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

Lead Research Organisation: British Institute of International and Comparative Law
Department Name: Head office

Abstract

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.

Planned Impact

Who may use this research, or benefit from it
This project examines how the rule of law can be strengthened in societies emerging from authoritarian rule. The ultimate beneficiaries of a stronger rule of law are people from all walks of life who depend on the courts to protect their rights and to adjudicate business disputes in an impartial and predictable manner that is conducive to economic development. To reach them, we are targeting research users in 5 categories:
(i) Governments and political actors negotiating constitutional settlements
(ii) State institutions, especially those responsible for judicial reforms
(iii) The judiciary and practising lawyers
(iv) Civil society, especially NGOs focusing on the rule of law and good governance
(v) International organisations engaged in standard-setting and technical assistance

How research users and beneficiaries will be reached
1. Engagement with selected research users from the outset
Working with partner organisations and individuals who have networks in transitional countries will help us to identify the needs of in-country research users, while simultaneously providing a conduit for ideas emerging our project to reach, and be tested in, national debates.
Our partners are International IDEA, an inter-governmental organisation promoting sustainable democracy, and the Venice Commission, a constitutional reform body of the Council of Europe. Individual participants will include 7 case study authors with insider knowledge of transitional countries, and 3 senior experts: Chief Justice Willy Mutunga of Kenya, Justice Kate O'Regan of South Africa and the UN Special Rapporteur Pablo De Greiff.
The contributions made by these participants at the project workshop will help to shape a discussion paper which we will publish on the BIICL website. Comments will be solicited through International IDEA's network of policy professionals in the field (constitutionnet.org), and through contacts which the Co-I and PI have from their advisory work with governments, state institutions and international organisations including the UN, World Bank, DfID, Commonwealth Secretariat, African Union, International Commission of Jurists, International Center for Transitional Justice and International Bar Association.

2. Support for participants wishing to comment publicly on project themes
We will offer to support participants who wish to comment on judicial reform issues by discussing their ideas, reviewing drafts, and identifying publication targets, e.g. blogs, and by providing quotes on behalf of the project or co-authoring pieces where appropriate. To stimulate discussion we will circulate a project bulletin with judicial reform news and scholarship every 2 months, and encourage participants to share similar news items with us, and to forward the bulletin.

3. Activities to promote uptake of policy outputs, and engagement post-project
We will produce a project report and policy brief, specifically written for a wider audience, as well as blogs for general outlets such as The Conversation. The report and policy brief will be launched at a public event in London, which will be filmed and posted on the BIICL website and Youtube channel. Our partners, International IDEA and the Venice Commission, will be offered in-house seminars, and we will seek other seminar opportunities e.g. with DfID. We will seek, with due caution, to share outputs and offer advice to governments and other actors involved in establishing or conducting judicial reform processes. We are aware of judicial reforms in Tunisia, Albania and Ukraine and can foresee others in Libya, Yemen or Myanmar. When our research is used to formulate judicial reform processes, or engage with them in public debate, this carries the potential to benefit the population in transitional countries where a stronger rule of law would enhance the protection of rights and the promotion of development.
 
Description An early finding about the need to review international standards emerged during the first phase of this research project - the need to review international standards applicable to the reassessment of judges in situations of constitutional transition.

The need to review international standards arises from a mismatch between what the standards prescribe and the approaches which countries have in fact adopted when dealing with judicial personnel from a previous era during a constitutional transition.

There are two problems:

1. Judges are expected to have security of tenure until they reach the age of retirement or the end of their appointment. International standards on judicial independence permit disciplinary investigations into allegations of serious misconduct by an individual judge, which could result in the judge being removed from office. However, they do not seem to leave any room for the processes in which entire cohorts of judges have been screened in the context of a post-conflict or post-authoritarian transition. Such processes have taken place in jurisdictions as varied as Argentina, Bosnia and Herzegovina, Estonia, Germany and Kenya. While sometimes controversial, they have not been widely condemned. The question therefore arises whether international standards need to be adapted to reflect alternative approaches that are considered sufficiently beneficial to be acceptable.

2. International standards on how states should deal with the aftermath of large-scale human rights abuses recognise that judges who were appointed by, or owed allegiance to, an abusive regime may be eligible for removal. However, there is little guidance on how to design a process that differs from individual disciplinary investigations.

Further findings have been made on the different types of reassessment process that transitional countries may use to examine the judiciary they have inherited, and the rule of law benefits and risks associated with such processes.

Types of reassessment: we have developed a classification of permanent mechanisms (disciplinary processes and criminal trials) and transitional mechanisms (vetting processes, termination-based processes including competitive reappointment of judges, and truth commission inquiries).

Rule of law benefits: these include signalling a break with the past, enabling victims of judicial misconduct to testify, understanding systemic problems and recommending reforms, sanctioning misconduct and preventing its recurrence, changing the composition of the judiciary and improving public trust.

Rule of law risks: loss of experienced judges, disruption of court cases, political interference in the judiciary, exposure of the judiciary to unfounded criticisms that damage public trust.

In our project policy paper and edited collection of case studies, both in the final stages of preparation, these findings are further elaborated and discussed.
Exploitation Route As outlined in our Pathways to Impact statement, the blogs in which we present our interim findings, including country experts who are writing case studies for the project, the former UN Special Rapporteur on transitional justice, and international bodies such as the Venice Commission

These persons and organisations were represented at our project workshop in May 2019 and the case studies presented there are currently being revised for publication. Our publications will also draw on discussions at the panel we organised for the February 2020 UN Global Judicial Integrity Network High-Level Meeting. Still being prepared for publication are the policy brief and project report, as the project's Case for Support and Pathways to Impact statements describe in more detail.

The blogs we have already written appear on the project webpage, https://binghamcentre.biicl.org/projects/special-processes-for-the-reassessment-and-removal-of-judges-in-constitutional-transitions, where they are available to the general public. Other project outputs, including the working paper and policy brief, will be posted there in due course. Our research organisation, the British Institute for International and Comparative Law, has tweeted our work to its audience which includes legal practitioners and policy professionals who are active in the debates that shape international standards.
Sectors Government, Democracy and Justice,Security and Diplomacy

URL https://binghamcentre.biicl.org/projects/special-processes-for-the-reassessment-and-removal-of-judges-in-constitutional-transitions
 
Description Advice to the Kosovo Ministry of Justice on options for vetting the judiciary
Geographic Reach National 
Policy Influence Type Participation in a guidance/advisory committee
 
Description Jointly hosted workshop with Bonavero Institute of Human Rights, University of Oxford, held at the Bonavero Institute, 10-11 May 2019 
Organisation University of Oxford
Country United Kingdom 
Sector Academic/University 
PI Contribution We (Jan van Zyl Smit, Marcos Zunino and Christina Murray) arranged a two-day workshop for approximately 20 experts on the judiciary and constitutional reform. Half of the group were invited to present country case studies, while the others were discussants, session chairs and general participants. We invited the majority of the participants, agreed their roles in workshop and arranged their travel. We also produced a Discussion Paper that was circulated prior to the workshop.
Collaborator Contribution The Bonavero Institute of Human Rights provided a venue for our workshop in their building at Mansfield College, Oxford. Members of the Institute chaired some workshop sessions. The Bonavero Institute arranged and funded accommodation for some participants.
Impact The main output of the workshop - still pending - is an edited volume of case studies based on the country case study papers presented by experts. The workshop also informed the development of the project team's ideas for its publications (including Jan van Zyl Smit's "Constitutional Reform and the Judiciary: A Rule of Law Dilemma" in the UN Constitutional Newsletter, and other works still in progress). Potential impact outcomes are expected once these workshop outputs are published. It is also possible that impact may occur through the uptake of workshop ideas by participants with the ability to influence judicial reforms. Two attendees are particularly well placed to do so: - a Bulgarian constitutional court judge (and former Prime Minister) who represents his country in the Venice Commission (the Council of Europe's Commission for Democracy through Law). As a Venice Commission expert he regularly contributes to opinions on constitutional legal reforms in member states. - an Ethiopian academic and adviser to the Chief Justice of Ethiopia. The Chief Justice has publicly announced her desire to reform the judiciary.
Start Year 2019
 
Description International IDEA Dialogue (December 2018) 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact Two members of the team participated in a high-level workshop organised by the international organisation International IDEA and the Edinburgh University (through its, Centre for Constitutional Law, Global Justice Academy and Political Settlements Research Programme). The workshop title was "Understanding the Interactions between Transitional Justice and Constitution Building Processes in Fragile and Conflict-Affected State Transitions". It was the fifth workshop in the "Edinburgh Dialogues on Post-Conflict Constitution Building" Series.

The workshop brought together academics and practitioners (from NGOs, iNGOs and governments) in constitutional law and transitional justice to discuss the intersection of these two fields in post-conflict situations. The project Co-Investigator, Professor Christina Murray, and project Research Fellow, Dr Marcos Zunino, both spoke during the workshop which prompted questions and discussions regarding the project. As a result, participants in the workshop became interested in the project and shared valuable insights.
Year(s) Of Engagement Activity 2018
 
Description Judicial Accountability and/or Judicial Independence - participation in panel at 2021 global conference of ICON-S, the international society for public and constitutional law 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Postgraduate students
Results and Impact Delivered presentation on Kenya's judiciary reforms and the role of vetting (a special process) alongside reforms of appointments and disciplinary systems.
Year(s) Of Engagement Activity 2021
URL https://mundo.icon-society.org/event/judicial-accountability-and-or-judicial-independence/
 
Description Judiciary: its Independence and Integrity - the KT Desai Memorial Roundtable 2021 (annual event of the Bombay Bar Association) 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact The project PI, Dr Jan van Zyl Smit, participated in an online panel discussion on the Judiciary - its Independence and Integrity. This event examined both ordinary and special mechanisms for strengthening judicial integrity. The high-level panel included serving and retired judges of the highest courts in the UK, India, South Africa and Kenya. Dr van Zyl Smit's remarks focused on the inherent tensions in judicial appointments and disciplinary mechanisms, which aim to safeguard the independence of the judiciary but struggle to cope with situations of serious political interference in the judiciary and widespread judicial wrongdoing.
Year(s) Of Engagement Activity 2021
 
Description Meeting with Vladislav Gribincea (Moldova) 
Form Of Engagement Activity Participation in an open day or visit at my research institution
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Third sector organisations
Results and Impact Dr Jan van Zyl Smit (Principal Investigator) met with Vladislav Gribincea, Executive Director of the Legal Resources Centre from Moldova, during his visit to London in January 2019 as part of the UK Foreign and Commonwealth Office International Leaders' Programme. Mr Gribincea is an experienced human rights lawyer with a track record of engagement with legal reform and constitutional development in Moldova as well as considerable knowledge of regional human rights frameworks and judicial systems.

During our 90 minute meeting we discussed the choices made in Moldova and other post-Soviet and post-communist countries about whether to reform the judiciary. Mr Gribincea explained why Moldova had chosen to retain its judges and the implications of that choice. He also shared his understanding of the political dynamics underlying judicial reform in other post-Soviet and post-communist states in the region and we debated the feasibility and design of judicial reform programmes.
Year(s) Of Engagement Activity 2019
 
Description Participation in OSCE Expert Working Group on Judicial Independence 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact The PI, Jan van Zyl Smit, has since December 2019 been a member of an Expert Working Group established by the OSCE Office for Democratic Institutions and Human Rights to review the 2010 Kyiv Recommendations on Judicial Independence.

This Working Group contains experts on constitutional reform and the judiciary from a wide range of states in Europe and the former Soviet Union. Its members have met to discuss a series of thematic papers on subjects including the tenure and transfer of judges and disciplinary accountability. The PI most recently participated in a meeting of this group in February 2021.

By the end of 2021, it is expected that the Expert Working Group will propose revisions to the Kyiv Recommendations on Judicial Independence, which are an important standard for the assessment of judicial independence in the region. It is particularly relevant to countries in transition to democracy, or where concerns exist about democratic "backsliding" which often involves threats to judicial independence.
Year(s) Of Engagement Activity 2019,2020,2021
URL https://www.osce.org/odihr/439394
 
Description UN Global Judicial Integrity Network - High-Level Meeting in Doha, Qatar (24-26 February 2020) 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact I organised a breakout panel session at the High-Level Meeting of the UN Global Judicial Integrity Network, a gathering of senior representatives from national judiciaries, international organisations and civil society. We were informed that attendance at the conference exceeded 600, with many countries represented by their chief justice.

The topic of our panel was "Reassessment and Removal of Judges in Constitutional Transitions". I presented interim findings from our research project. The other panellists were Mr Diego García-Sayán, UN Special Rapporteur on the Independence of Judges and Lawyers and Ms Andrea Huber, Deputy Chief, Rule of Law Unit of the OSCE Office for Democratic Institutions and Human Rights.

Issues addressed during the session included:
1. Constitutional transitions - what kinds of transitions may justify special processes for reassessment of judges? It was clarified that such processes be confined to transitions from non-democracy (e.g. conflict, dictatorship, totalitarian state) to constitutional democracy.

2. Types of reassessment - distinguishing truth commissions, vetting, lustration and reappointment

3. Objectives of reassessment processes - ensuring justice for past human rights violations; reaching a fact-based understanding of the judicial role in past human rights violations to enable national healing (e.g. through truth commissions); combating gross and systemic corruption; building independent and impartial judicial institutions

4. The difficult challenge of ensuring reassessment processes are fair and legitimate - the importance of transparent processes with public participation (e.g. civil society); possible role of international actors (including judges); providing reasons for decisions to remove a judge; appeal routes and recourse to international courts

5. Design and implementation issues that should be considered - the degree of political will and whether there is consensus among different parties and the wider population to support reassessment; importance of carrying out a needs assessment of the justice system; assessing risks of politicisation; sequencing; possible disruption.

A statement of recommendations from our session was included in the final plenary session of the High-Level Meeting. The UN Global Judicial Integrity Network may decide to adopt these recommendations (decision still awaited):

1. Good practice as well as analysis of dangers and risks should be shared, through blogs and online libraries. This is particularly important in an area as context-sensitive as this. The Bingham Centre should be encouraged to make the outputs of its 2018-2020 research project widely available (based on 10 case studies from a wide range of countries).

2. There should be an exploration of the case for establishing an independent body with expertise in transitional problems to advise countries considering reassessment. This suggestion was made informally in conversation after the event. The immediate context was Europe, where the EU has had to consider judicial reassessment initiatives in the context both of member state rule of law backsliding and non-member states pursuing accession. Such a body would be independent and have a purely advisory function. It might be more widely applicable.
Year(s) Of Engagement Activity 2020
URL https://www.unodc.org/ji/en/high-level-event.html
 
Description UNDP expert assessment of justice sector reform in Armenia, 22-26 July 2019 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Policymakers/politicians
Results and Impact I was invited by the UNDP to participate as an expert member of a team that visited Armenia to assess reforms to the justice sector following the 2018 "velvet revolution". During our 22-29 July 2019 visit, we met with ministers, parliamentarians, judges, prosecutors, human rights bodies, private lawyers and civil society as well as diplomats from donor states. I was lead author of the team's report, which was submitted by the UNDP to the Armenian Ministry of Justice in August 2019.

Judicial reform - and specifically mechanisms for scrutinising the conduct of judges who served under the previous regime - was one of the most contentious issues. Public confidence in judiciary was low, with widespread complaints about judicial corruption and political bias. The Armenian government had proposed to establish a vetting process for judges. The government was also considering strengthening the scope and intensity of disciplinary oversight over the judiciary. Drawing on our research for the AHRC-funded project, I was able to advise on the risks and benefits of these different approaches by highlighting comparative experience from other democratic transitions.
Year(s) Of Engagement Activity 2019
URL http://www.justice.am/en/article/2460