Every so often, the public is informed that such and such a person has been appointed as a judge but we are never told the reasons for the selection. What are the criteria for being appointed a Judge, anyway?
Recent comments expose the lack of transparency and openness, and the secretive way in which judicial appointments are made. The right to know is a fundamental right and is included in freedom of speech and expression. Isn't the procedure adopted in the appointment of judges in violation of this right?
Justice Bhagwati, one of the outstanding judges in India, well known in international law circles, said in a recent case in India: "We believe in an open government, and openness in government does not mean openness merely in the functioning of the executive arms of the state. The same openness must characterise the functioning of the judicial apparatus including judicial appointments and transfers." Five judges agreed with him.
As far as I am aware, in this country there are no known merit criteria, at least not any that the public knows about. Compare this to the UK where the Constitutional Reform Act 2005 refers to the merit criteria which guides appointments by the Judicial Appointment Commission.
There are five:
1. Intellectual capacity: Nominated candidates ought to demonstrate (a) a high level of expertise in chosen areas of the profession, (b) the ability to quickly absorb and analyse information, (c) appropriate knowledge of the law and its underlying principles or the ability to acquire this knowledge where necessary.
2. Personal qualities: ranging from (a) integrity and independence of mind, (b) sound judgment, (c) decisiveness, (d) objectivity, ability and willingness to learn and develop professionally, and (e) ability to work constructively with others.
3. An ability to understand and deal fairly: This includes (a) the ability to treat everyone with respect and sensitivity whatever their background, and (b) willingness to listen with patience and courtesy.
4. Authority and communication skills: The nominated person is expected to have (a) the ability to explain the procedure and any decisions reached clearly and succinctly to all those involved, (b) the ability to inspire respect and confidence, and (c) to maintain authority when challenged.
5. Efficiency: The ability to work at speed and under pressure and the ability to organise time effectively and produce clear, reasoned judgments expeditiously.
Further, there must be evidence to back up the criteria. If there is not enough evidence that the person is suitable, he/she will be rejected.The criteria for appointments here must be formulated and published and the reasons for an appointment must be made known. Secrecy must be avoided. Secrecy encourages nepotism, corruption and more, and it undermines confidence.
The famous philosopher, Jeremy Bentham, is frequently quoted as having said way back in the late 18th century, "In the darkness of secrecy, sinister interest and evil in every shape have full swing...Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial."
The people have a right to know who are the candidates, who are being appointed, and why.
A Charles
Via e-mail