JAN VAN ZYL SMIT ZYL SMIT JAN VAN HUGH CORDER SECURING JUDICIAL INDEPENDENCE Securing THE ROLE OF COMMISSIONS IN SELECTING Judicial JUDGES IN THE COMMONWEALTH Independence EDITORS HUGH CORDER & JAN VAN ZYL SMIT securing judicial independence Securing Judicial Independence THE ROLE OF COMMISSIONS IN SELECTING JUDGES IN THE COMMONWEALTH Securing Judicial Independence THE ROLE OF COMMISSIONS IN SELECTING JUDGES IN THE COMMONWEALTH Editors Hugh Corder Jan van Zyl Smit 2017 First published 2017 by Siber Ink CC PO Box 30702 Tokai 7966 Cape Town SOUTH AFRICA www.siberink.co.za © Siber Ink CC ISBN 978-1-928309-15-4 (print format) ISBN 978-1-928309-16-1 (pdf format) This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/4.0/ or send a letter to Creative Commons, PO Box 1866, Mountain View, CA 94042, USA. Typesetting and cover by G J du Toit Printed and bound by Tandym Print, Cape Town Contents Introduction . vii Hugh Corder and Jan van Zyl Smit CHAPTERS 1. Dirty Laundry: Judicial Appointments in Canada . .1 Richard Devlin 2. All Change? Judicial Appointments in England and Wales since the Constitutional Reform Act 2005 . 39 Jan van Zyl Smit 3. Constitutional Reforms and Judicial Appointments in Kenya. 85 Yash Ghai, Jill Cottrell Ghai, Linette du Toit and Maxwel Miyawa 4. Judicial Appointments in Malaysia . .114 Kevin YL Tan 5. The Role of Special Judicial Bodies in Judicial Appointments in Nigeria . 137 Ameze Guobadia 6. Managing a Fraught Transition: the Practice of the South African JSC . .152 Chris Oxtoby APPENDICES 1. Cape Town Principles on the Role of Independent Commissions in the Selection and Appointment of Judges in the Commonwealth. .177 2. Project Participants . .181 v Introduction HUGH CORDER AND JAN VAN ZYL SMIT Judicial authority within constitutional democracies, together with the duty of judges to review all aspects of the exercise of public power, has grown appreciably over the past decades. This trend has led to increasing scrutiny being applied to the methods by which superior court judges are appointed,1 as the present volume seeks to do with regard to the jurisdictions that are examined here. The focus on judges of the higher courts does not in any way seek to diminish the vital role played by judicial officers in the lower courts of all these countries. It is rather a function of the daunting enormity of the scope of any research project that endeavours to capture the courts in their fullness. In addition, in any legal system which employs the doctrine of precedent, the superior courts (to which almost all politically sen- sitive disputes will find their way for judgment) are bound to be disproportionately influential in determining the scope of legal rights and obligations, thus funda- mentally affecting socio-economic relationships. Within the sphere of appointments, there are debates about how the selection process can be made more transparent and better able to identify talent in a diverse pool of candidates, and how the appointment system can generally be designed to function in a way that strengthens the independence of the judiciary, public confi- dence in the administration of justice and the rule of law. The challenge of meeting these expectations increasingly falls to independent judicial appointment bodies, such as South Africa’s Judicial Service Commission (JSC) established in 1994, and there is therefore considerable international interest in the policy and practice of such institutions. After a promising start, the South African JSC ran into substantial criticism from about 2009 onwards, coinciding with the accession to power of President Jacob Zuma, and several changes to the personnel of the Commission, in conse- quence. More tellingly, the JSC was subjected to several applications for the judicial review of its actions, mainly relying on the ground of irrationality, which suc- ceeded. While most of the criticism focussed on its failure to hold judges account- able for alleged misconduct, the JSC has also on frequent occasions been taken to task for its failure to appoint apparently suitable candidates for judicial office. In particular, concerns have been raised about whether candidates are receiving fair and equal procedural treatment, about the relevance and appropriateness of some lines of questioning in public interviews, and about respect for judicial independ- ence as a cornerstone of the rule of law.2 1 See the various contributions in Kate Malleson and Peter Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World (Toronto University Press 2006). 2 The first systematic treatment of the judicial branch of government in the democratic era in South Africa appeared in 2014, a few months after the origins of the research project whose vii viii Securing Judicial IndePendence So it was that a research project was devised in early 2014 by Professor Hugh Corder of the University of Cape Town and Professor Sir Jeffrey Jowell QC, the founding Director of the Bingham Centre for the Rule of Law in London, to respond to the following question: What can South Africa’s Judicial Service Commission learn from the experience of jurisdictions elsewhere in the Commonwealth, and what can the JSC teach such foreign jurisdictions? With the ready and generous financial assistance of the Claude Leon Foundation and its Chair, Bill Frankel, the project was initiated in the second half of 2014, and most of the work was done within the following 18 months. The project aimed to identify lessons that could be learned from recent expe- rience in the Commonwealth because, like South Africa, many Commonwealth states have moved from the traditional method of appointment of judges by the Executive to the use of judicial appointment/service commissions,3 and have grap- pled with the challenge of how to make this new approach work. At Commonwealth level, the adoption of judicial service commissions has been recommended under the Latimer House Guidelines since 1998.4 There is no doubt that, in principle, this development has the potential to strengthen the rule of law and the legitimacy of the courts by improving the trans- parency and perceived independence of appointments. Much depends, however, on how the JSC is structured and how it operates in practice. In each case, the model was adopted with local variations, including the membership of the commission and the objectives of the pursuit of diversity or the redress of past discrimination in a particular national context. Public debates and scholarship have accordingly tended to be concerned with issues such as whether party political representatives should serve on the commission and how judicial “merit” can be defined in a way that goes beyond narrow, traditional understandings. These are important matters that form part of the background to this project. There is a danger, however, that the debates about politicisation and merit lose their connection with the larger picture in which the appointment of judges is a crucial determinant of the rule findings are reflected in this book. See Cora Hoexter and Morné Olivier (eds),The Judiciary in South Africa (Juta 2014). In particular, chapters 5, 6 and 7 provide a detailed account of the events referred to in this Introduction. 3 Research conducted by Dr Jan van Zyl Smit of the Bingham Centre found that in 2015, 81% of Commonwealth jurisdictions had a JSC or similar body with some responsibility for the selection of superior court judges. See The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice (British Institute of International and Comparative Law 2015). 4 The Latimer House Guidelines, a set of norms on the institutional realisation of good govern- ance, human rights and the rule of law, were developed by the Commonwealth Parliamentary Association, the Commonwealth Magistrates’ and Judges’ Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association. The Guidelines were annexed to the Commonwealth Principles on the Accountability of and the Relationship between the Three Branches of Government (also known as the Latimer House Principles) adopted at the 2003 Commonwealth Heads of Government Meeting in Abuja. Para II.1 of the Guidelines states that “[w]here no independent system already exists, appointments should be made by a judicial services commission (established by the Constitution or by statute) or by an appropriate officer of state acting on the recommendation of such a commission”. Introduction ix of law, and with the more practical aspects of the appointments process that are necessary to realise that goal. The project therefore focussed on how the processes of judicial appointment can be designed and conducted in practice. Questions that are considered include the criteria for appointment to judicial office (and the underlying concept of what makes a “good judge”), how JSC procedures should be structured to ensure that candidates are properly and fairly evaluated in respect of these criteria, and how the JSCs and their members should respond to, and interact with, candidates with an unusual range of backgrounds and profiles. Some jurisdictions have introduced the use of recruitment exercises and pre-interview testing of personal character and problem-solving ability, which are widely used in other areas of employment.