Rule of Law

   

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

EUOECD
 
Justices are appointed in a cooperative appointment process with special majority requirements.
10
Denmark
According to section 3 of the Danish constitution, “Judicial authority shall be vested in the courts of justice.” Further, section 62 stipulates: “The administration of justice shall always remain independent of executive authority. Rules to this effect shall be laid down by statute.” Finally, section 64 stipulates, inter alia: “In the performance of their duties the judges shall be governed solely by the law. Judges shall not be dismissed except by judgment, nor shall they be transferred against their will, except in such cases where a rearrangement of the courts of justice is made.”

The judicial system is organized around a three-tier court system: 24 district courts, two high courts and the Supreme Court. Denmark does not have a special Constitutional Court. The Supreme Court functions as a civil and criminal appellate court for cases from subordinate courts.

The monarch appoints judges following a recommendation from the minister of justice on the advice of the Judicial Appointments Council. This latter council was formed in 1999. The purpose was to secure a broader recruitment of judges and greater transparency. The council consists of a judge from the Supreme Court, a judge from one of the high courts, a judge from a district court, a lawyer and two representatives from the public. They have a four-year mandate and cannot be reappointed.

In the case of the Supreme Court, a nominated judge first has to take part in four trial votes, where all Supreme Court judges take part, before he or she can be confirmed as a judge.
Citations:
Henrik Zahle, Dansk forfatningsret 2: Regering, forvaltning og dom. Copenhagen: Christian Ejlers’ Forlag, 2004, p. 88.

“Dommerudnævnelsesrådet,” http://www.domstol.dk/om/organisation/Pages/Dommerudn%C3%A6vnelsesr%C3%A5det.aspx (accessed 17 April 2013).
9
Austria
Judges are appointed by the president, who is bound by the recommendations of the federal minister of justice. This minister in turn is bound by the recommendations of panels consisting of justices. This usually is seen as a sufficient guarantee to prevent direct government influence on the appointment process.

The situation is different for the Constitutional Court and the Administrative Court. In these two cases, the president makes appointments following recommendations by the federal government or one of the two houses of parliament. Nonetheless, members of the Constitutional Court must be completely independent from political parties (under Art. 147/4). They can neither represent a political party in parliament nor be an official of a political party. In addition to this rule, the constitution allows only highly skilled persons who have pursued a career in specific legal professions to be appointed to this court. This is seen as guaranteeing a balanced and professional appointment procedure.

The elections of 2017 have resulted in a new governing majority. This may have an impact on the recruitment of Constitutional Court members. The rulings of the court, which have been seen over the last few years as more or less “liberal,” could become more “conservative.” However, there does not seem to be any expectation that the basic rules of the appointment of the court’s members will be changed.
Belgium
The Constitutional Court is composed of 12 justices who are appointed for life by the king, who selects candidates from a list submitted alternately by the Chamber of Deputies and by the Senate (with a special two-thirds majority). Six of the justices must be Dutch-speaking, and the other six French-speaking. One must be fluent in German. Within each linguistic group, three justices must have worked in a parliamentary assembly, and three must have either taught law or have been a magistrate.

The appointment process is transparent yet attracts little media attention. Given the appointment procedure, there is a certain level of politicization by the main political parties, and indeed most justices have had close links to one of the parties or have previously held political mandates before being appointed to the court. However, once appointed, most justices act independently.
Chile
Members of the Supreme and Constitutional Courts are appointed collaboratively by the executive and the Senate. During recent years, there have been several cases of confrontation between the executive power and the judiciary, for example in the area of environmental issues, where the Supreme Court has affirmed its autonomy and independence from political influences.
Israel
According to Israel’s basic laws, all judges are to be appointed by the president after having been elected by a special committee. This committee consists of nine members, including the president of the Supreme Court, two other Supreme Court judges, the Minister of Justice (who also serves as the chairman) and another government-designated minister, two Knesset members, and two representatives of the Chamber of Advocates that have been elected by the National Council of the Chamber. The Ministry of Justice recently approved the participation of a Bar Association representative in the more advanced judicial-nomination process.

The cooperative procedure balances various interests and institutions within the government in order to insure pluralism and protect the legitimacy of appointments. The process receives considerable media coverage and is subjected to public criticism, which is usually concerned with whether justices’ professional record or other considerations (social views, loyalties and political affiliation) should figure into their appointment.

The spirit of judicial independence is also evident in the procedure for nominating judges and in the establishment of the Ombudsman on the Israeli judiciary. This latter was created in 2003, with the aim of addressing issues of accountability inside the judicial system. It is an independent institution that investigates public complaints or special requests for review from the president of the Supreme Court or the secretary of justice. The Ombudsman issues an annual report of its work, investigations and findings from all judicial levels, including the rabbinic courts.

Justice Minister Ayelet Shaked recently unveiled a campaign to change the current seniority system, in which the most veteran Supreme Court justice is automatically selected as court president upon the previous officeholder’s retirement. In a discussion in the Knesset Constitution, Law and Justice Committee, Shaked asserted that the seniority system diminished the authority of the Judicial Selection Committee. Arguing in opposition was former Supreme Court President Miriam Naor, who said, “Politicizing the Supreme Court will undermine its independence, the separation of powers, and the ability of the court to protect civil rights in Israel.” Naor added that “the point that must concern all of us is how the rulings of Supreme Court justices will be perceived by the public if the justices are in a race for the president’s post.” Eventually, the effort to change the seniority system proved unsuccessful.
Citations:
Gueta, Yasmin and Efrat Newman, “Like the ‘Big Brother’: The Procedure to Judge Nomination,” The Marker, 15.2.2016: http://www.themarker.com/law/1.2851297

Hovel, Revital. “Minister, Chief Justice Agree on Israel’s Next Supreme Court President,” Haaretz, 10.7.2017: https://www.haaretz.com/israel-news/.premium-1.800449

Rubinstein, Amnon, “The constitutional law of the state of Israel,” Shoken, 2005.

Shoken, 2005.“The Ombudsman on judges office: Annual report 2011,” 2012. (Hebrew) http://index.justice.gov.il/Units/NezivutShoftim/pirsomeyhanaziv/Doch/Documents/2012.pdf

“The Ombudsman of judges office: Annual report 2013,” Jerusalem 2014 (Hebrew), http://index.justice.gov.il/Units/NezivutShoftim/MainDocs/Report2013.pdf.
Lithuania
The country’s judicial appointments process protects the independence of courts. The parliament appoints justices to the Constitutional Court, with an equal number of candidates nominated by the president, the chairperson of the parliament and the president of the supreme court. Other justices are appointed according to the Law on Courts. For instance, the president appoints district-court justices from a list of candidates provided by the Selection Commission (which includes both judges and laypeople), after receiving advice from the 23-member Council of Judges. Therefore, appointment procedures require cooperation between democratically elected institutions (the parliament and the president) and include input from other bodies. The appointment process is transparent, even involving civil society at some stages, and – depending on the level involved – is covered by the media. In a recent World Economic Forum survey gauging the public’s perception of judicial independence, Lithuania ranked 56 out of 137 countries. Based on the EU Justice Scoreboard, the perceived independence of courts and judges among the general public is around the EU average. Around 50% of Lithuanian respondents assessed the independence of courts and judges as very good or good in 2016 and 2017. Public trust was undermined by the perceived interference of government, politicians, and economic and other special interest groups, and respondents’ opinion that the status and position of judges does not guarantee their independence.
Citations:
The 2017 – 2018 Global Competitiveness Report of the World Economic Forum: http://www3.weforum.org/docs/GCR2017-2018/05FullReport/TheGlobalCompetitivenessReport2017%E2%80%932018.pdf
The EU Justice Scoreboard, see http://ec.europa.eu/justice/effective-justice/scoreboard/index_en.htm
Luxembourg
The Constitutional Court of Luxembourg is composed of nine members, all professional judges. They are appointed by the Grand Duke on recommendation of members of the Superior Court of Justice and the Administrative Court of Appeals, who gather in a joint meeting, convened by the President of the Superior Court of Justice. These two jurisdictions are appointed by the Grand Duke on the recommendation of the Court itself, so their recruitment is co-opted. This principle is enshrined in Article 90 of the constitution and has never been questioned. It gives a great degree of independence to the Constitutional Court, as well as to the Superior Court of Justice and the Administrative Court of Appeals. Due to the Law Project of 2013, the government plans to delegate the task of nominating and promoting judges to a standing body, the higher judicial council (Conseil supérieur de la magistrature, CSM), based on the French model. This decision is not likely to change the process of the present ad hoc system, since the composition of the CSM is likely to reflect existing practices which have ensured a high degree of independence and transparency in the selection process.
Citations:
Loi du 27 juillet 1997 portant organisation de la Cour Constitutionnelle
Loi du 7 novembre 1996 portant organisation des juridictions de l’ordre administratif
Loi du 1er juillet 2005 arrêtant un programme pluriannuel de recrutement dans le cadre de l’organisation judiciaire
Organisation judiciaire, Textes coordonnés Avril 2009

Constitution. Ministère d’État – Service central de législation, 2016. data.legilux.public.lu/file/eli-etat-leg-recueil-constitution-20161020-fr-pdf.pdf. Accessed 21 Feb. 2017.

“Cour Constitutionnelle.” La justice Grand-Duché de Luxembourg, www.justice.public.lu/fr/organisation-justice/cour-constitutionnelle/index.html. Accessed 21 Feb. 2017.

“Cours et tribunaux.” Le portal de l’actualité gouvermentale, 10 Sept. 2014, www.gouvernement.lu/1719266/cours-tribunaux. Accessed 21 Feb. 2017.

“Die aktuelle Verfassung.” Forum.lu, www.forum.lu/constitution/index.php/dokumente/die-aktuelle-verfassung/. Accessed 21 Feb. 2017.
Norway
Judges are formally appointed by the government. However, decisions are prepared by a special autonomous body called the Instillingsrådet. This independent body, composed of three judges, one lawyer, a legal expert from the public sector and two members who are not from the legal profession, provides recommendations that are almost always followed by the government. Supreme Court justices are not considered to be in any way political and have security of tenure guaranteed in the constitution. There is a firm tradition of autonomy in the Supreme Court. The appointment of judges attracts limited attention and rarely leads to public debate.
Portugal
The High Council of the Public Prosecution Department (Conselho Superior do Ministério Público), which oversees the appointment of judges, consists of 19 members, including the attorney general (Procurador-Geral da República). In October 2012, Portugal appointed its first female attorney general, Joana Marques Vidal, who remains in office.

In September 2017, a judges’ strike was narrowly averted. The judges’ union called off the strike, which was to begin on 3 October 2017, when it appeared that the parliament would be open to discussions.
Citations:
Diario de Noticias 20 September 2017 “Greve dos juizes foi desconvocada”
Sweden
The cabinet appoints Supreme Court (“regeringsrätten”) justices. The appointments are strictly meritocratic and are not guided by political allegiances. Although the cabinet almost always makes unanimous decisions, there are no special majority requirements in place for these decisions.

There is only modest media coverage of the appointments, mainly because the Swedish Supreme Court is not a politically active body like the Supreme Court in other countries like Germany and the United States.
 
Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
8
Czech Rep.
The justices of the Constitutional Court, the Supreme Court and the Supreme Administrative Court are appointed by the Senate, the second chamber of the Czech parliament, on the basis of proposals made by the president. Within the Senate, no special majority requirement applies. The process of appointing judges is transparent and adequately covered by public media. The involvement of both the president and the Senate increases the likelihood of balance in judges’ political views and other characteristics. President Zeman’s proposals have continued to be uncontroversial.
Germany
Federal judges are jointly appointed by the minister overseeing the issue area and the Committee for the Election of Judges, which consists of state ministers responsible for the sector and an equal number of members of the Bundestag. Federal Constitutional Court (FCC) judges are elected in accordance with the principle of federative equality (föderativer Parität), with half chosen by the Bundestag and half by the Bundesrat (the upper house of parliament). The FCC consists of sixteen judges, who exercise their duties in two senates of eight members each. While the Bundesrat elects judges directly and openly, the Bundestag used to delegate its decision to a committee in which the election took place indirectly, secretly and opaquely. In May 2015, the Bundestag unanimously decided to change this procedure. As a result, the Bundestag now elects judges directly following a proposal from its electoral committee (Wahlausschuss). Decisions in both houses require a two-thirds majority.

In summary, in Germany judges are elected by several independent bodies. The election procedure is representative, because the two bodies involved do not interfere in each other’s decisions. The required majority in each chamber is a qualified two-thirds majority. By requiring a qualified majority, the political opposition is ensured a voice in the selection of judges regardless of current majorities. However, in the past the media has not covered the election of judges in great detail and it remains to be seen whether the new and open procedure will have positive spillover effects in this regard.
Italy
According to the present constitution, members of the Constitutional Court are appointed from three different and reciprocally independent sources: the head of state, the parliament (with special majority requirements) and the top ranks of the judiciary (through an election). Members of this institution are typically prestigious legal scholars, experienced judges or lawyers. This appointment system has globally ensured a high degree of political independence and prestige for the Constitutional Court. The Constitutional Court has frequently rejected laws promoted by the government and approved by the parliament. The court’s most politically relevant decisions are widely publicized and discussed by the media.
Latvia
Judges are appointed in a cooperative manner. While the parliament approves appointments, candidates are nominated by the minister of justice or the president of the supreme court based on advice from the Judicial Qualification Board. Initial appointments at the district court level are for a period of three years, followed either by an additional two years or a lifetime appointment upon parliamentary approval. Regional and supreme court judges are appointed for life (with a compulsory retirement age of 70). Promotion of a judge from one level to another level requires parliamentary approval.

Parliamentarians vote on the appointment of every judge and are not required to justify refusing an appointment. In October 2010, a new judicial council was established in order to rebalance the relationship between the judiciary, the legislature and the executive branch. The judicial council has taken over the function of approving the transfer of judges between positions within the same court level.

Judges are barred from political activity. In 2011, the Constitutional Court lifted immunity for one of its own judges, Vineta Muizniece, enabling the Prosecutor General to bring criminal charges for falsifying documents in her previous position as a member of parliament. Muizniece’s appointment to the Constitutional Court was controversial because of her political engagement and profile as an active politician. The court has convicted Muizniece, but the case is under appeal. Muizniece was initially suspended from the Constitutional Court pending judgment and then removed from office in 2014 after a final guilty verdict.

A new system for evaluating judges has been in place since January 2013, with the aim of strengthening judicial independence. While the government can comment, it does not have the power to make decisions. A judges’ panel is responsible for evaluations, with the court administration providing administrative support in collecting data. The panel can evaluate a judge favorably or unfavorably and, as a consequence of this simple rating system, has tended to avoid rendering unfavorable assessments. In one case, a judge successfully appealed an unfavorable assessment on the grounds that the assessment could not be substantiated. The verdict concluded that the judges’ panel is required to substantiate unfavorable assessments.
Citations:
The Constitutional Court of Latvia (2011), Ruling on Initiation of Prosecution against Constitutional Court Judge Vineta Muizniece, Available at: http://titania.saeima.lv/LIVS11/saeimalivs_lmp.nsf/0/DF2F0B6EFEB0A281C225793C0042A314?OpenDocument, Last assessed: 21.05.2013
Mexico
Mexican Supreme Court justices are nominated by the executive and approved by a two-thirds majority of Congress. Judicial appointments thus require a cross-party consensus since no party currently enjoys a two-thirds majority or is likely to have one in the near future. There are some accusations of judicial bias in the Supreme Court, but any bias is not flagrant and is more social than political. The system of federal electoral courts is generally respected and more independent and professional than the criminal courts.

In the case of the national anti-corruption system (SNA) a lack of cross-party consensus has lead to stalemate and delayed implementation. The lack of agreement among major parties in Congress has created a situation where none of the 13 judges for the Specialized Administrative Justice Tribunal (TFJA) have been appointed. The TFJA was created to hear government corruption cases.
Citations:
Latin American Regional Report: Mexico & NAFTA (August 2017). “Anti-corruption reform fails to convince.”
New Zealand
Although judicial appointments are made by the executive, it is a strong constitutional convention in New Zealand that, in deciding who is to be appointed, the attorney general acts independently of political party considerations. Judges are appointed according to their qualifications, personal qualities and relevant experience. The convention is that the attorney general mentions appointments at cabinet meetings after they have been determined. The appointments are not discussed or approved by the cabinet. The appointment process followed by the attorney general is not formally regulated. There have been discussions of how to widen the search for potential candidates beyond the conventional career paths, but not with regard to a formal appointment procedure, as there is a widespread belief that the system has worked exceptionally well. In practice a number of people are consulted before appointments are made, including the opposition’s justice spokesperson as well as civil society groups. In 2012, a review by the New Zealand Law Commission recommended that greater transparency and accountability be given to the appointment process through the publication by the chief justice of an annual report, as well as the publication by the attorney general of an explanation of the process by which members of the judiciary are appointed and the qualifications they are expected to hold. The government indicated that it intended to adopt a number of the Law Commission’s recommendations. These have yet to be implemented.
Citations:
Paul Bellamy and John Henderson, Democracy in New Zealand (Christchurch: MacMillan Brown Centre for Pacific Studies, 2002).
New Zealand Law Commission, ‘Review of the Judicature Act 1908: Toward a New Courts Act’ (R126, Wellington, 2012).
Slovenia
In Slovenia, both Supreme and Constitutional Court justices are appointed in a cooperative selection process. The Slovenian Constitutional Court is composed of nine justices who are proposed by the president of the republic and approved by the parliament by absolute majority. The justices are appointed for a term of nine years and select the president of the Constitutional Court themselves. Supreme Court justices are appointed by parliament by a relative majority of votes based on proposals put forward by the Judicial Council, a body of 11 justices or other legal experts partly appointed by parliament and partly elected by the justices themselves. The Ministry of Justice can only propose candidates for the president of the Supreme Court. Candidates for both courts must meet stringent merit criteria and show a long and successful career in the judiciary to be eligible for appointment. In March 2017, four new Constitutional Court justices were appointed by the National Assembly, all with an overwhelming majority of votes.
7
Croatia
The Constitutional Court of the Republic of Croatia has 13 judges who are elected for a term of eight years. Judges are appointed by the Croatian parliament (Sabor) on the basis of a qualified majority (two-thirds of all members of the Sabor). Prescribed by a constitutional law, the eligibility criteria are rather general and represent a minimum that candidates need to fulfill in order to apply. Candidates are interviewed by the parliamentary committee tasked with proposing the list of candidates to the plenary session. There is a notable lack of consistency in this interview process, as the committee does not employ professional selection criteria. In 2016, for the first time since the 1990s, active politicians were elected judges of the Constitutional Court. The politicization of appointments continued in October 2017 as two of the three newly appointed judges, Miroslav Šeparović and Mato Arlović, have had strong political affiliations.
Cyprus
The judicial system essentially functions on the basis of the 1960 constitution, albeit with modifications to reflect the circumstances prevailing after the collapse of bi-communal government in 1964. The Supreme Council of Judicature (SCJ), composed of all 13 judges of the supreme court, appoints, promotes and places justices, except those of the supreme court. The latter are appointed by the president of the republic upon the recommendation of the supreme court. By tradition, nominees are drawn from the ranks of the judiciary. The judicial appointment process in general raises questions of transparency, as details regarding the procedure, the selection criteria and the interaction between the presidential palace and the supreme court are not made available. The above questions, the composition of the SCJ and other issues are raised also by a 2016 GRECO report. The gender ratio within the judiciary as a whole is approximately 60% male to 40% female. Five of the 13 supreme court justices are female.
Citations:
CoE, GRECO fourth evaluation round, July 2016 http://www.coe.int/t/dghl/monitoring/greco/evaluations/round4/Eval%20IV/GrecoEval4Rep(2016)7_Cyprus_EN.pdf
Ireland
The Constitution states that judges are appointed by the president on the advice of the government (Articles 13.9 and 35.1).

The Judicial Appointments Advisory Board (JAAB) acts in an advisory capacity in appointments to the Supreme Court. The government has the power to appoint a person who has not applied to, and has not been considered by, the JAAB. Nevertheless, the JAAB acts as a kind of short-listing committee.

While the process does not require cooperation between democratic institutions and does not have majority requirements, appointments have, in the past, not been seen as politically motivated and have not been controversial. However, changes made in April 2012 to the system of regulating judges’ pay and pensions and the appointment of judges provoked controversy. Judges’ pay and pensions had been shielded from the cuts in public-sector pay implemented during the economic crisis, but a huge majority of voters in a referendum in October 2011 voted to remove this protection. The Association of Judges of Ireland has called for the establishment of an independent body to establish the remuneration of judges and create improved lines of communication between the judiciary and the executive.

Toward the end of 2013, the minister for justice and equality invited interested parties to comment on an ongoing Department of Justice and Equality review of judicial-appointment procedures. In response to this request, a Judicial Appointments Review Committee was established by the chief justice and the presidents of the high, circuit and district courts. This committee submitted a preliminary report in January 2014, which highlighted the unsatisfactory nature of the existing system and summarized systems prevailing in several other common-law jurisdictions. The government is committed to reforming the Irish system in response to these initiatives. However, has been no progress on this over the review period.
Citations:
David Gwynn Morgan (2012), ‘Government and the Courts,’ in Eoin O’Malley and Muiris (eds) Governing Ireland: From Cabinet Government to Delegated Governance. Dublin: IPA.
Spain
Appointments to the Spanish Constitutional Court (Tribunal Constitucional, TC), the organ of last resort regarding the protection of fundamental rights and conflicts regarding institutional design, take place through a politicized and typically long process. Selecting and appointing a successor to a justice who had died in April 2015 proved impossible during the review period as a result of the politicized nature of the appointment process and the presence of a caretaker government. Appointments to the Supreme Court – the highest court in Spain for all legal issues except for constitutional matters – can also lead to political maneuvering.

The Supreme Court consists of five different specialized chambers, and all its members (around 90 in total) are appointed by the CGPJ, requiring a majority of three-fifths. The 20 members of this body (judges, lawyers, and other experienced jurists), which is the governing authority of the judiciary, are themselves appointed to five-year terms by the Congress of Deputies and Senate and require a three-fifths supermajority vote to be seated. Under current regulations, appointments to both the TC and the CGPJ formally require special majorities. However, the fact that the various three-fifths majorities needed can be reached only through extra-parliamentary agreements between the major parties has not led to cooperative negotiations to identify the best candidates regarding judicial talent. During the period under review, a “progressive” judicial association criticized the political bias of some Supreme Court appointments promoted by the conservative-leaning president of the CGPJ. The problem lies not so much in the nomination of the judges of the high courts, but in their corporate culture and in the protection against pressures on their behavior.
Citations:
Jueces para la Democracia: “Comunicado en relación con nombramientos para órganos técnicos del CGPJ”
http://juecesparalademocraci a.blogspot.be/2016/11/comunicado-en -relacion-con.html
April 2014, Pablo Oñate and Juan Rodríguez-Teruel: “The political recruitment to eh Spanish Constitutional Court (1980-2014)”
http://www.academia.edu/8418599/R ecruitment_of_Spanish_Constitutiona l_Court_Members
Netherlands
Justices, both in civil/criminal and in administrative courts, are appointed by different, though primarily legal and political, bodies in formally cooperative selection processes without special majority requirements. In the case of criminal/civil courts, judges are de facto appointed through peer co-optation. According to the Council for Jurisprudence (Raad voorde Rechtspraak) “…in the Netherlands political appointments don’t exist. Selection of judges is a matter for judges themselves, of the courts and the Supreme Court, on the basis of expertise alone. You cannot even raise the issue of political or confessional convictions.” This is also true for lower administrative courts.

But its highest court, the Council of State, is under fairly strong political influence, mainly expressed through appointing former politicians ‘in good standing’, and through a considerable number of double appointments. Only state counselors working in the Administrative Jurisdiction Division (as opposed to the Legislative Advisory Division) are required to hold an academic degree in law. Appointments to the Supreme Court are for life (judges generally retire at 70). Appointments are generally determined by seniority and (partly) peer reputation. Formally, however, the Second Chamber (House of Representatives) of the States General selects the candidate from a shortlist presented by the Supreme Court. In selecting a candidate, the States General is said never to deviate from the top candidate.
Citations:
Andeweg, R.B. and G.A. Irwin (2014), Governance and Politics of the Netherlands. Houdmills, Basingstoke: Palgrave Macmillan (page 210).

De Volkskrant, “Worden in andere EU-landen ook rechters door politici benoemd, zoals Polen beweert? Nou nee,” 23 July 2017
UK
The judicial appointments system reflects the informality of the constitution, but it has undergone substantial changes in recent years, which formalize a cooperative process without a majority requirement. Since the Constitutional Reform Act 2005, the powers of the Lord Chancellor have been divided up. Furthermore, the supreme court of the United Kingdom has been established, which replaces the Appellate Committee of the House of Lords and relieves the second chamber of its judiciary role. The queen appoints 12 judges to the supreme court based on the recommendation of the prime minister who is advised by the Lord Chancellor in cooperation with a selection commission. It would be a surprise if the prime minister ignored the advice or the Lord Chancellor or selection commission or the queen ignored the recommendations of the prime minister. The queen has a formal, ceremonial role and she is bound to impartiality. In contrast, the Lord Chancellor has a highly influential role and consults with the legal profession.

There is no empirical basis on which to assess the actual independence of appointments, but there is every reason to believe that the appointment process will confirm the independence of the judiciary.
USA
Federal judges, including Supreme Court justices, are appointed for life by the president, with advice and consent (endorsement by a majority vote) by the Senate. In general, they are likely to reflect the political and legal views of the presidents who appointed them. Over the last 30 years, however, judicial appointments have become highly politicized. With the severe polarization of Congress in the 2000s, the opposition-controlled Senate has been increasingly willing to hold up confirmations for federal judgeships. When, however, the president’s party controls the Senate, the president’s nominees will receive casual scrutiny, with no requirement of ideological consensus. (Owing to a rule change introduced by the Democratic-controlled Senate in 2013, the Senate minority cannot filibuster most judicial appointments.) These arrangements fail to guarantee a politically “neutral” judiciary.

As of December 2017, Trump has nominated 59 people for federal judgeships. Among them, 19 have been confirmed by the Republican-controlled Senate: Neil Gorsuch to the Supreme Court, 12 circuit court judges and six district court judges. So far this year, four of Trump’s nominees have been judged by the standing committee of the American Bar Association to be “not qualified.” By comparison, no nominee received that rating from the ABA during President Obama’s first two years in office. While the White House has suffered from disorganization in some areas, the judicial nominee process has been relatively efficient and analogous to those in past administrations.
6
Australia
The High Court is the final court of appeal for all federal and state courts. While the constitution lays out various rules for the positions of High Court justices, such as tenure and retirement, there are no guidelines for their appointment – apart from them being appointed by the head of state, the Governor-General. Prior to 1979, the appointment of High Court justices was largely a matter for the federal government, with little or no consultation with the states and territories. The High Court Act 1979 introduced the requirement for consultation between the chief law officers in the states, the attorneys general and the federal Attorney General. While the system is still not transparent, it does appear that there are opportunities for the states to nominate candidates for a vacant position. However, there has never been a High Court judge from either South Australia or Tasmania, which has been a long-standing bone of contention. Considering the importance of the High Court for the settlement of Commonwealth-state relations, there has been concern that judges with a strong federal perspective are regularly being preferred. From the perspective of the public, the appointment process is secret and the public is rarely consulted when a vacancy occurs. In recent years, a debate has emerged whether diversity, as well as representativeness, should play a role in selecting judges.
Citations:
http://www.smh.com.au/federal-politics/political-opinion/easier-to-pick-a-melbourne-cup-winner-than-next-high-court-judge-20120312-1uwds.html

http://www.hcourt.gov.au/justices/about-the-justices

https://www.ruleoflaw.org.au/australia-high-court-appointment/
Canada
It can be argued that the current process for judicial appointments in Canada, which is at the complete discretion of the prime minister, does not represent good governance, since the appointment needs no approval by any legislative body (either the House of Commons or the Senate). Indeed, potential candidates are not even required to appear before a parliamentary committee for questioning on their views. The prime minister has the final say in appointing chief justices at the provincial level, as well as for Supreme Court justices. The appointment process is covered by the media.

Despite their almost absolute power regarding judicial appointments, however, prime ministers have consulted widely on Supreme Court nominees, although officeholders have clearly sought to put a personal political stamp on the court through their choices. Historically, therefore, there was little reason to believe that the current judicial-appointment process, in actuality, compromised judicial independence. The current Liberal government has set up an independent, non-partisan advisory board to identify eligible candidates for Supreme Court Justices in an effort to provide a more transparent and inclusive appointment process. The first Supreme Court Judge nominated by Prime Minister Trudeau through this process was Justice Malcolm Rowe of Newfoundland and the second was Sheilah Martin from Alberta. Both appointments were widely praised.
Citations:
Nadia Verrelli, ed. (2013) The Democratic Dilemma: Reforming Canada’s Supreme Court (Montreal: McGill-Queen’s University Press)

International Commission of Jurists (2014), Response to concerns about interference with integrity and independence of the judiciary in Canada, posted at http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2014/07/Canada-JudicialIndependenceAndIntegrity-CIJL-OpenLetter-2014.pdf
Greece
Before the onset of the crisis, the appointment of justices was almost exclusively managed by the government. Today, candidates for the presidency of the highest civil law and criminal law court (Areios Pagos) and administrative law court (Symvoulio tis Epikrateias) as well as the audit office are nominated by justices themselves. Then the lists of candidates are submitted to a higher-ranking organ of the parliament, the Conference of the Presidents of the Greek parliament. This is an all-party institution which submits an opinion to the Cabinet of Ministers, the institution which appoints justices at the highest posts of the courts mentioned above. Between 2011 and 2014, the government applied the seniority principle in selecting justices to serve at the highest echelons of the justice system. In 2015, the principle of seniority was partly curbed as the new president of the Areios Pagos court was not the court’s most senior member. The same occurred in fall 2017 when the same government appointed a new president, selecting a younger justice over older candidates for the presidency. Meanwhile, the previous president, who had been selected by the Syriza-ANEL government in 2015, had retired and in the summer of 2017 joined the office of Prime Minister Tsipras (the Prime Minister’s Office) as a legal advisor. Under Syriza-ANEL’s rule, the selection and appointment of judges has become more politicized.
Citations:
Law 2841/2010 stipulates that the appointment of presidents and vice-presidents of the highest courts requires the non-binding opinion of the high-ranking parliamentary committee titled Conference of the Presidents of the Greek parliament.
Slovakia
The justices of the Constitutional Court (CC) and the Supreme Court (SC) are selected by the president on the basis of proposals made by the parliament (National Council of the Slovak Republic), without any special majority requirement. Since 2014, the selection of justices has been paralyzed by a struggle between President Kiska, who had made judicial reform a priority in his successful presidential campaign in 2014, and the Smer-SD-dominated parliament. Ignoring a decision by the CC, Kiska blocked the appointment of new justices, arguing that the candidates greenlighted by the National Council do not fulfill the high requirements for Constitutional Court justices. As a result, three out of 19 seats in the CC remained vacant for about three years. Following recommendations by the so-called Venice Commission (Council of Europe’s European Commission for Democracy Through Law) in March 2017, Kiska eventually gave in in early December 2017, so that the vacancies could be filled. Minister of Justice Lucia Žitňanská (Most-Híd) has clarified the rules on the selection of CC justices. In 2018, another nine justices will have to be replaced.
Citations:
Slovak Spectator (2017): President to appoint missing Constitutional Court justices, 13.12.2017 (https://spectator.sme.sk/c/20717565/president-to-appoint-missing-constitutional-court-justices.html).
South Korea
The appointment process for justices of the Constitutional Court generally guarantees the court’s independence. Justices are exclusively appointed by different bodies without special majority requirements, although there is cooperation between the branches in the nomination process. The process is formally transparent and adequately covered by public media, although judicial appointments do not receive significant public attention. Three of the nine justices are selected by the president, three by the National Assembly and three by the judiciary, while all nine are appointed by the president. By custom, the opposition nominates one of the three justices appointed by the National Assembly. The head of the court is chosen by the president with the consent of the National Assembly. Justices serve renewable terms of six years, with the exception of the chief justice. The National Assembly holds nomination hearings on all nominees for the Supreme Court and the Constitutional Court.

In September 2017, President Moon Jae-in’s initial nominee to head the Constitutional Court was rejected by parliament, the first time such a rejection had taken place.
Citations:
Article 111 of the Korean Constitution
Croissant, Aurel (2010) Provisions, Practices and Performances of Constitutional Review in Democratizing East Asia, in: The Pacific Review 23(5).
Jongcheol Kim, The Rule of Law and Democracy in South Korea: Ideal and Reality, EAF Policy Debates, No.26, may 12, 2015
Korea Herald. “Moon names new nominee for Constitutional Court Chief.” October 27, 2017. http://www.koreaherald.com/view.php?ud=20171027000588
Switzerland
The judges of the Federal Supreme Court are elected for a period of six years in a joint session of both chambers of parliament, with approval requiring a majority of those voting. A parliamentary commission prepares the elections by screening the candidates. Unwritten rules stipulate a nearly proportional representation of the political parties then in parliament. By tradition, judges voluntarily pay part of their salary to the political party to which they are affiliated. This is considered a tax on their salary, which they would not have without the support of their party. In 2017, a committee of the Council of Europe criticized this arrangement and recommended: “the system should be backed up by safeguards to ensure the quality and objectivity of the recruitment of federal judges. Once judges have been elected it is important to sever the ties with the political powers by doing away with the practice whereby judges pay part of their salary to their party.” (GRECO 2017:4)

Another unwritten rule demands representation of the various linguistic regions. There is no special majority requirement.
Citations:
Group of States against Corruption (GRECO/Council of Europe) 2017: Fourth Evaluation report. Corruption prevention in respect of Members of Parliament, Judges and Prosecutors. Switzerland, GERCO: Strasbourg, https://www.coe.int/en/web/greco/evaluations/switzerland
 
Justices are exclusively appointed by different bodies without special majority requirements.
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Bulgaria
The procedures for appointing Constitutional Court justices in Bulgaria do not include special majority requirements, thus enabling political appointments. However, political control over the judiciary is limited by the fact that three different bodies are involved and appointments are spread over time. The 12 justices of the Constitutional Court are appointed on an equal quota principle with simple majorities by the president, the National Assembly and a joint plenary of the justices of the two supreme courts (the Supreme Court of Cassation and the Supreme Administrative Court). Justices serve nine-year mandates, with four justices being replaced every three years.

The chairs of two supreme courts are appointed with a qualified majority by the Supreme Judicial Council. Over recent years, these positions have been held by both people with highly dubious reputations and political dependencies, and people with very high reputations and capacity to maintain the independence of the court system. The most recent appointment in October 2017 of a new chair of the Supreme Administrative Court falls in the former category.
Finland
There are three levels of courts: local, appellate and supreme. The final court of appeal is the Supreme Court, and there is also a Supreme Administrative Court and an Ombuds office. The judiciary is independent from the executive and legislative branches. Supreme Court judges are appointed to permanent positions by the president of the republic. They are not subject to political influence. Supreme Court justices appoint lower-court judges. The ombudsman is an independent official elected by parliament. The ombudsman and deputy ombudsman investigate complaints by citizens and conduct investigations. While formally transparent, the appointment processes do not receive much media coverage.
France
Appointments to the Constitutional Council, France’s supreme court, have been highly politicized and controversial. The council’s nine members serve nine-year terms. Three are nominated by the French president, who also chooses the council’s president, three by the presidents of the Senate, and three by the National Assembly. Former presidents (at the time of writing, Valéry Giscard d’Estaing, Jacques Chirac, Nicolas Sarkozy and François Hollande) are de jure members of the council but do not usually attend meetings. Up until the Sarkozy administration, there were no checks over council appointments made by these three highest political authorities. Now respective committees of the two parliamentary chambers organize hearings to check the qualifications and capacity of proposed council appointments. From this point of view, the French procedure is now closer to the process in which Supreme Court justices are appointed in the United States, rather than to typical European practices. Contrary to U.S. practice, however, the French parliament has not yet exerted thorough control over these appointments, instead choosing a benevolent approach, in particular, when appointees are former politicians. Presently, the court, includes two former prime ministers one of whom even acts as the court’s president.

Other supreme courts (penal, civil and administrative courts) are comprised of professional judges and the government has a limited role over their composition as the government can appoint only a presiding judge (président), selecting this individual from the senior members of the judiciary.
Romania
According to Article 142 of Romania’s constitution, every three years three judges are appointed to the Constitutional Court (CCR) for nine-year terms, with one judge each appointed by the Chamber of Deputies, the Senate and the president of Romania. Since there are no qualified-majority requirements in either the Chamber of Deputies or the Senate, and since these appointments occur independently (i.e., they do not need to be approved by or coordinated with any other institution), Constitutional Court justices are in practice appointed along partisan lines. In 2016, the terms of three justices appointed in 2007 expired: CCR president Augustin Zegrean (appointed by former President Basescu), Valentin-Zoltán Puskás (appointed by the Senate at the suggestion of the Democratic Union of Magyars in Romania), and Tudorel Toader (appointed by the Chamber of Deputies at the suggestion of the National Liberal Party). They were replaced on July 14 by Livia Stanciu (proposed by President Iohannis), Attila Varga (proposed by the Chamber of Deputies at the suggestion of the Democratic Union of Magyars), and Marian Enache (proposed by the Senate at the suggestion of the Social Democrats). The following day, Valeriu Dorneanu (supported by the socialist PSD) was elected the new president of the CCR.
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Malta
Superior Court judges and magistrates are appointed by the president, acting in accordance with the advice of the prime minister. The independence of the judiciary is safeguarded through a number of constitutional provisions. The prime minister enjoyed almost total discretion on judicial appointments. The only restraints are set in the constitution, which states that an appointee must be a law graduate from the University of Malta with no less than 12 years of experience as a practicing lawyer. Magistrates need to be similarly qualified, but are required to have only seven years of experience. In 2015, a government-appointed commission recommended reforming the appointment process. In 2016, parliament unanimously passed a law reforming the process. The law did not fully take on board the commission proposal that a six-member autonomous authority carry out a selection process to choose and advise on suitable candidates for the bench, with the final decision remaining with the government. However, all candidates who apply for the post are now vetted by the Commission for the Administration of Justice. Notwithstanding, the absence of formal calls to fill judicial positions and ranking system to assess applicants impedes the process. A recent law on the suspension of judges has been criticized by the dean of the law faculty at the University of Malta on the basis that suspended judges have no right to challenge the suspension and that the removal or dismissal of a judge should not be done by a body that is part of the legislature.
Citations:
European Council calls on Malta to improve transparency of Judicial Appointments. Independent 10/02/14
http://www.timesofmalta.com/articles/view/20150517/local/government-ignored-bonello-commission-recommendations-on-appointments.568405
http://www.timesofmalta.com/articles/view/20150819/local/minister-warns-against-reforming-judicial-appointments-system-for-the.581166
http://www.timesofmalta.com/articles/view/20150518/local/bonnici-we-will-reform-way-judiciary-appointed.568596
Judicial appointments and the executive: Government cannot continue to delay reform Independent 2/10/2015
http://www.timesofmalta.com/articles/view/20160225/local/judicial-commission-to-vet-nominees-to-bench.603674
http://www.timesofmalta.com/articles/view/20160718/local/historic-constitutional-amendments-on-judicial-appointments-discipline.619296
http://www.timesofmalta.com/articles/view/20160720/local/judiciary-welcomes-judicial-reform-legislation.619498
Interview with Professor Kevin Aquilina
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Iceland
To date, all Supreme Court and district court judges have been appointed by the minister of the interior, without any involvement from or oversight by parliament or any other public agency. However, all vacancies on the Supreme Court were advertised and the appointment procedure was at least formally transparent. As part of the appointment process, a five-person evaluation committee was appointed and tasked with recommending a single applicant. A 2010 change to the Act on Courts restricted the minister’s ability to appoint any person not found to be sufficiently qualified by the committee unless such an appointment is approved by the parliament. This aimed to restrain the minister’s authority by introducing external oversight.

A new Act on Courts was passed by parliament in June 2016, authorizing the minister to ask parliament to authorize the appointment of judges other than those recommended by the evaluation committee. The act was criticized, among other things, for taking inadequate steps concerning the minister of the interior’s ability to make judicial appointments subject to significantly weaker restraints than those stipulated in the constitutional bill approved in the 2012 referendum. One academic and former judge stated in testimony to a parliamentary committee that the bill does not address the public’s declining confidence in the court system (Björgvinsdóttir, 2016).

In 2009, the European Union expressed concern over the recruitment procedures for judges. The Group of States against Corruption (GRECO) has also criticized the process for appointing judges in Iceland. The 2011/2012 constitutional bill proposes that judicial appointments should be approved by the president or a parliamentary majority of two-thirds.

Many appointments to the courts continue to be controversial. In many cases, the scrutiny of Supreme Court candidates seems superficial. For instance, little attention is given to how often rulings by lower court judges have been overturned by the Supreme Court. Furthermore, a retired Supreme Court justice, whose own appointment was controversial, published a book in 2014 criticizing his former court colleagues for their alleged opposition to his appointment as well as for some of their verdicts that he deemed misguided (Jón Steinar Gunnlaugsson, 2014). He has since directed further attacks at his former colleagues for violating rules regarding conflict of interest, among other things.

In 2017, the minister of justice appointed 15 new judges to a new intermediary court between the district court level and the Supreme Court, including four judges deemed less qualified than other available applicants according to the review committee’s assessment of the applications. Two of the applicants who were bypassed sued and were awarded damages by the Supreme Court. A third applicant has announced that he will also sue for substantial damages. The Supreme Court has ruled that the minister of justice broke the law when she bypassed the recommendations of the review committee. The minister, from the Independence Party, appears likely to have to face a vote of no confidence in parliament.

For all but ten years between 1926 and 2016, control of the Ministry of Justice and the authority to appoint judges alternated between the Independence Party and the Progressive Party. (As part of the reorganization of ministries, the ministry was named the Ministry of the Interior for a short while but the name was subsequently changed back to Ministry of Justice).
Citations:
Act on Courts. (Lög um dómstóla nr. 15 25 March 1998, revised 7 June 2017).

Björgvinsdóttir, Áslaug (2016). Comment on proposed Act on Courts, presented to parliament 19 April 2016, http://www.althingi.is/altext/erindi/145/145-1514.pdf.

Change of the Act on Courts. (Lög um breyting á lögum um dómstóla nr. 15 1998 með síðari breytingum (skipun dómara) nr. 45 26. maí 2010).

Gunnlaugsson, Jón Steinar (2014), Í krafti sannfæringar, Forlagið, Reykjavík.

GRECO (2013), Report on Iceland, http://www.coe.int/t/dghl/monitoring/greco/evaluations/round4/ReportsRound4_en.asp

GERCO (2015), Report on Iceland, http://www.coe.int/t/dghl/monitoring/greco/evaluations/round4/RC4/GrecoRC4(2015)3_Iceland_EN.pdf
Turkey
The 2015-2019 Judicial Reform Strategy continues to be implemented. However, no measures were taken to tackle key shortcomings on independence and impartiality. It is crucial that the strategy is revised to address key outstanding problems and is implemented with the involvement of all relevant stakeholders, including civil society.
The structure of the so-called Gülenist parallel state in the judiciary came to attention beginning in 2013 and has undermined the judiciary’s credibility. While the number of court cases is increasing – not least after 15 July 2016 and the dismissal of thousands of judges and prosecutors allegedly linked to Gülenist networks – the lack of professional judicial personnel creates further deadlocks.

The Constitutional Court has 17 members, as outlined by Article 146 of the 2010 constitutional referendum, whose members are nominated or elected from other higher courts by the country’s president, the parliament and professional groups made up of senior administrative officers, lawyers, first-degree judges, prosecutors or Constitutional Court rapporteurs who have served for at least five years.

To be appointed to the Constitutional Court, candidates must either be members of the teaching staff of institutions of higher education, senior administrative officers or lawyers; be over the age of 45; have completed higher education; and have worked for at least 20 years. Constitutional Court members serve 12-year terms and cannot be reelected. The appointment of Constitutional Court judges does not take place on the basis of general liberal-democratic standards such as cooperative appointment and special majority regulations. In addition, the armed forces still wield some civilian judicial influence, as two military judges are members of the Constitutional Court.

Recruitment patterns in the past have highlighted the politicization of the judiciary. Following the recently adopted constitutional amendments, four members of the new Council of Judges and Prosecutors (HSK) were appointed directly by the president and seven members were elected by parliament. The HSK does not offer adequate safeguards for the independence of the judiciary and considerably increases political influence over the judiciary.
Citations:
European Commission, Turkey 2016 Report, Brussels, 9.11.2016, http://ec.europa.eu/enlargement/pdf/key_documents/2016/20161109_report_turkey.pd f (accessed 1 November 2016).
Yargı Reformu Strateji Belgesi 2015, http://www.sgb.adalet.gov.tr/yargi_reformu_stratejisi.pdf (accessed 27 October 2015)
European Commission for Democracy Through Law (Venice Commission) Turkey Opinion on the Amendments to the Constitution Adopted By the Grand National Assembly on 21 January 2017 and to Be Submitted to A Natıonal Referendum on 16 April 2017, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=cdl-ad(2017)005-e (1 November 2017)
“Cumhurbaşkanlığı Sistemi’nde AYM ve HSK üyeleri nasıl belirleniyor?.,” 17 March 2017, https://www.ahaber.com.tr/galeri/turkiye/cumhurbaskanligi-sisteminde-aym-ve-hsk-uyeleri-nasil-belirleniyor (1 November 2017)
 
All judges are appointed exclusively by a single body irrespective of other institutions.
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Estonia
Justices of the Supreme Court are appointed by the national parliament, on the proposal of the chief justice of the Supreme Court. The chief justice of the Supreme Court is appointed to office by the national parliament on the proposal of the President of the Republic.

While formally transparent and legitimate, the appointment processes rarely receives public attention or media coverage.
Hungary
The 2012 constitution left the rules for selecting members of the Constitutional Court untouched. Its justices are still elected by parliament with a two-thirds majority. However, given the strong Fidesz majority in parliament and the government’s lack of self-restraint, this two-thirds threshold until February 2015 failed to limit the government parties’ control over the process. Parallel to the weakening of the remit of the Constitutional Court, the court was staffed with Fidesz loyalists, some of whom are not even specialists in constitutional law. When the loss of its two-thirds majority made it impossible for Fidesz to select justices unilaterally, four court positions remained vacant for some time. In November 2016, Fidesz succeeded in getting the support of the opposition party Politics Can Be Different (LMP) for the nomination of four new justices.
Japan
According to the constitution, Supreme Court justices are appointed by the cabinet, or in the case of the chief justice, named by the cabinet and appointed by the emperor. However, the actual process lacks transparency. Supreme Court justices are subject to a public vote in the Lower House elections following their appointment, and to a second review after 10 years if they have not retired in the meantime. These votes are of questionable value, as voters have little information enabling them to decide whether or not to approve a given justice’s performance. In all of postwar history, no justice has ever been removed through public vote. In response to the call for more transparency, the Supreme Court has put more information on justices and their track record of decisions on its website.
Citations:
Supreme court justice national review looms on same day as Oct. 22 general election, The Mainichi, 16 October 2017, https://mainichi.jp/english/articles/20171016/p2a/00m/0na/002000c
Poland
The 15 justices of the Constitutional Tribunal are elected individually by the Sejm for terms of nine years, on the basis of an absolute majority of votes with at least one-half of all members present. The president of the republic selects the president and the vice-president of the Constitutional Tribunal from among the 15 justices, on the basis of proposals made by the justices themselves. A law in June 2015 tightened the deadline for proposing candidates to replace the Constitutional Tribunal judges whose terms were to expire later in the year. This allowed the PO-PSL majority to replace five justices in the final session of the Sejm in advance of the parliamentary elections. Whereas the PO and PSL argued that because the new Sejm would not convene until 12 November 2015, the vote was necessary to preserve the Constitutional Tribunal’s continuity, the PiS saw it as a politically motivated attempt to prevent the new majority from electing the judges since only three of five judges’ terms of office had ended before the parliamentary elections. President Duda refused to swear in the judges, and one of the first decisions of the new parliament was to provide for the re-election of all five new judges, including the three whose term had expired before the elections. This decision led to a protracted conflict between the government and the Constitutional Tribunal. Until the end of the presidency of Andrzej Rzepliński in December 2016, the Constitutional Tribunal did not accept three of the five new judges, whereas the government failed to accept the Constitutional Tribunal’s decision. When Rzepliński’s term expired, the government by legally dubious means succeeded in installing Julia Przyłębska as his successor and in getting the court in line. Przyłębska’s appointment and the composition of the Constitutional Tribunal remain highly controversial.
Citations:
Sadurski, W. (2018): How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding. Sydney Law School, Legal Studies Research Paper No. 18/01, Sydney (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3103491.##).
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