The judiciary

The argument that written constitutions dangerously over-empower judiciaries has already been dismissed in the fourth chapter. Nevertheless, if the judiciary is to perform its functions properly, particular care must be taken to ensure that the mechanisms for the appointment of judges, the rules protecting their neutrality and independence, and the procedures for their removal from office are sufficiently robust. The apex judges in particular (those forming the Supreme Court, or in some jurisdictions a separate Constitutional Court) must be chosen in a way that ensures their professional legal competence, political neutrality and personal integrity. Just as the legitimacy and authority of a cricket umpire do not derive from popularity with the players, but from the umpire's knowledge of the Laws of Cricket, trained eye, and reputation for neutrality and independence, so likewise judges derive their legitimacy from these characteristics. An assessment of ‘community standards’ or what is ‘reasonably justifiable in a democratic society’ may come into their deliberations – and some will be more conservative, others more progressive – but ultimately they must have the professional integrity to adhere to the norms of legal reasoning, which are subject to peer review by the legal community, in applying democratically endorsed constitutional rules to particular cases.

On the other hand, if every international cricket umpire were from Pakistan, Indians might feel that they are unjustly discriminated against. Even if those Pakistani umpires are people of the utmost integrity and impartiality, the optics are wrong: justice must not only be done but be seen to be done. The legitimacy and authority of the judicial bench may therefore also depend on diversity in judicial appointments – gender balance, racial inclusion, and openness to suitably qualified and experienced candidates from working class and lower middle class backgrounds.

The practice in early Westminster Model constitutions was for judicial appointments to be made by the Crown, acting on the advice of the Prime Minister. It was usually the standard practice of the Prime Minister to consult with senior judges and with the Attorney-General before making such appointments, but there was no direct legal obligation to do so. The appointment process was closed, opaque, and not always above partisan patronage. In many places where such executive-centred appointment mechanisms are still constitutionally prescribed, they have been modified by the establishment, on a statutory basis, of appointments boards to recommend candidates.