The other day I was engaging in a favourite pastime of lawyers (and more recently, everyone else): complaining about the judiciary. In the discussion, my colleague and I bemoaned the way in which Chief Justices were selected. Whether it is for the High Courts and Supreme Court, the tenure of a Chief Justice is a lottery of fate dependent on three factors – the date on which judges are appointed, their ages and the age of the incumbent Chief Justice. Consequently, the tenure of a Chief Justice can vary from a few months to over a year. Which lead me to a thought – what if Chief Justices only served a fixed tenure of maybe one or two years? And why stop there? What if they were also elected by their peers and not merely appointed on the basis of age. Here are the immediate advantages:
- Master of the Roster
As a judge, a Chief Justice is merely the first among equals, but the post of Chief Justice also confers extraordinary administrative powers. He gets to decide which cases get heard by which bench of judges – a decision that can swing the outcome of the case depending on the predilections of each judge. This power has been controversially employed recently and led to a public face-off between the senior most judges of the Supreme Court. Having judges elect their superior could not only help select a better candidate, but more importantly provide at least some mechanism of accountability. The added bonus is that it would give the Chief Justice a sense of legitimacy that would ward against public press conferences by his juniors.
Age is to judges, what height is to footballers. Classical convention holds that the more you have the better, but Lionel Messi and the last decade of the Spanish football team shows that it is not a necessary precursor to success. This is only compounded when you factor in that the primary role of a Chief Justice is to be an administrator – something which very few judges have expertise in (whether experientially or through formal qualification). Allowing judges to elect Chief Justices would thus better ensure that a more suitable candidate is found. I should clarify that the proposal is for the election of Chief Justices from a pool of judges already sworn in. The appointment of judges to the court itself would remain untouched.
The advantage of a fixed tenure is that it guarantees an opportunity to affect change. If they are only going to be in office for a couple of months a Chief Justice won’t try to do much. This can have a significant impact on the functioning of the court – the Chief Justice gets to determine the priorities of the court through his role as the chief administrator. Guaranteeing a minimum time to do work would allow Chief Justices to do the meaningful work of adapting the court in a period where the world is going through mass transition.
These are just a few of my initial thoughts. The idea requires a lot more consideration before it can be described as reasonable; an examination of the political economies it could create is an obvious starting point. Another would be its legality or constitutionality, but given that there is a general consensus that the process of judicial appointments is in need of reform (which would require constitutional amendments) it shouldn’t be too hard for this tweak to piggyback on those efforts.