The fourth installment of the Constitution Hill Global Guidelines on the Eligibility and Selection Criteria for the Appointment of apex court judges will focus on the conditions of service and tenure of apex court judges.
- Initial considerations
- General: The conditions of service and tenure of apex court judges are extremely important for ensuring the independence, effective functioning and public image of the highest court on the land. The conditions should cover remuneration; length of service; the scope of permissible outside activities; immunity; and procedures for discipline, suspension and removal.
- Legal safeguards: The conditions of service and tenure of apex court judges should be set out in detail in legislation, provided that certain baseline conditions of service are constitutionally entrenched.
- Remuneration
- Highest standard: Apex court judges should command the highest salary within the judicial system, both to reinforce the unique role and characteristics of the office and attract the most qualified candidates. Remuneration must be high enough to limit the risk of conflicts of interest or corruption arising from the need for apex court judges to supplement their income. Remuneration should be benchmarked, as a minimum, to the compensation for the most senior functionaries in the executive and legislative branches of government. It should be adjusted annually in order to account for official inflation.
- Term duration
- Probation: When assuming office, apex court judges should not be subject to probationary periods of any kind. This is meant to avoid undermining the credibility of the appointment process, compromising judicial independence or sowing seeds of confusion in the minds of the public.
- Security of tenure: The term of appointment of apex court judges must be stated in the constitution in order to maintain judicial independence. Retroactive shortening or lengthening of the terms of sitting judges should not be permitted.
- Term lengths: Once they are established in the constitution, the term lengths of apex court judges are, ipso facto (i.e by that very fact), difficult to adjust. In the case of an apex court being established ab initio (i.e. from the very beginning), terms should be non-renewable and have a fixed duration of at least ten years or conclude at the mandatory retirement age. Whether the term has a fixed duration or mandatory retirement age is a question to be determined by the legal-political traditions and preferences prevailing in the given country.
- Extra-judicial activities
- Extra-judicial behavioural standard: Outside of the courtroom, apex court judges should behave in such a manner as to preserve the actual and perceived legitimacy, impartiality and independence of the apex court. This standard, including an implementation oversight mechanism, should be set out in a published code of conduct. Apex court judges should have access to advice and possibly to advisory rulings to ensure compliance with such a code, including with regard to rules on gifts and financial disclosure; recusals for actual or perceived conflict of interest or apprehension of bias and standards of conduct for immediate family members of the judges.
- Impermissible extra-judicial activities or functions: During their respective terms of office, apex court judges should be precluded from engaging in any external activity that is incompatible with the extra-judicial behavioural standard. Among other things, sitting judges of the Apex Court must not be permitted to exercise any political or legislative functions; engage in the practice of the law; hold other in-country professional roles or titles; conduct business activities; or comment publicly on political matters or upon any legislation, drafts, proposals or subject matters which are likely to come before their court.
- Permissible extra-judicial activities or functions: Like any other individual, apex court judges enjoy human rights, including freedom of expression, beliefs, association and assembly. However, during their respective terms of office, apex court judges should be expected to exercise these rights in a manner compatible with the extra-judicial behavioural standard. Permissible extra-judicial activities for sitting apex court judges include, inter alia, participating in judicial colloquia or judicial training; conducting voluntary activities as a member of a judicial association as well as teaching and publishing research in approved areas. Some of these permissible activities - e.g. continued judicial education - may even be incorporated in the conditions of service and tenure.
- Conflicts of interest: During their time in office, apex court judges must disclose actual or potential conflicts of interest occasioned by outside activities or functions that would risk affecting their actual or perceived independence or impartiality as a member of the Apex Court such as instances in which they hold any material personal, professional or financial interest in the outcome of a case. Conflicts of interest should be governed by a published code of conduct setting out the criteria for recusal in the event of a conflict.
*Compiled by Muchadeyi Masunda. Feedback: [email protected]
