The following text will provide an insight into a draft law on the selection of judges,[1] which is a part of the ongoing reform of the Swedish judiciary seeking to make it more transparent, make judicial offices open to a wider array of qualified persons and highlighting the role played by the judiciary in the constitutional system.
1. De Lege Lata – On the Procedure for the Selection and Appointment of Judges
The fundamental provisions regulating the appointment to judicial office are laid down in the Instrument of Government (Regeringsformen; hereinafter IG).[2] According to 11:9 IG ‘[a]ppointments to posts at courts of law […] are made by the Government or by a public authority designated by the Government.’ The possibility to delegate the authority to make appointments has never been used, but could e.g. be entrusted in the National Courts Administration, the judicial council in Sweden (Domstolsverket; ‘Judicial Council’). The council is responsible for the management of the judiciary, including equipment and staffing levels, and oversees the need for development of the court organization. From an organizational viewpoint the Judicial Council is a Government authority, thus it may (and does) receive instructions from the Government.[3]
The power of the Government to make judicial appointments is considered the corollary to the primary task of the Government to govern the realm (1:6 IG).[4] The current procedure for the appointment of judges (excluding those of the supreme courts) is based on the submission of written applications by those interested in a particular vacancy.
A virtually independent authority (Domarnämnden; hereinafter: Judicial Committee) under the Government, prepares the applications, i.e. conducts the application procedure, in close relationship with the Judicial Council, and makes proposals for the Government’s appointments.[5] The (maximum) nine members of the Judicial Committee are appointed by the Government for a renewable tenure of three years.[6] A majority of the Judicial Committee, including the chairman, shall be or shall have been permanent judges, one must be a lawyer. In cases where a chief judge or a chief justice (domstolschefer) are being appointed, the director-general of the Judicial Council shall have the function and rights of a full member in the Judicial Committee.[7]
The procedure for making judicial appointments is the following: The court where a vacancy is open reports this to the Judicial Council which makes the post public.[8] Applications are made on special forms that are supplied by the Judicial Committee and which inter alia request the applicant to list references from the last five years of practical work experience, including the names of judges for which the applicant worked during the three stage education to become judge.[9] The selection procedure before the Judicial Committee is predominantly written and begins with the Judicial Committee requesting written statements by the persons of reference listed by the applicant. A compilation of these statements are then sent to the presiding judge at the court where the vacancy has been announced, requesting him/her to make a statement on the applicant and urging him/her to meet and interview the applicant in question.[10] Interviews with the candidates are thus conducted by the presiding judge and a person appointed by the Judicial Committee, whereafter the presiding judge submits his comments to the Judicial Committee. When the position to be filled is that of a chief judge at a district court or county administrative court the Judicial Committee is instead conducting the interviews. The presiding judge of the court at which the position was announced vacant shall refer back to the Judicial Committee the list of candidates after having put them in an order of preference. The subsequent proposal that is made by the Judicial Committee to the Government is based on this list and on a profile of qualification (kravprofil) established by the Judicial Committee for permanent judges and on the basis of a special profile for judges in a leading position.[11] The profile of qualification highlights that the selection is made pursuant to the rule in 11:9 IG, meaning that only objective factors such as merit and competence have an influence. The proposal of the Judicial Committee to the Government may consist of one or several candidates, placed in a non-binding order of preference. Overall there have been very few cases where the Government has considered it necessary to deviate from the suggestions it has received from the Judicial Committee.[12]
The selection of judges to the two supreme courts – the Supreme Court (Högsta Domstolen) and the Supreme Administrative Court (Regeringsrätten) – is instead conducted by the appointing organ alone, i.e. the Government, and does not allow for applications by the candidates themselves. There is no separate organ – such as the Judicial Committee – that prepares the appointments and guarantees objectivity and transparency in the selection procedure. Indeed it may even be said that this system of Government-run appointments violates Principle I.2.c. of the Recommendation No R (94) 12 of the Committee of Ministers to Member States on Independence, Efficiency and Role of Judges[13] requesting that ‘[t]he authority taking the decision on the selection and career of judges should be independent of the Government and the administration.’
2. De Lege Ferenda – The Proposal
(a) Short Drafting Background to the Proposal
In July 2004 the Swedish Government decided to establish a Committee with the remit to conduct a wholistic overhaul of the main constitutional act, the IG. One part of this review was the desire to make the position of the courts/the judiciary more visible in the constitutional system. The Committee submitted its report at the end of 2008; I reported on it at the time. Following the referral of this report for consideration by numerous institutions and organs, the Government prepared a Government bill (Prop. 2009/10:80: En reformerad grundlag), which already contained proposals related to the bill that is the subject of the current presentation, such as:
– the forming of the appointment procedure in a way that ensures the judiciary’s independence and a recruitment based on depth and quality;
– all positions as judge ought to be announced as vacant, i.e. applications must be invited, including those to the supreme courts;
– all issues regarding the appointment shall be prepared by an independent committee, and the majority of its members shall be judges;
– the Government shall remain unbound by the proposals of the committee.
(b) Contents of the Proposed Law
The draft law on the appointment of permanent judges is an attempt to harmonize the selection of permanent judges and in particular to erase the distinction between judges of the supreme courts, presidents of administrative and ordinary courts of appeal and chief judges of some first instance courts on the one hand and other permanent judges on the other. Regarding all vacancies of permanent judicial positions every person interested may, according to the new law, apply. The procedure whereby posts were filled without accepting applications and which was merely administered by the Government is abolished thus providing for more transparency (in the sense that an autonomous body monitors it) regarding the appointment to the highest judicial offices.
For the preparation of appointments to all judicial positions a new Judicial Committee is established.[14] The Government is authorized to delegate other functions to the Judicial Committee and to equip it with the necessary regulations/instructions.[15] Largely the Committee will remain independent from the Government. The Judicial Committee consists of nine members,[16] which is the same number as the current Judicial Committee. The difference is that according to the new law the Government is not the sole appointing body. Five shall be or have been permanent judges and are appointed by the Government upon proposals from the judiciary; two shall be jurists active outside the judiciary, one of whom must be an attorney, and both are appointed by the Government following proposals from administrative authorities selected for this purpose by the Government; two members shall represent the general public (and may thus be non-lawyers) to be appointed by the parliament. The tenure of the members is extended to four years but is not renewable. The Judicial Committee shall have a secretariat.[17] In drawing up the requirements for the individual posts the Judicial Committee is to consult with the affected court.[18] Individuals are also allowed to make general applications without reference to a particular vacancy. One member of the Judicial Council may sit and present comments in the deliberations of the Judicial Committee but he/she has no right to vote.
Another interesting change that would become reality and which is related to the contents of the proposed bill is the renaming of the Supreme Administrative Court, now called Regeringsrätten (Government’s Court) to Supreme Administrative Court (Högsta Förvaltningsdomstolen). This change, which seems rather insignificant at first view, is representative of the initiatives over the last years to enhance the structural independence of the judiciary.[19]
3. Comparative Overview – Appointment of Judges in Other Nordic Countries
In Denmark, Norway and Finland, the appointment of judges for many years consisted of a selection procedure conducted at the Ministries of Justice only. However, in later years all these countries have reformed the selection procedure in order to increase transparency – understood as an objective, i.e. separate from the government, review of applications – and legitimacy and to increase the preconditions for making suitable appointments.
In Denmark the so-called Dommerudnævnelsesrådet[20] analyses the applications and makes a suggestion on appointments to all judicial posts (except the post of president of the Supreme Court) to the Government, which may deviate from this suggestion if a parliamentary committee has been informed of this.
In Norway the Instillingsrådet för Dommere administers the selection procedure for all judicial offices and proposes three candidates placed in an order of precedence; the Government is not bound by this list.
In Finland one differs between posts for which applications will be received and those for which the appointments are being made by the respective court or by the Ministry of Justice. The latter include positions at the Supreme Court and the Supreme Administrative Court. Regarding the prior ones the Domarförslagsnämnden is making a suggestion of three candidates to the Government which then makes a proposal – on the basis of, but not bound by the suggestion – to the president who makes the appointment.
4. Assessment of the Proposed Law
By making the appointment procedure for all judicial offices the same and subject to the preparation by a separate committee, the Judicial Committee, surely some criticism towards the lack of transparency and the lack of supreme court judges’ independence from the Government will be remedied. The proposed bill means that Sweden will follow the developments in some other Nordic countries which posses some sort of autonomous organ that prepares the appointments by presenting nominees to the appointing organ (Government or President), but also goes further (cf. Finland) by including in this procedure the selection of supreme court judges.
Also the opening up of all judicial vacancies to applications is, according to the travaux préparatoires, in line with the strong standing that the principles of openness in administrative and governmental work in Sweden (Scandinavia) and respect for democracy have.[21] Installing a committee responsible for making proposals on those to be appointed is likely a measure that enables a better, more thoroughly investigated basis for making appointments. In any case, it does contribute to reduce the perceived dependency of the courts – in particular supreme courts – from the Government. It is moreover mentioned in the proposed bill that the usage of this committee is enabling a constitutional review of the appointments that are being made by the Government,[22] something that wasn’t possible before as the basis for appointments often remained hidden and not subject to review. However, in my view it must be questioned if indeed a possibility for review is being opened up as the proposed bill explicitly excludes the possibility for any decisions by the Judicial Committee to be appealed. The travaux préparatoires do not clarify this point but the Government probably envisaged the public eye or the broader composition of the Committee as some sort of scrutiny.
A positive step is the detachment of the Judicial Committee from the Judicial Council, which in many regards is dependent of the Government. This will be achieved inter alia by providing the Judicial Committee with its own secretariat and by omitting the right of the Judicial Council to have one of its members as a voting member of the Judicial Committee.[23] The independence from the Government is inter alia provided for through the appointment of two public representatives on the Judicial Committee to be appointed by the parliament. Usually, and following the principle of the formal chain of responsibility – a Governmental committee or authority is responsible to the Government, which in turn is responsible to the parliament – every member would have been appointed by the Government.
5. Criticism of the Proposal
It may certainly be criticized that the Government is not bound by any proposals by the Judicial Committee. Thus nothing prohibits the Government in practice from appointing a candidate that was not on the list submitted by the Judicial Committee. The Judicial Committee is merely authorized to present its opinion on any such candidate that it did not propose itself. However, any exclusion of this right of the Government would have been nothing less than revolutionary in Scandinavia and would moreover not have been in line with the understanding of the role of the judiciary in the constitutional system, where they are closely linked and historically even subordinated to the Government. Any development that seeks to break through this relationship will have to overcome constitutional values deeply rooted in the constitutional awareness in Sweden.
Unfortunately – although not surprisingly – the proposed law does not describe what is meant when it is said that the Judicial Committee shall also conduct work to meet the demands on the recruitment of permanent judges. This is particularly unfortunate since the Judicial Council has virtually the same task as it is the organ responsible inter alia for the promotion of the development and quality of the work of the courts.[24]
Another deficit in the proposed bill is that it does not deal with the major significance that written references have in the application procedure. Usually, when a candidate is seeking a new post, he/she shall provide a list of referees, i.e. judges for whom the applicant has worked. These referees are called upon by the Judicial Committee to provide assessments of the applicant’s qualifications. This system has contributed to making the occupational group of judges a rather closed professional guild. If indeed appointments are to be made following only objective factors such as merit and competence (as provided for by 11:9 section 2 IG) and if competence is to be the primary concern (see 4§ section 2 lagen[1994:260] om offentlig anställning)[25] then one should have reviewed this rather old-fashioned and much criticised system.
6. Final Evaluation and Outlook
Generally the proposal must be welcomed as it is a further step towards making the appointment procedure for the judiciary yet more open. Initial steps in this direction were taken only a few years ago[26] when the recruitment for judicial offices was opened up for those that did not participate in the special education for judges. It is illustrative for the importance of this proposed bill that the Government referred it to the Council on Legislation for judicial preview. The Government did not have a legal obligation to take this step as this only exists for new legislation that affects fundamental rights (cf. 8:18 IG).[27]
But in many regards the proposal does not go as far as one might want in order to protect the independence of the judiciary. Although there might still be reasons for retaining the prerogative of the Government to make the appointments to the supreme courts without being bound by the proposals by the Judicial Committee, there are only weak reasons why the Judicial Committee should still be making merely unbinding proposals for the appointment of judicial positions at all other ordinary courts.
Moreover, the proposal does not deal with the much criticized practice that the professional guild of the judges is a rather closed one, which is rooted in the strong influence that references from judges have for any person applying for a judicial vacancy.
The proposed bill will be reviewed by the Council on Legislation and may then be adopted by the parliament to enter into force on 1 January 2011.
[1] Lagrådsremiss, Utnämning av ordinarie domare, 25 February 2010.
[2] The Swedish constitution consists of 4 basic laws, of which the Instrument of Government (Regeringsformen; hereinafter IG) is the most important one as it contains the main constitutional provisions, including human rights provisions. It will be cited ‘Chapter:Article’.
[3] Justitiedepartementet, Regleringsbrev för budgetåret 2010 avseende Sveriges Domstolar, Regeringsbeslut 21 December 2009 (The Government’s terms of reference for the budget year 2010 regarding the Swedish courts; hereinafter: Regleringsbrev), Ju2009/10260/DOM, available at <http://www.esv.se/StatsliggarenApp/OpenFile?regleringsbrevId=12222&visningTyp=1&mediaTyp=1&period=2010>.
[4] Cf. 1:6 IG: ‘The Government governs the Realm. It is accountable to the Riksdag.’
[5] The Judicial Committee is managed according to the instructions from the Government, Förordning med instruktion för Domarnämnden, SFS 2008:427 (Government decree with instructions for the Judicial Committee).
[6] Section 8 Förordning med instruktion för Domarnämnden, SFS 2008:427.
[7] In all other cases to be decided by the Judicial Committee the members of the Judicial Council may be present and issue statements during the deliberations but do not have a right to take part in the decision-making.
[8] See the website of the Judicial Council announcing vacant positions, Sveriges Domstolar, Lediga anställningar, available at <http://www.domstol.se/templates/Judicial Council_Jobs____677.aspx>.
[9] The form can be found at Sveriges Domstolar, Ansökan om anställning, available at <http://www.domstol.se/Publikationer/Blanketter/dv_747.pdf>.
[10] Section 7 subsection 2 Förordning med instruktion för Domarnämnden, SFS 2008:427. The request that the presiding judge meet the applicants was introduced in the Governmental instructions to the Tjänsteförslagsnämnden (the predecessor organ of the Judicial Committee) in October 2003. See Förordning om ändring i förordningen med instruktion för Tjänsteförslagsnämnden för domstolsväsendet, SFS 1988:318 (Government decree with amendments to the Government decree with instructions for the Tjänsteförslagsnämnden for the judiciary). It was based on the consideration that the presiding judge sometimes may not make a decision on the list of preferences among the candidates merely based on the referential material submitted to him, and to widen the decision-making basis where the presiding judge may have a personal knowledge of certain, but not all, candidates (cf. Ds 2007:11. En mer öppen domarutbildning, at 92-93). It is thus the presiding judge who, after consultation with the director-general of the Judicial Council and the rapporteur in the case, decides which of the candidates are called for an interview, but also who represents the court in those interviews.
[11] Sveriges Domstolar, Kravprofil för ordinarie domare, available at <http://www.domstol.se/upload/domarnamnden/kravprofil.pdf> and Sveriges Domstolar, Chefsprofil för chefer inom Sveriges Domstolar, available at <http://www.domstol.se/upload/domarnamnden/chefsprofil.pdf>. On the profiles of qualification see O. Ställvik, Domarrollen – Rättsregler, yrkeskultur och ideal, at 182-185 (2009).
[12] K.-G. Ekeberg, Om domarutnämningar, in: S. Heckscher and A. Eka (eds.), Festskrift till Johan Hirschfeldt, 107, at 112 (2008).
[13] Recommendation No. R (94) 12 of the Committee of Ministers to Member States on Independence, Efficiency and Role of Judges (13 October 1994).
[14] The name is thus adopted from the earlier body.
[15] 3§ Lag om utnämning av ordinarie domare.
[16] 4§ Lag om utnämning av ordinarie domare.
[17] §5 Lag om utnämning av ordinarie domare.
[18] §6 Lag om utnämning av ordinarie domare.
[19] Another one has been the proposal to separate Chapter 11 IG (‘Administration of justice and general administration’) into two separate chapters on the judiciary and administration.
[20] http://www.domstol.dk/om/organisation/Pages/Dommerudn%c3%a6vnelsesr%c3%a5det.aspx
[21] Lagrådsremiss, Utnämning av ordinarie domare, 25 February 2010, 68.
[22] Lagrådsremiss, Utnämning av ordinarie domare, 25 February 2010, 72.
[23] Lagrådsremiss, Utnämning av ordinarie domare, 25 February 2010, 75.
[24] Regleringsbrev (note 3), at 3.
[25] ‘Vid anställning skall avseende fästas bara vid sakliga grunder, såsom förtjänst och skicklighet. Skickligheten skall sättas främst, om det inte finns särskilda skäl för något annat.’
[26] See the Government investigation SOU 2003:102, En öppen domarrekrytering.
[27] 8:18 IG: ‘The opinion of the Council on Legislation should be obtained before the Riksdag takes a decision on fundamental law relating to the freedom of the press or the corresponding freedom of expression on sound radio, television and certain like transmissions and technical recordings; on an act of law restricting the right of access to official documents; an act of law under Chapter 2, Article 3, paragraph two, Article 12, paragraph one, Articles 17 to 19 or Article 22, paragraph two, or an act of law amending or abrogating such an act; an act of law relating to local taxation; an act of law under Article 2 or 3; or an act of law under Chapter 11, if such an act has significance for private subjects, or having regard to the public interest. The foregoing does not how-ever apply, if obtaining the opinion of the Council on Legislation would be without significance having regard to the nature of the matter, or would delay the handling of legislation in such a way that serious detriment would result. If the Government submits a proposal to the Riksdag for the making of an act of law in any matter referred to in sentence one, and there has been no prior consultation of the Council on Legislation, the Government shall at the same time inform the Riksdag of the reason for the omission. Failure to obtain the opinion of the Council on Legislation on a draft law never constitutes an obstacle to application of the law.’
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