Around 85 countries across the world have constitutional courts

ISLAMABAD: There are constitutional courts in 85 countries of the world. The world’s first constitutional court was established in Austria in 1919, according to the Venice Report and a think tank ‘International Institute for Democracy and Electronic Assistance’.

The selection of constitutional judges is a highly problematic and potentially controversial area. Given the political importance of the constitutional court, there is much interest in who is selected, what the qualifications for selection are, and who has the power to select.

As may be seen from the selection of United States Supreme Court justices, these questions may also arise in diffused systems. The problem is how to ensure that no person or group controls areas of uncertainty in constitutional interpretation by dominating or orchestrating the selection process in their favour. Again, practice varies enormously across contemporary constitutional courts.

One obvious point unique to constitutional judges is that the system for their selection does not resemble that for ordinary judges. The latter are career judges normally appointed until retirement and enjoying independence in terms of protection of their tenure, salaries and pensions.

Constitutional judges are selected for the task appropriate to a specialized court, normally for a fixed term (amounting to 3, 6, 9 or sometimes 12 years), with shorter terms being renewable only once.

We can divide selection mechanisms into four categories, plus one smaller category.

1. Selection by the executive and the legislature. One of the most widely adopted approaches divides the task of selection between the executive and legislative organs of the state. Typically, such a process involves nomination by the president but appointment requires approval from the legislature. Prior to a confirmation by ballot, confirmation hearings often provide democratic scrutiny by allowing examination of the personal suitability and ideological stances of potential candidates. As seen in the United States, these hearings are prone to become highly politicized, especially if the political persuasion of the president differs from that of the governing party in the legislature.

2. Selection by the legislature. The legislature may be solely responsible for making the final selection. Again, such an approach introduces a central element of democratic scrutiny, but clearly a simple majority would result in only the nominees of the ruling party being appointed. In order to prevent this from happening, nominations will often require approval by a ‘supermajority’, for example two-thirds (Germany) or three-fifths (Spain). This ensures that opposition parties have some say in selections.

3. Selection by the executive, the legislature and the judiciary. Another alternative is to give to each of the three branches of the state (e.g. the president, both houses of the legislature and senior judges) the power to nominate a specified quota of the constitutional court’s membership (as occurs in Italy, Republic of Korea and Indonesia). A danger here might be a divided panel where judges may be sympathetic to the institutional interest that selected them. In Myanmar, judges are even required to report to the institution that appointed them. This model has the great merit of tending to avoid controversy over choosing the selection mechanism and over the individual candidates. It can thereby forestall the possibility of one branch of the state dominating the selection process.

4. Selection by a special commission. In many systems, a commission (as in South Africa) or specially dedicated selection committee (as in Thailand) makes an important contribution to the selection process before the candidates are finally endorsed. An obvious problem with these systems is deciding who should be qualified to sit on the commission and what method of selection would prevent this body becoming a forum for elected politicians. One approach has been to professionalize the membership by reserving a majority of places to serving judges and members of the legal profession. The leader of the opposition is sometimes required to be a member.

5. Appointment by the executive. In a small number of cases, the appointments are completely within the powers of the executive branch. This is not recommended, as it gives the executive the power to control the constitutional court through the appointment system. Rules about qualifications also vary, and the selection process will usually result in the selection of highly qualified lawyers, former officials, political figures or legal scholars, who are not career judges but have sufficient standing and credibility. By contrast, ordinary judges are usually selected from the ranks of legal practitioners (in common law systems) or are career judges (in civil law systems). In Thailand, it has been accepted that some judges may be selected from the ranks of academic social or political scientists, but these are balanced by judges selected directly from the ordinary or administrative judiciary. In general, constitutional court judges have a fixed term which may or may not be renewable once. Therefore, their tenure does not depend on executive approval of their performance. This insulates them from external pressure and protects their independence.