Parliament passed on April 17 with 110 votes to 0 with its first reading anti-discrimination bill, which is likely to be further amended when it is discussed by lawmakers with its second reading.
The bill, proposed by the government, has been criticized by rights groups as a toothless legislation, failing to provide effective mechanism of enforcement of anti-discrimination measures, and has also come under attack from conservative and radical Orthodox groups for mentioning “sexual orientation” in the list of prohibited grounds of discrimination.
Adoption of the anti-discrimination law is one of those requirements, which Georgia has undertaken under its Visa Liberalisation Action Plan in order to be granted short-term visa-free regime by the EU.
Rights groups argue that the proposed bill is a significantly watered down version of an original document drafted by the Ministry of Justice with active involvement of broad range of civil society groups; they complain that the proposed draft no longer envisages efficient implementation mechanisms, as well as financial penalties for those responsible for cases of discrimination.
The bill was also criticized, but for completely different reasons, by some non-parliamentary opposition parties and radical Orthodox groups. They are insisting on removing term “sexual orientation” from the list of prohibited grounds of discrimination.
The wording of the bill makes this list non-exhaustive and also specifies that this law provides for protection against discrimination on the grounds of race, color, language, gender, age, citizenship, native identity, birth, place of residence, property, social status, religion, ethnic affiliation, profession, family status, political or other beliefs, health condition, disability, sexual orientation, gender identity, expression and “other grounds”.
Dimitri Lortkipanidze, who is a Tbilisi mayoral candidate named by a coalition of several non-parliamentary opposition parties, led by Nino Burjanadze, and who attended parliamentary committee hearings of the bill in Kutaisi, said that if sexual orientation remains in the list, it would amount to “legalization of immoral act.” During his unsuccessful bid for a post of ombudsman in 2009, Lortkipanidze called for criminalization of homosexuality.
A radical Orthodox priest Davit Isakadze, who was also present at the hearings of the bill at the parliamentary committees on April 15 and 16, said that the proposed bill “will cause confrontation” in the society, because, as he put it, the document legalizes homosexuality.
Priest Davit Isakadze, who formally was not speaking on behalf of the Georgian Patriarchate at the parliamentary committee hearings, said that he would appeal to the Holy Synod, governing body of the Georgian Orthodox Church, to “anathematize” everyone who would contribute to adoption of this bill.
In an obvious attempt to mitigate attacks from various conservative and Orthodox groups, the government has offered the state constitutional commission, which is now working on drafting broader constitutional amendments, to consider defining marriage in the constitution as a “union of man and woman.” Same-sex marriage is already banned by Georgia’s civil code, which defines marriage as “voluntary union of man and woman.”
The government-proposed draft of anti-discrimination law includes a wording according to which provisions of this legislation should not be interpreted in a way that may contradict a constitutional agreement between the state and the Georgian Orthodox Church signed in 2002.
During discussion of the bill at a parliamentary session on April 17, two senior lawmakers from the GD parliamentary majority group suggested striking off from the bill the entire list of prohibited grounds of discrimination.
Vice speaker of Parliament, Manana Kobakhidze, who is a member of Georgian Dream-Democratic Georgia party, indicated that as far as the article first of the bill reads that the goal of this legislation is “elimination of all forms of discrimination” there is no need to further specify what kind of grounds of discrimination there might be. Suggestion indirectly echoes demands of those groups, which insist on removal of “sexual orientation” from the list.
Government’s parliamentary secretary, Shalva Tadumadze, who presented the bill before lawmakers, responded that “international experience” shows that such a list is included in documents of this kind.
But MP Kobakhidze further insisted that as the draft already explicitly states that it covers all grounds for discrimination there is no need to include a specific list. Another lawmaker from GD parliamentary majority group, who joined MP Kobakhidze in offering to remove the list, was MP Zurab Tkemaladze of the Industrialist Party. When the latter asked Tadumadze if it’s possible to discuss striking off the list during the second reading of the bill, the government’s parliamentary secretary responded: “We can discuss during the second hearing of the draft whether to further extend this list or make it shorter.”
The change that the legislation is likely to undergo during the second reading is removal of the part, which lists areas where this law applies.
The bill now reads that this law applies to the conduct of all the state bodies, as well as legal entities and individuals in “all the areas, among them…” and then follows the list of twenty areas ranging from work, access to employment and health to defense, sports and education, including preschool education.
A former lawmaker Jondi Bagaturia, who is now with the coalition, led by Nino Burjanadze, and who was also attending parliamentary committee hearings of the bill, was repeating during those committee sessions that this part of the bill in combination with mentioning “sexual orientation” in the list of prohibited grounds of discrimination was paving the way for, as he was putting it, persons with “unnatural sexual orientation to be teachers in kindergartens.”
During the discussion of the bill at the parliamentary session on April 17, several GD lawmakers, among them MP Gia Volski, who chairs Georgian Dream-Democratic Georgia parliamentary faction, were asking government’s parliamentary secretary why there was a need to include the list of areas in the legislation when the bill was already saying that it applies to “all the areas”. Shalva Tadumadze responded that it was already decided that this list would be removed from the draft.
Several GD lawmakers spoke strongly in favor of the anti-discrimination legislation during the discussions at the parliamentary session.
In her speech GD MP Nino Goguadze of Free Democrats party spoke about importance of the anti-discrimination law and about significance of protection of minority rights in general.
“Rule of law should be established in our country. It means that everyone should be equal before the law regardless of their social or economic status, religious beliefs or ethnic origin, sexual orientation or political views,” she said. “We, the lawmakers, should always remember that if it becomes possible in the state to violate rights of certain groups, rights of certain minorities, then in such a state it will become possible, admissible and inevitable violation of the rights of principle minority – that is single individual person, i.e. each of us… Rights of each and every single person and rights of majority are based on rights of minorities”
She said that “the best part of the Georgian traditions” is based on respect of rights and dignity of others.
“These are the values, which the Georgian culture is based upon; that is why it is European. These are the values which we were based on when during the pre-election period [in 2012] many of us… were declaring that we would not turn our homeland into arena of confrontation, that we would treat our opponents not as they might deserve, but as Georgia deserves it. Georgia deserves to be free and civilized country. We fought with dedication and won, now we should work selflessly and if need be we should fight again for turning Georgia into European, democratic country and for establishment of principles of rule of law, presumption of innocence, equality before the law, in order not to allow discrimination on any ground and to let free people live in free Georgia, free from all kinds of phobias and free from sense of revenge,” she said.
Speech by MP Goguadze, who is a rare speaker at parliamentary sessions, drew applause from many of the lawmakers present in the chamber, including from UNM MPs.
UNM parliamentary minority group supported the proposed anti-discrimination bill, although noted that it preferred much stronger legislation with much more efficient enforcement mechanisms.
“This legislation is required in Georgia,” a senior UNM lawmaker, Giorgi Gabashvili, said, adding that a post-Soviet country is “burdened with stereotypes.”
“Discrimination of any kind is of course an obstacle that does not allow our country to develop freely. At the same time it is a matter of security as well, because those people, including outside Georgia, who does not want our country to be genuinely western and European, make use of these phobias and stereotypes and call this combination of hatred and stereotypes Georgian traditions. In fact the Georgian traditions have nothing to do with these phobias. These phobias, which are instilled in part of our society, are in fact Russian, Soviet.”
By promoting such stereotypes in Georgia, he said, Russia is trying to undermine country’s European course.
According to the bill Public Defender’s Office (PDO) will be in charge of overseeing anti-discrimination measures.
Complaints about alleged cases of discrimination should be filed to PDO, according to the bill. PDO will also have the right to look into reported cases on its own initiative without waiting for a formal complaint to be filed. According to the bill, PDO should at first mediate between the parties involved in order to try to reach an out-of-court settlement; if the attempt yields no result, PDO will then issue a “recommendation” to an entity or a person to address a problem related to discrimination; if this recommendation is left unheeded, according to the bill, PDO can then take the case to court, but only when alleged discrimination is committed by an “administrative organ”, not by an individual.
In a statement on April 17 the Public Defender’s Office welcomed introduction of the anti-discrimination bill, but said that it will require additional funding in order to cope effectively with broadened authority.
A victim of discrimination, according to the proposed package of bills, will have the right to seek remedies in court that, among others, may also include pecuniary and non-pecuniary compensation. But the human rights groups complain that this measure is far from being efficient as in practice it actually means that in most of the cases perpetrators can get away without any financial penalty because on the one hand instance of discrimination usually incurs no financial damage and seeking for compensation for moral damage, as the practice shows, is too complicated.
The initial draft, prepared by the Justice Ministry before it was amended by the government, envisaged imposing financial sanctions against perpetrators (in case of individuals from GEL 100 to GEL 500 and in case of legal entities from GEL 500 to GEL 2,500).
Rights groups argued during parliamentary committee hearings of the bill that without such sanctions and some other elements related to efficient enforcement of anti-discrimination measures, the legislation will have little or no real impact.
Baia Pataraia of Union “Sapari”, an NGO working on helping victims of domestic violence, said during the parliamentary committee hearing on April 16, that without efficient enforcement mechanisms the bill leaves an impression that the government wants it just for show to demonstrate that it has met one of its requirements under the visa liberalization action plan with the EU and not for genuinely trying to address the problem.
MP Tamar Kordzaia of the Georgian Dream-Democratic Georgia party said at a parliamentary session on April 17 that although there are concerns that the bill is not strong enough, it still is a step forward. She expressed hope that in the process of implementation, the legislation will be improved and more efficient mechanisms will also be introduced.
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