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Understanding NJAC debate, also check how World selects its Judges

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Judge at Work
​​October,18,2015: A five-judge Constitution Bench of the Supreme Court will deliver its verdict today on the crucial issue of whether the political class, through the National Judicial Appointments Commission (NJAC), should be given an equal role in the appointment of judges, including the Chief Justice of India. Here is what you need to know:

What is the NJAC?

The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges.

What is the Collegium system?

The Collegium system is one where the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges. However, it has no place in the Indian Constitution. The system was evolved through Supreme Court judgments in the Three Judges Cases (October 28, 1998)

Why is Collegium system being criticised?

The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.

The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. “While politicians and actors get instant relief from courts, the common man struggles for years for justice.”

How and when was the NJAC established?

The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014. Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.

Who will be in the NJAC?

It will consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination.

Which Law governs NJAC-​​

If politicians are involved, what about judicial independence?

The judiciary representatives in the NJAC — the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. Once a proposal is vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through.

Judge in Action

Selection of Judges in Japan-

​​Japan's process for selecting Judges is longer and more stringent than the process in other Countries. Assistant judges are appointed from those who have completed their training at the "Legal Training and Research Institute" located in Wako City. Once appointed, assistant judges still may not qualify to sit alone until they have served for five years, and have been appointed by the Supreme Court. Judges require ten years of experience in practical affairs, public prosecutor, or practicing attorney. In the Japanese Judicial Branch there is the Supreme Court located in Japan, eight high courts, fifty district courts, fifty family courts, and 438 summary courts.

Selection of Judges in USA-

In the United States Supreme Court, justices are appointed by the president and approved by the Senate. As in Mexico, justices serve for a life term or until retirement. The Supreme Court of the United States is located in "Washington D.C". The Federal court system consists of 94 federal judicial districts. The 94 districts are then divided into twelve regional circuits. The United States consist of five different types of courts that are considered subordinate to the Supreme Court, U.S bankruptcy courts, U.S Courts of Appeal for the federal circuit, U.S Court of International Trade, U.S Courts of Appeal, and U.S District Courts.​

Selection of Judges in UK

The Supreme Court of the United Kingdom is the supreme court in all matters under English and Welsh law, Northern Ireland law and Scottish civil law. It is the court of last resort and the highest appellate court in the United Kingdom, although the High Court of Justiciaryremains the court of last resort for criminal law in Scotland. The Supreme Court also has jurisdiction to resolve disputes relating to devolution in the United Kingdom and concerning the legal powers of the three devolved governments (in Scotland, Wales and Northern Ireland) or laws made by the devolved legislatures.

The Constitutional Reform Act 2005 makes provision for a new appointment process for Justices of the Supreme Court. A selection commission is to be formed when vacancies arise. This is to be composed of the President and Deputy President of the Supreme Court and a member of the Judicial Appointments Commission of England and Wales, the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission. In October 2007, the Ministry of Justice announced that this appointment process would be adopted on a voluntary basis for appointments of Lords of Appeal in Ordinary.

The commission selects one person for the vacancy, and notifies the Lord Chancellor of its choice. The Lord Chancellor then either

  • approves the commission's selection
  • rejects the commission's selection, or
  • asks the commission to reconsider its selection.

If the Lord Chancellor approves the person selected by the commission, the Prime Minister must then recommend that person to the Monarch for appointment.

New judges appointed to the Supreme Court after its creation will not necessarily receive peerages; however, they are given the courtesy title of Lord or Lady upon appointment. The President and Deputy President are appointed to those roles rather than being the most senior by tenure in office.

Selection of Judges in Mexico-

Mexican Supreme Court Justices are appointed by the president, and then are approved by the Senate to serve for a life term. Other justices are appointed by the Supreme Court and serve for six years. Federal courts consist of the Supreme Court with 21 magistrates, 32 circuit tribunals and 98 district courts. The Supreme Court of Mexico is located in "Mexico City. Supreme Court Judges must be of ages 35 to 65 and hold a law degree during the five years preceding their nomination. 

Selection of Judges in ​​Canada-

Eligibility for the Supreme Court of Canada is set out in the Supreme Court Act. Judges of the court are made up of eight puisnes judgesand the Chief Justice. Candidates must have either been a judge of a superior court or a lawyer for at least ten years in their province's bar. Appointments are made by the Governor General of Canada on advice of the Prime Minister.

Appointments to the Supreme Court of Canada are subject to the legal requirement that three judges must be appointed from Quebec. Byconvention, the other 6 are appointed from Ontario (3), Western Canada (2), and Atlantic Canada (1). These appointments are not subject to the procedures described above for the appointment of superior court judges, and are made on the basis of a recommendation to cabinet by the Prime Minister. Recently, this has been augmented through the establishment of an ad hoc advisory committee for each vacancy on the Court; this committee reviews a list of 7 nominees submitted by the federal Minister of Justice, and shortlists three candidates from which the Prime Minister chooses a name for appointment. In addition, in February 2006 a parliamentary committee was allowed to interview the Prime Minister's selected candidate prior to his appointment.

Selection of Judges in Russia-

There are 115 members of the Supreme Court. Supreme Court judges are nominated by the President of Russia and appointed by the Federation Council. In order to become a judge, a person must be a citizen of Russia, be at least 35 years old, have a legal education, and have at least 10 years of service.

The Supreme Court consists of the Judicial Panel for Civil Affairs, the Judicial Panel for Criminal Affairs, and the Military Panel, which deal with respective cases. Those cases in which the Supreme Court is the original jurisdiction are heard by the panels. Appeals of the decisions of the panels are brought to the Cassation Panel. Whereas a panel reviews the decisions of lower courts, an appeal is brought to the Presidium of the Supreme Court.

Plenary sessions of the Supreme Court are held at least once every four months. A plenary session must be attended by all judges of the Supreme Court and the Prosecutor General of Russia. At plenary sessions the Supreme Court studies the judicial decisions of lower courts on various topics and adopts resolutions, which establish recommendations on the interpretation of particular provisions of law for lower courts for uniform application. Russian law does not recognize judicial precedent as a source of law, but courts strictly follow such recommendations.

Selection of Judges in China-

The judicial branch is one of three branches of government in the People's Republic of China, along with the executive and legislative branches. Strictly speaking, it refers to the activities of the People's Court system. The Chinese court system is based on civil law modeled after the legal systems of Germany and France, but with local characteristics.[citation needed]

Judges are elected or appointed by people's congresses at the corresponding levels to serve a maximum of two five-year terms. Most trials are administered by a collegial bench made up of one to three judges and three to five assessors. Assessors, according to the State Constitution, are elected by local residents or people's congresses from among citizens over twenty-three years of age with political rights or are appointed by the court for their expertise.

Trials are conducted in an inquisitorial manner, in which both judges and assessors play an active part in the questioning of all witnesses. (This contrasts with the adversarial system, in which the judge is meant to be an impartial referee between two contending attorneys.) After the judge and assessors rule on a case, they pass sentence. An aggrieved party can appeal to the next higher court.

Constitutionally, the court system is intended to exercise judicial power independently and free of interference from administrative organs, public organizations, and individuals. Yet theconstitution simultaneously emphasizes the principle of the "leadership of the Communist Party." As stated by former SPC President Xiao Yang in 2007, "the power of the courts to adjudicate independently doesn't mean at all independence from the Party. It is the opposite, the embodiment of a high degree of responsibility vis-à-vis Party undertakings."

According to the Constitution of the People's Republic of China of 1982 and the Organic Law of the People's Courts that went into effect on January 1, 1980, the Chinese courts are divided into a four-level court system:

At the highest level is the Supreme People's Court (SPC) in Beijing, the premier appellate forum of the land, which supervises the administration of justice by all subordinate "local" and "special" people's courts. It is the court of last resort for the whole People's Republic of China except for Macau and Hong Kong.
Local people's courts—the courts of the first instance—handle criminal and civil cases. These people's courts make up the remaining three levels of the court system and consist of "high people's courts" at the level of the provinces, autonomous regions, and special municipalities; "intermediate people's courts" at the level of prefectures, autonomous prefectures, and municipalities; and "basic people's courts" at the level of autonomous counties, towns, and municipal districts.
Courts of Special Jurisdiction (special courts) comprises the Military Court of China (military),Railway Transport Court of China (railroad transportation) and Maritime Court of China (water transportation), and forestry.

The court system is paralleled by a hierarchy of prosecuting offices called people's procuratorates, the highest being the Supreme People's Procuratorate.

Hong Kong and Macau have separate court systems due to their historical status as British and Portuguese colonies, respectively.

Selection of Judges in Pakistan-

The Supreme Court (SCOP), established in 1956, is the apex court in Pakistan's judicial hierarchy, the final arbiter of legal and constitutional disputes. The court consists of a Chief Justice and sixteen other judges. There is also provision for appointment of acting judges as well as ad hoc judges in the court. It has a permanent seat in Islamabad as well as branch registries in Lahore, Peshawar, Quetta and Karachi.

Prior to 18th Constitutional Amendments, appointments to the Supreme Court of Pakistan were made by the President of Pakistan, on the recommendation of the Chief Justice of the Supreme Court. This system bred many allegations of favoritism. Many judges who were appointed were relatives of other Judges or Government officials. However, following the Supreme Court's judgement in the Al-Jehad Trust case, the government's role in judicial appointments was curtailed. Under the terms of this judgement, the Government and the President's office were bound to act on the recommendations of the Chief Justice of Pakistan.

After passage of the 18th and 19th Constitutional Amendments, a new Judicial Commission (named Judicial Commission of Pakistan) and Parliamentary Committee were established for appointments. The Judicial Commission of Pakistan consists of a total of nine members:the Chief Justice of Pakistan, four senior judges of the Supreme Court, a former Chief Justice or judge of the Supreme Court nominated by the serving Chief Justice in consultation with the four serving judges of the Supreme Court aforementioned, the Attorney Genera l of Pakistan, the Federal Minister for Law and Justice and, one senior advocate nominated by the Pakistan Bar Council. The Parliamentary Committee confirms or may not confirm the nominee of the Judicial Commission.All power of executive was curtailed by the judicial commission and president has no discretionary power but only to approve the nominees. prime minister has only ministerial power regarding the appointment procedure.

High Courts

In Appointments to the High Courts, the same procedure as in Supreme Courts appointments is adopted Prior to 18th Constitutional Amendment, High Court appointments suffered much the same criticisms as those to the Supreme Court. Future appointments will be made in the same manner as those to the Supreme Court. But instead of 4 supreme court judges, 4 most senior high court judges, provincial law minister and a member of provincial bar councils (such as Punjab Bar Council) will sit the Judicial Commission of Pakistanconsidering the appointment of high court judges.

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