RULE OF LAW

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.”
There are basically three levels of courts in Denmark: 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.
Judges are appointed by the monarch following the recommendation from the justice minister 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.
Appointed judges are highly educated with several years of law studies. Many used to have experience working in the Ministry of Justice before becoming judges and some move from lower courts to higher courts. In recent years there has been an effort also to recruit distinguished lawyers from outside.
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.

The justices in the Supreme Court (“Regeringsrätten”) are appointed by the Cabinet. They are not considered to be political appointments. Candidates do not state a party preference and the only criteria for eligibility are judicial expertise and tenure. There is modest media coverage of the appointments. The reason for this may be that the Swedish Supreme Court is not a political body like in Germany or the United States. Its key roles are to serve as the final court of appeal and to set precedence on judicial matters. The neutrality of the Swedish Supreme Court can be judged as very high.

Members of the Constitutional Court must be completely independent from political parties (art. 147/4). They cann neither represent a political party in parliament nor be an official of a political party. In addition to this rule, the constitution allows membership only for persons with a qualified career in specific legal professions.
Nevertheless, the process of recruiting members (who are appointed until their 70th year) makes the involvement of both government and parliament necessary. This could imply that a governing majority uses its legal power to re-structure the court according to the government’s political interests. However, this would certainly be subject to public debate and criticized by the opposition. Any such undertaking would therefore be possible only within the framework of a broad political consensus, and it would be limited.

The members of the Constitutional Court are appointed by both the Senate and Chamber of Deputies with a special two-thirds majority. Judges remain seated on the court until they reach the age of 70. Half of the judges are Dutch-speaking; half are French-speaking; and half of each group has to be composed of former members of parliament. The new members of the Council of State are proposed by incumbent members and have to be accepted by the minister for the home department and by the Senate and Chamber of Deputies. Although these processes are fully transparent, they barely attract any attention in the media.
Given these procedures and the composition of the Constitutional Court, there is a certain level of linkage between the Court and political parties. At the very least, some informal exchange of information does occur. However on the whole the members of the court behave independently, as “higher clerks,” with some distance from political parties.

Members of the Supreme Court and the Constitutional Court are appointed collaboratively by the executive and the Senate.

It is the function of the government to decide who should be appointed to the Supreme Court. The government advises the president of Ireland of its nomination of a candidate, and the president formally makes the appointment. The Judicial Appointments Advisory Board (JAAB) acts in an advisory capacity. Advertisements are placed in the public press inviting suitably qualified persons to apply to the JAAB when a vacancy occurs on the Supreme Court. The Oireachtas (a term that encompasses both parliament and president) has the power to appoint a person who has not applied to, and has not been considered by, the JAAB. If it does so it must publish a notice in the official gazette (the Iris Oifigiúil) stating that it has made such an appointment outside the JAAB procedure.
Under Article 35.4.1 of the constitution, no judge of the Supreme Court or the High Court may be removed from office except for stated misbehavior or incapacity, and then only upon resolutions passed by the lower and upper parliamentary houses calling for his removal. Judges are now required to retire on reaching the age of 70.
Concerns about the political independence of the judiciary are more prevalent at lower levels than in the High or Supreme Courts. The lower courts are more likely to have to adjudicate issues where local political pressures are strong (especially in relation to planning laws and commercial matters, as well as cases involving constituents of local politicians). The remit of the Supreme Court is more removed from day-to-day political pressures, and there have been few allegations of political bias or party-political interference in its work. The court has also been relatively infrequently involved in major social issues where a clear liberal/conservative split would emerge, as seems to be frequently the case in the United States.

The Constitutional Court is composed of nine members, all professional judges. They are appointed by the grand duke on the recommendation of the 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.

The Supreme Court is composed of judges nominated for a 15-year period. The president proposes three names, two of which are approved by a majority of at least two-thirds of the Senate. This means that nominations require the support of more than one political party. Once they are in office, there are few grounds on which judges can be removed. Since the current system came into force in 1995, there have been no major disputes over the appointment of judges to the Supreme Court.

Supreme Court justices are appointed by the government through transparent due process, 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. Judges are formally appointed by the government after a recommendation from the autonomous “Innstillingsrådet for dommere.” The appointment of judges attracts limited attention and rarely causes public debate.

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. During the presidency of Václav Klaus (first elected in 2003, currently serving a second term), there have been disputes over appointments, with the Senate refusing to approve four candidates proposed by the president, but no conflicts over this issue arose in the current review period. The process of appointing judges is transparent and adequately covered by the public media. The involvement of both the president and the Senate increases the likelihood of a balance in political and other characteristics of the judges. Pavel Rychetský, the current chief justice of the Constitutional Court, served as a deputy prime minister in a social democratic government, while other judges have different political backgrounds.

Federal judges are appointed by the responsible sectoral minister and the Committee for the Election of Judges, which consists of the respective subject-area ministers of the states and an equal number of members of the Bundestag. Half the Federal Constitutional Court justices are appointed by the Bundestag, and the other half by the Bundesrat. The FCC consists of 16 justices, who exercise their duties in two senates (panels) of eight members each. Whereas the Bundesrat, in accordance with the provisions of the Basic Law, elects justices directly and openly, the Bundestag delegates its decision to a committee, where the election takes place indirectly, secretly and not transparently. The composition of this 12-deputy committee is proportional to party strength in the chamber. Decisions in both houses require a two-thirds majority. To sum up, in Germany justices are 1) elected by 2) several independent bodies. The election procedure is 3) representative, because the two involved bodies do not interfere in one another’s decisions. The 4) required majority in each chamber is a qualified two-thirds vote. By requiring a qualified majority, the political opposition has a secure influence over the selection of justices, regardless of temporary majorities. Nevertheless, attention should be drawn to the non-transparent election procedure of one-half of the justices, although even here candidates are extensively discussed in the media prior to the decision.

There is no constitutional court in Greece. There is an appellate court, in effect the highest administrative court of the country (the Council of the State). The highest-ranking justices of this court are its president and vice presidents. The constitution (Article 90) stipulates that these justices are appointed by the incumbent government. However, the new PASOK government passed a law in March 2010 to limit its own competence on this matter. The new law provides for a different arrangement, according to which a committee consisting of the president and the vice presidents of the Greek parliament (who come from different political parties) compiles a list of candidates from among the appellate court justices. This high-level parliamentary group should decide on the list with a four-fifths majority. The list will be then submitted to the government, which makes the final decision in a cabinet meeting. The government has to take into account the opinion expressed by the parliamentary committee.

Members of the Constitutional Court are appointed from three different sources: the head of state, the parliament (with special majority requirements) and the top ranks of the judiciary. This appointment system has ensured a high degree of political independence, and the Constitutional Court has frequently rejected laws that were promoted by the current or past governments and approved by the parliament. In fact, the current prime minister has more than once complained that the Constitutional Court is politically prejudiced against the government. The court’s most politically relevant decisions are widely publicized and discussed by the media.
At the close of the period under review, the serving government was preparing a revision of the judiciary system which could result in less independence and stronger political alignment on the part of justices.

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 the widespread belief that the system has worked exceptionally well. In practice a number of people are consulted before appointments are made, including the opposition justice spokesperson, but also civic society groups.

The High Council of the Public Prosecution Department (Conselho Superior do Ministério Público), which oversees the appointment of judges, consists of 17 judges, including the Attorney General’s Office (Procurador-Geral da República). Five are appointed by the Assembly of the Republic (AR), Portugal’s unicameral parliament, which was controlled by the PS between 2005 and 2009. An additional two are appointed by the Ministry of Justice. There are allegations that the executive sought to influence the Attorney General’s Office (the president of the highest level of judicial system) with regard to a licensing issue involving the Freeport commercial complex. The attention, in the media and the AR, called attention to political influence on the judicial system, but did not result in any solid proof of undue influence or corruption. The case began in late 2009 and continued beyond March of 2010.

Judicial appointments and Senate confirmation processes are now highly politicized affairs able to mobilizes elites and ordinary citizens alike. They are occasions for intense political maneuvering and debate, and have become considerable factors in election campaigns and electoral calculations. These appointments now influence political fundraising and spending as well as plays of intrigue and power politics. Professional considerations play an important role, with nominees generally having prior judicial experience (especially for Supreme Court appointments) or extensive legal experience. Each of the nine current Supreme Court justices (including Elena Kagan, confirmed August 2010) attended either Harvard or Yale law school. And both sides of the ideological divide can muster enough judicial talent. Until 2001, however, presidents submitted their nominations to the American Bar Association’s (ABA) Standing Committee on Federal Judiciary. The Bush administration in 2001 dispensed with this practice, arguing that the ABA had become too liberal in their assessments. The Obama administration returned to the established practice with the nomination of Sonia Sotomayor to the Supreme Court, thus reintroducing an element of professional review. With Elena Kagan, currently the solicitor general, who replaced outgoing liberal Justice John Paul Stevens, President Obama had his second chance to leave an imprint on the court. The appointment will not immediately alter the ideological balance of the court. Kagan, an eminently qualified jurist, previously was dean of the Harvard Law School, but never served as a judge.
The politicization of the appointment process is not due to a malfunctioning institutional design, but to the powerful political role of the Supreme Court. A de-politicization of the appointment system along the lines of the Missouri Plan, where a bipartisan commission would present the president with a list of candidates to choose from, would be blocked by any president. In recent years, the presidential-opposition party in the Senate (e.g., the Republicans during the Democratic Obama administration) has demonstrated a willingness to filibuster judicial appointments, resulting in an effective requirement for 60 (out of 100) positive votes to achieve confirmation. Although the filibuster produces some pressure for relatively moderate appointments, the main factor moderating recent Supreme Court decisions has been the frequency of highly contentious 5-4 decisions, with the moderate conservative Anthony Kennedy casting the pivotal vote. Depending on the timing of deaths and retirements on the Court and election results, the Supreme Court could swing very sharply, either to the left or the right, in the near future.

The members of the Constitutional Court are elected by parliament with a two-thirds majority. In the past, this provision has limited the control parties in government have over the appointment of justices, and has contributed to a balanced composition of the Court. However, in the polarized context of the review period in which the major parties have failed to reach a compromise, court seats have remained vacant.

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; this is also true for lower administrative courts, but its highest court, the Council of State, is under fairly strong political influence, mainly expressed in a considerable number of double appointments. State counselors working in the Administrative Jurisdiction Division are required to hold an academic degree in law, although there are a few exceptions made.

The appointment process for Constitutional Court justices is regulated by the Spanish constitution and by specific legislation on the Constitutional Court (Organic Law 2/1979, as amended several times; Organic Law 6/2007 was the last important amendment). The Constitutional Court consists of 12 members. Of these, four members are appointed by the Congress of Deputies, requiring a supermajority of three-fifths of its members, and four members by the Senate, requiring the same supermajority vote (following a selection process in which each of the 17 regional parliaments nominate two candidates). Additionally, two members are appointed by the government, and two by the General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ). All 12 Constitutional Court members have a tenure period of nine years, with one-third of the court membership renewed every three years. Membership on the Constitutional Court is incompatible with any other office or business activity whatsoever.
The appointment process for Supreme Court justices is regulated in the legislation on the judiciary (Organic Law 6/1985, as amended several times; Organic Law 2/2004 was the last important amendment). The Supreme Court consists of five different specialized chambers, and all its members (around 90 in total) are appointed, requiring a majority of three-fifths, by the General Council of the Judiciary. The CGPJ is the governing authority of the judiciary, whose 20 members (judges, lawyers and other experienced jurists) are appointed by the Congress of Deputies and the Senate by a three-fifths supermajority vote, and have a tenure period of five years.
These processes include special majority requirements and are formally quite cooperative. Thus, in the case of the Supreme Court it involves: (1) the judicial associations (which nominate 36 candidates to fill 12 CGPJ positions), (2) the National Congress and the Senate, which appoint (again requiring a three-fifths vote) the members of the CGPJ, and finally (3) the CGPJ, which appoints the justices themselves (with a three-fifths majority vote, since the passage of legal reform in 2004). In the case of the Constitutional Court, regional parliaments nominate 34 candidates for a total of four positions, with the final appointees being selected by the Senate through a three-fifths majority vote. The other eight justices are appointed by three different institutions: the Congress of Deputies, the government and the CGPJ.
However, the truth is that this does not guarantee the independence of the judiciary. The various three-fifths majorities can be reached only through extra-parliamentary agreements between the two major parties (PSOE and PP), and this has led to a strong and growing politicization both among the members of the Constitutional Court and the CGPJ (the organ which appoints Supreme Court justices). All Constitutional Court justices and most members of the Supreme Court are quickly labeled as “conservative” or “progressive” justices by the media and politicians depending on the party that pushed for their appointment. Even if there is some formal guarantee of independence, neutrality is not expected and justices do not tend to be considered to be divorced from the ideology – or even the tactics – of the parties that suggested their appointment.

The judicial appointment system reflects the informality of the constitution. The process has undergone substantial changes in the past several years. These formalize a cooperative process without a majority requirement. Prior to the Constitutional Reform Act 2005, the lord chancellor possessed an extraordinary amount of power, through being a member of the cabinet, the head of the judiciary, and presiding officer in the House of Lords. He was thus a member of the executive, the legislative and the judiciary.
Since 2005, these tasks have been separated and distributed among several officeholders. Judges are now selected by the Judicial Appointments Commission, an independent commission that selects candidates on the basis of merit through a fair and open competition, and makes appointment recommendations to the lord chancellor. A separate lord chief justice is appointed by the same commission, drawn from the pool of Appeal Court judges, and subsequently acts as head of the judiciary of England and Wales.
A new Supreme Court has also been introduced, and in October 2009 it replaced the appellate committee of the House of Lords as the highest court in the United Kingdom. There is now a complete separation between the UK’s most senior judges and the House of Lords. With this major innovation being so recent, no sound assessment can be made of the factual independence of appointments to this body; however, the procedures put in place appear transparent, and there is every reason to believe that the appointment process will confirm the independence of the judiciary.

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 judges, such as tenure and retirement, there are no guidelines for their appointment, other than they will be 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 intransparent, it does appear that there are opportunities for the states to nominate candidates for a vacant position. From the perspective of the public, the appointment process is secret and names are rarely canvassed publicly when a vacancy occurs.

The justices of the Supreme Court and the Constitutional Court are chosen on the basis of different rules. In the case of the Supreme Court, the ultimate decision is made by the National Council of the Judiciary, a constitutional body consisting of representatives of all three branches of power. The 15 justices of the Constitutional Tribunal are by contrast elected individually by the Sejm for terms of nine years by an absolute majority of votes in the presence of at least one-half of all MPs. The president of the republic, then, selects the president and the vice-president of the court out of the 15 justices and on the basis of proposals made by the justices themselves. In the past, the weak majority requirement for choosing justices of the Constitutional Tribunal served to favor political appointments. Since 2006, the selection process has thus been closely monitored by an NGO-coalition consisting of the Helsinki Foundation for Human Rights, the Polish Section of the International Commission of Jurists, and, since January 2010, the Institute for Law and Society. In 2010, public pressure from this coalition led a candidate of the governing PO to withdraw his candidacy.

The justices of the Constitutional Court and the Supreme Court are selected by the president on the basis of proposals made by the parliament and without special majority requirements. In June 2009, the sitting Justice Minister Stefan Harabin was elected head of the Supreme Court. This decision was criticized by part of the public. A petition by NGOs pointing to Harabin’s personal contacts with a person suspected of organized drug-related activity and his misuse of disciplinary actions was signed by 12,000 citizens. Critics also argued that, according to the constitution, members of the Supreme Court need to be sitting judges.

It can be argued that the current process for judicial appointments, 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 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 for Supreme Court justices. Despite this almost absolute power, prime ministers do consult widely on Supreme Court appointments, although officeholders have clearly sought to put a personal political stamp on the court through their choices. But it is not evident that the current judicial appointment process has compromised judicial independence. Indeed, appointments to the Supreme Court have historically been of high quality.
The prime minister does not typically take a strong interest in other judicial appointments. In addition, advisory committees have been established to review candidates and make recommendations. A candidate cannot make it to the list to be considered for a judicial appointment unless he or she is approved by the committee.

A recent bill passed by the House of Commons, and awaiting approval of the Senate as of this writing, would require that future persons appointed to the Supreme Court be fluently bilingual. If passed, this would be the first instance in which nongeographic restrictions (three of the nine judges must come from Quebec) would limit the pool of those eligible for the court. This bill is extremely controversial. Some argue that it drastically reduces the pool of potential appointees. Others reply that bilingualism is an essential requirement for the court, as judges must be able to hear testimony in both official languages.

The appointment of Justices at the Constitutional Council has often been an issue but has not yet found a proper solution. Members are nominated in a discretionary decision by the president of the Republic (who also chooses the president of the Council), and the presidents of the Senate and of the National Assembly. The former presidents of the Republic (presently Valéry Giscard d’Estaing and Jacques Chirac) are de jure members of the Council as well.
Since the last constitutional reform, the appointees are subject to a hearing by ad hoc committees in both chambers of parliament. This procedure was used for the first time in 2010, but it was a rather superficial check and a simple formality, a process which had little to do with the thorough investigations of the American Senate, for instance. The process of selection and nomination is totally discretionary and depends on the vagaries of political domination at the time of appointment. Presently, the three appointing politicians belong to the same political family, and preference has been given to active or former politicians rather than to experienced lawyers.
Today, the Council is characterized by political imbalance (domination of the right), male domination (eight men out of nine total members) and supremacy of elderly persons (most are in their 70s). As a result, the improvements in the functioning and the competences of the Council are not matched by parallel improvements in the appointment of justices.

The appointment process for Constitutional Court justices generally guarantees the court’s independence. Three of the nine justices are selected by the president, three by the National Assembly and three by the judiciary, and all 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 (except for the chief justice). The process is formally transparent and adequately covered by public media, although it seems fair to say that judicial appointments are not a top issue of public attention in South Korea.
Courts below the Supreme Court are staffed by the national judiciary. Judges throughout the system must pass a rigorous training system including a two-year program and two-year apprenticeship. The Judicial Research and Training Institute performs all judicial training; only those who have passed the National Judicial Examination may receive appointments.

The judges of the Federal Supreme Court are elected for a period of six years in a joint session of both chambers of parliament, 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. Another unwritten rule demands representation of the various linguistic regions. There is no special majority requirement.

According to a recent constitutional amendment (Article 146), the Constitutional Court is composed of 17 members. The Grand National Assembly elects two members by secret vote from three candidates nominated for each vacant office by the plenary of the Audit Court from among its president and members, and one member from three candidates nominated by the chairmen of the bar associations. In these elections, a two-thirds majority for the first round, and an absolute majority for the second round is required for election. In the third round, a simple majority is sufficient to be seated.
The president of the republic appoints three regular members from the High Court of Appeals (Yargitay), two regular members from the Council of State, and one member each from the Military High Court of Appeals and the High Military Administrative Court. For these posts, three candidates are nominated for each vacant office by the plenary of each court from among their respective presidents and members. The president of the republic also appoints one member from a list of three candidates nominated by the Higher Education Council. Candidates must be scholars who are not already members of the Council. Four additional members are drawn from the ranks of senior administrative officers, lawyers, first-degree judges and prosecutors, or Constitutional Court rapporteurs who have served for at least five years.
In order to be appointed as a member of the Constitutional Court, candidates must be members of the teaching staff of institutions of higher education, senior administrative officers, or lawyers. To qualify, they must additionally be over the age of 45, have an associate or full professorship, have completed their higher education and worked for at least 20 years in the public service, or have practiced as a lawyer, judge or prosecutor for at least 20 years.
Constitutional Court members serve for 12 year terms, cannot be reelected and must retire upon reaching the age of 65 (Article 147).
Given the bodies from which the members of the Constitutional Court are recruited, and given the exclusive appointment rights held by the president of the republic, the Constitutional Court has mirrored the worldview, political positions and interests of the Kemalist Republican elite.
However, with the election of incumbent President of the Republic Abdullah Gül, this system was shaken, because Gül is regarded as representing forces of the political periphery. This is the reason why a recent government reform proposal aiming to increase the number of Constitutional Court members was seen as a threat by the old elite, disregarding the fact that the pivotal role of the president remains nearly unchanged. In Turkey, thus, the appointment of Constitutional Court judges does not match general democratic requirements such as cooperative appointment and special majority regulations. The extremely politically biased rulings of the Constitutional Court in recent years are the outcome of these appointment regulations. The recent constitutional amendment provided a partial solution for these issues.

There are three levels of courts: local, appellate and supreme. The final court of appeal is the Supreme Court; there is also a supreme administrative court as well as 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 independent of political control. 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 stir up much attention and are not fully covered in media.

All judges, both in the Supreme Court and in district courts, are appointed by the minister of justice and human rights alone, without any required cooperation withvother government bodies. However, all vacancies on the Supreme Court are advertised, and the appointment procedure is at least formally transparent. As part of the appointment process, an evaluation committee is appointed and usually recommends one applicant. However, the minister has no obligation to follow that recommendation. In a controversial case, a Supreme Court judge was appointed in 2003 against the recommendation of the evaluation committee. This person was a close relative of the serving prime minister. Most or all Supreme Court justices have been appointed by the minister of justice drawn from the right-wing Independence Party. This party has been in government for 64 of the 76 years since the foundation of the Republic of Iceland in 1944. In an article in Morgunblaðið, one of the two large newspapers, the leader of the Progressive Party (Framsóknarflokkurinn) recently wrote that the fact that the Independence Party has had this appointment power for decades spreads suspicion and unease about the appointment of judges, undermining public confidence in the courts. This is a widely held view in Iceland. A new bill on the courts, including the appointment of judges, lay before parliament as of the time of writing.
The process of appointing Supreme Court judges can be said to be formally transparent, but since only one person, the minister of justice, has the final say, and since the same party – or rather two parties, the Independence Party and the Progressive Party – has had this power for decades, the neutrality of the Supreme Court can be questioned.

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 – but the actual process lacks transparency. Supreme Court justices are subject to review in the next lower house election, and to another review after the passage of 10 years, if they have not retired in the meantime, but the public has little knowledge enabling them to decide whether or not to approve a justice on their ballot sheet. In the lower house election of 2009, nine of the 15 Supreme Court justices were up for review, and all passed, as in every previous case. In response to the call for more transparency, the Supreme Court has put more information on the justices and their track record of decisions on its website. The electoral review was duly covered by the media, but did not stir up major debate.