政治Essay模板：Canada Supreme Court Judge Selection

本文是政治专业的留学生Essay范例，题目是“Canada Supreme Court Judge Selection（加拿大最高法院法官选举）”，近年来，加拿大最高法院法官的任命问题已成为加拿大政界关注的焦点。在加拿大，最高法院拥有很大的权力，包括推翻民主选举产生的立法机构制定的法律的能力。因此，最高法院的选择方法对加拿大的民主是至关重要的。学者们建议改革加拿大最高法院的任命。本文将分析选择加拿大最高法院法官的其他方式，并提出支持保留现行做法的论点，只做一些修改。

Essay文章

The issue of judges’ appointments to the Supreme Court of Canada has come to the foreground of Canadian politics in recent years. The Supreme Court is afforded great power within Canada, including the ability to strike down law produced by democratically elected legislatures. Therefore, the method of selection for the Supreme Court is absolutely critical to Canadian democracy. Scholars have suggested reforming Canadian Supreme Court appointments. This paper will analyse alternative ways of selecting Canada’s Supreme Court judges and make an argument in favour of retaining current practice with a few modifications.

Key Principle关键原则

In order to establish the best method, one must have a way of identifying it. There are few greater principles in Canadian politics than judicial independence. The Constitutionally guaranteed principle “ensures that the courts guard our Constitution, the Rule of Law, equality and the democratic process” (Johnson, Remarks to the Committee). Judicial independence is divided into two categories: institutional independence and decisional independence. In order to have an effective top level court, judicial independence in both its forms must be enforced.

为了建立最好的方法，一个人必须有一种识别它的方法。在加拿大政治中，没有比司法独立更重要的原则了。宪法保障原则“确保法院捍卫我们的宪法、法治、平等和民主进程”(约翰逊，对委员会的讲话)。司法独立分为两类:制度独立和判决独立。为了有一个有效的最高法院，必须在两种形式的司法独立中强制执行。

Alternative appointment processes have been heavily scrutinised for their potential to politicise the selection process, thereby dissolving judicial independence. Scholars argue that US-style confirmation hearings will lead to qualified candidates excluding themselves from consideration (Peach, 2005).

Canada at Present加拿大目前

Judges of the Supreme Court of Canada are appointed by the Governor General upon recommendation by the Prime Minister. The Prime Minister, in turn, consults with her Cabinet. The Prime Minister’s selection is made based upon a shortlist provided to her by the Minister of Justice with input from the relevant law society.

加拿大最高法院的法官由总督根据总理的推荐任命。而首相则与内阁磋商。总理的选择是根据司法部长提供给她的候选人名单和相关法律协会的意见。

By the Supreme Court Act, candidates must have been a member of a provincial or territorial law society for at least ten years, or have served as a judge in a superior court. Additionally, at least three of the nine Supreme Court judges must come from Quebec. This is often justified due to Quebec’s unique utilisation of civil law, unlike the other provinces, which utilise common law instead. Interestingly, though representing one-third of the Supreme Court, Quebec represents only 23% of the Canadian population (Statistics Canada, 2013). By convention, the remaining six appointments are split between Ontario (three), Western Canada (two) and Atlantic Canada (one).

In Canada the judicial branch is independent of the executive and legislative branch – that is, it has institutional independence. The justice system also enjoys decisional independence, most notably in the Supreme Court. Judges are appointed until the mandatory appointment age of 75, and their remuneration is controlled by the Judicial Compensation and Benefits Commission. Through this process the legislative and executive branches cannot influence judges’ decision making through threats of reduced salary or termination.

在加拿大，司法部门独立于行政和立法部门，也就是说，它具有体制上的独立性。司法系统也享有决策独立性，最显著的是在最高法院。法官的任命直到75岁的法定任命年龄，他们的薪酬由司法补偿和福利委员会控制。通过这一过程，立法和行政部门不能通过威胁减薪或解雇来影响法官的决定。

Canada’s system has been criticised for essentially three reasons. First, there is much confusion in the Canadian public as to how the appointment process works, with even a fair number suspecting that there is political interference. Secondly, due to the geographic considerations in the process, many worry about the effect of Provincial politics on the shortlisting of candidates. Thirdly, there has been a history of inconsistent consultation of Prime Minister (Johnson, Remarks to the Committee).

Other countries其他国家

Amongst developed countries, there is great variation on the selection of judges for the highest court. In the US, their Senate holds the final decision making power in confirming or denying the President’s candidate. While legislative approval is generally a formality, there have been recent notable cases of Senate confirmations going awry in the cases of Robert Bork and Clarence Thomas. In the age of mass media, candidates may be subject to an avalanche of questions concerning their personal life.

在发达国家中，最高法院法官的选择有很大的差异。在美国，他们的参议院拥有确认或否决总统的候选人的最终决定权。虽然立法批准通常只是走过场，但最近也出现了一些值得注意的案例，比如罗伯特·博克(Robert Bork)和克拉伦斯·托马斯(Clarence Thomas)的参议院确认出现了问题。在大众传媒时代，候选人可能会面临大量有关其个人生活的问题。

The US-style senate confirmation mechanism is criticised for giving qualified candidates a reason to withdraw their candidacy. However, even if all the best candidates made themselves available, the President does not select the best candidate. They select the best Senate-confirmable candidate. If the Senate and candidate have strongly opposing political views, then the confirmation can degenerate into a virtual inquisition, and quite literally means that the judiciary answers to the legislature. This severely undermines the judicial independence in the selection process as the President must make a political calculation of who the best candidate is that will also pass Senate confirmation, and also reduces independence from the legislature.

美国式的参议院确认机制因给了合格的候选人撤销候选人资格的理由而受到批评。然而，即使所有最好的候选人都提供了他们自己，总统也不会选择最好的候选人。他们选出最能得到参议院确认的候选人。如果参议院和候选人有强烈的对立的政治观点，那么确认就会退化为一个虚拟的审讯，从字面上说，这就意味着司法部门要回答立法机构的问题。这严重削弱了选举过程中司法的独立性，因为总统必须对最佳候选人进行政治计算，并通过参议院的确认，同时也降低了立法机构的独立性。

In Switzerland, Austria, and Germany the national assemblies vote to nominate members of their constitutional courts. For Germany, this practice means that the states are involved in the appointment process because the members of Germany’s upper house the state governments. While there have been calls for greater Provincial involvement in Canadian Supreme Court appointments, Carl Baar warns,

Experiences in other federal systems thus do not impel Canada to the kind of provincial role in selection of Supreme Court justices that was embodied in draft provisions of the Meech Lake Accord. While the Accord provisions did not provide as widespread and continuing participation for the provinces as the provisions in West Germany’s Basic Law provide for its state governments, they did authorize a much more substantial provincial roles (both in its constitutional status and in the range of activities it involved) than is characteristic of any of the world’s other federal systems. And unlike the West German provisions, the Meech Lake Accord kept judicial selection completely outside parliament (1991).

因此，其他联邦制度的经验并没有促使加拿大在选择最高法院法官方面发挥《米奇湖协定》草案条款中所体现的那种省级作用。虽然《协议》条款没有像西德《基本法》规定各州政府那样，为各省提供广泛和持续的参与，它们确实授权了一个比世界上任何其他联邦制度的特点更为实质性的省级角色(无论是在宪法地位上还是在它所涉及的活动范围上)。与西德的规定不同，《米奇湖协议》将司法选举完全排除在议会之外(1991年)。

In 2009, the United Kingdom implemented their Supreme Court that had been established by the Constitutional Reform Act 2005. Here, judge candidates are selected by an independent selection commission of several judicial committees. Once the selection commission has arrived at a consensus for one candidate, it then provides the name to the Lord Chancellor. The Lord Chancellor is then required to consult with all the politicians and judges that the commission consulted in their selection of the candidate. The Lord Chancellor is given three rounds in which to accept a candidate. If the Lord Chancellor rejects a candidate, then the selection commission will bring a new name forward in the next round. If the Lord Chancellor asks the commission to reconsider, then the commission may present the same person again, or provide a new name. The Lord Chancellor must accept the name put forth in the third round, if they have not already accepted a candidate in a previous round. The Lord Chancellor then forwards this recommendation to the Prime Minister. The Prime Minister is then required by law to recommend this name to the Queen for appointment, and may not nominate anyone else.

The plethora of international selection processes in use appears to provide Canada with ample reform options. One must be cognisant, however, of countries’ political cultures and their effect on shaping the process. In order to maximise the quality of the ultimate appointee, and legitimise the process in the eyes of the public, one must be careful to fine tune the process based upon the particular country’s political climate.

正在使用的大量国际选择程序似乎为加拿大提供了充足的改革选择。然而，人们必须认识到各国的政治文化及其对这一进程的影响。为了最大限度地提高最终任命人员的素质，并使这一过程在公众眼中合法化，必须根据特定国家的政治气候仔细调整这一过程。

Canada is a parliamentary democracy加拿大是议会民主制国家

There is a great consensus amongst scholars that judicial independence is superior in an appointments process than an election process (Geyh 2003; Tarr 2003).

学者之间有一个很大的共识，即司法独立在任命过程中优于选举过程(Geyh 2003;塔尔2003)。

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