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Special Processes for the Reassessment and Removal of Judges in Constitutional Transitions

Societies in transition to constitutional democracy face a difficult choice when their courts are staffed with judges from a period of conflict or authoritarian rule. Should the existing judiciary be given security of tenure - the standard protection for judicial independence - or instead face a special process that will examine their past and possibly lead to the removal of those judges who are considered unwilling or unable to serve with integrity and competence in the new era?

From 'de-Nazification' to 'de-Communisation', a wide variety of transitions have included special processes for screening the judiciary, such as vetting, lustration, competitive reappointment processes and truth commission inquiries.

This project uses a comparative methodology to analyse special processes and examine whether, and if so how, they can be designed to strengthen the Rule of Law. At the heart of the project are case studies commissioned from experts with insider knowledge of a country's judicial reforms. The project team will draw on these case studies to build a wider typology of special processes and develop policy recommendations on good practice, if any.

The project findings will be used to review applicable international standards. We will examine whether general normative statements on judicial independence and transitional justice require modification.

Funding and core project team

This project is funded by UK Arts and Humanities Research Council grant AH/R005494/1 and runs until March 2020.

The core team consists of Dr Jan van Zyl Smit (Principal Investigator) and Dr Marcos Zunino (Project Research Fellow) at the Bingham Centre, and Professor Christina Murray of the University of Cape Town (Co-Investigator), who is Senior Adviser on Constitutions and Process Design, UN DPA Mediation Support Unit.

Case studies have been commissioned from experts who will examine how the issues in this project have been approached in 8 countries representing several different regions and historical periods.

Project publications

Marcos Zunino, 'Judicial Vetting: 'The Forgotten Aspect of Argentina's Transition', Opinio Iuris (19 February 2019)

Jan 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?', UKCLA and IACL (January 2019)

Other work by project participants

Marcos Zunino, Justice Framed: A Genealogy of Transitional Justice (CUP, forthcoming 2019)

Hugh Corder and Jan van Zyl Smit (eds), Securing Judicial Independence: the Role of Independent Commissions in Selecting Judges in the Commonwealth (Siber Ink, 2017)

Jan van Zyl Smit, 'Kenya's new Chief Justice must press on with cleaning up the judiciary', The Conversation (9 October 2016)

Jan van Zyl Smit, The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice (BIICL and Commonwealth Secretariat, 2015)

Marcos Zunino, 'Releasing Transitional Justice from the Technical Asylum: Judicial Reform in Guatemala seen through Technē and Phronēsis', (2011) 5 International Journal of Transitional Justice 99

Contacts

Jan van Zyl Smit

Marcos Zunino