What Is the Judicial and Legal Services Commission?

Section 183 of the Constitution establishes the Judicial and Legal Services Commission — the institution that keeps judicial appointment out of the hands of the Executive.

Section 183(2) — the five members

• the Minister responsible for the National Justice Administration, or a person nominated by him, who is the Chairman;
• the Chief Justice;
• the Deputy Chief Justice;
• the Chief Ombudsman; and
• a member of the Parliament appointed by the Parliament.

Note the composition. Only one member is a Minister; two are the senior judges; one is an independent office-holder; and one is a parliamentarian appointed by Parliament rather than by the government.

Section 183(4) and (5)

The Commission is not subject to direction or control by any person or authority. An Organic Law may make further provision for its constitution, powers, functions, duties and responsibilities, and for guaranteeing its independence — the Organic Law on the Judicial and Legal Services Commission.

What the Commission appoints

1. The Deputy Chief Justice, all other Judges of the National Court, and acting Judges (s 170(2)). Only the Chief Justice is appointed by the Head of State on NEC advice under section 169(2).
2. The Public Prosecutor and the Public Solicitor (s 176(2)).
3. Full-time members of courts established under section 172 — other than customary courts under section 172(2) — who may be removed only for incapacity or misbehaviour, including misconduct in office (s 172(3)).

It also controls acting appointments: no acting judicial appointment may run for more than 12 months, with one extension of up to 12 months granted by the Commission (s 170(3)).

What the Commission removes

Under section 180, if the Commission is satisfied that the question of removing a Judge (other than the Chief Justice), the Public Prosecutor, the Public Solicitor or the Chief Magistrate should be investigated, it may:

• appoint a tribunal under section 181 — a Chairman and two members, each a Judge or former Judge of a court of unlimited jurisdiction here or in a country with a similar legal system; and
• refer the matter to it, together with a statement of the reasons for its opinion.

If the tribunal reports that there are good grounds, the Commission may remove the person by notice in writing, and shall send a copy of the notice and of the tribunal’s report to the Speaker for presentation to the Parliament.

The Commission may also suspend the person pending the report — on full pay unless it determines otherwise — and may remove the suspension at any time (s 182).

Why the Commission matters

Section 157 forbids anyone outside the National Judicial System — other than Parliament through legislation — from directing a court. But a prohibition on directing judges is worth little if the Executive chooses and dismisses them. Section 183 closes that gap by vesting appointment and removal in a body with a judicial majority, an independent office-holder, and parliamentary representation, and by declaring that body free of direction or control.

Members of the Commission are also within the Leadership Code, and its decisions remain reviewable by the courts for excess of jurisdiction and breach of the principles of natural justice.