The first installment of the serialisation of the Constitution Hill Global Guidelines on the Eligibility and Selection Criteria for the Appointment of Apex Court Judges will focus on the structural role and characteristics of the Apex Court which is, in essence, defined as the supreme judicial authority.
- Definition
In Zimbabwe, the apex court is the Constitutional Court which has the supreme judicial authority on constitutional law questions as its sole or principal function.
- Roles
An apex court has at least three core roles within a thriving and functional democracy:
- Its role vis-a-vis the executive and legislative branches of government at both the state and substate levels: The legal authority wielded by the apex court reflects an institutional check on the exercise of power at the highest levels in a thriving and functional democracy. The apex court will typically wield ultimate interpretive authority for determining the constitutional limits of action of the executive and legislative branches of government. In a devolved political system, the apex court also exercises ultimate interpretive authority for the segregation and distribution of legislative and executive power within and between state and substate levels of government.
- Its role vis-a-vis the country’s judicial system: The apex court is the highest institution of a country’s judicial system and the ultimate promoter and protector of the constitutional values and standards against which a country’s laws are assessed. It creates and sets the constitutional precedents to which all other levels of the judiciary in a given country are bound. It is generally able to overrule decisions on constitutional questions rendered by all other levels of the judiciary in the country.
- Its role vis-a-vis the general public: The decisions of the apex court on constitutional matters contribute to baseline norms that structure democratic politics in a given society. Although the majority of the public is unlikely to interact directly with the Apex Court, all members of the public are affected by its decisions.
In a society that is wholly or largely undemocratic, these three core roles of the Apex Court are, ipso facto, either qualitatively weak or conspicuously absent. However, these three core roles may serve as ideals that inform the design and function of the Apex Court in the event of any future transition to democratic norms in a given country.
- Structural features
The apex court has at least seven unique features in comparison to other levels of the judiciary in a given country:
- Exercising the final word in the interpretation of the country’s constitution: The decisions of the apex court are definitive on constitutional matters. They cannot be overturned except by the apex court itself.
- Dealing with highly consequential social and political controversies: As the court of final record on constitutional matters, the apex court necessarily hears controversial and complex cases with far-reaching implications which can range from the validity of an election or a peace treaty to the nature and scope of fundamental human rights.
- Hearing cases and rendering judgements in a plenary or panel format: Unlike in the rest of the judicial system, an apex court case is never tried or decided on the merits by a judge sitting alone, but always in a plenary or panel format, often requiring the casting of votes.
- Providing multi-level normative leadership: The apex court typically shapes normative expectations and standards on constitutional questions vis-a-vis multiple audiences, including the parties in the case being heard; the legislative and executive functionaries at all levels of government; the overall judicial system; the legal profession; the civil service as well as the society at large.
- Comprising highly visible representatives of the country’s judiciary: The judges belonging to the apex court are typically among the country’s most experienced and highest profile judges and thus the image of the apex court will heavily influence the image of the judiciary as a whole.
- Experiencing greater political pressure: In contrast to other levels of the judiciary, apex courts tend to experience, directly or indirectly, additional political pressures because of the finality of their judgments on constitutional questions.
- Facing higher media and public scrutiny: Compared to other levels of the judiciary, apex aourts experience an infinitely greater “spotlight effect” involving more media attention and more intensive public commentary.
On account of all these reasons, the appointment criteria for the apex court judges, the appointment procedures for selection to the apex court as well as the conditions of service and tenure of the Apex court judges require appropriately tailored guidelines that are and should be distinct from those used for other courts.”
