Editors’ note: This is Part II of a two-part contribution. You can read Part I HERE.

In Part I of this blog post, I discussed the recent attempt by the Polish government to remove members of the Supreme Court by lowering the retirement age to exclude ‘Communist-era’ judges. Other countries, not only the former Communist states in Eastern Europe but also emerging constitutional democracies in other parts of the world, have attempted to remove judges associated with a previous authoritarian era. This raises the question of whether such processes may be justified, and if so what guidance is available.

Do international standards offer helpful guidance?

Countries that have embarked on a transition to constitutional democracy do not have the benefit of any exception in the UN Basic Principles on the Independence of the Judiciary (1985), which declare that judges should have ‘guaranteed tenure until a mandatory retirement age or the expiry of their term of office’.

As I have mentioned in Part I of this blog post, norms such as the Basic Principles do allow for the removal of judges. A relatively broad statement of the grounds of removal is found in the Bangalore Principles of Judicial Conduct, which refer to ‘proved incapacity, conviction of a serious crime, gross incompetence, or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary’.

However, the UN Basic Principles and the Bangalore Implementation Measures seem to presuppose an essentially trustworthy judiciary in which there only are a few bad apples. This is evident in the type of removal process that is envisaged. Allegations of misconduct are filtered through an initial process of investigation in which the judge must be given an opportunity to respond. The next stage of the process is a disciplinary inquiry that should normally be carried out by an independent authority composed of serving or retired judges. The disciplinary body determines the specific allegations referred to it, and decides whether the judge should be removed (subject to appeal or review by a court).

The disciplinary inquiry model is not well suited to assessing a judge’s overall integrity or competence, due to the narrow focus on specific allegations. Moreover, it may be inappropriate for a body made up of (usually senior) judges to be in charge of judicial discipline in a post-authoritarian situation. Senior judges may be part of networks of corruption and political influence and could easily manipulate the disciplinary process to protect their accomplices while targeting more independent-minded judges for removal. For example, Kenya’s judicial vetting process was in part a response to the perceived failure of an earlier attempt in 2003 to tackle systemic corruption through mass disciplinary action. The disciplinary investigations were overseen by a Chief Justice handpicked by the President to carry out ‘radical surgery’ on judicial corruption, and despite the departure of scores of judges the process did not restore public confidence in the judiciary.

One might imagine that international standards on transitional justice would be more sensitive to the problem of a compromised judiciary than general standards on judicial independence. The leading UN instrument in this area is the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (Orentlicher Principles, 2005). The Principles call for the removal of judges who are ‘personally responsible for gross violations of human rights’. At the same time, they stipulate that ‘the irremovability of judges’ (i.e. security of tenure) is to be respected as a guarantee of judicial independence. A limited exception is made for judges ‘unlawfully appointed or who derive their judicial power from an act of allegiance’.

The exception seems most readily applicable in situations where an authoritarian regime ruled for a relatively brief period, perhaps by suspending the existing constitutional framework rather than reshaping the entire legal order around its ideology and right to govern. For example, it provides some support for the decision of the Supreme Court of Pakistan in 2009 to dismiss judges appointed by the military regime during the enforced absence of Chief Justice Chaudhry. The Supreme Court in that case also ordered disciplinary investigations into judges who had sworn an oath of allegiance to the military ruler. However, in countries where the authoritarian regime and its ideology were more deeply embedded in the legal system, and endured for longer, it may not be possible to distinguish between judges in these ways. The Orentlicher Principles are less helpful in these situations.

Are Council of Europe standards on lustration more helpful?

Many states that suffered long periods of authoritarian rule, most of them under Soviet rule or influence, went on to ratify the European Convention on Human Rights and become members of the Council of Europe. Since the 1990s, Council of Europe organs such as the Strasbourg Court and the Venice Commission have repeatedly grappled with the lustration policies of new member states. The Parliamentary Assembly of the Council of Europe (PACE) laid the groundwork for current approaches in its 1996 resolution on ‘Measures to dismantle the heritage of former communist totalitarian systems’. Lustration was specifically recognized as a measure that could be adopted in institutions such as the judiciary that are critical to the Rule of Law, and no mention was made of security of tenure, possibly because judges did not generally enjoy guaranteed tenure under Communist rule.

The PACE resolution set out broad guidelines to ensure that lustration measures would be consistent with the Rule of Law. Lustration should not be based on ‘collective guilt’, or motivated by revenge. To ensure an individual assessment of each judge’s fitness for office, procedural safeguards would be required, including the presumption of innocence, the right to be heard and the right to challenge lustration decisions before a court.

These procedural guidelines were clearly violated in the attempted purge of the Polish Supreme Court that was described in Part I of this blog post. The legislation lowering the retirement age of current judges to 65 amounted to collective punishment insofar as the loss of a Supreme Court seat was not based on a judge’s career history or even whether he or she was appointed before or after the end of Communist rule. (The legislation allowed these judges to apply to the President of Poland for a post-retirement extension of service, but for the Executive to exercise such a discretion contravenes the separation of powers in a manner that further undermines the Rule of Law.)

However, the PACE resolution on lustration is uncertain or even problematic in several respects. Let me highlight two areas of difficulty.

First, the resolution was intended to apply only in the extraordinary situation of societies just emerging from Soviet-era totalitarian rule. The resolution recommended that lustration programmes should cease by 1999. That deadline was perhaps unrealistic and the Venice Commission has been willing to consider initiatives in our current decade to vet all serving judges in Ukraine and Albania (both countries argued that they were addressing persistent problems of judicial corruption). By contrast, the Consultative Council of European Judges, another Council of Europe body, has been broadly critical of contemporary attempts at judicial lustration in Ukraine and other countries including Serbia and Slovakia.

So the question remains: under what conditions may a post-authoritarian country adopt measures that impinge on judicial security of tenure? In the case of Poland, it is also relevant that during the 1990s judicial councils reviewed the track record of Communist-era judges, who were also subject to lustration if they provided an incomplete disclosure of their involvement with the regime. The recent attempt to purge the Supreme Court must be understood against this background.

A second problem is that the more one examines the sheer diversity of attempts to reform post-authoritarian judiciaries, the more the procedural safeguards in the PACE resolution seem to suffer from a one-size-fits-all approach. The safeguards may be unduly restrictive insofar as they exclude mechanisms for reforming judicial personnel that may have been justified in their particular contexts.

Several examples could be given. Notably, competitive reappointment processes are a collective measure and former judges do not benefit from the presumption of innocence and related procedural safeguards if they can simply be out-competed by new applicants. Such processes have been used with some degree of success in the former East Germany, Bosnia and Herzegovina, and Estonia – where they contributed to building a legal system now ranked 12th in the World Justice Project Rule of Law Index.

Further examples can be found beyond Europe. Truth commissions, a feature of many transitions in Latin America and Africa, have sometimes been given a mandate to investigate the judiciary. Truth commission inquiries often seek to establish an overall account of past abuses and, when a truth commission investigates alleged judicial wrongdoing, it may not accord individual judges the procedural safeguards that the PACE approach would require. Yet the UN Special Rapporteur on transitional justice has argued that Latin American truth commissions, in particular, have played an important role in strengthening the Rule of Law by identifying patterns of judicial wrongdoing and recommending institutional reforms. In Tunisia, the Truth and Dignity Commission that sat between 2014-2018 was given a mandate not only to recommend institutional reforms but also to identify individual judges to be referred for judicial discipline proceedings. The Tunisian commission has yet to publish its final report.

Thus, the second area of uncertainty that arises under the PACE approach is whether it is too restrictive to capture the variety of judicial personnel reform processes that may be appropriate or even necessary to strengthen the Rule of Law in some post-authoritarian transitions.

A comparative research project

I have argued in this blog that the attempted purge of the Polish Supreme Court exposes a worrying lack of international standards concerning judicial personnel reforms in post-authoritarian countries. Can such processes be designed to function in a manner that strengthens the Rule of Law rather than undermining it? In Poland it is fairly clear that the forced retirement of Supreme Court judges would have been damaging to the Rule of Law as it formed part of a wider pattern of government hostility to judicial independence and the separation of powers.

Other situations are harder to assess. There is a real, practical need for guidance as post-authoritarian countries continue to confront the problem of how to deal with judges they have inherited. I have mentioned recent or on-going judicial vetting processes in Albania, Kenya and Ukraine as well as truth commission investigations in Tunisia. Demand for such processes may well arise in countries such as Myanmar, Venezuela or Zimbabwe in the future.

More research is urgently needed to improve our understanding of how transitional countries come to adopt personnel reforms that focus on judges from an authoritarian era, and to examine the implications for the Rule of Law. If international norms are to be reviewed and revised, a comparative research base that reflects the widespread nature of the problem and the diversity of ways in which transitional countries have reacted to it is essential.

In the hope of contributing to this research effort, I am currently working with colleagues on the AHRC-funded research project Special Processes for the Reassessment and Removal of Judges in the Context of a Constitutional Transition: Strengthening the Rule of Law? Our group includes experts from Europe, Latin America and Africa and the work will include in-depth case studies of past transitions as well as an analysis of what may constitute good practice from a Rule of Law perspective. We plan to publish interim findings and working papers as the research progresses, which will be posted on the project page at the Bingham Centre for the Rule of Law.

Dr Jan van Zyl Smit is a Senior Research Fellow at the Bingham Centre for the Rule of Law, British Institute of International and Comparative Law. The author gratefully acknowledges support from the Arts and Humanities Research Council which has funded on-going research referred to in this post through grant number AH/R005494/1.

(Suggested citation: J. van Zyl Smit, ‘After Poland’s Attempted Purge of ‘Communist-era’ Judges, Do We Need New International Standards for Post-authoritarian Countries Reforming Their Judiciary? (Part II)’, U.K. Const. L. Blog (16th Jan. 2019) (available at https://ukconstitutionallaw.org/))