METHOD OF APPOINTMENT

I must now deal with the method of appointment of Judges, which should insulate the choice of candidates from political motives so far as that is possible. Beginning at home, one must confess that, at any rate to the purist, the position is not altogether satisfactory.

The Lord Chancellor, who figures so largely in the system, is identified politically with the Party in power; but constitutional conventions and traditions have ensured recognition of the dual nature of his office and confidence that he can be relied upon to make good, non-political recommendations; and he is in an exceptionally good position to pick the best men. It cannot be doubted, however, that the office of Lord Chancellor is one which can hardly be copied elsewhere. Though, despite his political shadow, criticism cannot, therefore, reasonably be levelled against the vesting of the Lord Chancellor with so much responsibility, those who have been hyper­critical of the position of Judges in dependent territories should, if they are to be logical, agitate for the elimination of the Prime Minister from his influence in the appointment of Judges in England. I am not myself suggesting that he should be eliminated. As Professor de Smith remarked, in a broadcast talk on November 6, 1958, it is arguable that the principle of distrusting the Executive may be carried too far and that it would be wrong for the Government of the day to be denied any effective voice in judicial appointments.

In the older independent Commonwealth countries, Judges are likewise appointed by the head of the Executive, and the Ministers whose duty it is to advise have not the advantage of a Lord Chancellor among them.

¹ See, e.g., s. 127 of the Constitution of the Federation of Malaya, Sch. I to Agreement annexed to the Federation of Malaya Independence Order in Council, 1957, S.I. 1957, No. 1533; s. 60 of the Singapore Order in Council, 1958, S.I. 1958, No. 1956.

General in Council. In New Zealand and the Canadian Provinces the power is vested in the Governor-General simpticiter. In some Australian States it resides in the Governor; in others in the Governor in Council or, in Victoria, the Governor with the advice of the Executive Council, which presumably means the same thing. In the Federation of Rhodesia and Nyasaland appointments are likewise made by the Governor-General, acting in accordance with the advice of the Executive Council.

Among the Members of the Commonwealth who have become independent since the war there is interesting diversity. The Constitu­tions of India and Pakistan make express provision for the President to consult Chief Justices and other members of the Judiciary, except in the case of the appointment of the Chief Justice in Pakistan.

Before Ceylon obtained her independence in 1947, the device of a Judicial Service Commission had been invented, but under the Constitution it is concerned only with the lower ranks of the Judiciary; the Judges are appointed by the Governor-General acting on the advice of Ministers.

In more recent constitutions, of both independent Commonwealth countries and advanced dependent territories, the functions of the Judicial Service Commissions, established by their constitutions, have extended to the appointment of Puisne Judges. Since in every case the Judicial Service Commission includes a majority of serving or retired Judges there is effective insulation of appointments from political pressure, provided that it does not come in at a later stage—in particular, if appointments have to be made by the Head of the Executive in accordance with the Commission’s advice.

But the Judicial Service Commissions are not concerned with the appointment of the Chief Justice. This is inevitable, since a body which makes recommendations for the appointment of persons to any public office cannot properly include persons who may be candidates; whereas it is the essence of a Judicial Service Commission that it should include Puisne Judges, and it may also include the Attorney­General. It is, therefore, not practicable, in a country possessing full internal self-government, to avoid placing responsibility for appointing a Chief Justice in political hands; though the person responsible may be obliged, as in India and Pakistan, to consult some Judge or Judges.

Under the Ghana Constitution of 1957, the Chief Justice and Justices of Appeal were appointed by the Governor-General on the advice of the Prime Minister (after consultation with the Chief Justice in the case of the Justices of Appeal) and Puisne Judges were

appointed by the Governor-General on the advice of the Judicial Service Commission. But the present Ghana Constitution provides simply that all the Judges are to be appointed by the President.

In the Federation of Malaya, judicial appointments are in the hands of the Yang di-Pertuan Agong (the Head of State) acting on the advice of the Prime Minister, after consulting the Conference of Rulers and (except for the appointment of the Chief Justice) con­sidering the Chief Justice’s advice.

In Nigeria, Sierra Leone and Tanganyika there are Judicial Service Commissions upon whose recommendation appointments are made, except in the case of the Chief Justices, who are appointed by the Governor-General on the advice of the Prime Minister or, in the case of the Regions in Nigeria, by the Governor on the advice of the Premier.

In Cyprus the Judges of the Supreme Constitutional Court and of the High Court are appointed jointly by the President and Vice­President of the Republic. In default of agreement in the appointment of a Greek Judge or Turkish Judge, the proposal of the President or the Vice-President to whose community the Judge to be appointed belongs is to prevail.

In dependent territories, fifteen years ago, the almost invariable practice was for Judges to be appointed by the Governor in accordance with instructions received from the Sovereign through the Secretary of State, and this procedure still obtains in less advanced countries. Control is thus in the hands of the Executive—the Colonial Office— but when Judges are part of a unified legal and judicial service, embracing a large number of territories between which there are frequent transfers, there is no practicable alternative.

Under the heading ‘method of appointment’ it is convenient to say a few words about the system of furnishing confidential reports on Judges in dependent territories, which has now and then come under fire. Reports are made on Puisne Judges by the Chief Justice and forwarded to the Secretary of State through the Governor, who adds comments if he wishes to do so. If there is a separate Court of Appeal a further report by the President of that Court is included. In the case of a Chief Justice, only the Governor signs the report.

Now it cannot be denied that the furnishing of reports by the Governor is, in principle, out of harmony with judicial independence; but it is unavoidable and, in making reports, Governors are careful to observe the bounds of propriety. Responsibility for making recom­mendations to the Queen for the appointment of Judges, including

their promotion or transfer from one judicial post to another, rests with the Secretary of State. He obviously cannot perform this duty unless he has reports on possible candidates from those in a position to give them. The reports on a Puisne Judge which really matter are those from the Chief Justice and the President of the Court of Appeal if there is one, particularly, but not exclusively, on questions of judicial competence. In the great majority of cases the Governor adds nothing, though he may briefly intimate his concurrence; and if he comments on a Puisne Judge he shows the report to the Chief Justice. If the suggestion that a Governor should not report at all were adopted, the Secretary of State might, and sometimes certainly would, be without information which ought to be in his possession, for there are some matters on which the Governor is in the best position to report. The Judges rightly expect the importance and status of their office to be recognized. On the other side of the scale the Judges have obligations—to maintain the dignity of their position and (particularly in the case of Chief Justices) to play their proper part in public life, especially on formal occasions. Those who are not prepared to do this are not the best suited for the highest judicial office. Further, there are some matters in which Judges can shew themselves helpful towards the Executive (or otherwise) in matters in which their independence cannot possibly be prejudiced.