I.  Judicial Qualifications

To become a judge usually initially requires that the person seeking to become a judge
meet specified qualifications. This is not always required and in certain court systems their
are no requirements beyond being older than 18 years old and being a citizen of the
country.

However, most court systems have specific judicial qualifications. Usually, the judicial
candidate must be a lawyer. The reason behind this requirement is that it is assumed,
hopefully correctly, that lawyers will understand better than non-lawyers the reason for
laws. It is also believed that lawyers will be more knowledgeable about how to apply
laws to certain cases and what the effect of  their decisions will be upon laws, society,
and the individuals involved in the cases. Lawyers should also understand the legal
system, both practice and procedure, better than a non- lawyer.

Often there is a minimum and maximum age requirement that specifies that a lawyer must
have attained a certain age but has not reached another specified age (for example, the
judicial candidate might have to be at least 35 years old but not yet 60 years old). The
reason for the minimum age requirement is so that the judicial candidate has sufficient
experience to understand the demands of the job and sufficient wisdom to be able to
render good decisions and behave with dignity as a judge. The maximum age requirement
is meant to ensure that the judicial candidate is young enough and vigorous enough to
fulfill the requirements and withstand the burdens of the job of being a judge.

It is not unusual for a lawyer, or if allowed, a non-lawyer, upon becoming a judge being
required to relinquish all other jobs or positions he may have held. Also, if the judge had
been politically active prior to becoming a judge, the judge should refrain from being
involved in party politics. The reason for these requirements is that judges must be and
must appear to be neutral. If they hold jobs or other positions while they are working as a
judge they may consciously or unconsciously favor the firm or business where they work
or in some other way not be or appear to be impartial. Therefore, in order to avoid as
much as possible anything that could be seen as affecting their impartiality, many countries
limit to the greatest extent they can, anything, work or associations, that could
conceivably be viewed as affecting a judge’s impartiality.

In some countries, a background check is run on a judicial candidate. A background
check is an investigation into a judicial candidate’s personal life and personal history. It is
done to ensure that there is or that there was nothing in the judicial candidate’s life or past
which could affect or be used to affect his decisions. It is also done to make sure that
there is nothing in the judicial candidate’s life or past which could embarrass the court
system (for example, a check to make sure that the candidate does not have a criminal
record).

In addition to the reasons already mentioned above, there are three other reasons why the
selection process needs to be so rigourous. First, the need for judicial immunity
(protection from liability and retribution for actions taken by the judge in his judicial role)
means that judges can only be removed for cause. There must be a reason to remove a
judge from office (for example a judge who is corrupt could be removed from office).
Bad decisions, mistaken reasoning or even just plain stupidity are not reason enough to
remove a judge.

Related to immunity is tenure, (the period of time a judge can hold the office absolutely
free from firing in the absense of misconduct).  Since judges are appointed for a certain
period of time, anywhere from one year to a lifetime appointment, it is important
(particularly if it is an appointment for a longer period of time) that the selected judge be
highly qualified and honest. Selecting the wrong judge means that for a possibly long
period of time that judge may make poor rulings that adversely impact the administration
of justice.

The final reason that a stringent selection process is required is that the judiciary is an
integral part of the system of checks and balances that are necessary in any vibrant
democracy. For the democratic system to function in reality as it does in theory it is
necessary that the judges, who are the key to any judicial system, be able to fulfill their
role as guardians of legal and human rights.

II.  Appointment of Judges

If a judicial candidate is found to have the necessary qualifications, the person moves
from the qualifications criteria to the selection process.  Different democratic governments
have different ways for selecting judges to serve in the court system.

One method of choosing judges is by appointment. When judges are appointed, the issue
becomes who appoints the judges.  Different democratic countries use different methods
for appointing judges. Judges can be appointed by chief executives, presidents or prime
ministers, parliamentary commissions, legislatures, or other organs of the state. Inevitably,
there is politics involved in the selection process regardless of which method is used.
However, whatever method of appointment is chosen, compromise is necessary for the
appointment process to work.  The political parties inevitably involved in the process
need to ensure that the judicial candidate is not too offensive to the parties involved in the
process.

III.  Election of Judges

Another way to place judges on the bench is by election.  Judges could be elected either
from the general population or by elections among lawyers or among the judiciary.

The advantage of elections (particularly general elections) is that the people have a direct
say in the process.  The disadvantage is that the judges might allow political
considerations to affect their decisions, particularly if they are up for reelection in the near
future.

IV.  Conclusion

Judicial qualifications are probably the easiest and least controversial part of the process
for placing judges into the judiciary ranks.

The method of appointment or the use of elections in choosing judges, each have their
own advantages and disadvantages.  However, whatever method of selection is chosen,
the goal should remain the same to select judges who are impartial, fair, well-educated,
and knowledgeable about the law. It will rest with the people of Albania to determine
which process for selecting judges will work best in helping to create an Albanian legal
system that is fair, efficient, and effective.

Submitted by CEELI Liaison John Kelley
American Bar Association (ABA) Central and East European Law Initiative (CEELI)
Rr. Ismail Qemali, Pall. 34, Ap. 2
Tiranë,Albaniai
Phone:  355-42-346 24
Fax:  355-42-331 97
E-mail:  jkelley@ceeli.tirana.al