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Building Judicial Independence in Post-Authoritarian Transitions

Experiences from Georgia, Myanmar, South Africa and Other Jurisdictions

16th May 2018

On 16 May 2018, the Bingham Centre and Matrix Chambers hosted a panel discussion on how countries emerging from authoritarian rule have tackled the difficult challenge of building an independent judiciary. Independent judges and courts underpin constitutional democracy and enable the development and deepening of a Rule of Law culture.

Our panellists included both international visitors and UK experts. Dr Anna Dolidze, an International Visiting Fellow at the Bingham Centre, spoke about her work as a member of the High Judicial Council of Georgia, which is responsible for judicial appointments and discipline as well as judicial careers. She explained that the Council was designed to support judicial independence, but had to grapple with the problem that some judges were seen as associated with a previous government and its punitive approach to law enforcement and political dissent.

Professor Hugh Corder of the University of Cape Town, an external Fellow of the Bingham Centre, gave an account of how the South African judiciary had fared since the end of apartheid. He focused on the last 9 years, during which civil society and political parties had to resort to 'law-fare' to challenge the actions of President Zuma, accused of corruption and questionable governance through patronage, until he recently stood down. The courts had come under pressure during this period but were largely managing to retain their hard-won reputation for independence in the post-apartheid era, led by the Constitutional Court.

Offering a UK perspective was Sir Nicholas Blake, recently retired from the High Court and an Associate Member of Matrix (and former head of Chambers). Sir Nicholas noted that the safeguard of judicial security of tenure was a product of the Civil War and the political struggles of the 17th Century. He argued that disciplining tenured judges required an evidence-based process with distinct stages of investigation, adjudication and recourse to appeal. He also reflected on his experience as UK representative on international judicial associations, where the problem of judicial 'lustration' or the mass removal of judges was encountered, mainly in former communist countries of Eastern Europe.

Our final speaker was Professor Sir Jeffrey Jowell QC of Blackstone Chambers, the Founding Director of the Bingham Centre. Sir Jeffrey reflected on his current work with the courts in Myanmar. He emphasised that the net should be cast wide when searching for ways of building a Rule of Law culture. Writing standards of accountability into a constitution, for instance through a right to administrative justice, could give judges better tools to work with. In Bosnia, Hong Kong and other jurisdictions, external judges serving on appellate courts have made important contributions. Ensuring appropriate judicial pay and conditions was also essential, and Sir Jeffrey underscored the value of parallel institutions such as the Constitutional Court established in post-apartheid South Africa.

The seminar was chaired by Jessica Simor QC of Matrix Chambers, who is an external Fellow of the Bingham Centre. At the Bingham Centre, the Director, Murray Hunt, and one of our associate senior research fellows, Jan van Zyl Smit, were responsible for planning this event, which links with the Bingham Centre's on-going work on judicial independence, which has in recent years included engagement with issues in the Commonwealth, Latin America and Poland.