To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?
Justices are appointed in a cooperative appointment process with special majority requirements.
10
Denmark
The Danish constitution (sections 3, 62 and 64) states that “judicial authority shall be vested in the courts of justice … the administration of justice shall always remain independent of executive authority … [and] 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.
Formally the monarch appoints judges, following a recommendation from the minister of justice on the advice of the Judicial Appointments Council (since 1999) to broaden the recruitment of judges and enhance transparency. 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 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.
Formally the monarch appoints judges, following a recommendation from the minister of justice on the advice of the Judicial Appointments Council (since 1999) to broaden the recruitment of judges and enhance transparency. 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).
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
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.
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 in a transparent process.
In the case of the Constitutional Court, 10 magistrates are appointed in the following manner:
a) Three are appointed by the president of the republic.
b) Four are elected by the National Congress. Two are directly appointed by the Senate and two are previously proposed by the Chamber of Deputies for approval or rejection by the Senate. The appointments, or the proposal as the case may be, must be made in a single vote, and require for their approval the favorable vote of two-thirds of the senators or deputies currently in office.
c) Three are elected by the Supreme Court in a secret ballot, to be held in a session specially called for such purpose.
The members of the court serve for a term of nine years and are renewed every three years.
In the case of the Supreme Court, the 21 ministers are appointed by the president of the republic, with the agreement of the Senate. The candidates are approved by two-thirds of the currently serving members in a session specially called for such purpose. The president may only submit to the Senate for approval one person from a list of five proposed by the Supreme Court itself.
In recent years, there have been several cases in which the judiciary has acted to check executive power. This has come in the area of environmental policy, for example, in which the Supreme Court has affirmed its autonomy and independence from political influence.
In the case of the Constitutional Court, 10 magistrates are appointed in the following manner:
a) Three are appointed by the president of the republic.
b) Four are elected by the National Congress. Two are directly appointed by the Senate and two are previously proposed by the Chamber of Deputies for approval or rejection by the Senate. The appointments, or the proposal as the case may be, must be made in a single vote, and require for their approval the favorable vote of two-thirds of the senators or deputies currently in office.
c) Three are elected by the Supreme Court in a secret ballot, to be held in a session specially called for such purpose.
The members of the court serve for a term of nine years and are renewed every three years.
In the case of the Supreme Court, the 21 ministers are appointed by the president of the republic, with the agreement of the Senate. The candidates are approved by two-thirds of the currently serving members in a session specially called for such purpose. The president may only submit to the Senate for approval one person from a list of five proposed by the Supreme Court itself.
In recent years, there have been several cases in which the judiciary has acted to check executive power. This has come in the area of environmental policy, for example, in which the Supreme Court has affirmed its autonomy and independence from political influence.
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 was ranked 53rd out of 141 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 being very good or fairly good, a share that has gradually increased over the 2016 – 2021 period. Companies’ assessments were even more positive.
Citations:
The 2019 Global Competitiveness Report of the World Economic Forum: http://www3.weforum.org/docs/WEF_TheGlobalCompetitivenessReport2019.pdf
The EU Justice Scoreboard, see http://ec.europa.eu/justice/effective-justice/scoreboard/index_en.htm
The 2019 Global Competitiveness Report of the World Economic Forum: http://www3.weforum.org/docs/WEF_TheGlobalCompetitivenessReport2019.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 of whom are professional judges. They are appointed by the Grand Duke upon 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. However, the members of these two bodies are appointed by the Grand Duke on the recommendation of the Courts themselves, so their recommendations cannot be viewed as entirely independent. 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.
Luxembourg’s constitutional reform calls for the creation of a Supreme Justice Council. This new institution, which will not be a supreme court in the purest sense of the word, is aimed at ensuring the independence of the judiciary and protecting the separation of powers. The council will be composed of six judges, including the president or another judge of the supreme court, the state prosecutor or another judge of the public prosecutor’s office, and the president of the administrative court or another judge of that court. In addition, one lawyer will sit on the council as well as two people nominated by parliament based on their skills and expertise in the field, but who are not directly affiliated with the courts.
Luxembourg’s constitutional reform calls for the creation of a Supreme Justice Council. This new institution, which will not be a supreme court in the purest sense of the word, is aimed at ensuring the independence of the judiciary and protecting the separation of powers. The council will be composed of six judges, including the president or another judge of the supreme court, the state prosecutor or another judge of the public prosecutor’s office, and the president of the administrative court or another judge of that court. In addition, one lawyer will sit on the council as well as two people nominated by parliament based on their skills and expertise in the field, but who are not directly affiliated with the courts.
Citations:
Sauer, Carola. “Luxembourg’s constitutional crescendo: will incremental reforms succeed where overhaul failed?” (28 Occtober 2021). https://constitutionnet.org/news/luxembourgs-constitutional-crescendo-will-incremental-reforms-succeed-where-overhaul-failed. Accessed 14 January 2022.
“Court and tribunals.” The Government of Grand Duchy of Luxembourg. https://gouvernement.lu/en/systeme-politique/cours-tribunaux.html. Accessed 14 January 2022.
Loi du 27 juillet 1997 portant organization de la Cour Constitutionnelle.
Loi du 7 novembre 1996 portant organization 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.
Sauer, Carola. “Luxembourg’s constitutional crescendo: will incremental reforms succeed where overhaul failed?” (28 Occtober 2021). https://constitutionnet.org/news/luxembourgs-constitutional-crescendo-will-incremental-reforms-succeed-where-overhaul-failed. Accessed 14 January 2022.
“Court and tribunals.” The Government of Grand Duchy of Luxembourg. https://gouvernement.lu/en/systeme-politique/cours-tribunaux.html. Accessed 14 January 2022.
Loi du 27 juillet 1997 portant organization de la Cour Constitutionnelle.
Loi du 7 novembre 1996 portant organization 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.
Norway
All judges are formally appointed by a government decision that is made based on a recommendation issued by an autonomous body, the Instillingsrådet. This body is composed of three judges, one lawyer, a legal expert from the public sector and two members who are not from the legal profession. The government almost always follows the recommendations. Supreme Court justices are not considered to be in any way political and their tenure security is 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.
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 countries such as Germany and the United States.
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 countries such as 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
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 is usually 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 (six judges) or one of the two houses of parliament (three judges each). However, importantly, there is no two-thirds majority requirement for the election of candidates in the Nationalrat and Bundesrat, as in many other countries. The president and vice-president of the Constitutional Court are nominated by the federal government.
Members of the Constitutional Court must be completely independent from political parties (under Article 147/4). They are not allowed to represent a political party in parliament nor be an official of a political party. In addition, the constitution allows only highly skilled persons, trained lawyers who have pursued a career in specific legal professions, to be appointed to the court. This is seen as guaranteeing a balanced and professional appointment procedure.
While this regime has worked reasonably well in the past, recently there has been debate about possible improvements in terms of openness and transparency, among other things.
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 (six judges) or one of the two houses of parliament (three judges each). However, importantly, there is no two-thirds majority requirement for the election of candidates in the Nationalrat and Bundesrat, as in many other countries. The president and vice-president of the Constitutional Court are nominated by the federal government.
Members of the Constitutional Court must be completely independent from political parties (under Article 147/4). They are not allowed to represent a political party in parliament nor be an official of a political party. In addition, the constitution allows only highly skilled persons, trained lawyers who have pursued a career in specific legal professions, to be appointed to the court. This is seen as guaranteeing a balanced and professional appointment procedure.
While this regime has worked reasonably well in the past, recently there has been debate about possible improvements in terms of openness and transparency, among other things.
Citations:
Ehs, Tamara, Demokratiepolitische Dimensionen der Verfassungsgerichtsbarkeit: Auswahl- und Bestellmodus der Mitglieder, Sondervotum, Öffentlichkeit, in: Zeitschrift für öffentliches Recht, September 2020, Heft 3, 575-599.
Ehs, Tamara, Demokratiepolitische Dimensionen der Verfassungsgerichtsbarkeit: Auswahl- und Bestellmodus der Mitglieder, Sondervotum, Öffentlichkeit, in: Zeitschrift für öffentliches Recht, September 2020, Heft 3, 575-599.
Czechia
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, based on 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. Moreover, the involvement of both the president and the Senate increases the likelihood of balance in judges’ political views and other characteristics. As a result, President Zeman’s proposals have remained uncontroversial. This also applies to the appointment of Pavel Šámal, a professor of criminal law and former head of the Supreme Court, to the Constitutional Court in February 2020.
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 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 Federal Council). The Federal Constitutional Court 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, judges in Germany 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. In November 2018, Stephan Harbarth, previously a member of the German Bundestag, was elected as a new vice-president of the Federal Constitutional Court. This election received substantial press coverage, with discussions as to whether a former member of parliament who worked as a lawyer has the right profile for this position. This example seems to indicate that the new and open procedure has had a positive effect on public awareness.
In summary, judges in Germany 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. In November 2018, Stephan Harbarth, previously a member of the German Bundestag, was elected as a new vice-president of the Federal Constitutional Court. This election received substantial press coverage, with discussions as to whether a former member of parliament who worked as a lawyer has the right profile for this position. This example seems to indicate that the new and open procedure has had a positive effect on public awareness.
Israel
According to Israel’s basic laws, all judges are to be elected by a special committee, which consists of nine members: the president of the Supreme Court, two other Supreme Court judges, the minister of justice (who also serves as the chairman) and another minister, two Knesset members, and two representatives of the Chamber of Advocates. Since 2008, a nominated candidate must gain the support of at least seven, instead of five, committee members. This change limited the power of the five non-politicians in the committee, and requires cooperation and compromises within the committee.
The cooperative procedure balances various interests and institutions within the government in order to ensure pluralism and protect the legitimacy of appointments. The process receives considerable media coverage and is subject to public criticism, which is usually concerned with whether justices’ professional record or other considerations (e.g., social views, loyalties, and political affiliation) should figure into their appointment.
The cooperative procedure balances various interests and institutions within the government in order to ensure pluralism and protect the legitimacy of appointments. The process receives considerable media coverage and is subject to public criticism, which is usually concerned with whether justices’ professional record or other considerations (e.g., social views, loyalties, and political affiliation) should figure into their appointment.
Citations:
Bob, Yonah Jeremy. “Will Nave replacement end Shaked’s judicial revolution? - analysis.” The Jerusalem Post, 12.6.2019: https://www.jpost.com/Israel-News/Will-new-lawyers-president-end-Shakeds-judicial-revolution-Analysis-592167
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
Jerusalem Post Staff, Yonah Jeremy Bob. “Efi Nave, Head of Israeli bar, arrested in sex-for-judgeship scandal.” The Jerusalem Post, 16.1.2019: https://www.jpost.com/Breaking-News/Senior-lawyer-arrested-on-suspicion-of-illegal-appointment-of-judges-577580
Lurie, Guy. “The Judicial Selection Committee.” Jerusalem: Israel Democracy Institute, 2019.
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.
Bob, Yonah Jeremy. “Will Nave replacement end Shaked’s judicial revolution? - analysis.” The Jerusalem Post, 12.6.2019: https://www.jpost.com/Israel-News/Will-new-lawyers-president-end-Shakeds-judicial-revolution-Analysis-592167
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
Jerusalem Post Staff, Yonah Jeremy Bob. “Efi Nave, Head of Israeli bar, arrested in sex-for-judgeship scandal.” The Jerusalem Post, 16.1.2019: https://www.jpost.com/Breaking-News/Senior-lawyer-arrested-on-suspicion-of-illegal-appointment-of-judges-577580
Lurie, Guy. “The Judicial Selection Committee.” Jerusalem: Israel Democracy Institute, 2019.
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.
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). The promotion of a judge from one level to another requires parliamentary approval. Parliamentarians vote on the appointment of every judge, and are not required to justify refusing an appointment. Judges are barred from engaging in political activity.
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 2018, amendments to the Law on Judicial Power reduced the influence of executive power on the organization of court work and extended the competence of the Council for the Judiciary in appointing chairs of the courts.
Nevertheless, a European Networks of Councils for the Judiciary (ENCJ) survey of judges (2020) found that Latvia scored relatively poorly in terms of Latvian judges’ evaluation of judicial independence (scoring between 6.5 and 7 on a 10-point scale). A total of 19% of Latvian judges reported being subjected to inappropriate pressure, and 11% reported that corruption occurs regularly. Some 43% of judges in Latvia felt that the media has a large impact on their decisions.
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 2018, amendments to the Law on Judicial Power reduced the influence of executive power on the organization of court work and extended the competence of the Council for the Judiciary in appointing chairs of the courts.
Nevertheless, a European Networks of Councils for the Judiciary (ENCJ) survey of judges (2020) found that Latvia scored relatively poorly in terms of Latvian judges’ evaluation of judicial independence (scoring between 6.5 and 7 on a 10-point scale). A total of 19% of Latvian judges reported being subjected to inappropriate pressure, and 11% reported that corruption occurs regularly. Some 43% of judges in Latvia felt that the media has a large impact on their decisions.
Citations:
1. Supreme Court Senate (2018), The competence of the Council for the Judiciary in appointing chairs of courts and in transfer of judges shall be expanded, Available at: http://www.at.gov.lv/en/jaunumi/partieslietu-padomi/the-competence-of-the-council-for-the-judiciary-in-appointing-chairs-of-courts-and-intransfer-of-judges-shall-be-expanded-9374?year=2018&, Last accessed: 11.01.2022
2. On Courts (1993) Available (in Latvian): https://likumi.lv/ta/id/62847-par-tiesu-varu, Last accessed: 11.01.2022.
3. ENCJ (2019) Independence and Accountability of the Judiciary: Survey on the independence of Judges, Available at: https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/Reports/Data%20ENCJ%202019%20Survey%20on%20the%20Independence%20of%20judges.pdf, Last accessed: 10.01.2022.
1. Supreme Court Senate (2018), The competence of the Council for the Judiciary in appointing chairs of courts and in transfer of judges shall be expanded, Available at: http://www.at.gov.lv/en/jaunumi/partieslietu-padomi/the-competence-of-the-council-for-the-judiciary-in-appointing-chairs-of-courts-and-intransfer-of-judges-shall-be-expanded-9374?year=2018&, Last accessed: 11.01.2022
2. On Courts (1993) Available (in Latvian): https://likumi.lv/ta/id/62847-par-tiesu-varu, Last accessed: 11.01.2022.
3. ENCJ (2019) Independence and Accountability of the Judiciary: Survey on the independence of Judges, Available at: https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/Reports/Data%20ENCJ%202019%20Survey%20on%20the%20Independence%20of%20judges.pdf, Last accessed: 10.01.2022.
Mexico
Mexican Supreme Court justices are nominated by the executive and approved by a two-thirds majority in the Senate. However, if no candidate achieves a majority, the president can appoint a justice without Senate approval. The system of federal electoral courts is generally respected and more independent and professional than the criminal courts. The situation is worse in lower courts, as judges are implicated in corruption or clientelist networks.
With the support of a majority in Congress, President López Obrador has to date been able to appoint four justices out of 11 justices in total. The opposition has criticized all the appointments, arguing that the candidates were loyal allies of the president, and that this would undermine judicial independence. The four justices appointed by President López Obrador indeed hold veto power, since repealing laws and resolving matters of constitutionality require a supermajority of eight justices.
With the support of a majority in Congress, President López Obrador has to date been able to appoint four justices out of 11 justices in total. The opposition has criticized all the appointments, arguing that the candidates were loyal allies of the president, and that this would undermine judicial independence. The four justices appointed by President López Obrador indeed hold veto power, since repealing laws and resolving matters of constitutionality require a supermajority of eight justices.
Citations:
DW 2018. México: “El sistema anticorrupción está entrampado.” https://www.dw.com/es/méxico-el-sistema-anticorrupción-está-entrampado/a-42567912
Mexico Evalua 2019: Diagnostico inaugural, https://www.mexicoevalua.org/diagnostico-inaugural/
Latin News 2019: Weekly Report – 10 October 2019 (WR-19-40), MEXICO: Judicial autonomy under threat?
DW 2018. México: “El sistema anticorrupción está entrampado.” https://www.dw.com/es/méxico-el-sistema-anticorrupción-está-entrampado/a-42567912
Mexico Evalua 2019: Diagnostico inaugural, https://www.mexicoevalua.org/diagnostico-inaugural/
Latin News 2019: Weekly Report – 10 October 2019 (WR-19-40), MEXICO: Judicial autonomy under threat?
New Zealand
All judicial appointments are made by the governor-general based on the recommendation of the attorney-general. The convention is that the attorney-general recommends new appointments, with the exception of the chief justice, Māori Land Court and court of appeal judges. Appointment of the chief justice is recommended by the prime minister.
The appointment process followed by the attorney-general is not formally regulated. That said, there is a strong constitutional convention in New Zealand that, in deciding who is to be appointed, the attorney-general acts independently of party-political considerations. There is a prior process of consultation, however, that is likely to include senior members of the judiciary and legal profession. Judges enjoy security of tenure and great judicial independence. 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. So far, however, the recommendations of the Law Commission have not been implemented.
The appointment process followed by the attorney-general is not formally regulated. That said, there is a strong constitutional convention in New Zealand that, in deciding who is to be appointed, the attorney-general acts independently of party-political considerations. There is a prior process of consultation, however, that is likely to include senior members of the judiciary and legal profession. Judges enjoy security of tenure and great judicial independence. 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. So far, however, the recommendations of the Law Commission have not been 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).
Benjamin Sutter. 2015. Appointment, Discipline and Removel of Judges: A Comparison of the Swiss and New Zealand Judiciaries. 46 VUWLR, pp. 267-306.
Stuff. 2018. Justice Helen Winkelmann appointed Chief Justice. December 17. https://www.stuff.co.nz/national/politics/109416961/justice-helen-winkelmann-appointed-chief-justice
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).
Benjamin Sutter. 2015. Appointment, Discipline and Removel of Judges: A Comparison of the Swiss and New Zealand Judiciaries. 46 VUWLR, pp. 267-306.
Stuff. 2018. Justice Helen Winkelmann appointed Chief Justice. December 17. https://www.stuff.co.nz/national/politics/109416961/justice-helen-winkelmann-appointed-chief-justice
Portugal
The Constitutional Court is comprised of 13 judges, who serve for non-renewable nine-year terms. Of these, 10 are selected by parliament on the basis of a two-thirds parliamentary majority. This generally means that the selection of judges requires, at least, an agreement between the PS and PSD, as the two largest parties together make up more than two-thirds of parliament. Typically, there is no other parliamentary configuration that can secure a two-thirds majority. In November 2021, four new judges were elected, three of whom had been nominated by the PSD and one by the PS. That said, the PS and PSD have in the past voted to appoint other parties’ nominees (e.g., Clara Sottomayor, nominated by the BE in 2016; and Fátima Mata-Mouros, nominated by the CDS in 2012), depending on political equilibria. The remaining three Constitutional Court judges are co-opted by the 10 judges elected by parliament. Six of the 13 judges must be chosen from judges in other courts; the others can be jurists.
While criticisms of the Constitutional Court emerge whenever a decision goes against a particular faction or party, the general perception is that that the court operates in a balanced and non-partisan manner. The manner of election of judges, with a two-thirds parliamentary majority, tends to help in this outcome.
While criticisms of the Constitutional Court emerge whenever a decision goes against a particular faction or party, the general perception is that that the court operates in a balanced and non-partisan manner. The manner of election of judges, with a two-thirds parliamentary majority, tends to help in this outcome.
Citations:
Magalhães, P. C. (2003). The limits to judicialization: Legislative politics and constitutional review in the Iberian democracies (Doctoral dissertation, The Ohio State University).
Magalhães, P. C. (2003). The limits to judicialization: Legislative politics and constitutional review in the Iberian democracies (Doctoral dissertation, The Ohio State University).
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 December 2020, a new Supreme Court justice was appointed on the second attempt, as there was no political majority in support of the first attempt in July 2020, as the candidate was coming from academia with no previous experiences in the courts. In November 2021, a new Constitutional Court justice was finally appointed by the National Assembly on the fourth attempt, as the first three candidates narrowly failed to secure the required parliamentary support.
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 lower-level criminal and civil courts, indirect political influence by the executive is possible through the Council for the Judiciary (Raad voor de Rechtspraak). Its members are appointed by the minister for justice and safety; council members choose the administrators and directors (bestuursleden) of lower courts, who in turn provide (or fail to provide) opportunities for individual judges.
The Netherlands’ highest court, the Council of State, is subject to relatively strong political influence, mainly expressed through the appointment of former politicians. This may explain why the council sides with government most of the time; as shown in instances such as appeals of the tax authorities’ decisions in the childcare benefits scandal, or appeals of decisions made by the Immigration and Naturalization Service in immigration cases. 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). Only Geert Wilders, parliamentarian for the right-wing populist Party for Freedom (PVV), has proposed (in 2011) a reform creating a five-year term instead. At this moment the appointment procedure for High (Supreme) Court judges combines peer- and political selection. A selection committee made up of High Court members draws up a list of six candidates that are recommended to the Parliament’s Second House. The House then picks three of them in order of preference and invites the highest-ranking judge for a non-public hearing. If the candidate passes this selection hurdle, the minister of justice proposes him or her for appointment by the government.
Reforms that would limit the influence of the executive and the legislature in the appointment of Supreme Court judges and members of the Council of the Judiciary have not been formally approved. In the case of appointments for lower court judges, the new procedure lends more weight to peer selection by giving local court administrators and sitting judges a stronger voice in selecting additional and new single judges. For the Supreme Court, the selection committee will consist of one member of Parliament (appointed by all other members of parliament), one member of the Supreme Court (appointed by its president), and another legal expert appointed jointly by the parliament and the Hight Court. This tripartite committee would make a binding selection, and the candidate would then be appointed by the government. This reform will require a change of the constitution, and will take several more years to come in force.
The Netherlands’ highest court, the Council of State, is subject to relatively strong political influence, mainly expressed through the appointment of former politicians. This may explain why the council sides with government most of the time; as shown in instances such as appeals of the tax authorities’ decisions in the childcare benefits scandal, or appeals of decisions made by the Immigration and Naturalization Service in immigration cases. 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). Only Geert Wilders, parliamentarian for the right-wing populist Party for Freedom (PVV), has proposed (in 2011) a reform creating a five-year term instead. At this moment the appointment procedure for High (Supreme) Court judges combines peer- and political selection. A selection committee made up of High Court members draws up a list of six candidates that are recommended to the Parliament’s Second House. The House then picks three of them in order of preference and invites the highest-ranking judge for a non-public hearing. If the candidate passes this selection hurdle, the minister of justice proposes him or her for appointment by the government.
Reforms that would limit the influence of the executive and the legislature in the appointment of Supreme Court judges and members of the Council of the Judiciary have not been formally approved. In the case of appointments for lower court judges, the new procedure lends more weight to peer selection by giving local court administrators and sitting judges a stronger voice in selecting additional and new single judges. For the Supreme Court, the selection committee will consist of one member of Parliament (appointed by all other members of parliament), one member of the Supreme Court (appointed by its president), and another legal expert appointed jointly by the parliament and the Hight Court. This tripartite committee would make a binding selection, and the candidate would then be appointed by the government. This reform will require a change of the constitution, and will take several more years to come in force.
Citations:
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2020 Rule of Law Report The rule of law situation in the European Union Brussels, 30 September 2020
De Volkskrant, “Worden in andere EU-landen ook rechters door politici benoemd, zoals Polen beweert? Nou nee,” 23 July 2017
De Correspondent, Chavannes, 3 March 2021. De benoeming van rechters in Nederland is niet onafhankelijker dan in Polen of Hongarije
NRC Next, 8 March 2011. Wilders pareert kritiek op plan tijdelijke benoeming rechters (nrs.nl, accessed 4 November 2019)
Mr., 2 March 2021. Rechters krijgen meer zeggenschap over benoeming gerechtsbestuurders
NRC Next, 8 March 2011. Wilders pareert kritiek op plan tijdelijke benoeming rechters (nrs.nl, accessed 4 November 2019)
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2020 Rule of Law Report The rule of law situation in the European Union Brussels, 30 September 2020
De Volkskrant, “Worden in andere EU-landen ook rechters door politici benoemd, zoals Polen beweert? Nou nee,” 23 July 2017
De Correspondent, Chavannes, 3 March 2021. De benoeming van rechters in Nederland is niet onafhankelijker dan in Polen of Hongarije
NRC Next, 8 March 2011. Wilders pareert kritiek op plan tijdelijke benoeming rechters (nrs.nl, accessed 4 November 2019)
Mr., 2 March 2021. Rechters krijgen meer zeggenschap over benoeming gerechtsbestuurders
NRC Next, 8 March 2011. Wilders pareert kritiek op plan tijdelijke benoeming rechters (nrs.nl, accessed 4 November 2019)
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. The latest round of appointments in 2016 included many judges with dubious backgrounds.
The most important issue related to the appointment of judges in 2021 concerned the election of the president of the Supreme Court. The president of the republic has the right to nominate a candidate for the head of that court; however, the Law on Courts stipulates that he must nominate someone from the circle of candidates who apply to the State Judicial Council (DSV). However, President Milanović proposed Zlata Đurđević, a distinguished professor of criminal procedural law from the University of Zagreb, who did not apply in this manner. As this led to a dispute between President Milanović and the HDZ-controlled government bodies, the Constitutional Court had to rule on all of this. In March, the Constitutional Court ruled that the president of the republic could not voluntarily propose to parliament any candidate for the presidency of the Supreme Court that he wanted, but only one of the candidates who had applied through the DSV. Professor Đurđević subsequently applied in this way, but in June 2021, the parliament rejected her with 81 votes against (76 votes were needed for a majority).
After President Milanović and Prime Minister Plenković finally agreed on a candidate for the president of the Supreme Court in July 2021, Radovan Dobronić was elected to the post in October. Dobronić came to this position as a judge of the Commercial Court, outside the circle of judges of the Supreme Court, and he gained wide popularity in the public when in 2013 he ruled against banks in their dispute with Swiss-franc-denominated account-holders.
The most important issue related to the appointment of judges in 2021 concerned the election of the president of the Supreme Court. The president of the republic has the right to nominate a candidate for the head of that court; however, the Law on Courts stipulates that he must nominate someone from the circle of candidates who apply to the State Judicial Council (DSV). However, President Milanović proposed Zlata Đurđević, a distinguished professor of criminal procedural law from the University of Zagreb, who did not apply in this manner. As this led to a dispute between President Milanović and the HDZ-controlled government bodies, the Constitutional Court had to rule on all of this. In March, the Constitutional Court ruled that the president of the republic could not voluntarily propose to parliament any candidate for the presidency of the Supreme Court that he wanted, but only one of the candidates who had applied through the DSV. Professor Đurđević subsequently applied in this way, but in June 2021, the parliament rejected her with 81 votes against (76 votes were needed for a majority).
After President Milanović and Prime Minister Plenković finally agreed on a candidate for the president of the Supreme Court in July 2021, Radovan Dobronić was elected to the post in October. Dobronić came to this position as a judge of the Commercial Court, outside the circle of judges of the Supreme Court, and he gained wide popularity in the public when in 2013 he ruled against banks in their dispute with Swiss-franc-denominated account-holders.
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 and criminal law court (Areios Pagos), administrative law court (Symvoulio tis Epikrateias), the audit office, as well as senior prosecutors 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 senior justices (listed above). This arrangement has been criticized by international observers (the European Commission and the Council of Europe) for allowing the government to limit the judiciary’s independence.
In the past, the government used to apply the seniority principle, rather than political criteria, in selecting justices to serve at the highest echelons of the justice system. However, in 2015–2019, the appointment of judges became more politicized, provoking tensions among judges. After that period, although the government retained the competence to appoint the most senior judges and prosecutors, calmness was more or less restored, as the justices selected for the highest posts were overall respected by their colleagues.
In the past, the government used to apply the seniority principle, rather than political criteria, in selecting justices to serve at the highest echelons of the justice system. However, in 2015–2019, the appointment of judges became more politicized, provoking tensions among judges. After that period, although the government retained the competence to appoint the most senior judges and prosecutors, calmness was more or less restored, as the justices selected for the highest posts were overall respected by their colleagues.
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.
The European Commission’s view is available in the latest Rule of Law report for Greece(2021), available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021SC0709
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.
The European Commission’s view is available in the latest Rule of Law report for Greece(2021), available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021SC0709
Ireland
The constitution states that judges are appointed by the president on the advice of the government (Articles 13.9 and 35.1).
The key government actors involved in making senior appointments are the taoiseach, the minister for justice, the attorney general and (in the case of a coalition government) any other party leader(s). This means that paper qualifications are not enough; “a crucial factor is being known personally by one of the key players” (Gallagher 2018, citing MacNeill 2016). Until 1996, this followed an informal procedure.
In theory, this all changed following the creation in 1996 of the Judicial Appointments Advisory Board (JAAB), which acts in an advisory capacity regarding 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. It has now become known that “within around five years of its establishment, the JAAB, perhaps over-cautiously, deferred to legal advice that it might be infringing on the government’s constitutional right to appoint judges by doing anything more than simply forwarding the entire list of applicants to the government minus those that it deems unsuitable” (Gallagher 2018, 72, citing MacNeill 2016, 33). Thus, the JAAB in practice has been about weeding out unsuitable applicants. Suggested reforms, which would return the JAAB to its originally intended role, might involve requiring it to rank-order a short list of three or five names (see Cahillane 2017).
In May 2018, the Dáil introduced a new bill to establish the Judicial Appointments Commission to replace the JAAB. The new body would be composed of five judges, three lawyers representing the attorney general and nine lay members (The Irish Times, 31 May 2018). The proposal is that the new body would recommend three candidates to fill any judicial vacancy and the government would choose one of them. The bill was supported by then Minister for Transport Shane Ross, who argued it would help to end “cronyism” in appointments. The bill attracted opposition from some judges and opposition politicians, who claimed that it may undermine judicial independence. By December 2018, the bill had not yet passed the Seanad. In the committee stage, 191 amendments were tabled to the bill (The Irish Times, 28 November 2018). An Irish Times story was titled, “Taoiseach slates ‘Seanad filibuster’ of judicial appointments law.” The bill finally passed the Seanad in December 2019 and was returned to the Dáil.
Under the general scheme of what is now the Judicial Appointments Commission Bill 2020, the nine-member Judicial Appointments Commission would be established to replace the Judicial Appointments Advisory Board (JAAB). The commission would be chaired by the chief justice rather than by a lay chairperson, as had been envisaged in the 2017 bill. A majority of the commission (four out of nine) will be lay members (DOJ, 2020).
While the process of judicial appointments 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 (almost 80% voted for this change). The Association of Judges of Ireland has called for the establishment of an independent body to establish the remuneration of judges, and improve lines of communication between the judiciary and the executive.
Controversy enveloped the most recent appointment to the Supreme Court in summer 2020 when a dinner was held in the west of Ireland by the Houses of the Oireachtas Golf Club shortly after the country’s pandemic restrictions had been reduced. While no rules were deemed to have been broken, the fallout from the negative coverage of the event saw the resignation of a senior government minister and the country’s representative on the European Commission. Justice Séamus Wolfe was in attendance at the dinner and agreed to delay his start date on the court and he donated part of his salary to charity in response to the controversy (McConnell, 2020).
The key government actors involved in making senior appointments are the taoiseach, the minister for justice, the attorney general and (in the case of a coalition government) any other party leader(s). This means that paper qualifications are not enough; “a crucial factor is being known personally by one of the key players” (Gallagher 2018, citing MacNeill 2016). Until 1996, this followed an informal procedure.
In theory, this all changed following the creation in 1996 of the Judicial Appointments Advisory Board (JAAB), which acts in an advisory capacity regarding 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. It has now become known that “within around five years of its establishment, the JAAB, perhaps over-cautiously, deferred to legal advice that it might be infringing on the government’s constitutional right to appoint judges by doing anything more than simply forwarding the entire list of applicants to the government minus those that it deems unsuitable” (Gallagher 2018, 72, citing MacNeill 2016, 33). Thus, the JAAB in practice has been about weeding out unsuitable applicants. Suggested reforms, which would return the JAAB to its originally intended role, might involve requiring it to rank-order a short list of three or five names (see Cahillane 2017).
In May 2018, the Dáil introduced a new bill to establish the Judicial Appointments Commission to replace the JAAB. The new body would be composed of five judges, three lawyers representing the attorney general and nine lay members (The Irish Times, 31 May 2018). The proposal is that the new body would recommend three candidates to fill any judicial vacancy and the government would choose one of them. The bill was supported by then Minister for Transport Shane Ross, who argued it would help to end “cronyism” in appointments. The bill attracted opposition from some judges and opposition politicians, who claimed that it may undermine judicial independence. By December 2018, the bill had not yet passed the Seanad. In the committee stage, 191 amendments were tabled to the bill (The Irish Times, 28 November 2018). An Irish Times story was titled, “Taoiseach slates ‘Seanad filibuster’ of judicial appointments law.” The bill finally passed the Seanad in December 2019 and was returned to the Dáil.
Under the general scheme of what is now the Judicial Appointments Commission Bill 2020, the nine-member Judicial Appointments Commission would be established to replace the Judicial Appointments Advisory Board (JAAB). The commission would be chaired by the chief justice rather than by a lay chairperson, as had been envisaged in the 2017 bill. A majority of the commission (four out of nine) will be lay members (DOJ, 2020).
While the process of judicial appointments 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 (almost 80% voted for this change). The Association of Judges of Ireland has called for the establishment of an independent body to establish the remuneration of judges, and improve lines of communication between the judiciary and the executive.
Controversy enveloped the most recent appointment to the Supreme Court in summer 2020 when a dinner was held in the west of Ireland by the Houses of the Oireachtas Golf Club shortly after the country’s pandemic restrictions had been reduced. While no rules were deemed to have been broken, the fallout from the negative coverage of the event saw the resignation of a senior government minister and the country’s representative on the European Commission. Justice Séamus Wolfe was in attendance at the dinner and agreed to delay his start date on the court and he donated part of his salary to charity in response to the controversy (McConnell, 2020).
Citations:
Cahillane, L. (2017), ‘Judicial Appointments in Ireland: the Potential for Reform,’ in Laura Cahillane, James Gallen and Tom Hickey (eds), Judges, Politics and the Irish Constitution. Manchester University Press.
Gallagher, M. (2018), ‘Politics, the Constitution and the Judiciary,’ in John Coakley and Michael Gallagher (2018, eds) Politics in the Republic of Ireland, 6th edition. Routledge.
Gwynn Morgan, D. (2012), ‘Government and the Courts,’ in Eoin O’Malley and Muiris (eds) Governing Ireland: From Cabinet Government to Delegated Governance. Dublin: IPA.
MacNeill, J. (2016). The Politics of Judicial Selection in Ireland. Dublin: Four Courts Press.
McConnell, D. (2020) Daniel McConnell: Have we all got it wrong on Seamus Woulfe? Irish Examiner, 10 November, available at: https://www.irishexaminer.com/opinion/commentanalysis/arid-40079342.html
Cahillane, L. (2017), ‘Judicial Appointments in Ireland: the Potential for Reform,’ in Laura Cahillane, James Gallen and Tom Hickey (eds), Judges, Politics and the Irish Constitution. Manchester University Press.
Gallagher, M. (2018), ‘Politics, the Constitution and the Judiciary,’ in John Coakley and Michael Gallagher (2018, eds) Politics in the Republic of Ireland, 6th edition. Routledge.
Gwynn Morgan, D. (2012), ‘Government and the Courts,’ in Eoin O’Malley and Muiris (eds) Governing Ireland: From Cabinet Government to Delegated Governance. Dublin: IPA.
MacNeill, J. (2016). The Politics of Judicial Selection in Ireland. Dublin: Four Courts Press.
McConnell, D. (2020) Daniel McConnell: Have we all got it wrong on Seamus Woulfe? Irish Examiner, 10 November, available at: https://www.irishexaminer.com/opinion/commentanalysis/arid-40079342.html
Slovakia
The justices of the Constitutional Court (CC) are selected for 12 years by the president on the basis of proposals made by the parliament (National Council of the Slovak Republic), until recently without any special majority requirement. From 2014 to the end of 2017, the selection of justices was 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 lack the proper qualifications for Constitutional Court justices. As a result, three out of 19 seats in the CC remained vacant until Kiska eventually gave in in early December 2017. In February 2019, the tenure of nine out of the court’s 13 justices expired. The process of replacing the justices was highly polarized, especially after former prime minister Robert Fico was nominated as a candidate. The new public hearings for candidates attracted a lot of media and public attention, but probably discouraged several qualified candidates from engaging in a candidature. In April 2019, the first three justices were appointed, but it took another nine months and five votes in parliament to finalize the other six appointments. In 2020, one of the judges – Mojmír Mamojka – resigned due to the involvement in the criminal network of businessman Marián Kočner.
Part of the new center-right government’s comprehensive judicial reforms have involved changes being made to the appointment process for the CC (Farkašová 2021). First, proposals by the parliament must now be based on a three-fifths or, if not achieved, at least an absolute majority of votes. Second, the president is no longer bound to proposals by the parliament, if the latter fails to propose the required number of candidates within specified time limits. These amendments have aimed at limiting the influence of the governing coalition on the composition of the CC by introducing special majority requirements and at strengthening the incentives for parliament to agree on a sufficient number of proposals.
Part of the new center-right government’s comprehensive judicial reforms have involved changes being made to the appointment process for the CC (Farkašová 2021). First, proposals by the parliament must now be based on a three-fifths or, if not achieved, at least an absolute majority of votes. Second, the president is no longer bound to proposals by the parliament, if the latter fails to propose the required number of candidates within specified time limits. These amendments have aimed at limiting the influence of the governing coalition on the composition of the CC by introducing special majority requirements and at strengthening the incentives for parliament to agree on a sufficient number of proposals.
Citations:
Farkašová, S. (2021): Constitutional aspects of the current reform of the selecting constitutional judges in the Slovak Republic and the comparative perspectives in Europe, in: Tribuna Juridica 11(2): 150-173 (https://ideas.repec.org/a/asr/journl/v11y2021i2p150-173.html).
Farkašová, S. (2021): Constitutional aspects of the current reform of the selecting constitutional judges in the Slovak Republic and the comparative perspectives in Europe, in: Tribuna Juridica 11(2): 150-173 (https://ideas.repec.org/a/asr/journl/v11y2021i2p150-173.html).
South Korea
The appointment process for Constitutional Court justices generally serves to protect the court’s independence. Judges 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. All nine judges are appointed by the president, with three of the nine selected by the president, three by the National Assembly and three by the judiciary. 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.
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
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
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.
Given criticisms of the courts during the course of the Brexit process and especially after the Supreme Court judgment on the prorogation of Parliament in 2019, and given government attempts to restrict judicial review as well as the role of the prime minister in this process, the continued independence of judicial appointment from political interference will be important. However, a public outcry would be expected if independence were seen to be seriously threated.
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.
Given criticisms of the courts during the course of the Brexit process and especially after the Supreme Court judgment on the prorogation of Parliament in 2019, and given government attempts to restrict judicial review as well as the role of the prime minister in this process, the continued independence of judicial appointment from political interference will be important. However, a public outcry would be expected if independence were seen to be seriously threated.
Citations:
https://commonslibrary.parliament.uk/decision-of-the-supreme-court-on-the-prorogation-of-parliament/
https://commonslibrary.parliament.uk/decision-of-the-supreme-court-on-the-prorogation-of-parliament/
USA
Federal judges, including Supreme Court justices, are appointed for life by the president and must be confirmed by a majority vote in the Senate. Historically, they have generally reflected the political and legal views of the presidents who appointed them. Over the last 30 years, however, judicial appointments have become more politicized, with conflicts over Senate confirmation eventually becoming almost strictly partisan.
During his tenure, President Trump appointed and the Senate confirmed three Supreme Court justices. In 2021, during his first year in office, President Biden saw “more judges confirmed to the federal bench than any first-year president since Ronald Reagan, and experts say a growing list of judicial vacancies could allow him to appoint even more in 2022” (Raymond, 2021). After Justice Breyer announced his retirement, Biden promised to nominate an African American woman to the Supreme Court.
Given the fact that federal judges are appointed for life, the courts’ independence from current elected officials is well protected. However, federal judges increasingly reflect the ideological preferences of the president who appointed them often decades earlier. Within the Senate, voting on the confirmation of Supreme Court judges is a purely partisan manner.
During his tenure, President Trump appointed and the Senate confirmed three Supreme Court justices. In 2021, during his first year in office, President Biden saw “more judges confirmed to the federal bench than any first-year president since Ronald Reagan, and experts say a growing list of judicial vacancies could allow him to appoint even more in 2022” (Raymond, 2021). After Justice Breyer announced his retirement, Biden promised to nominate an African American woman to the Supreme Court.
Given the fact that federal judges are appointed for life, the courts’ independence from current elected officials is well protected. However, federal judges increasingly reflect the ideological preferences of the president who appointed them often decades earlier. Within the Senate, voting on the confirmation of Supreme Court judges is a purely partisan manner.
Citations:
Raymond, Nate. 2021. “Biden finishes 2021 with most confirmed judicial picks since Reagan,” Reuters, December 28. https://www.reuters.com/legal/government/biden-finishes-2021-with-most-confirmed-judicial-picks-since-reagan-2021-12-28/
Raymond, Nate. 2021. “Biden finishes 2021 with most confirmed judicial picks since Reagan,” Reuters, December 28. https://www.reuters.com/legal/government/biden-finishes-2021-with-most-confirmed-judicial-picks-since-reagan-2021-12-28/
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 state attorneys-general, which are the chief law officers at the state level, 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 federal-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 be considered during the selection of 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/
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
The current process for appointing Supreme Court of Canada judges has been in place since 2016. Qualified candidates apply through the Office of the Commissioner for Federal Judicial Affairs. An independent Advisory Board, composed of three members appointed by the Minister of Justice and four members appointed by legal organizations, evaluates the applications and submits a short-list of the best candidates to the prime minister. The Advisory Board also produces a public report on how it chose the names on the short-list. The prime minister then selects a nominee. The Minister of Justice and the Chair of the Advisory Board appear before the House of Commons Standing Committee on Justice and Human Rights to explain the decision. The nominee participates in a question and answer period with Members of Parliament and Senators, only for information purposes. The prime minister ultimately makes the decision on appointments to the Supreme Court of Canada, as the approval of neither the House of Commons nor the Senate is required. The appointment process is covered by the media. Although the appointment process is sometimes criticized for not involving the consent of either of the two federal legislative bodies or the provinces, appointments of individual Supreme Court of Canada judges are rarely controversial and most often widely praised.
Citations:
Robin MacKay and Maxime Charron-Tousignant, “The Role of the Supreme Court of Canada. Membership and the Nomination Process,” HillNotes, Ottawa: Library of Parliament, 14 June 2021. https://hillnotes.ca/2021/06/14/the-role-of-the-supreme-court-of-canada-membership-and-the-nomination-process/
Robin MacKay and Maxime Charron-Tousignant, “The Role of the Supreme Court of Canada. Membership and the Nomination Process,” HillNotes, Ottawa: Library of Parliament, 14 June 2021. https://hillnotes.ca/2021/06/14/the-role-of-the-supreme-court-of-canada-membership-and-the-nomination-process/
Cyprus
The judicial system functions on the basis of the 1960 constitution, albeit with modifications to reflect the circumstances prevailing after the collapse of bicommunal 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. In response to GRECO’s 2016 recommendations, a draft law includes provisions that deepen and extend participation in the SCJ. Rules of procedure and criteria for selecting judges were adopted in late 2019 and posted on the Supreme Court’s web portal.
Reforms awaiting parliamentary approval would change the structure of the courts and number of justices, and create the Supreme Constitutional Court and Supreme Appellant Court. These courts will assume the competences of the current Supreme Court.
The gender balance within the judiciary as a whole is approximately 60% male to 40% female. Six of the 13 Supreme Court justices (including the president) and five of the seven Administrative Court justices are female.
Reforms awaiting parliamentary approval would change the structure of the courts and number of justices, and create the Supreme Constitutional Court and Supreme Appellant Court. These courts will assume the competences of the current Supreme Court.
The gender balance within the judiciary as a whole is approximately 60% male to 40% female. Six of the 13 Supreme Court justices (including the president) and five of the seven Administrative Court justices are female.
Citations:
1. GRECO – Cyprus – Fourth Evaluation Report Corruption prevention in respect of members of
parliament, judges and prosecutors November 2020 https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680a06389
1. GRECO – Cyprus – Fourth Evaluation Report Corruption prevention in respect of members of
parliament, judges and prosecutors November 2020 https://rm.coe.int/fourth-evaluation-round-corruption-prevention-in-respect-of-members-of/1680a06389
Spain
Under current regulations, appointments to both the Constitutional Court (the organ of last resort regarding the protection of fundamental rights and conflicts regarding institutional design) and the Supreme Court (the highest court in Spain for all legal issues except for constitutional matters) require special majorities in the parliament. These majorities can be reached only through difficult and politicized extra-parliamentary agreements between the major parties, which generally lack a cooperative attitude toward one another. During the period under review, the General Council of the Judiciary, which is an autonomous body composed of judges and other jurists that aims to guarantee the independence of the judges, could not be renewed due to the political deadlock. The incumbent council continued to operate on an interim basis at the end of 2021, raising concerns about the legitimacy of its judicial appointments and other decisions.
In October 2021, Spain’s ruling Socialist party reached a deal with the main opposition People’s Party to renew the line-up of the Constitutional Court, paving the way to ending a years-long stalemate. The approval of the judges for the 12-strong top court, a third of whom had reached the end of their nine-year term over the past two years, requires a three-fifths majority in parliament. However, the examination of some of the candidates in the Congress of Deputies was accompanied by controversy, raising concerns about their ideological affiliation with political parties.
At the political level, a parliamentary debate focused on a strategy aimed at enhancing the judiciary’s impartiality, talent and efficiency. A code of conduct has been adopted, and a consultative Commission of Judicial Ethics has been established.
In October 2021, Spain’s ruling Socialist party reached a deal with the main opposition People’s Party to renew the line-up of the Constitutional Court, paving the way to ending a years-long stalemate. The approval of the judges for the 12-strong top court, a third of whom had reached the end of their nine-year term over the past two years, requires a three-fifths majority in parliament. However, the examination of some of the candidates in the Congress of Deputies was accompanied by controversy, raising concerns about their ideological affiliation with political parties.
At the political level, a parliamentary debate focused on a strategy aimed at enhancing the judiciary’s impartiality, talent and efficiency. A code of conduct has been adopted, and a consultative Commission of Judicial Ethics has been established.
Citations:
Euronews, Brussels warns Spain over judicial appointments standoff, 22/09/2021 – https://www.euronews.com/2021/09/20/brussels-warns-spain-over-judicial-appointments-standoff
EC (2021) The rule of law situation in the European Union, COM/2021/700 final - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021DC0700
Euronews, Brussels warns Spain over judicial appointments standoff, 22/09/2021 – https://www.euronews.com/2021/09/20/brussels-warns-spain-over-judicial-appointments-standoff
EC (2021) The rule of law situation in the European Union, COM/2021/700 final - https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52021DC0700
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.
Comparative analyses found that Swiss Federal judges are at the bottom of international rankings with regard to formal independence, but at the top with regard to actual independence.
In 2021, a popular initiative aiming to have federal judges selected by lottery rather than through election in parliament was rejected in a popular vote.
Also in 2021, parliament started to discuss the legitimacy of contributions of federal judges, which they have to make to the parties that nominated them.
Another unwritten rule demands representation of the various linguistic regions. There is no special majority requirement.
Comparative analyses found that Swiss Federal judges are at the bottom of international rankings with regard to formal independence, but at the top with regard to actual independence.
In 2021, a popular initiative aiming to have federal judges selected by lottery rather than through election in parliament was rejected in a popular vote.
Also in 2021, parliament started to discuss the legitimacy of contributions of federal judges, which they have to make to the parties that nominated them.
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
Adrian Vatter and Maya Ackermann 2014: Richterwahlen in der Schweiz: Eine empirische Analyse der Wahlen an das Bundesgericht von 1848 bis 2013, Zeitschrift für Schweizerisches Recht, 133, 517-537.
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
Adrian Vatter and Maya Ackermann 2014: Richterwahlen in der Schweiz: Eine empirische Analyse der Wahlen an das Bundesgericht von 1848 bis 2013, Zeitschrift für Schweizerisches Recht, 133, 517-537.
Justices are exclusively appointed by different bodies without special majority requirements.
5
Bulgaria
Because there are no special majority requirements specified in the procedures for appointing Constitutional Court justices in Bulgaria, appointments are often a political manner. This is balanced by the fact that three different bodies are involved, and appointments are spread over time. Equal shares of the 12 justices of the Constitutional Court are appointed personally by the president, by the National Assembly with a simple majority, and by a joint plenary of the justices of the two supreme courts (the Supreme Court of Cassation and the Supreme Administrative Court), also with a simple majority. Justices serve nine-year mandates, with four justices being replaced every three years. The most recent election was among 10 candidates.
One of the challenges in 2021 was the uncertainty surrounding the election of the individual to act as chair of the Supreme Court of Cassation by the existing Council, whose members include individuals who are not judges and has a record of engaging in suspicious activity. On 14 January 2022, after six hours of a publicly broadcasted hearing, a female judge with an impeccable reputation was elected to the post. As the first woman in the country to hold this position, her election bodes well for improvements in the appointment and career prospects of junior judges.
One of the challenges in 2021 was the uncertainty surrounding the election of the individual to act as chair of the Supreme Court of Cassation by the existing Council, whose members include individuals who are not judges and has a record of engaging in suspicious activity. On 14 January 2022, after six hours of a publicly broadcasted hearing, a female judge with an impeccable reputation was elected to the post. As the first woman in the country to hold this position, her election bodes well for improvements in the appointment and career prospects of junior judges.
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 transparent and legitimate, the appointment processes rarely receive public attention or media coverage. Supreme Court justices are rarely, if ever, criticized for being politically biased.
While transparent and legitimate, the appointment processes rarely receive public attention or media coverage. Supreme Court justices are rarely, if ever, criticized for being politically biased.
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 Constitutional 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, and three each by the presidents of the Senate and of the National Assembly. Former presidents (at the time of writing, Nicolas Sarkozy and François Hollande) are de jure members of the council but have decided not to attend meetings. Up to 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 by which Supreme Court justices are appointed in the United States than to usual European practices. Contrary to U.S. practice, however, the French parliament has not yet exerted thorough control over these appointments, instead pursuing a rather hands-off approach, particularly when appointees are former politicians. In 2017, a Senate president’s nominee for the council (a senator and former minister of justice) was forced to withdraw after he had passed all the necessary parliamentary checks. This was prompted by a newspaper report that he had recruited (and paid with public money) his children as personal assistants. While not forbidden by law, the public disapproval following the Fillon scandal proved to be a sufficient deterrent. The case underlined the leniency of parliamentary control vis-à-vis former politicians.
Other top courts (penal, civil and administrative courts) are comprised of professional judges, and the government has only limited influence on their composition. In these cases, the government is empowered only to appoint a presiding judge (président), selecting this individual from the senior members of the judiciary.
Other top courts (penal, civil and administrative courts) are comprised of professional judges, and the government has only limited influence on their composition. In these cases, the government is empowered only to appoint a presiding judge (président), selecting this individual from the senior members of the judiciary.
Malta
Since 2020, Superior Court judges and magistrates are appointed by the president, acting in accordance with the advice of the Judicial Appointments Committee (JAC). This has contributed to strengthening judicial independence. The new system of judicial appointments, adopted in July 2020, was assessed by the Venice Commission in its opinion of October 2020. The Venice Commission welcomed the reform, positively assessing the new composition of the JAC, the publication of judicial vacancies, the JAC’s direct proposals regarding judicial candidates to the president of Malta, the submission of detailed reports on candidates by the JAC and the presentation by the JAC of the three most suitable candidates for appointments.
The independence of the judiciary is further safeguarded through a number of constitutional provisions, including the security of tenure of judges and magistrates and the inviolability of their salaries.
The number of female judges in the court of first instance has increased substantially, but the number of female judges still remains low for the court of second instance.
The reform of the procedure for dismissing magistrates and judges has also strengthened judicial independence. Under the new system, the dismissal procedure has been placed under the remit of the Commission for the Administration of Justice, which is largely composed of members of the judiciary, as opposed to the previous system where parliament was in charge of the procedure. In its October 2020 opinion, the Venice Commission considered the reform to be generally in line with existing standards.
Steps have been taken to depoliticize the appointment of the chief justice. The chief justice is appointed by a two-thirds majority of all members of parliament.
Concerns have been raised about the significant number of specialist tribunals that continue to operate, with many of these involving executive power.
The independence of the judiciary is further safeguarded through a number of constitutional provisions, including the security of tenure of judges and magistrates and the inviolability of their salaries.
The number of female judges in the court of first instance has increased substantially, but the number of female judges still remains low for the court of second instance.
The reform of the procedure for dismissing magistrates and judges has also strengthened judicial independence. Under the new system, the dismissal procedure has been placed under the remit of the Commission for the Administration of Justice, which is largely composed of members of the judiciary, as opposed to the previous system where parliament was in charge of the procedure. In its October 2020 opinion, the Venice Commission considered the reform to be generally in line with existing standards.
Steps have been taken to depoliticize the appointment of the chief justice. The chief justice is appointed by a two-thirds majority of all members of parliament.
Concerns have been raised about the significant number of specialist tribunals that continue to operate, with many of these involving executive power.
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
Malta Independent 20/01/19 Government will have no say in judicial appointments in upcoming reform – Owen Bonnici
https://www.maltatoday.com.mt/news/national/93687/magistrate_yana_micallef_stafrace_not_recommended_for_promotion_to_judge_by_the_judicial_appointments_committee#.XZxKpWAzbIU
Times of Malta 11/02/20 Judiciary reform on the way
https://www.maltatoday.com.mt/news/court_and_police/101443/chamber_of_advocates_welcomes_appointment_of_new_chief_justice#.YdgMDtSEApg
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
Malta Independent 20/01/19 Government will have no say in judicial appointments in upcoming reform – Owen Bonnici
https://www.maltatoday.com.mt/news/national/93687/magistrate_yana_micallef_stafrace_not_recommended_for_promotion_to_judge_by_the_judicial_appointments_committee#.XZxKpWAzbIU
Times of Malta 11/02/20 Judiciary reform on the way
https://www.maltatoday.com.mt/news/court_and_police/101443/chamber_of_advocates_welcomes_appointment_of_new_chief_justice#.YdgMDtSEApg
Romania
There have been no substantial changes in the legal framework with respect to the appointment of justices since the regressive judicial reform packages of 2018 and 2019. Accordingly, two main themes arise when assessing this topic: inefficiency in the appointment process; and reduced transparency and accountability, perceived or otherwise, in the appointment of prosecutors.
In terms of appointments in 2020 and 2021, the Romanian justice system continues to struggle under a human resources deficit with 10% of judicial and 16% of prosecutor positions vacant as of December 2020. These vacancies can partially be explained by the fact that there were no new competitions to recruit magistrates in 2020 following a Constitutional Court ruling that declared the requirement for the Superior Council of Magistrates (SCM) to approve regulations of the organization and conduct of competitions for admission to the judiciary unconstitutional, creating a legal void which prevented the implementation of new processes. However, as part of a package of justice reforms proposed by the government in September 2020, in January 2021 the government proposed two accelerated, more specific legislative amendments, which outlined temporary measures on admission to the judiciary. The amendments were adopted by parliament on 3 February 2021, though some provisions were found to be unconstitutional by the Constitutional Court on 17 March 2021. The amendments will allow for competitions to take place in 2021 and 2022, easing the human resources deficit.
With respect to high-level appointments, in early 2020, the justice minister increased transparency in selection procedures to appoint new leadership to the country’s prosecution services (DNA), in addition to a new prosecutor general and a chief prosecutor for the Directorate for the Investigation of Organized Crime and Terrorism (DIICOT). While the new DNA chief was appointed following a positive opinion from the Superior Council of Magistrates (SCM), both the prosecutor general and the chief prosecutor for the DIICOT were appointed following negative opinions. In response, the justice minister stressed the advisory nature of the SCM, noting that their opinions were not binding on government. As a result, the Section for Prosecutors of the SCM reported that they were subject to pressure from the contentious special prosecution unit for investigating crimes within the judicial system (SIIJ), which has been criticized for pressuring judges and prosecutors to change the course of some high-level corruption cases. These challenges were in addition to instances in 2020 where the minister of justice disregarded the opinion of the SCM concerning deputy management posts. The same year, the DIICOT appointee resigned after her husband was convicted of illegally accessing a computer system.
By September 2021, the Justice Ministry had announced that 11 bids had been filed for vacant management positions at the Attorney General’s Office, DNA and DIICOT. The selection process took place at the justice minister’s headquarters, with the list of prosecutors who met the requirements for the selection process and the candidates who were invited to the interview process headed by the justice minister shared publicly.
Additionally, the high-profile rulings of both the Court of Justice of the European Union (CJEU 2021) and the European Court of Human Rights (2020) further highlights the inconsistencies in the appointment process in Romania. The 2021 CJEU ruling considered provisions in Romania’s controversial justice laws in light of Articles 2 and 19(1) of the Treaty of the European Union, and of the Cooperation and Verification Mechanism decision, in particular with regards to the SIIJ and the interim appointments to management positions within the judicial inspectorate, as well as the personal liability of judges as a result of judicial error. The court recalled that an EU member state cannot amend its legislation, particularly as it regards the organization of justice in such a way as to bring about a reduction in the protection of the value of the rule of law. This has increased pressure on Romania to amend its controversial judicial reforms.
The 2020 European Court of Human Rights also found Romania in violation of European convention when it concluded that Romania had violated the right to a fair trial and freedom of expression enshrined in the European Convention of Human Rights following 2018 dismissal of chief DNA prosecutor Laura Kovesi. The ruling drew attention to the growing importance attached to the intervention of an authority independent of the executive and the legislative branch in respect of decisions affecting the appointment and dismissal of prosecutors.
In terms of appointments in 2020 and 2021, the Romanian justice system continues to struggle under a human resources deficit with 10% of judicial and 16% of prosecutor positions vacant as of December 2020. These vacancies can partially be explained by the fact that there were no new competitions to recruit magistrates in 2020 following a Constitutional Court ruling that declared the requirement for the Superior Council of Magistrates (SCM) to approve regulations of the organization and conduct of competitions for admission to the judiciary unconstitutional, creating a legal void which prevented the implementation of new processes. However, as part of a package of justice reforms proposed by the government in September 2020, in January 2021 the government proposed two accelerated, more specific legislative amendments, which outlined temporary measures on admission to the judiciary. The amendments were adopted by parliament on 3 February 2021, though some provisions were found to be unconstitutional by the Constitutional Court on 17 March 2021. The amendments will allow for competitions to take place in 2021 and 2022, easing the human resources deficit.
With respect to high-level appointments, in early 2020, the justice minister increased transparency in selection procedures to appoint new leadership to the country’s prosecution services (DNA), in addition to a new prosecutor general and a chief prosecutor for the Directorate for the Investigation of Organized Crime and Terrorism (DIICOT). While the new DNA chief was appointed following a positive opinion from the Superior Council of Magistrates (SCM), both the prosecutor general and the chief prosecutor for the DIICOT were appointed following negative opinions. In response, the justice minister stressed the advisory nature of the SCM, noting that their opinions were not binding on government. As a result, the Section for Prosecutors of the SCM reported that they were subject to pressure from the contentious special prosecution unit for investigating crimes within the judicial system (SIIJ), which has been criticized for pressuring judges and prosecutors to change the course of some high-level corruption cases. These challenges were in addition to instances in 2020 where the minister of justice disregarded the opinion of the SCM concerning deputy management posts. The same year, the DIICOT appointee resigned after her husband was convicted of illegally accessing a computer system.
By September 2021, the Justice Ministry had announced that 11 bids had been filed for vacant management positions at the Attorney General’s Office, DNA and DIICOT. The selection process took place at the justice minister’s headquarters, with the list of prosecutors who met the requirements for the selection process and the candidates who were invited to the interview process headed by the justice minister shared publicly.
Additionally, the high-profile rulings of both the Court of Justice of the European Union (CJEU 2021) and the European Court of Human Rights (2020) further highlights the inconsistencies in the appointment process in Romania. The 2021 CJEU ruling considered provisions in Romania’s controversial justice laws in light of Articles 2 and 19(1) of the Treaty of the European Union, and of the Cooperation and Verification Mechanism decision, in particular with regards to the SIIJ and the interim appointments to management positions within the judicial inspectorate, as well as the personal liability of judges as a result of judicial error. The court recalled that an EU member state cannot amend its legislation, particularly as it regards the organization of justice in such a way as to bring about a reduction in the protection of the value of the rule of law. This has increased pressure on Romania to amend its controversial judicial reforms.
The 2020 European Court of Human Rights also found Romania in violation of European convention when it concluded that Romania had violated the right to a fair trial and freedom of expression enshrined in the European Convention of Human Rights following 2018 dismissal of chief DNA prosecutor Laura Kovesi. The ruling drew attention to the growing importance attached to the intervention of an authority independent of the executive and the legislative branch in respect of decisions affecting the appointment and dismissal of prosecutors.
Citations:
European Commission (2021): Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism. COM(2021) 370 final, Brussels (https://ec.europa.eu/info/files/progress-report-romania-2019-com-2019-393_en).
European Commission (2021): Report from the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism. COM(2021) 370 final, Brussels (https://ec.europa.eu/info/files/progress-report-romania-2019-com-2019-393_en).
4
---
---
3
Iceland
To date, all Supreme Court and district court judges have been appointed by the ministers of justice or the interior, without any involvement from or oversight by parliament or any other public agency. However, in recent years, 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 has been appointed case by case 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 was meant 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.
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. 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. He has since directed further attacks at his former colleagues for violating rules regarding conflict of interest, among other things. In one instance, the prime minister whose responsibility it was to appoint a new Supreme Court justice (because the minister of justice was embroiled in a legal battle concerning an earlier judicial appointment) received a letter of recommendation for one of the applicants from a large group of lawyers, a letter that could be traced to the successful applicant’s own personal computer. Among current Supreme Court justices, three are full professors of law at the University of Iceland and one is an associate professor.
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 disappointed applicants sued and were awarded damages by the Supreme Court. The Supreme Court ruled that the minister of justice broke the law when she bypassed the recommendations of the review committee. In 2019, the European Court of Human Rights ruled that the Icelandic state was guilty of breaking the law when 15 judges were appointed to the Landsréttur (a new intermediary court). The minister resigned.
For all but 10 years between 1927 and 2021, control of the Ministry of Justice and the authority to appoint judges alternated between the Independence Party and the Progressive Party.
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.
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. 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. He has since directed further attacks at his former colleagues for violating rules regarding conflict of interest, among other things. In one instance, the prime minister whose responsibility it was to appoint a new Supreme Court justice (because the minister of justice was embroiled in a legal battle concerning an earlier judicial appointment) received a letter of recommendation for one of the applicants from a large group of lawyers, a letter that could be traced to the successful applicant’s own personal computer. Among current Supreme Court justices, three are full professors of law at the University of Iceland and one is an associate professor.
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 disappointed applicants sued and were awarded damages by the Supreme Court. The Supreme Court ruled that the minister of justice broke the law when she bypassed the recommendations of the review committee. In 2019, the European Court of Human Rights ruled that the Icelandic state was guilty of breaking the law when 15 judges were appointed to the Landsréttur (a new intermediary court). The minister resigned.
For all but 10 years between 1927 and 2021, control of the Ministry of Justice and the authority to appoint judges alternated between the Independence Party and the Progressive Party.
Citations:
Act on Courts. (Lög um dómstóla nr. 15 – 25 March 1998, revised 7 June 2017).
Gunnlaugsson, Jón Steinar (2014), Í krafti sannfæringar, Forlagið, Reykjavík.
GRECO (2022), Reports on Iceland, https://www.coe.int/en/web/greco/home. Accessed 7 February 2022.
Fréttablaðið (2021), Klofinn Hæstiréttur dæmdi Jóni Steinari í vil (Divided Supreme Court rules in Jón Steinar’s favor, 5 February, https://www.frettabladid.is/frettir/klofinn-haestirettur-daemdi-joni-steinari-i-vil/. Accessed 3 February 2022.
“Letter of support composed in the office of Jón Steinar” (Stuðningsbréf samið á skrifstofu Jóns Steinars), DV 25 September 2004, https://timarit.is/files/51173190. Accessed 4 February 2022.
Act on Courts. (Lög um dómstóla nr. 15 – 25 March 1998, revised 7 June 2017).
Gunnlaugsson, Jón Steinar (2014), Í krafti sannfæringar, Forlagið, Reykjavík.
GRECO (2022), Reports on Iceland, https://www.coe.int/en/web/greco/home. Accessed 7 February 2022.
Fréttablaðið (2021), Klofinn Hæstiréttur dæmdi Jóni Steinari í vil (Divided Supreme Court rules in Jón Steinar’s favor, 5 February, https://www.frettabladid.is/frettir/klofinn-haestirettur-daemdi-joni-steinari-i-vil/. Accessed 3 February 2022.
“Letter of support composed in the office of Jón Steinar” (Stuðningsbréf samið á skrifstofu Jóns Steinars), DV 25 September 2004, https://timarit.is/files/51173190. Accessed 4 February 2022.
Turkey
To be appointed to the Constitutional Court, a candidate must be either a member of the teaching staff of an institution of higher education, senior administrative officer, lawyer, first-degree judge, or Constitutional Court rapporteur who has served at least five years; 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 re-elected. The appointment of Constitutional Court judges does not take place based on general liberal-democratic standards, such as cooperative appointment and special majority regulations. 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. Under current conditions, this creates opportunities for the president and his political network to directly influence the executive, the parliament, and the judiciary. In addition, the armed forces continue to wield influence over the civilian judiciary, as two military judges are members of the Constitutional Court.
Following the 2017 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 rest of the seats are appointed by the minister of justice and the deputy minister, who is directly connected to the president. The HSK does not offer adequate safeguards for the independence of the judiciary, and indeed considerably increases political influence over the judiciary.
Ahmet Şık, an opposition member of parliament, disclosed the list of 90 prosecutors and judges who have worked within the ranks of the AKP. Each year, large-scale transfers occur among judges and prosecutors. With the main decree in 2020 alone, a total of 4,726 judges and prosecutors were relocated. The government often takes this occasion to punish judges and prosecutors who resist political pressures.
Following the 2017 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 rest of the seats are appointed by the minister of justice and the deputy minister, who is directly connected to the president. The HSK does not offer adequate safeguards for the independence of the judiciary, and indeed considerably increases political influence over the judiciary.
Ahmet Şık, an opposition member of parliament, disclosed the list of 90 prosecutors and judges who have worked within the ranks of the AKP. Each year, large-scale transfers occur among judges and prosecutors. With the main decree in 2020 alone, a total of 4,726 judges and prosecutors were relocated. The government often takes this occasion to punish judges and prosecutors who resist political pressures.
Citations:
European Commission. “Turkey Report 2021. Commission Staff Working Document.” October 19, 2021. https://ec.europa.eu/neighbourhood-enlargement/turkey-report-2021_en
Cumhuriyet. “Hâkim ve savcı olarak atanan AKP’lilerin listesi ortaya çıktı,” February 18, 2019. https://www.cumhuriyet.com.tr/haber/hakim-ve-savci-olarak-atanan-akplilerin-listesi-ortaya-cikti-1254227
Bloomberght. “4 bin 726 hakim ve savcının görev yeri değişti,” June 17, 2020. https://www.bloomberght.com/4-bin-726-hakim-ve-savcinin-gorev-yeri-degisti-2258170
European Commission. “Turkey Report 2021. Commission Staff Working Document.” October 19, 2021. https://ec.europa.eu/neighbourhood-enlargement/turkey-report-2021_en
Cumhuriyet. “Hâkim ve savcı olarak atanan AKP’lilerin listesi ortaya çıktı,” February 18, 2019. https://www.cumhuriyet.com.tr/haber/hakim-ve-savci-olarak-atanan-akplilerin-listesi-ortaya-cikti-1254227
Bloomberght. “4 bin 726 hakim ve savcının görev yeri değişti,” June 17, 2020. https://www.bloomberght.com/4-bin-726-hakim-ve-savcinin-gorev-yeri-degisti-2258170
All judges are appointed exclusively by a single body irrespective of other institutions.
2
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. As Fidesz regained a two-thirds majority in the 2018 parliamentary elections, it had complete control over the appointment of Constitutional Court justices during the 2018–2022 term. In 2020 and 2021, parliament elected two new members of the Constitutional Court, both close to Fidesz, one as a replacement for Zsolt András Varga, who, in a controversial move, had been installed as president of the Kúria (Supreme Court).
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). However, in all of postwar history, no justice has ever been removed based on this procedure. In response to calls for more transparency, the Supreme Court has put more information on justices and their track record of decisions on its website. The Tokyo District Court ruled in 2019 that voters living overseas cannot be denied the right to review Supreme Court justices, thus strengthening the role of the constitution.
Citations:
Indictment of Diet inaction over rights to review justices, Editorial, The Asahi Shimbun, 4 June 2019, http://www.asahi.com/ajw/articles/AJ201906040042.html
Indictment of Diet inaction over rights to review justices, Editorial, The Asahi Shimbun, 4 June 2019, http://www.asahi.com/ajw/articles/AJ201906040042.html
Poland
The appointment of justices to the Constitutional Tribunal and the Supreme Court has been a major political issue since PiS came to power in 2015. By manipulating and/or changing the appointment processes, the government has gradually succeeded in staffing both courts with loyal justices (Sadurski 2019).
Formally, the Constitutional Tribunal has 15 justices, which 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 then 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. Upon coming to office, the PiS government questioned the appointment of the five judges elected in the final session of the old parliament. Conversely, the sitting justices did not accept the justices appointed by the new parliament. The resulting stalemate lasted until December 2016, when the term of Constitutional Tribunal President Andrzej Rzepliński expired and the government succeeded in installing Julia Przyłębska as his successor by legally dubious means. Like most of their predecessors, the two new justices appointed in 2020 have been criticized for their lack of independence from the government.
The justices of the Supreme Court are appointed by the president of the republic upon a motion of the National Council of the Judiciary. In order to gain control over the Supreme Court, which remained highly critical of the government’s judicial reforms for a long time, the PiS first changed the rules governing the National Council, so that its members are no longer chosen by justices, but by the Sejm. In addition, the PiS government for some time tried to get rid of unwanted justices by lowering the retirement age for justices. When the term of Małgorzata Gersdorf, the first president of the Supreme Court since 2014 and an outspoken critic of the government’s assault on judicial independence, expired in April 2020, the government succeeded in making a justice loyal to PiS her successor.
Formally, the Constitutional Tribunal has 15 justices, which 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 then 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. Upon coming to office, the PiS government questioned the appointment of the five judges elected in the final session of the old parliament. Conversely, the sitting justices did not accept the justices appointed by the new parliament. The resulting stalemate lasted until December 2016, when the term of Constitutional Tribunal President Andrzej Rzepliński expired and the government succeeded in installing Julia Przyłębska as his successor by legally dubious means. Like most of their predecessors, the two new justices appointed in 2020 have been criticized for their lack of independence from the government.
The justices of the Supreme Court are appointed by the president of the republic upon a motion of the National Council of the Judiciary. In order to gain control over the Supreme Court, which remained highly critical of the government’s judicial reforms for a long time, the PiS first changed the rules governing the National Council, so that its members are no longer chosen by justices, but by the Sejm. In addition, the PiS government for some time tried to get rid of unwanted justices by lowering the retirement age for justices. When the term of Małgorzata Gersdorf, the first president of the Supreme Court since 2014 and an outspoken critic of the government’s assault on judicial independence, expired in April 2020, the government succeeded in making a justice loyal to PiS her successor.
Citations:
Sadurski, W. (2019): Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralyzed Tribunal, to a Governmental Enabler, in: Hague Journal on the Rule of Law 11(1): 63-84.
Sadurski, W. (2019): Polish Constitutional Tribunal Under PiS: From an Activist Court, to a Paralyzed Tribunal, to a Governmental Enabler, in: Hague Journal on the Rule of Law 11(1): 63-84.
1
---
---