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Published: Fri, 02 Feb 2018
The Diversity Of The Judiciary
A judge or arbitrary of justice is a lead who presides over a court of law. Judge has the role of adjudicate upon disputes. In different jurisdictions the power function and the role of the judges might differ.
In the English legal system they have a very unique method of appointing judges. The Lord Chancellor appoints judges for the senior position with the consultation of the prime minister and this list then will be sent to the queen to call for appointments. Most likely the senior judges would recommend the names for theses position. This can be also called as the sounding system.
This method of appointing judges was highly criticized, because no one knew on what criteria do they select the members for the judges position. Many people criticized this method saying that this was surrounded with secrecy and it lacks democracy and diversity.
This method also have ignored some categories of the society such as women, ethnic minorities, due to this sounding system it was most likely that the judges who were appointed for this position was middle aged white ,male. Women and ethnic minorities found it really hard to get these appointments, even though they are highly qualified, so these categories were terribly neglected. For an example we can point out that among 356 judges 75% of them were middle aged white male and most of them were from public schools and oxford Cambridge background.
Diversity of the judiciary is important because it will create a judiciary a more representative one where there will be judges from different religion, Race, Gender. So that when a dispute comes before a court a particular type of a judge would do more justice than a non representative one because that matter would be more familiar and more understandable by the more representative judiciary.
Human beings are bound by the decisions of a judge. If a judge made such important decisions in life of a human being he must hold an impartial seat and must be an independent character or a body.
In order to ensure that the judiciary is independent and impartial the appointment process is important and the issue is whether a representative judiciary would make any difference than an unrepresentative judiciary. When a judiciary is a more representative one, there is a point of ensuring that these judges are coming from diverse background. There will be judges with different religion, race and with different experiences in their lives. This might influence their decisions too. When judges are appointed from the exclusive class they will adjudicate upon cases with the experience they gained from their background. When it comes to a trial of a defendant from an ordinary class or ethnic minority, as the judges do not know how that ordinary life is, they might decide the case unjustifiably but where as if it is a more representative one they will be with more experience. The fact that they are from different cultures and religions there will be judges who have experience both sides of the society. It would make the judges decisions more fair and justifiable.
Women also found it very hard to get appointed for the judicial post. This mainly because of the gender discrimination. People believe that typical women are to stay at home and to look after children and do domestic work. Now this view should be change and of course it has changed for some extent because women should be given equal footing just as men. Female judges bring an individual and collective perspective to their work that can not be achieved in a system which reflects the experience of only a part of the people. And for example: an empirical analysis of 556 federal sates appellate cases decided in 1999,2000,2001 reveals that judges gender matters in cases. However there are many women lawyers who found it very hard to get in to the judges position even if they had the requisite qualifications and experienced. It can be said that this category of the society is terribly neglected, and when it comes to a trial of a defendant women with the experience which a women would face in her life I believe a lady judge would do more justice than a male judge because the hardships that a women go through in her day to day life will be more understandable by a lady judge.
Rule of law provide the principal that everyone is equal under the law. And while English legal system boasts about the diversity then it should apply to this process too. It can not be acceptable to exclude or appear to exclude well qualified candidates. This is to say that it does not matter from where that candidate come from even though it is a women, man or ethnic minor if that person has the requisite qualifications that person should be selected. The most suitable candidate should be selected without creating any discrimination of gender, race and nationality.
In order to overcome these issues many reforms were made. The Court And Legal Services Act 1990 introduced changes in right of audience for the profession. Accordingly members of the solicitors profession became entitle to appear in the higher court with the changers in 1990 it expanded the pool out of which judges were selected.
Pool was further expanded by access to Justice Act 1999. Which provided that employee lawyers including those employed by the crown prosecution service were entitle to consider as judicial appointments. Although the above reforms expanded the pool and gave a greater number and variety of people an opportunity for the judicial post but it did not address the underline problem that existed with the actual method of appointment. There is a necessary for a radical change because appointments were still by invitation. In 1194 Lord Chancellor announced that advertisements would be placed for the junior judicial post of circuit judges, district judges in the crown court and the county court. This enables any lawyers from any background with the requisite qualifications and experience to apply for the judicial appointment. This method brought some certainty for this appointment method because it gave a certain criteria for which the judges will be appointed.
The advertisements contain a pledge that the applications will be consider regardless of ethnic origins, gender, martial status, sexual orientation, political affiliations, religion and disability. The applications which they got as a result of these advertisements were short listed by a panel; the panel does not make the appointments but instead recommend to the Lord Chancellor by using the sounding system with the recommendation of the senior judges. The crown then made the appointments for the judges profession. Which can be clearly seen is that this was the same method but in a different way.
There was lots of pressure under the Lord Chancellor to consider women and members from ethnic minority group for judicial appointment.
In 2000 this led to make a call for a independent judicial commission to be establish. It was strongly argued that Lord Chancellor and the prime minister should not play a part n this appointment process.
The Constitutional Reform Act 2005 created a judicial appointment commission. This came into effect on 3rd April 2006.
The first chair person of the commission Baranas usha prasha explained the proposed changers that would be made through the appointment process and the improvements which will brought about. She insisted that there should be diversity in the profession and also in the judiciary, also mentioned that candidates from the widest range of background must be considered for judicial appointment. She stated that JAC committed to improve diversity and expand the pool of judicial appointments. The commission also provided criteria what makes a good judge and the role of Lord Chancellor and prime minister in this appointment process of judges have been reduced.
It can be said that lawyer’s field that the process is now more open and their chances of joining the judiciary have improved this can be supported by the research done by Mallson and Banda.
Conceptually JAC is an independent method of appointing judges and it has achieved some of its goal but still it had not achieve the confident in the people who are marginalized, The women lawyers and lawyers in the ethnic minority.
Many criticisms were made against JAC, it is to say that JAC will success as long as it is independent but if the government starts interfering its work JAC would be politicized which will affect the independence of it and JAC will collapse.80% of staff of JAC coming form minister of justice also criticized, it pointed out that lord chief justice and lord chancellor control the appointments of members to JAC, and it was stated that this should be avoided if the JAC is to be independent.
The first batch of judges who appointed after the creation of JAC did not reflect much of diversity that the JAC insist most of the judges who were appointed fit in to the traditional method. 21 candidates were appointed for high court judges’ position but only 3 of them were women and there re not a single person from ethnic minority it is still the white male. However it can be also said that JAC has succeeded in developing a selection process which is fair, open and accountable. It is confident in its ability, in partnership with others to tackle the challengers of creating a judiciary which is diverse, independent and correct. When we look in to the over all reforms it can be said that we have achieved something but still the underline problem is remaining. It is to say that still there is a wrong way of thinking one has the right and a wrong way of thinking the other one has no right as stated by simone weil.
I accepting the fact that there should be diversity in the judiciary but this not be the issue as long as correct, well qualified, well experienced and independent people are appointed. No matter from where they come from. It should be reflect the idea that all should be able to participate in the small and large decision making that shape the society in which we live. Judiciary just being representative will not ensure that their decisions will be correct and independent. Even though the judiciary is representative or non representative the most important thing which required is to ensure correct people are appointed as judges.
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