This article is a foundation essay. These are longer than usual and take a wider look at a key issue affecting society.
The second half of the 20th century witnessed a substantial shift in patterns of national governance. This happened among developed nations as well as those which achieved independence as imperial powers withdrew from Africa, Asia and the Caribbean.
The foundational principle of limited government under law, expressed through a written constitution containing a list of fundamental protected rights, was the theoretical basis of almost all such constitutions. This trend gathered pace in the 1990s. Then many states in central and eastern Europe, subjugated under Soviet hegemony, threw off that yoke. They eagerly embraced governance under a constitutional democracy. A rash of constitution-writing along these lines broke out in many parts of the world.
A consequence of endorsing the rule of law and protected fundamental rights in a constitution is that the political profile of the judicial branch of government is raised. This is because it becomes the final arbiter of the meaning of constitutional provisions. It is also the guardian of the values enshrined in the national constitution which it upholds.
The exercise of judicial authority is questioned by the legislature and executive, and often also in the popular mind. Thus the process of appointing judges becomes politicised and contested terrain.
The electorate and those involved in public governance ought to focus more deeply on this exercise. They need to do so to ensure that the highest quality of individual is appointed to the bench in terms of knowledge, outlook and independence of mind. It is also to advance the openness and accountability of this process.
The ‘third way’
Judicial appointments matter greatly. The US is expecting to see a stand-off between the president and Congress over who should be appointed to the Supreme Court following the unexpected death of justice Antonin Scalia.
In the UK and its former colonies, including South Africa until 1994, the norm was a government minister to deliver a “tap on the shoulder” to prospective judges.
In contrast to the inevitably confrontational American processes, or the closed fraternal nature of appointments in the UK, a “third way” has been set out for the appointment of judges.
Known as the Cape Town Principles, they entrust the task to an independent commission with a broad membership in which judges themselves, and the legal profession, also have a say.
Such bodies, most often called Judicial Service Commissions (JSC) or Judicial Appointment Commissions (JAC), have become the most popular mechanism by which senior judges are appointed in Commonwealth jurisdictions. By 2015, more than 80% of Commonwealth member states had established such bodies.
The working group which generated the Cape Town Principles included experts from South Africa, the UK, Nigeria, Malaysia, Kenya and Canada. These included national experts on judicial appointments who provided insights from their domestic systems.
The team in Cape Town worked in close collaboration with the Bingham Centre for the Rule of Law in London.
Justice Kate O’Regan, who served a 15-year term on the Constitutional Court of South Africa from 1994 and participated in the project, said:
Appointing independent, competent and trusted judges is central to ensuring the rule of law in a democracy. The last few decades have seen the establishment of judicial appointment committees in many Commonwealth countries that have diminished the power of the executive over the appointment of judges. The Cape Town Principles provide welcome guidance on the processes and principles that should inform the work of these committees. These should in turn contribute to the enhancement of the rule of law and independence of the judiciary across the Commonwealth.
Sir Jeffrey Jowell, QC, founding director of the Bingham Centre for the Rule of Law and also a participant, said:
These principles provide a sorely needed guide to the role of judicial appointment commissions, their composition, and their proper procedures – all in the interest of a judiciary that is legitimate, competent and wholly independent.
More than a set of principles
Establishing an independent commission to select judges is an important first step. But, as the Cape Town Principles explain, more needs to be done to ensure that the commission’s criteria and process will do the best they can, in the circumstances of a particular society, to recruit judges who are independent, competent and worthy of public confidence in their role as guardians of the rule of law.
The experts who drew up the Cape Town Principles were each asked to reflect on the experiences of a different Commonwealth jurisdiction where a JSC or JAC had been established in recent years. These were:
Canada, where judicial selection committees have been in use since the 1980s;
South Africa, which has had a Judicial Service Commission since the end of apartheid in 1994;
Nigeria, where the 1999 civilian constitution established judicial selection bodies on which judges themselves form a majority;
England and Wales, where the Judicial Appointments Commission was established by the Constitutional Reform Act 2005;
Malaysia, where a public enquiry into influence peddling in judicial appointments led to the establishment of a Judicial Appointments Commission in 2009; and
Kenya, where a Judicial Service Commission is at the heart of a raft of measures in the post-conflict constitution of 2010 to reform the judiciary.
What the principles cover
Among the matters addressed in the principles are:
1) The need for an appointment mechanism which contributes to public confidence in the judiciary. It also allows steps to be taken to redress the effects of both past and present forms of discrimination relating to judicial office.
2) The importance of avoiding direct or indirect dominance of the membership of the commission by the executive, legislature or political parties. Also, the inclusion of the valuable perspectives of judges themselves and of the practising legal profession.
3) A selection process designed to elicit evidence of a candidate’s capacity to satisfy the published criteria. This includes, for example, the use of skills tests, samples of written work, references and consultation with identified third parties.
4) The desirability of conducting interviews with shortlisted candidates while taking measures to ensure that questioning remains relevant, fair and non-discriminatory.
5) The importance of ensuring that where the formal act of appointment is entrusted to another body, such as a head of state, it should be in accordance with the commission’s recommendations.
6) The value of a commission being held accountable. This is for its general performance – at least on an annual basis – and through the provision of feedback to individuals. Where feasible, the possibility of recourse to an ombudsman, and in any event to judicial review.
Not a one-size-fits all
The Cape Town Principles are not intended to provide a one-size-fits-all blueprint for a commission to appoint judges. They allow for the differences between legal systems and societies.
But they do reflect the view that Commonwealth countries have had good reason to establish independent commissions at the heart of their judicial appointment systems. And focusing on the criteria and processes used by commissions is a promising avenue for strengthening the independence of the judiciary and the rule of law.
There can be no doubt that properly open and accountable methods of appointing superior court judges are good for constitutional democracies and those who live in such systems. The Cape Town Principles provide a valuable set of guidelines for achieving these aims.