Stephen Vasciannie
HOW SHOULD we appoint judges? By what should we seek to identify the persons who will ultimately come to determine issues of life and death, freedom and incarceration, success and defeat in litigation? Throughout history, this issue has prompted debate: it is a part of the broader question concerning "who will be the guardians of the guardians", for, in selecting judges, we need to ensure that safeguards are in place to identify the best possibilities.
In most cases, there will be general agreement as to the main qualities expected of a judge. His or her temperament must be consistent with features that have come to be synonymous with the word 'judicious': thus, the person must be fair and balanced, should be willing to withhold judgment until the relevant aspects of each particular issue are fully aired, and must always refuse to participate in secret arrangements that could work to the detriment of individuals. There should be maturity in thought and action, but there is no necessity for the judge to be humourless, miserable or stubborn.
INTELLECTUAL PROWESS
Naturally, the judge must also display intellectual prowess of the first order, have sound knowledge of the law, show a clear understanding of the way society is organised, and appreciate the nature of the human condition: As part of this, our judges should be compassionate and courteous, but not unduly naïve. It goes without saying that the judge will be a person of integrity and independence. In this context, independence means that the judge must be prepared to apply the law as she or he sees fit, and must remain well beyond the possibility of partisan political interference and other forms of extraneous considerations that have not been raised as part of legal proceedings.
But, to return to my original question, how should this person be appointed? This is topical in various jurisdictions. In the United States, with the passing of Chief Justice William Rehnquist, Judge John Roberts has been nominated for that position shortly after being nominated to sit as an Associate Justice in place of Sandra Day O'Connor. The American procedure has been characterised as one in which the President proposes and the Senate disposes; so, the President offers the name of the person he regards as most appropriate, and it is left to the Senate to decide whether this person should be appointed to America's highest court.
In the end, the American system is one which acknowledges that there needs to be some political accountability for the appointment of senior judges. Within the context of the American polity today, the abortion question remains dominant, and so, there have been seemingly endless efforts to find John Roberts' smoking gun concerning abortion. There have also been other efforts to give full form to Roberts' worldview and, in particular, his judicial philosophy.
GOSSIP
Given the constitutional arrangements in the United States, efforts to ascertain the way that Roberts is likely to act as a judge are fair game. And yet, many lawyers both within and without that country are apt to be sceptical about the selection procedure. Everyone wonders if the presidential nominee will be 'borked', the media searches for morsels of salacious gossip, and adoption papers concerning the judge's children are requested (almost with no sense of shame).
Within the British tradition, the system offers less to transparency and more to reputation within the legal field. The traditional approach in Britain gave some latitude to the Lord Chancellor (an office that the Blair administration has abolished); there would be soundings, and the Lord Chancellor would recommend the favoured candidate, without a formal interview or applications procedure, to the prime minister. In the case of Law Lords, one assumes that the appointment, on the recommendation of the prime minister to the queen, would only take place if the prime minister is fully satisfied with the candidate.
CARIBBEAN
In the Caribbean, the process of appointment for judges above the level of the resident magistracy is generally handled through Judicial Services Commissions. In Jamaica, Section 111 of the Constitution requires the Judicial Services Commission to be comprised of the Chief Justice, the President of the Court of Appeal, the Chairman of the Public Service Commission, and three other appointed persons.
The appointed members shall be appointed by the governor-general acting on the recommendation of the prime minister after consultation with the Leader of the Opposition. One of the appointed persons shall be a person who holds or has held high judicial office, and the other two shall be selected from a list of six persons (none of whom is a lawyer in active practice), drawn up by the General Legal Council.
There is, therefore, an attempt to incorporate both lawyers and non-lawyers in our appointments process; Section 111 also seems to be sensitive to the need to incorporate political and non-political input in appointments. The procedure for appointing judges to the Caribbean Court of Justice has been the subject of considerable discussion in this context, but the current arrangement, which relies on a Regional Judicial and Legal Services Commission, represents a fair balance of the different interests that need to be considered.
Stephen Vasciannie is a professor at the University of the West Indies and a consultant in the Attorney-General's chambers.
