Judges and Rule of Law in Times of Political Change and Transitions
M Cherif Bassiouini et.al (eds),The Global Community Yearbook of International Law and Jurisprudence: GLOBAL TRENDS: LAW, POLICY AND JUSTICE ESSAYS IN HONOUR OF PROFESSOR GIULIANA ZICCARDI CAPALDO, Oxford University Press, 2013, pp 173-230
29 Pages Posted: 7 Apr 2014 Last revised: 14 Oct 2015
Date Written: August 1, 2013
Political change, or transition, coming after conflict and repression, raises a multitude of challenges such as how to deal with the past while seeking to build a future of more than just hopes for peace, prosperity and a good life for all. This requires social change. The herculean task of making that change positive and far reaching requires the concerted effort of many institutions of governance, civil society and private citizens. Judges are among those with a critical role in processes of dealing with the past to take a country forward. As will be shown in this paper, judges can, and do, assume a range of functions during transitions and beyond. The end game for the judges should always be about justice and rule of law; social engineering has never been their concern. However, as we know, law and society do not operate in parallel universes, and what happens in a legal process can have major ramifications beyond the parties and the immediate issue. We also know that the law needs to fulfil certain needs of a society in order to have legitimacy. As this paper demonstrates, in times of political change or transition, the traditional judicial role can morph and extend into work that relates to wider projects for establishing or re-establishing rule of law and respect for law. This paper, using a comparative international approach, aims to address the role of judges in dealing with the baggage of armed conflict, repression and human rights violations, and to focus on the judicial contribution to rule of law. We begin with a general consideration of rule of law, moving on to the role of judges in a changing society. Bearing in mind our understanding of rule of law, we address the primary ways that judges engage in dealing with the past, ranging from fact-finding to legal proceedings and then to vetting and lustration. This is about judges being instruments of wider social change, vehicles of transformation. Our next section considers the issue of judges as subjects for change, where they themselves come under scrutiny. Finally, we sum up with an overall analysis of what judges can offer to rule of law and wider society in these situations, and how the concept of rule of law itself evolves in these unusual times. Our focus is on judges as judges, so we will not be studying their role as victims or in their private capacity.
Keywords: Rule of Law, Post Conflict Justice, Transitional Justice, Role of Judges in Transitional Societies
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