Lot to learn from mature democracies

There was widespread public concern that judges were being appointed through cronyism and secret soundings”, said Lord Justice Toulson about the appointment of British judges.

The situation is not entirely different in other democracies.The independence and impartiality of the judiciary are not private rights of judges; they are rights of citizens.

Independence of the judiciary is the most cherished goal of any legal system, and the process of appointment of judges is rightly seen as a crucial mechanism to achieve this goal. Judges must be independent of the executive, senior judges and in their ideology.

If judges owe their appointment to someone, they cannot be relied upon to deliver impartial and quality decisions. At the same time, judicial accountability must also be ensured.

In a modern democratic society, it is no longer acceptable for judicial appointments to be entirely in the hands of executive. For example, the judiciary is often involved in adjudicating on the lawfulness of actions of the executive.

And so the appointments system must be, and seen to be, independent of the government. It must be transparent and accountable. And it must inspire public confidence - the fundamental principle in appointing judges is and must remain - selection on merit.

Countries either follow the ‘representative’ or the ‘co-operative’ model in the appointment of superior judges. In the former, each institution - executive, legislature, judiciary etc - appoints a fixed percentage of judges. For instance one-third appointments are made by each in South Korea.

The system focuses on the collective nature of the constitutional court and ensures independence and accountability. But then judges do show loyalty to the organ which appointed them and thus are not fully independent.

Judges of constitutional court in the United States, Russia and Brazil are nominated by the President and approved by the legislature by a majority vote. All federal judges are appointed by the President of the United States with the advice and consent of the Senate.

Judicial nominations are referred to the Senate Judiciary Committee by the Senate. Nominees will be investigated, testified and the nomination voted in the Committee. These judges are appointed for life, and they can only be removed through impeachment by the Congress.

Judges choosing judges

The third model is termed as ‘independence model’ where judiciary itself appoints judges and it frees them from the political goals and aspirations of other branches of government. Such a system has been followed in Japan (apart from India in the last two decades or so).

However, the pitfalls of this system have recently been recognised – though there is ‘external’ independence; some argue that ‘internal’ independence of the judges is lost in a hierarchal order.

It is said that collegium system has put question marks on true federalism which has been the hall mark of Indian judiciary. Since the appointments are in the hands of the five senior most judges of the apex court, the incentive for dissent in the High Courts  has been lost.

Due to near absence of transparency, accountability too has been a casualty in their decisions.

A large number of judges were superseded in last two decades. But no one dares to question ‘My Lords’.

In France, the judicial appointments are controlled by a self-governing body - Conseil Superieur de la Magistrature (CSM). It comprises of 12 members; of which five are elected judges, a public prosecutor, a councillor of state and three individuals (nominated by the President, the Senate and the National Assembly respectively).

Judicial appointments commissions have been adopted in many jurisdictions, including in some states of the US, in Canada at the federal and provincial levels, in Scotland, Ireland, South Africa, Israel, and various European countries.

Judges of the British Supreme Court are appointed on the recommendation of special selection commission.

The selection commission is made up of the President and Deputy President of the Court, and a member each from the Judicial Appointments Commission, the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission.

Today a majority of countries have judicial commissions for the appointment to constitutional courts. These commissions act as a shield to the processes of appointment of judges from the political, as well as the judicial system of the country thus putting to rest the challenges of politicisation and ‘insiders’.

Further, the ideal of accountability is brought in through the fact of diverse membership of the commission – generally comprising of academics, lay-people, representatives of government, the bar, and also the judiciary, thus giving primacy to no one institution. It is high time we learn from other mature democracies.

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