STANDARD OF PROOF IN INQUIRY AGAINST JUDGES: A CASE FOR A LOWER THRESHOLD

Abstract

Inquiry proceedings against judges to determine their suitability to continue to hold office are unique both in terms of their nature and in terms of the implications on a constitutional democracy. This article attempts to explore the dynamics of the standard of proof to be adopted in such inquiry proceedings. The article is built around a simple and clear proposition that in order to continue in office, the suitability of a judge must always be beyond reasonable doubt and not his unsuitability. In other words, when a question arises as to whether a judge should continue to hold office, the question should not be whether his unsuitability is proved beyond reasonable doubt. The question should be; whether the suitability of the judge is beyond reasonable doubt? A corollary to this proposition is that if facts unfavourable to a judge are proved in inquiry proceedings on a balance of probabilities, it establishes a reasonable doubt regarding his suitability to hold office. Thus, if the standard adopted in inquiry proceedings is that of proof beyond reasonable doubt, it means we are unwilling to remove judges whose suitability is not beyond reasonable doubt.