In the New Sunday Times on 21 December 2008, it was reported that our Chief Justice was thinking of determining the seniority of judges based on merit instead of time served on the bench. “Merit” would also be a relevant factor for the Judicial Appointments Commission (JAC) to consider in the appointment and promotion of judges.
This statement of course begs the question of what is “merit”. What are the areas of a judge’s conduct that should be the subject of assessment? And what are the virtues that a judge should have in each area? In my view, the areas of conduct to be assessed may be categorised as follows:
1. Conduct of court proceedings which includes judicial temperament and the quality of decisions.
2. Conduct outside of court proceedings.
I would like to focus on the “quality of decisions”. By this I distinguish it from factors such as “quantity of decisions” or “number of cases disposed of” which seems to be all the rage at the moment.
The quality of a judge’s decision may, at first blush, appear to be a difficult and perhaps subjective area to assess. But it is a critical factor in judicial promotions if our Judiciary is to aspire towards world-class status.
The following benchmarks, all of which are self-explanatory, may be applied in assessing the quality of a decision:
- intellectual capability
- intellectual honesty
- breadth of legal knowledge
- has the judge dealt with all the issues raised? If so, were the same dealt with in a satisfactory manner?
- natural justice – was an opportunity given to the parties to address all the points which led to the decision?
- any inherent inconsistency?
- coherent flow of ideas
- grammar, sentence construction and clarity of expression
From the above, a quality audit cannot be carried out merely by reading a judge’s grounds of judgment. For the exercise to be a meaningful one, the assessor must necessarily acquaint him or herself with the case i.e. by reading the cause papers, the submissions and the notes of evidence.
The JAC should perhaps pick at least 3 judgments (done randomly) of the particular judge for assessment.
An alternative method is for all candidates under assessment to undergo a “judgment-writing examination”, to take a leaf from the award-writing examination for aspiring arbitrators conducted by the Chartered Institute of Arbitrators. The downside of this method is that the performance in any examination may not mirror the performance of the candidate in handling an actual case.
I trust the Honourable Chief Justice will have in place some sort of tangible system to assess the judges on their merit as highlighted.