Journal of Constitutional Law (Sep 2023)
Recognition of the Content of the Norm as Unconstitutional by the Constitutional Court of Georgia – Theoretical Observations and Practical Challenges
Abstract
Constitutional review of norms is a mechanism established by the Constitution of Georgia, the use of which naturally places the Constitutional Court of Georgia in a kind of institutional conflict with other branches or organs of the government (such as the Parliament, the Executive Power, the President), and at the same time, it is a serious interference in the democratic process, as it implies annulment of the act adopted by the body with democratic legitimacy. This is why constitutional review bodies, both in Georgia and foreign countries, exercise caution when using the mentioned mechanism. The practice of recognizing the normative content as unconstitutional, introduced by the Constitutional Court of Georgia in the last decade, is indicative of its dynamic interrelation with political branches. This practice provides the Court with the opportunity to eliminate constitutional flaws in the norm without revoking the entire norm. Recognizing the normative content as unconstitutional gives the Constitutional Court the opportunity to localize the potential constitutional violation and to satisfy the constitutional claim/submission in such a way as to restrict its decision to the factual circumstances/reservations related to a specific case. Despite the fact that the Constitutional Court of Georgia first used the mechanism of rescinding the normative content in 2011, there is still no unified analytical framework or standard guiding the Court when considering the constitutionality of the normative content, rather than the entire norm. From this point of view, the observation of the practice reveals, that identification of the normative content to be declared void requires judicial judgment and a creative approach to some extent, which should be covered by the appropriate framework, related to assigning the specific role to the Constitutional Court and defining related limitations within the scheme of distribution of power. The aim of the paper is, on the basis of theoretical-practical observations (including comparative research) to outline the principles, which should serve as a basis for the constitutional review of the normative content. According to the opinion presented in the paper, when assessing the constitutionality of the norm, the focus on the normative content should be based on the assumption that there are situations in which the application of the entire norm would not lead to a violation of the Constitution. Also, a review of the normative content should not essentially turn into an assessment of the constitutionality of an individual decision. Separation of the normative content from the norm should not be contrary to the purpose of the legislator and should not be based on an exaggerated hypothesis regarding the application of the norm in this or that context. And finally, when recognizing the normative content as unconstitutional, the line drawn between the invalidated content, and the content, which was found as valid, should, in turn, comply with the requirements of the Constitution.
