Global standards on judicial independence and removal: Grappling with vetting and fresh appointment
An independent, professionally skilled and widely trusted judiciary is indispensable to the rule of law. It is a great feat for national judiciaries to attain this level of functioning, and some fall far short. A project that I am working on with a colleague, Jan van Zyl Smit (Bingham Centre for the Rule of Law, London), explores whether international standards are sufficiently attentive to the challenge of reforming problematic judiciaries in post-conflict or post-authoritarian transitions. We focus on situations in which the removal of judges is sought and consider global standards that have some form of UN endorsement as well as approaches in the European system, concentrating on norms relating to the tenure, conduct and accountability of judges. In situations where judicial shortcomings are thought to be widespread, transitional societies have been willing to qualify judicial tenure and introduce exceptional, time-limited accountability processes such as fresh appointments to judicial posts, or systematic, individualised vetting.
Thus far, we have a set of case studies that explore the ways in which new, democratic regimes have dealt with compromised judiciaries in a range of countries including Argentina, Chile, South Africa, Kenya, Pakistan, the Czeck Republic, Germany and Tunisia. We chart a growing understanding that a rigid adherence to security of tenure may not always strengthen the rule of law and that exceptional measures may be necessary. We see that approaches are emerging, particularly in the European system, for determining when exceptional removal processes are acceptable and setting standards for such exceptional approaches. We argue that the international norms require revision to deal with these situations and that the preferable approach is not to treat them flexibly, as currently in the European system, but to revise them. We are alert to the fact that revision of these norms carries significant risks. Nonetheless, we are interested in exploring how revised principles, or principles that allow for exceptions to the accepted norms, might be framed so that they are both pragmatic and able to protect and contribute to building the rule of law.
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Prof Christina Murray BA LLB (Stellenbosch) LLM (Michigan) is a visiting fellow at Kellogg College, Oxford University. Professor Murray is Professor Emeritus at the University of Cape Town. She is a South African, educated at the Universities of Stellenbosch and Michigan. The early part of her career was university-based where she combined teaching and research (primarily constitutional law, human rights law, gender and international law) and activism (focused on human rights and women’s rights). Since 1992, she has combined academic and practical work on matters relating to constitutionalism, the rule of law, human rights, gender, and democratic transitions. She teaches annually at the Central European University summer school in the course on Constitution-building in Africa. From 2007 to 2014 she was President of the African Network of Constitutional Lawyers and a Vice President of the International Association of Constitutional Law. Between 2001 and 2009 she was an alternate member of the South African Judicial Service Commission.
Her work has included academic research, reports for government and other institutions, and briefing documents (including guidance notes, explanations of constitutional ideas, etc) for constitution-makers and civil society. This work primarily covered issues relating to constitutionalism and the rule of law including human rights, international norms, traditional leadership, women and gender, matters of constitutional design (executive power, legislatures, rights, the judiciary, federalism and multilevel government, and fiscal federalism) and constitution-making processes. Her main interests at the moment are on the judiciary in transitions to democracy, unconstitutional changes of government and, more broadly, on the role that constitutional issues and constitutional decisions can (and can’t) play in political transitions.
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