Norway: New Chief Justice Appointed to the Supreme Court

–Anine Kierulf, Post-Doctoral Researcher, Norwegian Centre for Human Rights, University of Oslo Law School

As of today, March 1, 2016, the Norwegian Supreme Court has a new Chief Justice: Toril Øie, the first female Chief in its 200 years.[1] Øie replaces Tore Schei,[2] Chief Justice since 2002.

Norwegian Supreme Court Justices are appointed for life, which means until they reach the mandatory retirement age of 70. Under the 1814 Norwegian Constitution, both judges and Supreme Court Justices are appointed by the government.

Øie was one of six applicants, four from within the Supreme Court. She has been on the Court for 12 years. She had previously served in the Ministry of Justice Legal Department for 16 years, first as advisor and later as one of the directors. Her professional and personal qualifications are profound, and while at least three of the candidates running against her had their share of followers, she has been applauded as a good choice for the position across the legal community.

The procedure leading up to the appointment has, however, drawn severe criticism—from process insiders,[3] the political opposition in the Norwegian parliament Stortinget,[4] academics from legal and political departments[5] and general commentators alike.[6]

Upon review of the process, the Parliamentary Ombudsman called the level of secrecy “meaningless”[7] —he could see no reason why the appointment procedure for Chief Justices should be less transparent than ordinary judicial appointments. Candidates were assessed according to statutory rules that do not exist, all substantial elements were closed to public scrutiny, and the process almost ended up in an unprecedented muddling of the Norwegian constitutional division of powers.

In retrospect (and, tellingly, only in retrospect) the appointment process can be summed up as follows. The Minister of Justice set down an ad hoc advisory board to evaluate candidates. Its evaluations were not made public, nor was its mandate. Contrary to the division of powers principles set down in the Norwegian Constitution, the Minister of Justice (of the right wing progressive party Fremskrittspartiet, one of two parties in the coalition government) wanted to consult Stortinget before the appointment. His formal request was officially turned down by the President of Stortinget (a member of the conservative Høyre, the other government coalition party), by referral to just these division of power principles.[8] The final appointment was made on February 19, just a week before the sitting Chief Justice Schei had to retire—and the date had been unknown to the candidates as well as to the Supreme Court until the day before the appointment was made.

How could this happen? The statutory regulations of procedures governing judicial appointments were altered in 2002. Following decades of discussions about how judicial independence could best be ensured in a system of governmental appointments, the Court Commission of 1999 suggested the creation of an independent Consultative Body to replace the Department of Justice as the evaluating organ for the government decision.[9] This Body assesses all judicial candidates, and produces for the Minister of Justice a reasoned ranking of the top three. Both the list of applicants and the actual ranking from the Body are made public. So far (since 2002) the top ranked candidate has always been the one recommended by the Chief Justice and ultimately appointed by the government. Consequently, the Body (so far) functions as the actual, if not formal, appointing organ.

This procedure is in line with independence and openness requirements for judicial appointments that follow from the Norwegian Constitution and international standards for achieving judicial independence, which counsel that judicial appointments should ideally be independent of the executive and legislative powers.[10] In older democracies with constitutional arrangements of executive appointments such as Norway, “an independent and competent authority drawn in substantial part from the judiciary […] should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice»,[11] and “[t]he entire appointment and selection process must be open to public scrutiny, since the public has a right to know how its judges are selected”[12]

The 1999 Court Commission did, however, leave the process for appointing Supreme Court Chief Justices open, based on the rather unexplained rationale that “the government should have some more leeway in appointing Chief Justices than other Justices and judges.”[13]

The government could nonetheless have used this leeway to appoint the new Chief Justice in a manner complying with the above-mentioned standards, e.g. by outlining the method it would follow in advance, before it embarked on it. It could also have opened up the process by announcing the criteria according to which candidates would be measured, possibly even in a way inviting public debate. Or it could have designed the mandate for the ad hoc consulting group to require separate evaluations of the candidates’ professional and personal qualifications, thus enabling public access to the former, at least after the decision was made.

The government did none of these things. Whether this was a conscious choice or a consequence of unpreparedness, we will never know. (Although the public display of non-communication between the President of the Storting and the Minister of Justice, both belonging to government parties, suggests the latter). The point remains that the process has left the public—as well as Stortinget and the Supreme Court—with a substantial amount of uncertainty about what really went on, and what the government found decisive in its choice of a new Chief Justice.

While the process has been insufficiently transparent that the Parliamentary Ombudsman has recommended to the Department of Justice that it prepare legislation ensuring the independence and openness of future Chief Justice appointments,[14] the Minister of Justice maintains that the process has been very good, and that it “could not have been more open”.[15]

Suggested Citation: Anine Kierulf, Norway: New Chief Justice Appointed to the Supreme Court, Int’l J. Const. L. Blog, Mar. 1, 2016, at: http://www.iconnectblog.com/2016/02/norway-new-chief-justice

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[1] See https://snl.no/Toril_Marie_%C3%98ie; https://en.wikipedia.org/wiki/Toril_Marie_%C3%98ie.

[2] See https://snl.no/Tore_Schei; https://en.wikipedia.org/wiki/Tore_Schei.

[3] http://www.nettavisen.no/nyheter/regjeringen-vil-ikke-utlevere-ansettelsesrapport/3423179327.html.

[4] https://www.stortinget.no/nn/Saker-og-publikasjonar/Sporsmal/skriftlege-sporsmal-og-svar/Skriftlig-sporsmal/?qid=64410.

[5] E.g. http://www.aftenposten.no/meninger/debatt/Anundsen-har-valgt-mindre-apenhet_-men-han-kunne-valgt-mer–Henrik-Litler-Bentsen-8328897.html and http://www.aftenposten.no/meninger/kronikker/Kronikk-Regjeringen-apner-for-politisering-av-dommerutnevnelser-8323652.html.

[6] E.g. http://www.bt.no/meninger/kommentar/eikefjord/Politisk-justis-3546451.html and http://www.dagbladet.no/2016/01/18/kultur/meninger/hovedkommentar/kommentar/hoyesterett/42789184 and http://www.bt.no/meninger/leder/Hemmelighetskremmeri-3528733.html.

[7] https://www.sivilombudsmannen.no/uttalelser/innsyn-i-rapport-om-kandidater-ved-utnevning-av-ny-justitiarius-i-hoyesterett-article4229-114.html.

[8] http://www.aftenposten.no/meninger/debatt/Stortinget-involverer-seg-ikke-i-utnevnelse-av-hoyesterettsjustitiarius–Olemic-Thommessen-8341463.html.

[9] NOU 1999:19, ch. 7.5.4. https://www.regjeringen.no/no/dokumenter/nou-1999-19/id141812/?q=&ch=8#KAP7-5-4.

[10] See Recommendation CM/Rec(2010)12 of the Committee of Ministers. See https://wcd.coe.int/ViewDoc.jsp?id=1707137. See also the Report of the Special Rapporteur on the independence of judges and lawyers: https://unispal.un.org/DPA/DPR/unispal.nsf/9a798adbf322aff38525617b006d88d7/6ccb25b5f7da4cd9852575cc00513468?OpenDocument and the European Network for Councils of the Judiciary http://www.encj.eu/images/stories/pdf/GA/Dublin/encj_dublin_declaration_def_dclaration_de_dublin_recj_def.pdf.

[11] Id. and para. 45 of The Venice Commission’s Report on the Independence and of the Judicial System CDL-AD(2010)004  http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD%282010%29004-e.

[12] See European Network for Councils of the Judiciary: http://www.encj.eu/images/stories/pdf/GA/Dublin/encj_dublin_declaration_def_dclaration_de_dublin_recj_def.pdf.

[13] NOU 1999:19, ch. 7.5.4. https://www.regjeringen.no/no/dokumenter/nou-1999-19/id141812/?q=&ch=8#KAP7-5-4.

[14] https://www.sivilombudsmannen.no/uttalelser/innsyn-i-rapport-om-kandidater-ved-utnevning-av-ny-justitiarius-i-hoyesterett-article4229-114.html.

[15] http://www.aftenposten.no/nyheter/iriks/Toril-Oie-ny-leder-for-Hoyesterett-8363329.html.