Focus back on judicial accountability: How are judges elected and removed globally?

Delhi High Court has withdrawn judicial work from Justice Yashwant Varma

The alleged recovery of wads of cash from the residence of Justice Yashwant Varma has brought back the spotlight on judicial accountability and criticism over the "opaque" process of appointments to the higher judiciary.

The fate of the judge, repatriated to the Allahabad High Court on the recommendations of the Supreme Court Collegium, rests on the findings of the in-house inquiry ordered by the top court as well as the action it decides to take depending on the probe findings.

As the probe enters Day 2, voices have been raised on the developments in Parliament with Rajya Sabha Chairman Jagdeep Dhankhar taking serious note of the incident involving the judge and discussing the situation with various political stakeholders. The developments that followed after the matter came to light has also seen calls for the judge’s impeachment and the registration of an FIR against the judge.

The process of impeachment of a judge of the Supreme Court is laid down in Article 124(4) of the Constitution of India. According to Article 218, the same provisions shall apply in relation to a judge of the High Court.

But do other countries follow the same procedure to appoint and impeach judges? Here’s how countries such as the USA, Brazil, Russia, South Africa and South Korea conduct the process.

USA

According to the Constitution, federal judges – including Supreme Court “justices”– are to be nominated by the President and confirmed by the Senate (the upper chamber of the US Congress).

The impeachment process provides a removal method if a federal judge engages in “high crimes and misdemeanors”. If the House votes a majority for the judge’s guilt, the process goes to the Senate, where individual senators act as judges and have the power to convict the judge on the articles of impeachment.

Brazil

Brazil has a career judiciary with a competitive appointment and promotion process. Applicants to the lower courts must have at least three years of legal practice and pass an entrance exam. Most judges enter the judiciary within a few years of graduating university.

The process of impeaching judges of the Brazilian Supreme Court or of the State Attorney General begins with a complaint by any citizen before the Brazilian Senate. The complaint must be signed with a notarised signature. Once examined by a Senate Special Committee designated by its presidency and accepted preliminarily for deliberation in the Senate floor, the impeachment is officially initiated and will continue within the same Senate for its final judgment. So, judicial impeachment in Brazil consists of a unicameral procedure.

Russia

Judges of the Constitutional and Supreme Courts are appointed by the Federation Council (upper house of parliament) upon the proposal of the President, while judges of other federal courts are appointed by the President.

Under the amended Article 83 of the Constitution, the President will have the power to submit to the Federation Council, the upper house of the federal legislature, requests to terminate powers of judges of various ranks. The termination shall be performed by the Federation Council in cases where a judge has committed an act, which discredits honour and dignity of his/her office. They can also be removed when there is an indication that a judge cannot perform her functions, and other cases stipulated in a federal constitutional law.

South Africa

Becoming a judge in South Africa is unlike most jobs. One does not have to study specifically at university to become one. There is no “judging” degree in South Africa. Judges are appointed in terms of section 174 of the Constitution. For someone wanting to be a judge,  he or she must be ‘”appropriately qualified” and a “fit and proper” person.

Section 177 of the Constitution provides for the impeachment of a judge, including removal from office. It sets out a three-stage process. A judge may be removed from office only if the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct.  The  National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.

The Speaker must then write a letter to the President confirming the National Assembly’s resolution.

The third and final stage is when the President, based on the letter received from the Speaker, signs an official document called a presidential minute, confirming the date on which the judge is officially removed from office.

 South Korea

The Constitution stipulates that qualifications for judges shall be set by the law. The Court Organization Act defined the qualifications for judges as persons who have passed the National Judicial Examination and completed a two-year training programme at the Judicial Research and Training Institute (JRTI) or those who have passed the bar exam. The Chief Justice and justices of the Supreme Court are appointed by the President of the nation with the consent of the National Assembly.

If judges violate the Constitution or other laws in the performance of official duties, the National Assembly may pass a motion for impeachment.  The impeachment adjudication proceeds with the hearings. If a party fails to attend a hearing, a new schedule shall be arranged.  When a request for impeachment is upheld, the Constitutional Court shall pronounce a decision that the respondent be removed from office.