One of the most sensitive tasks in a constitutional democracy is the selection and appointment of judges. In contrast with the frequently confrontational US processes, or the 'tap on the shoulder' by a government minister that was the norm for so long in the UK and its former colonies, a 'third way' of appointing judges is becoming increasingly popular. This is to entrust the task to an independent commission with a broad membership in which judges themselves, and the legal profession, also have a say. Such bodies, most often called Judicial Service Commissions or Judicial Appointment Commissions, have become by far the most popular mechanism by which senior judges are appointed in Commonwealth jurisdictions. By 2015, more than 80% of Commonwealth member states had established such bodies, according to Bingham Centre research.
An international research project to examine the processes and practices of judicial appointment bodies in the Commonwealth in more depth brought together scholars from more than half a dozen jurisdictions to examine the processes by which commissions choose judges in their countries. The project was led by Bingham Centre Fellow, Professor Hugh Corder of the University of Cape Town Law Faculty, and was carried out by the University of Cape Town in collaboration with the Bingham Centre. It was funded by the Claude Leon Foundation.
The project resulted in two main outputs:
1. The Cape Town Principles on the Role of Independent Commissions in the Selection and Appointment of Judges
The Cape Town Principles were developed by project participants through discussions over several months in 2015-2016, following a two-day workshop held at the University of Cape Town in April 2015. The Principles aim to provide practical guidance to constitution-makers, legislators and existing judicial appointment commissions or equivalent bodies, by identifying ways in which processes for the selection and appointment of judges can strengthen the independence of the judiciary and the rule of law, while preserving sufficient adaptability to suit national legal systems.
The Principles were first published online in 2016, and the following versions are available to download:
2, Securing Judicial Independence: The Role of Commissions in Selecting Judges in the Commonwealth
Published in 2017 in South Africa by Siber Ink, this volume was edited by Professor Hugh Corder of the University of Cape Town, and Bingham Centre Associate Senior Research Fellow Jan van Zyl Smit. The book brings together essays on the judicial selection practices in Canada, England and Wales, Kenya, Malaysia, Nigeria and South Africa. These essays are based on papers presented at the project workshop in Cape Town. Extensively revised, they provide the scholarly foundation for the Cape Town Principles, which are reproduced in the book together with a brief commentary and reflections on the process by which they were developed.
Securing Judicial Independence is published under a creative commons licence and available for free download: Securing Judicial Independence: The Role of Commissions in Selecting Judges in the Commonwealth.