance with yearly reporting obligations, the law entails an additional component of resuming ‘monitoring’ measures against organizations registered as agents of foreign influence by decision of competent officials in the Ministry of Justice or based on the written statement of any person, reminiscent of Soviet-style spying on one another.
Legally speaking, the draft bill appears as a clear instance of pretextual rulemaking, meaning the lawmakers in fact pursued an improper ulterior motive behind the one officially presented to the electorate, in this case – transparency of funding for non-profit organizations. This is primarily evident due to the redundancy of the legislative aim, as the transparency of CSOs and media funding is already well-served through campaign finance law under the monitoring of the State Auditor’s office.
Instead, the draft bill like its predecessors in Russia and Hungary seems intended to pursue a “witch hunt to stigmatize and penalize independent groups, media, and critical voices” – which, as Human Rights Watch observed, the statements of ruling politicians also confirm.
Meanwhile, the US State Department debunked the main defense point of GD by expressly stating that the purposes served by the current bill were different from those of the US Foreign Agents Registration Act (FARA) legislation of 1939. Indeed, unlike the Georgian bill that foresees automatic classification based on the amount of foreign funding, FARA prefers a narrow definition that concerns activities directly serving foreign governments, organizations, or persons rather than CSOs and media using foreign funds to work on domestic issues. To the support of the critics insisting on the characterization of the draft bill as ‘Russian Law’, Russian colleagues had identically used FARA for defending the Russian version.
Considering these contextual factors, one could claim the transparency measures under the new bill can and will be “turned into an abusive tool by authorities with ulterior political (and primarily destructive) motives”, which is impermissible according to ECtHR standards set in the case Merabishvili v. Georgia, interestingly, also issued against GD government. Apart from posing a death sentence for civil society in Georgia, the law would also mean blocking progress with EU candidate status application, still pending due to non-compliance with 12 priority reforms set by the European Commission in September 2022. This connects well to an emerging wave of Euroscepticism within GD and PP, with a touch of religious and homophobic rhetoric. Leading politicians have not shied away from questioning whether Georgians would want to become a member of the EU under all conditions and blamed organizations funded from abroad together with the West and the US for trying to drag Georgia into war with Russia.
That the law will block Georgia’s potential candidate status could not have been more explicit in the statements of the EU High Representative for Foreign Affairs and Security Policy both before and after the voting.
Unequivocal criticism also came from the Council of Europe and the UN. Accelerated adoption of the law despite such a principled stance of the EU is nothing but the opposite of what article 78 of the Constitution of Georgia (added in 2017) dictates – that all constitutional bodies must take all measures to ensure the full integration of Georgia into the European Union and the North Atlantic Treaty Organization.
In a Georgian democracy, in which the judiciary, including the majority of the Constitutional Court (CC) Justices, are government loyalists, there is no real prospect of a court playing any ‘speed bump’ role (although, in an unprecedented act, clerks of the CC Justices have published a statement denouncing the law). Against the practice of deference in politically sensitive cases,[1] it is highly unlikely that the CC would invalidate the law on substantive rights standards akin to those established by ECHR or ECJ, and more so, by capturing the improper ‘predominant purpose’ in the spirit of ECHR article 18 jurisprudence, or that emerging in response to the rule of law crisis in Poland. Neither would the President’s planned veto stand in the way of adopting the law, as the same number of votes will overcome it. The creeping silence of the new Public Defender from an opposition party, elected on the same ‘dark day’ for Georgian democracy both regarding the law and disproportionate police force used in the last few days, also appears to signal the erosion of the soft powers energetically used by his predecessor.
The way forward against the accelerated authoritarian slide does not seem to be institutional for Georgia, but that of direct democratic pressure. Whether that can withstand the chicanery of the ruling party to tire, divide and rule is yet to be seen. As of now, one can be cautious, but still celebrating.
*Mariam Begadze is an SJD candidate in Comparative Constitutional Law Stream of Legal Studies Department at CEU. Before joining CEU, Mariam had first worked as a Senior Specialist at the Public Defender’s Office of Georgia, and then at an NGO (EMC) as a strategic litigation lawyer taking cases to the European Court of Human Rights and the Constitutional Court of Georgia on the issues concerning religious and sexual minorities, social and economic rights, and functioning of justice and law-enforcement institutions.
[1] See the recent decision of the CC regarding the abrupt abolishing of the state inspector’s office specifically designated to investigate crimes committed by law enforcement officials. Three out of four justices only partially granted the claim in terms of an individual right to access public office due to the absence of an offer for an alternative position or fair compensation, entirely ignoring the institutional dimensions of the case and possible ulterior motives behind the legislation (also in an interim measure decision).