Irremovability of Judges - An Obstacle to the Judicial Resilience-Building?

This chapter aims to illustrate how the protection of judicial independence, through the stability of judicial tenure, may compromise the rule of law and ultimately weaken the judicial authority as a branch of government. Through a theoretical conceptualization of the phenomenon of inherited judges in regime shifts and political transitions, this chapter will reveal the inherent tension between the principles of the rule of law and judicial independence, which the orthodox constitutional theory essentially overlooks. The international standards on judicial independence and constitutional theory emphasize the importance of the formal guarantees of judicial independence, particularly the ones relating to the stability of the judicial tenure, as well as the procedural guarantees in the appointment and dismissal procedures. However, empirical constitutional research has already provided solid evidence challenging the importance of de jure judicial independence once the judiciary faces attacks from other government branches. Besides the discrepancy between the constitutional provisions and constitutional practice, the problem of formal guarantees of judicial tenure is that they are construed in a manner that presumes that the judiciary operates in an institutional vacuum, shielded from the socio-political contingencies, which is manifestly not the case. The international standards on judicial appointment and dismissal translate into national constitutional texts but often stay there without addressing the hard-pace changes of constitutional politics on the ground. Furthermore, they do not provide guidelines on whether the guarantees of judicial independence enjoyed by the sitting judges should remain robustly in place even when the circumstances in which they were appointed significantly change. In light of these premises, this paper aims to contribute to the line of literature that examines the phenomenon of inherited judges at times of regime changes and political transitions. The dilemma of inherited judges has been addressed within the transitional justice theory, incidentally, through the more holistic prism of lustration and post-authoritarian and post-conflict capacity-building politics. The problem might seem like a puzzling relict of the past, but it is as present today. The question of when it is viable and constitutionally permissible to interfere with judicial independence is at the heart of the contemporary debates in comparative constitutional law. This paper aims to place the inherited judges’ problem into the broader comparative constitutionalism’s judicial independence and the rule of law paradigm. Further, it will revisit the common stance that stable judicial tenure is the backbone of judicial resilience. As the paper will claim, the issue of inherited judges represents a challenge to the widely accepted theoretical paradigm of the intrinsic connection between the principles of the rule of law and the irremovability of judges as the essential guarantee of judicial independence.