WAY FORWARD: In concluding edition, I promised to examine the system of appointment of Judges in some developed countries. Today, I start with the examination of appointment of Judges in Canada
CANADA: Canada has a level of judicial independence entrenched in its constitution, awarding superior court justices various guarantees to independence under sections 96 to 100 of the Constitution Act, 1867. These include rights to tenure (although the Constitution has since been amended to introduce mandatory retirement at age 75) and the right to a salary determined by the Parliament of Canada (as opposed to the executive). In 1982 a measure of judicial independence was extended to inferior courts specialising in criminal law (but not civil law) by section 11 of the Canadian Charter of Rights and Freedoms, although in the 1986 case Valente v. The Queen, it was found these rights are limited. They do, however, involve tenure, financial security and some administrative control.
The year 1997 saw a major shift towards judicial independence, as the Supreme Court of Canada in the Provincial Judges Reference found an unwritten constitutional norm guaranteeing judicial independence to all judges, including civil law inferior court judges. The unwritten norm is said to be implied by the preamble to the Constitution Act, 1867. Consequently, judicial compensation committees such as the Judicial Compensation and Benefits Commission now recommend judicial salaries in Canada. There are two types of judicial independence: institutional independence and decisional independence. Institutional independence means the judicial branch is independent of the executive and legislative branches. Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and wthout fearing penalty in their careers for their decisions.
HONG KONG: In Hong Kong, independence of the judiciary has been the tradition since the territory became a British crown colony in 1842. After the 1997 transfer of sovereignty of Hong Kong to the People’s Republic of China pursuant to the Sino-British Joint Declaration, an international treaty registered with the United Nations, independence of the judiciary, along with the continuation of English common law, has been enshrined in the territory’s constitutional document, the Basic Law.
UNITED KINGDOM: Under the unwrittenBritish Constitution, there are two important conventions which help to preserve judicial independence. The first is that Parliament does not comment on the cases which are before the court. The second is the principle of parliamentary privilege: That Members of Parliament are protected from prosecution in certain circumstances by the courts. In modern times, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005, s.3. In order to try to promote the independence of the judiciary, the selection process is designed to minimise political interference. The process focuses on senior members of the judiciary rather than on politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007 aims to increase diversity among the judiciary. The pay of judges is determined by an independent pay review body. It will make recommendations to the government having taken evidence from a variety of sources. The government accepts these recommendations and will traditionally implement them fully. As long as judges hold their positions in “good order”, they remain in post until they wish to retire or until they reach the mandatory retirement age of 70.
UNITED STATES: Article III of the United States Constitution establishes the Federal courts as part of the Federal Government. The Constitution provides that federal judges, including judges of the Supreme Court of the United States, are appointed by the President ”by and with the advice and consent of the Senate”. Once appointed, federal judges:…both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. Federal judges vacate office only upon death, resignation, or impeachment and removal from office by Congress; only 13 federal judges have ever been impeached. The President is free to appoint any person to the federal bench, yet typically he consults with the American Bar Association whose Standing Committee on the Federal Judiciary rates each nominee “Well Qualified”, “Qualified” or “Not Qualified.” I know that in Nigeria there have been calls for increased consultations with the Bar before appointments are made to the Bench.
To guarantee civil liberties it is important that independence of the Judiciary should continue to be accorded importance by all saddled by statute or the Constitution with important tasks relating to the judiciary. However, where the enabling laws do not or are found to be incapable of fully ensuring the independence of the judiciary or where the implementation of such laws themselves are themselves obstacles in the achievement of this objective, efforts must be made to bring about a change in the law.
Appointments as judges of the High Court or the Supreme Court of Appeal is done by the Judicial Service Commission. The practice is for the President of the Supreme Court of Appeal, or the affected Judge President to tell the JSC when a vacancy has or will occur. The JSC then informs the legal professional organisations of such vacancy and calls for nomination within a specified period. Following the close of the window period for nominations, the candidates are interviewed in the full view of the public. They are then screened in private. From the screening, the JSC makes its choice. The selected candidate is thereafter sent to the President for his pronouncement. The President must pronounce the choice of the JSC. Where the appointment is to the Constitutional Court, which is the highest court in South Africa, the same procedure is followed; however, the President has a discretion. The JSC supplies four candidates from which the President will choose one.
With regards to the appointment of the Chief Justice and the Deputy Chief Justice, the president makes the appointment after due consultation with the JSC and the members of the opposition party. However, the president may disregard their opinions, in favour of any candidate of his pleasing. In Japan, Justices are appointed by the Cabinet with the attestation of the emperor. The Chief Justice is appointed by the emperor upon the nomination by the cabinet. The members of the public are also given a voice in that they may voice their approval or disapproval for the appointment of a particular judge. The electorate also reviews the status of a justice after the tenure of 10 years in office.
The Cabinet is the top executive body in Japan, and it has the actual authority when it comes to the appointment of judges. The emperor is more like an approving authority. The lower court judges are appointed by the cabinet from a list of nominees prepared by the Supreme Court and reviewed by the special advisory committee on nominations. Pursuant to section 72 of the Australian Constitution, the Governor-General in council appoints the judges of the Federal Courts. In practice, it is the Attorney-General that considers who might be a suitable appointment. The AG then writes to the Prime Minister seeking the approval of the Prime Minister and the Cabinet. If approved, the Attorney-General then recommends the nominee to the Governor-General (the King’s representative) who considers such appointment through the Federal Executive Council.
Pursuant to section 6 of the High Court Act, the Commonwealth Attorney General is required to consult with the Attorneys-General of the States. However, the appointments are made by the Governor, having been selected by the Cabinet, and on the advice of the Attorney General of the State. In China, Judges and procurators are appointed by the standing representative of the People’s congress. This is usually after passing a qualification examination. Assistant judges and assistant procurators are appointed by respective courts and procurators that need them. From the foregoing, it is clear that there is a golden trend going through the mode of appointment of Judges which is that the appointment must be transparent. There is no doubt that there is urgent need for a review of the system of appointment of our Judges from the High Court to the Supreme Court.