Appointment of Judiciary by the Executive: A Flagrant Negation of the Principle of Separation of Powers in Presidential System of Government. (Focus on the US, Brazil and Nigeria)
The principle of separation of powers, originating from the works of political philosophers like Montesquieu, has become a fundamental principle of democratic governance. It aims to prevent the consolidation of power and maintain a system of checks and balances. However, in a presidential system, where power is divided between the executive and legislative branches, the judiciary plays a crucial role in ensuring the rule of law and protecting individual rights. The appointment of judges, who are responsible for interpreting and applying the law, is a critical aspect of maintaining an impartial and independent judiciary and when the executive branch retains significant control over the appointment process, it raises questions about the separation of powers and the potential for abuse of authority. This paper aims to provide a comprehensive assessment by examining relevant examples from the United States, Brazil, and Nigeria, highlighting the complexities and nuances of the issue.
In the United States, the President plays a significant role in appointing federal judges, including Supreme Court justices, with confirmation by the Senate. However, this process has become increasingly politicized and contentious, leading to concerns about the independence of the judiciary. Several instances in U.S. history highlight moments where judicial appointments by the executive branch arguably represented a flagrant negation of the separation of powers in the presidential system.
Prominent among these executive intrusions into judicial independence was the incident referred to as midnight judges of 1801 in the US. In the waning days of his presidency, Federalist President John Adams rushed to fill federal judicial positions with his party’s loyalists. This resulted in the appointment of numerous judges, known as the “midnight judges,” in an attempt to maintain Federalist influence in the judiciary. These appointments were made after the election of Thomas Jefferson, a Democratic-Republican, but before Jefferson’s inauguration. This politically motivated maneuver demonstrated an attempt by the outgoing executive to exert influence over the judiciary, undermining the incoming administration’s ability to shape the judiciary’s composition. This is a clear demonstration of how the appointment process was influenced by political considerations, potentially compromising the independence of the judiciary and undermining the principle of separation of powers even at the years of American independence.
Furthermore, the executive undermining judiciary independence could also be seen in the New Deal Legislation of 1937. In response to several Supreme Court decisions that invalidated key New Deal legislation, President Franklin D. Roosevelt proposed a plan to expand the number of Supreme Court justices. The plan aimed to allow Roosevelt to appoint additional justices who were more sympathetic to his policies. While the proposal was not implemented, it raised concerns about the executive’s attempt to reshape the judiciary for political purposes. The plan was criticized as an overt encroachment on the judiciary’s independence and a violation of the separation of powers.
In addition, the event surrounding the “Saturday Night Massacre” of 1973 in the US could be viewed as an indication of another encroachment of judiciary’s territory by the executive. During the Watergate scandal, President Richard Nixon’s attempt to control the investigation by firing Special Prosecutor Archibald Cox raised concerns about executive interference in the judiciary. Nixon’s actions, including the firing of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus when they refused to carry out his orders, highlighted the potential for the executive to undermine the independence of the Department of Justice and the judiciary.
Coupled with this was the President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court which sparked intense controversy in 1987. Bork’s conservative judicial philosophy raised concerns among liberal groups about potential rollbacks of civil rights and social progress. The Senate rejected Bork’s nomination, but the episode highlighted how judicial appointments could become contentious battlegrounds, with ideological considerations overshadowing qualifications and the principle of separation of powers.
Throughout history, instances of partisan nominations and confirmations have emerged, where presidents and senators prioritize political ideology over judicial qualifications. These instances have led to contentious confirmation battles that underscore the influence of politics on the appointment process. The confirmation hearings of justices like Brett Kavanaugh and Amy Coney Barrett in 2018 and 2020 respectively have been marked by intense partisanship and political maneuvering, raising questions about the impartiality of the judiciary in the face of such overtly political processes.
Presidents often nominate judges whose ideological views align with their own, potentially prioritizing political compatibility over qualifications. This can raise concerns about the potential for judges to prioritize the executive’s interests over upholding the rule of law and the Constitution. Such appointments could be seen as undermining the judiciary’s role as an independent check on the other branches.
Presidents sometimes appoint judges based on ideological litmus tests, seeking candidates who align with their political beliefs. While a president’s preference for judges who share their viewpoints is not inherently problematic, when used excessively, it can lead to the appointment of judges who prioritize partisan interests over the rule of law as demonstrated by President Trump’s Supreme Court justice nomination. This trend could infringe upon the judiciary’s role as an independent and impartial check on the executive branch’s power.
In each of these instances, the executive branch’s involvement in judicial appointments has raised concerns about the potential for political influence to compromise the independence of the judiciary. While some actions were more overt than others, they collectively underscore the ongoing tension between the executive’s role in shaping the judiciary and the imperative to uphold the principles of separation of powers.
In Brazil, the executive holds significant influence over judicial appointments, particularly in the selection of Supreme Court justices. This concentration of power raises concerns about the separation of powers and the independence of the judiciary
In 2016, for instance, then-President Dilma Rousseff appointed her predecessor and political ally, Luiz Inácio Lula da Silva, as her Chief of Staff. This move was widely criticized as an attempt to shield Lula from ongoing corruption investigations by granting him ministerial immunity. Critics argued that the appointment was an abuse of executive power to protect a political ally from legal consequences, thereby compromising the separation of powers and the independence of the judiciary.
Throughout Brazilian history, there have been instances of presidents nominating judges to the Supreme Federal Court (STF) with perceived political motivations. These appointments have sparked concerns that the executive is attempting to influence or manipulate the judiciary for partisan purposes. When judges are seen as aligned with the executive’s political agenda, the separation of powers can be compromised, as the judiciary’s ability to serve as an independent check on the executive branch may be undermined.
In the Brazilian presidential system, political alliances and party affiliations often play a significant role in judicial appointments. Presidents may appoint judges who are closely aligned with their party or political coalition, potentially leading to a judiciary that prioritizes political interests over impartiality and the rule of law. This practice can erode the separation of powers by blurring the lines between the executive and judicial branches.
The impeachment of President Dilma Rousseff in 2016 highlighted concerns about the judiciary’s impartiality and its relationship with the executive. Some critics argued that the judiciary’s handling of the impeachment process was influenced by political considerations, potentially compromising its independence and the principle of separation of powers. The perception of the judiciary’s involvement in a political process raised questions about its ability to serve as a neutral arbiter of legal matters.
President Jair Bolsonaro’s appointments to key positions, including the Supreme Federal Court, have been criticized for their perceived alignment with his political ideology. Some of these appointments have faced allegations of insufficient transparency and a lack of adherence to merit-based criteria. Critics argue that these appointments could undermine the separation of powers by creating a judiciary that is more amenable to the executive’s agenda.
These instances underscore the importance of maintaining an independent and impartial judiciary within Brazil’s presidential system. When judicial appointments are influenced by political considerations, the separation of powers can be compromised, potentially undermining the judiciary’s ability to act as a check on executive power and protect the rule of law.
In Nigeria, the executive’s influence over judicial appointments has also raised concerns about the independence and impartiality of the judiciary, thereby challenging the separation of powers principle. Several instances in Nigeria’s history have raised concerns about the potential negation of the separation of powers due to judicial appointments by the executive branch.
One of such cases was the removal of Supreme Court Justices in 1983. During Nigeria’s Second Republic, President Shehu Shagari removed three Supreme Court justices on allegations of corruption and misconduct. Critics argued that these removals were politically motivated and compromised the judiciary’s independence by allowing the executive to exert influence over the composition of the highest court in the land.
Furthermore, under the military regime of General Sani Abacha (1993-1998), Nigeria witnessed a period of significant erosion of the separation of powers. Abacha’s government was known for interfering with the judiciary, appointing judges who were seen as loyal to the military regime and making judicial decisions that favored the executive’s interests. This compromised the judiciary’s independence and hindered its ability to serve as a check on executive power.
Asides, in Nigeria’s federal structure, state governors hold significant influence over state judiciaries. There have been instances where state governors have been accused of manipulating the appointments and decisions of judges within their jurisdiction to further their own political interests. This interference can undermine the separation of powers by compromising the independence of the judiciary at the state level.
Moreover, in 2019, President Muhammadu Buhari suspended Chief Justice Walter Onnoghen on allegations of false asset declaration. The suspension raised concerns about the executive’s influence over the judiciary, as the suspension was seen by many as politically motivated. Critics argued that the move was an attempt to weaken the judiciary’s ability to serve as a check on the executive’s power.
In some instances, delays in appointing judges to vacant positions within the judiciary have raised concerns about executive interference. Prolonged vacancies can lead to a backlog of cases and hinder the judiciary’s ability to fulfill its role as an independent arbiter. Delays in appointments can be perceived as the executive’s attempt to exert control over the judicial process.
Conclusion
While executive-controlled judicial appointments in the presidential systems of the United States, Brazil, and Nigeria raise legitimate concerns about the separation of powers, it would be an oversimplification to characterize them as a flagrant negation of the principle. The examples provided highlight the complexities surrounding the issue, including checks and balances, the independence of judges, and ongoing reform efforts.
The United States demonstrates how an independent judiciary can emerge despite political influences, thanks to confirmation processes and the judiciary’s commitment to upholding the rule of law. Brazil’s experience emphasizes the constitutional framework and the judiciary’s ability to act as a check on executive power. In Nigeria, despite existing challenges, efforts are being made to enhance the integrity and transparency of the appointment process.
To safeguard the principle of separation of powers, continued reforms are crucial. Implementing transparent and merit-based appointment mechanisms, strengthening legislative oversight, and promoting public engagement
References
- The Constitution of the United States of America (1787). Retrieved from https://www.archives.gov/founding-docs/constitution
- Elster, J. (2006). Judicial independence and accountability in the United States. Journal of Law, Economics, and Organization, 22(2), 290-318.
- Horwitz, P. (2012). The Separation of Powers and the First American Constitutions. William and Mary Quarterly, 69(1), 3-32.
- Moraes, A. P. (2018). Judicial Independence in Brazil: The Ongoing Struggle for Autonomy and Legitimacy. Hague Journal on the Rule of Law, 10(1), 107-127.
- Oliveira, L. A. (2021). The Unraveling of the Judiciary in Brazil: Attacks, Proposals for Reform, and International Reactions. International Journal of Constitutional Law, 19(1), 1-24.
- Adeniran, T. (2018). Judicial Appointment in Nigeria: The Law, the Process and the Politics. Lagos State Judiciary. Retrieved from https://www.lagosstate.gov.ng/wp-content/uploads/2018/08/Judicial-Appointment-in-Nigeria.pdf
