OLDER MEMBERS OF THE COMMONWEALTH
I have deliberately left to this point an important geographical gap, representing the Members of the Commonwealth other than those which have become independent during the last year or two.
My reason for doing so is that, with both the English anachronism and the more enlightened procedure in mind, a comparative study is most illuminating. Let us start with the cases where English law has been closely followed. In Canada the wording is substantially the same as that in the Act of Settlement. In Western Australia it takes the same form as the present English Act. One may reasonably assume an intention to follow English law; and on that assumption it is abundantly clear that in New South Wales, Victoria and Queensland it was realized that the procedure by way of Parliamentary address was not exclusive but was only a qualification on the principle that a Judge holds office during good behaviour, because in each case the provision for Parliamentary address, like that in the Act of 1760, is in the form of a proviso introduced by the words ‘provided that’ or ‘nevertheless’. In New Zealand and South Australia there is not the same degree of clarity but the effect appears to be the same: there are two independent sections, the first stating that a Judge holds office during good behaviour, the second providing for removal by Parliamentary procedure, without any restriction on the grounds upon which an address may be presented.On the other hand, in the Commonwealth of Australia, India, Pakistan (Supreme Court), Ceylon, Ghana and Tasmania, it is expressly laid down that Judges cannot be removed from office except on an address from Parliament. In India, however, a two-thirds majority is required and in Australia and India the grounds for removal are proved misbehaviour or incapacity. In Pakistan the law is the same as in India (except that ‘infirmity’ is substituted for ‘incapacity’) and Parliament is empowered to prescribe the procedure for proof.
In Ghana, too, there is a stipulated majority but this safeguard seems to be offset by the use of the somewhat ambiguous word ‘stated’, instead of ‘proved’, before ‘misbehaviour or infirmity’.In two cases the procedure is judicial. In Canada the removal of a Judge on grounds of incapacity requires an enquiry before a tribunal of Judges; and a Judge of a High Court in Pakistan can be removed only if the Supreme Court, on reference by the President, reports that he ought to be removed.
To complete the picture we should, I think, remember that under the Government of India Act, 1935, a Judge of the Federal Court or a High Court could be removed only if the Judicial Committee of the Privy Council reported that he ought to be removed. The Act is, of course, no longer in force.
The terms of Acts of Parliament in other Commonwealth countries may be of limited value in interpreting English Law, but in fact many of them seem to show quite clearly that those responsible for their contents were not under the impression that a Judge in England may be removed only on an address from Parliament.
It may be fairly asked why many of these countries followed the English Parliamentary pattern, and, moreover, without some of its saving grace; for where it is expressly provided that it is only upon a Parliamentary address that a Judge can be removed, there can, of course, be no question of judicial process. And in none of these countries is there the safeguard afforded by Judges sitting in the Legislature. It is doubtful whether any research would enable one to give an answer with confidence; but it is, I think, fair to assume that some or all of the following explanations are correct, at any rate in most cases:
(i) that the main purpose in view was not to provide a method of removing Judges but rather to safeguard them against removal;
(ii) that no thought was given to the objections to the Parliamentary process;
(iii) that the obvious course in devising constitutions is to follow the law of the mother country; and,
(iv) that no one suggested an alternative.
Summary. That completes my review of the means whereby judicial independence may be secured. It remains only for me to suggest a brief summary of the position. Under at least two of my four headings, appointment and tenure of office, the legalistic sophist can find material for his hypercritical faculties if he wants to do so. But it is preferable, even on a matter of such supreme importance as judicial independence, to scrutinize strict law under the twin spotlights of fact, past and present, and common sense. If we do that, I for one do not believe we need have much cause for misgivings.