Commonwealth announces Principles for Judicial Appointments, Tenure and Removal

London, England — The secretary-general of the Commonwealth, Kamalesh Sharma, on Thursday published a set of guiding principles for Commonwealth member countries on the appointment, tenure and removal of superior court judges.

The compendium of guidelines will help to enshrine the independence and impartiality of the judiciary and prevent abuses of power by providing practical guidance for governments, jurists and legal experts.

The Compendium on the Appointment, Tenure and Removal of Judges under Commonwealth Principles was launched at a ceremony hosted by Sharma at Marlborough House, in London, on 9 July 2015. As well as putting forward recommendations, it analyses legal developments in 48 jurisdictions, from Australia to Zambia.

“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,” writes Sharma in the foreword.

Among the recommendations is a proposal for the retirement age for superior court judges to be raised from 60 years in many countries to “closer to 70”, and for appointments to be permanent as opposed to fixed-term or temporary. “This would guard against the risk of conflicts of interest arising in relation to post-retirement employment for which a judge may be eligible,” the guidelines state.

The compendium is published by the Commonwealth Secretariat with research undertaken independently by the Bingham Centre for the Rule of Law. It gives practical support to Commonwealth countries to advance Articles 6 and 7 of the Commonwealth Charter – on the separation of powers and the rule of law – and the Commonwealth Latimer House Principles, which set out the relationship between parliament, judiciary and government.

The compendium cautions that strict rules and due process should always be adhered to when seeking the removal of a judge, stating: “It is a long established principle that judges should not serve at the pleasure of the executive, or be subject to loss of office as a result of changes of government or legal measures that are ostensibly intended to serve other objectives.”

“Good practice requires that the dangers of politicisation and deadlock be managed through a combination of carefully designed legislative procedures and a respectful and constructive attitude on the part of politicians to the constitutional role of the judiciary,” the guidelines say.

According to the compendium, judicial appointments commissions must be “genuinely independent”, noting that an emerging best practice is for at least half of commission members to be judges or legal professionals.

The publication also proposes the establishment of an ombudsman for judicial appointments in some member countries, and notes that judicial vacancies should be advertised publicly and be filled through an open competition.

Sharma continued: “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 resolving disputes; for correct and clear interpretation and application of the law; and, for holding governments, institutions, and private individuals accountable.”

Professor Sir Jeffrey Jowell QC, director of the Bingham Centre for the Rule of Law, commented: “This unique compendium shows how countries in the Commonwealth are, increasingly, adopting measures to ensure the non-political appointment and protection of judges. Based upon the Commonwealth’s own Latimer House principles, the Compendium will have a practical impact. It will help both to disseminate best practice and to further a key element in the rule of law, namely, judicial independence, without which decision-makers cannot realistically be held legally accountable for their actions.”

The research contained in the compendium further finds:

• In 18.7% of Commonwealth jurisdictions (9 out of the total of 48 independent jurisdictions), the executive has sole responsibility for appointments to all the courts equivalent to the High Court or above.
• The selection or short-listing of superior court judicial appointments is handled by a judicial appointments commission in more than 80% of the Commonwealth’s 53 member countries.
• In 39 of the 48 independent Commonwealth jurisdictions (81.3%) there is a judicial appointments commission, established by the constitution or other law, which plays a role in the selection and appointment of judges.
• There are ten Commonwealth jurisdictions (20.8% of the total) where there is parliamentary involvement in the appointment of judges to ordinary courts.