Special Processes for the Reassessment and Removal of Judges in the Context of a Constitutional Transition: Strengthening the Rule of Law?

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Societies in transition from authoritarian rule to constitutional democracy face profound challenges with regard to developing genuinely independent courts that are able to perform their necessary functions under the rule of law, which range from enforcing rights to resolving business disputes impartially in a way that is conducive to economic development. These societies must wrestle very early on with the decision of whether to retain judges who served under authoritarian rule. Is it essential that they enjoy security of tenure - a standard means of protecting judicial independence - or may these judges be required to undergo a special process of reassessment and removal?This project examines how such processes are designed and what implications they have for the rule of law. On the one hand, judges who owe their positions to an authoritarian regime may be unwilling or unable to perform their functions with due independence and impartiality. On the other hand, any process that involves the removal of judges risks setting a precedent for future governments to engineer the removal of judges whose decisions they dislike. In those countries that decide to modify or suspend judicial tenure, the design of special processes of reassessment and removal is therefore of critical importance to the rule of law.To date, most special processes appear to have been largely shaped by political and practical considerations rather than principled thinking about the rule of law. The planned 'de-Nazification' of the West German judiciary, for example, was scaled back due to a shortage of qualified judges without links to the Nazi party. Since the end of the Cold War, some countries in Eastern Europe have chosen not to subject their judges to significant scrutiny while others have gone so far as requiring all judges to reapply for their positions. In Latin America, truth commissions have examined the record of the judiciary under military rule, and incoming governments have often insisted that the most senior judges resign or be dismissed. In the Arab world, the Iraqi judiciary was decimated by a highly politicized process of 'de-Ba'athification', and Tunisia has more recently enabled its truth commission to recommend the disciplining of judges. In Africa, Kenya has carried out a judicial vetting process under a new constitution. Our research will use a comparative methodology to analyse special processes and examine how they can be designed to strengthen the rule of law. At the heart of the project will be 8 case studies by experts with insider knowledge of judicial reforms in a transitional country. The project team will draw on these case studies to build a wider typology of special process and develop recommendations, where appropriate, for good practice in the design of each of the main types. These may provide grounds for revisiting international norms which are currently silent about the problem of authoritarian-era judges in transitional countries. Our participants include a consultation group of 3 senior experts and 2 international partner organisations, International IDEA and the Venice Commission, which provide advice and technical assistance on constitutional transitions. The outcomes of this project will have implications for governments and political groups in transitional countries, for institutions tasked with implementing judicial reforms, international bodies working on these issues, judges and lawyers, and civil society. We have designed a two-way engagement strategy to reach and consult as many of these research users as possible. This process is built on the practical experience of our participants and their extensive networks in the field. The project outputs will also be disseminated through these networks, to maximize prospects that they will be used in transitional societies, to the benefit of ordinary people whose rights and economic interests will be advanced by a stronger rule of law.