Is Merit the Primary Criteria for Judicial Appointments?

In this series of posts, we are analysing the criterion on the basis of which a recommendation for the appointment of a judge is made. For an overview of the thirteen collegium resolutions on which this is based, and the method used in this series look here.

There is no legally mandated or publicly declared merit criterion for the appointment of judges. Hence, we may analyse the Collegium Resolutions to reveal the merit criteria used to the extent that these are made explicit.

‘Merit’ was cited five times in the 13 resolutions analysed. In most recommendations, it appears as a part of the general statement and not by reference to the qualities of individual judges. In one resolution, it was relied on as a ‘predominant’ factor that overrides seniority concerns. Significantly, merit has been cited for a specific judge only once, when recommending K.M. Joseph.

The three most recent resolutions appear to replace ‘merit’ with the words ‘conduct’ and ‘competence’. For the purpose of this post, competence and merit could be considered synonymous: taken together they are cited in nine resolutions.

It is not clear if ‘conduct’ operates as a criterion distinct from the assessment of merit. As integrity and conduct have been listed separately in resolutions, conduct is not the same as ‘integrity.’ However, ‘conduct’ and merit do not appear together in any resolution and so it is likely that ‘conduct’ is an integral factor of ‘merit’.

It is likely that assessments of merit for judicial appointments focus on the candidate’s judicial output. Some resolutions reveal the presence of a Judgment Committee to evaluate the quality of a candidate's judgments. This qualitative assessment, together with a quantitative assessment of the number of judgments written and cases disposed of, may well operate as the main criteria for determining merit.

Other factors we have found from these resolutions include: seniority, integrity, regional diversity and social and gender diversity.