Six Slots, Two Hundred Applicants and a Returned Name
The Commission advertises six vacancies for judge of the High Court. Of 214 applications, 38 are shortlisted. Candidate A, a Senior Principal Magistrate, was admitted 9 years 8 months ago and has served 4 years on the bench; she lists '12 years combined legal experience'. Candidate B is a Deputy Registrar whose spouse has been a Commission member since 2022 and sat on the sub-committee that set the interview criteria. Candidate C, a State Counsel, telephoned a Commission member to say she was 'available to support the Commission's reforms' and later sent a gift hamper. Candidate D's two named referees have died, and the secretariat cannot verify his 11 years of practice, although his practising certificate records are available. A member proposes reserving two slots for Environment and Land Court specialists. After interviews the Commission recommends six names; the President appoints five and returns one name with a note that the candidate lacks 'demonstrated leadership'.
1. Is Candidate A qualified, and how should the Commission treat her '12 years combined' claim?
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On the figures given, she is not qualified. The constitutional test for the High Court is at least ten years' experience as a distinguished academic, judicial officer, legal practitioner, or experience in another relevant legal field, or an aggregate of such experience amounting in total to at least ten years.
The Commission must count actual, non-overlapping periods of relevant experience. Candidate A's four years as a magistrate fall inside the same 9 years 8 months since admission; the same months cannot be counted twice to manufacture '12 years combined'. Pupillage is ordinarily a supervised training period and does not count as practice, though the Commission may treat other pre-admission legal work as 'other relevant legal field' - a discretionary judgement, not an entitlement.
The correct course is to decline at shortlisting and record the arithmetic and the test applied. Shortlisting her 'subject to confirmation' would expose any later appointment to challenge for want of qualification and would be unfair to candidates properly excluded. If the Commission wishes to be generous, it must identify a documented, independent period of relevant experience that takes her past ten years.
2. How should the Commission deal with Candidates B, C and D?
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B: the Commission's decisions must be seen to be independent. A member whose spouse is a candidate must not sit on shortlisting, interviews or deliberation, must not receive the papers for that candidate, and the exclusion must be minuted. Because the spouse helped set the criteria, unconflicted members should review those criteria for tailoring. The candidate remains eligible; conflict is managed, not a disqualification.
C: telephoning a member to offer 'support' and sending a gift hamper are improper approaches. Chapter Six and the Code of Conduct require candidates not to seek to influence the process, and require members to decline and report such approaches. The Commission should record the contact, warn the candidate, and assess whether any decision was affected. A gift to a member is the member's breach first; failure to report may itself warrant action.
D: verification should not collapse because referees are dead. The secretariat can rely on the roll of advocates, practising certificate records, Law Society records and alternative referees. Rejecting a candidate on an administrative technicality offends fair administrative action and Article 159(2)(d), provided the underlying experience can be independently verified. Requiring fresh referees within a fixed period is the proportionate step.
3. What are the limits of the President's power to return a recommended name?
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For the High Court, the President appoints judges in accordance with the recommendation of the Commission. That wording makes the Commission the gatekeeper: the President cannot appoint someone the Commission has not recommended, and cannot reach outside the recommended list.
It does not follow that the President is a rubber stamp. The President is entitled to satisfy himself that the recommendation complies with the Constitution - qualifications, process, and the balance required by Article 232 values and Article 10 - and, where it plainly does not, may decline and remit the name with reasons. But a vague objection that a candidate lacks 'demonstrated leadership' is not a constitutional criterion for the High Court; it suggests a substitution of personal preference for the Commission's assessment.
The Commission should request written reasons, supply the candidate's record, and reconsider only if an actual constitutional defect is disclosed; otherwise it should maintain its recommendation. The candidate may also seek review of the refusal. Meanwhile the President can appoint the five unobjectionable candidates so that the sixth vacancy is not held hostage.