Freedom Under Law (FUL) has entered into a settlement agreement with the Judicial Service Commission (JSC) relating to litigation brought by FUL to challenge the JSC’s decision-making following interviews for four vacancies on the Supreme Court of Appeal (SCA) at the JSC’s October 2023 sitting.

By way of background, the JSC had interviewed multiple candidates but only recommended two candidates for appointment, leaving the remaining two vacancies unfilled.

FUL challenged two aspects of this process. In Part A of the litigation, FUL addressed the JSC’s decision to leave two of the four vacancies open. FUL sought to compel the JSC to determine whether the remaining candidates were fit for appointment, and if so, to fill the two remaining vacancies. This part of the litigation was settled in February 2024, and the JSC re-ran interviews to fill the vacancies in May 2024.

In part B of the litigation, FUL sought to address underlying material issues with the manner in which the JSC conducts its processes. It did so by seeking an order that the JSC develop and publish criteria to assess candidates for appointment through the application of objective criteria, and to require commissioners to evaluate candidates in writing for compliance with these criteria.

FUL and the JSC have now reached agreement to settle Part B of the litigation. In terms of the agreement, the JSC has undertaken to conduct a review of its Criteria and Guidelines for Judicial Appointments pursuant to a public consultative process.

The further terms of the settlement are that:

• The JSC is required to publish this request for public comment on the Criteria and Guidelines for Judicial Appointments within one month of the settlement agreement being made an order of court.
• At least one month is to be allowed for public comment,
• The JSC is required to make a decision on the review and reconsideration of the Guidelines at its October 2026 meeting, and to publicly announce its decision within one week of that meeting.

These provisions are important as they ensure that the JSC engages with public input on them meaningfully and without delay.

Judith February, Executive Officer of FUL, says, “The importance of this litigation lies in the central role that judges play in upholding the rule of law and our constitutional democracy. Without a well-functioning process for the selection and appointment of judges which enables attracting and appointing the best possible candidates, the judiciary, and ultimately the Constitution and the rule of law, is undermined.

She went on to say that, “The settlement of the litigation allows the JSC the opportunity to ensure that the shortcomings evidenced in the October 2023 SCA interviews are not repeated. It also ensures public engagement in the further development of the Guidelines. FUL will be making submissions as part of the JSC’s review and encourages other interested stakeholders to engage with this process.”