Merit-based selection process key, say judges
These include an appropriate degree of competence and probity, suitable character and temperament, agreeing to training that might be recommended and providing a tax clearance certificate.
Provided these rather vague criteria (apart from the tax clearance certificate) are met, an applicant’s name can go forward to the Government, which then chooses those it asks the President to appoint formally.
The minimum number of candidates the JAAB is asked to put forward for each position is seven. The chances of some or all of the seven having the appropriate political connections are high.
The power to appoint judges is cherished by Irish governments, but this is increasingly out of step with European practice. Direct government appointment has been abandoned in the UK.
Under the Constitution, the judiciary is independent, and this is a value cherished by its members and, it has to be said, by most politicians. However, the system of political appointment undermines the public perception of judicial independence. Not only would change enhance it, it may bring on to the bench some talented lawyers who fly below the political radar.
JUDICIAL APPOINTMENTS: HOW OTHER COUNTRIES DO IT
A special college, the national school for magistrates, trains judges. Following a competitive examination, aspiring judges and magistrates undergo 31 months of intensive training there. Lawyers with five years’ experience may sit the entrance examination.
After qualification and starting on the lowest rung of the judicial ladder, judges may advance with promotions decided by the superior council of magistrates.
Those aspiring to practise law either as judges or lawyers must enter a special two-year training programme after graduating in law from university. Those with the best results may then apply to enter the judiciary, where they are subjected to a probationary period of five years.
There are two routes into the judiciary in the Netherlands, which again is based on the civil service concept. One consists of a six-year programme of judicial studies after the completion of a law degree. The other involves working in a law firm for six years and applying for a judgeship. In both, candidates must undergo an examination in law and psychological testing. Candidates are then interviewed by a selection committee made up of lawyers, prosecutors, government and university officials, and some representatives of other professions.
The system is essentially based on the French model, though the training is less rigorous and until 2005 there was a common route into a judicial and prosecutorial career. Judges are appointed, promoted and assigned by the high council of the judiciary, elected by judges, senior lawyers and university law professors.
OTHER EU STATES
Similar systems of appointment, with special educational institutions, exist in other EU member states, all of which have judicial councils that play a major role in the appointment, education and training of judges.
Most member states also have constitutional courts, which are separated from the ordinary courts and consider constitutional issues. These questions generally do not come from the ordinary courts by way of appeal, but are referred by judges seeking a constitutional interpretation.
Members of constitutional courts are normally appointed through the political system.