The The Appointment, Tenure and Removal of Judges under Commonwealth Principles Appoin An independent, impartial and competent judiciary is essential to the rule tmen of law. This study considers the legal frameworks used to achieve this and examines trends in the 53 member states of the Commonwealth. It asks: t, Te ! who should appoint judges and by what process? nur The Appointment, Tenure ! what should be the duration of judicial tenure and how should judges’ remuneration be determined? e and and Removal of Judges ! what grounds justify the removal of a judge and who should carry out the necessary investigation and inquiries? Re mo under Commonwealth The study notes the increasing use of independent judicial appointment va commissions; the preference for permanent rather than fixed-term judicial l of Principles appointments; the fuller articulation of procedural safeguards necessary Judge to inquiries into judicial misconduct; and many other developments with implications for strengthening the rule of law. s A Compendium and Analysis under These findings form the basis for recommendations on best practice in giving effect to the Commonwealth Latimer House Principles (2003), the leading of Best Practice Commonwealth statement on the responsibilities and interactions of the three Co mmon main branches of government. we This research was commissioned by the Commonwealth Secretariat, and undertaken and alth produced independently by the Bingham Centre for the Rule of Law. The Centre is part of the British Institute of International and Comparative Law. Principle s ISBN 978-1-90522-155-4 Bingham Centre for the Rule of Law British Institute of International and Comparative Law Charles Clore House, 17 Russell Square, London WC1B 5JP 9>781905 221554 Comp of Judicial Proj_Prelims (new) 26/6/15 09:33 Page i The Appointment, Tenure and Removal of Judges under Commonwealth Principles A Compendium and Analysis of Best Practice Comp of Judicial Proj_Prelims (new) 26/6/15 09:33 Page ii Comp of Judicial Proj_Prelims (new) 26/6/15 09:33 Page iii The Appointment, Tenure and Removal of Judges under Commonwealth Principles A Compendium and Analysis of Best Practice Comp of Judicial Proj_Prelims (new) 26/6/15 09:33 Page iv Published and Distributed by The British Institute of International and Comparative Law Charles Clore House, 17 Russell Square, London WC1B 5JP © Commonwealth Secretariat 2015 This work is to be cited as J. van Zyl Smit, The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice (Report of Research Undertaken by Bingham Centre for the Rule of Law) British Library Cataloguing in Publication Data A Catalogue record of this book is available from the British Library ISBN 978–1–905221–57–8 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in any restricted system of any nature without the written permission of the copyright holder, application for which should be addressed to the distributor. Such written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. Typeset by Cambrian Typesetters Camberley, Surrey Printed in Great Britain by Polestar Wheatons Ltd Cover design by Nick Clarke Comp of Judicial Proj_Prelims (new) 26/6/15 09:33 Page v CONTENTS FOREWORD BY COMMONWEALTH SECRETARY-GENERAL ix ACKNOWLEDGEMENTS xi ABOUT THE BINGHAM CENTRE xiii SUMMARY OF FINDINGS AND BEST PRACTICE xv 1 Appointments xv 2 Tenure xviii 3 Removal from office xx INTRODUCTION xxv 0.1 Overview and scope of study xxv 0.2 Commonwealth principles, their development and international context xxix 1 APPOINTMENTS 1 1.1 The appointment of judges and the rule of law 1 1.2 Criteria for judicial office 2 1.3 Appointment mechanisms 10 1.4 The role of the executive 12 1.5 The role of the legislature 25 1.6 Composition and structure of judicial appointments commissions 30 1.7 The role of judicial appointments commissions 44 2 TENURE 57 2.1 Judicial tenure and the rule of law 57 2.2 Duration of judicial appointments 58 2.3 Protection of judicial remuneration 73 3 REMOVAL FROM OFFICE 79 3.1 The removal of judges and the rule of law 79 3.2 Substantive grounds of removal 81 3.3 Removal mechanisms 88 v Comp of Judicial Proj_Prelims (new) 26/6/15 09:33 Page vi CONTENTS 3.4 Removal via an ad hoc tribunal 92 3.5 Removal by disciplinary councils 102 3.6 Parliamentary removal 105 APPENDIX 1 113 Commonwealth Latimer House Principles (2003) On the Accountability of and the Relationship between the Three Branches of Government 113 Annex – Latimer House Guidelines for the Commonwealth (1998) 117 APPENDIX 2 129 Note about terminology 129 Australia 130 Bahamas 132 Bangladesh 134 Barbados 135 Belize 136 Botswana 138 Brunei Darussalam 140 Cameroon 140 Canada 142 Cyprus 144 Fiji 145 Ghana 147 Guyana 149 India 151 Jamaica 154 Kenya 155 Kiribati 158 Lesotho 159 Malawi 161 Malaysia 163 Maldives 165 Malta 167 Mauritius 168 Mozambique 170 Namibia 171 Nauru 172 New Zealand 173 Nigeria 175 Organisation of Eastern Caribbean States 177 vi Comp of Judicial Proj_Prelims (new) 26/6/15 09:33 Page vii CONTENTS Pakistan 179 Papua New Guinea 181 Rwanda 183 Samoa 185 Seychelles 186 Sierra Leone 188 Singapore 189 Solomon Islands 191 South Africa 192 Sri Lanka 194 Swaziland 196 Tanzania 197 Tonga 199 Trinidad and Tobago 200 Tuvalu 201 Uganda 203 United Kingdom 205 Vanuatu 209 Zambia 210 vii Comp of Judicial Proj_Prelims (new) 26/6/15 09:33 Page viii Comp of Judicial Proj_Prelims (new) 26/6/15 09:33 Page ix FOREWORD BY COMMONWEALTH SECRETARY-GENERAL When Commonwealth Heads of Government at their meeting in Abuja in 2003 adopted the Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between the Three Branches of Government, they demonstrated continuing Commonwealth commitment to advancing respect for the separation of powers including judicial inde- pendence, and a collective determination to raise levels of practical observance. The Commonwealth can be justifiably proud of being the only international organisation with a consolidated set of principles governing the relation between the three branches of government. Covering subjects such as the harmonious balancing of power between the three branches, and how they should interact in the kind of democratic societies which the Commonwealth seeks to uphold, the Principles stipulate that there should be restraint in the exercise of power within each respective sphere in order not to encroach upon the legitimate discharge of constitutional functions by others. This Compendium on the appointment, tenure and removal of judges in the Commonwealth outlines the various constitutional arrangements in Commonwealth member states, and makes recommendations. It also indicates best practice in the appointment, security of tenure, and removal of judges in light of the Latimer House Principles. It analyses statistics, soft law instruments, commentaries, and recent developments, as well as the composition and workings of judicial appointments commissions in Commonwealth member states. Our hope is that the best practices shared in this publication, and other agreed Commonwealth values and principles, will assist member states in formulating legislative and institutional policy, and with strengthening independence and accountability in the relationships between the three branches of government. This Compendium makes clear that legal frameworks are not the only factors determining the extent to which judges in the Commonwealth are ix Comp of Judicial Proj_Prelims (new) 26/6/15 09:33 Page x FOREWORD able to act effectively and independently in discharging their functions. Other influences include the extent to which a culture of the rule of law pervades branches of the state and the wider public; the competence and independence of the wider legal profession; the provision of legal educa- tion and judicial training; efforts to ensure equality of opportunity and a pool of applicants for judicial office that broadly reflects the society; the resourcing of the justice system and settled understandings about the appropriate interaction between judges, elected politicians and the media; appropriate legal immunities for judges when performing their judicial functions; and, a balance between institutional autonomy and the protec- tion of the independence of individual judges. A truly democratic spirit also has to inform the letter of the rules. Our Commonwealth Charter states: We believe in the rule of law as an essential protection for the people of the Commonwealth and as an assurance of limited and accountable government. In particular we support an independent, impartial, honest and competent judi- ciary and recognise that an independent, effective and competent legal system is integral to upholding the rule of law, engendering public confidence and dispensing justice. Accordingly, the Compendium stresses the importance of judiciaries that are independent, impartial and efficient. If the rule of law is to be respected, it is necessary to have fair and impartial processes for resolv- ing disputes; for correct and clear interpretation and application of the law; and, for holding governments, institutions, and private individuals accountable. As a values-based organisation, the Commonwealth works to advocate and uphold collectively agreed values and principles. We recognise the need for each