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Publication Date

5-2024

Abstract

The judiciary performs a key role in implementing the constitution and safeguarding constitutional order. Democracy cannot thrive when the judiciary is pliant. An independent judiciary is fundamental to constitutional democracy. Not only should judges be appointed in a transparent and credible manner, but their removal should insulate the judiciary from potential reprisals. Certainly, incompetent, and professionally unfit judges should have no place in the judiciary and judges who grossly misconduct themselves should be held accountable and in extreme cases, must be removed from office. However, how judges are removed has an impact on the autonomy of the judiciary. If the process for the removal of judges is weak and defective, this can lead to potential victimization of judges and erosion of judicial independence in at least two ways. First, it may enable a ruling government to arbitrarily get rid of judges it does not like and replace them with partisan ones. Second, as Sujit Choudhry argued, ‘the power of removal serves as a mechanism to enforce principal-agent relationships between a dominant party and its partisan appointees.’ To avoid this risk and to ensure a balance between the need to hold judges accountable and get rid of judges who fall below the required professional standard, the removal process must be fair and respect the constitutionally set safeguards.

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