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Report No. 121


5.17. France has an altogether different model for selecting judges. The judicial service is a career service. Right from the inception, one has to make a choice whether he wants to be a judge or a practising advocate. No one is appointed a judge form the cadre of practising advocates. There is a Ministry of Justice forming part of the Government of France.

It has really very little authority over judges performing adjudicatory duty. Political patronage plays a non-decrypt role in the selection of judges. There is a training academy at Bordeaux, 'echole national de law magistrature' where training for a minimum period of 28 months is imparted to the would be judges. One has to clear an examination for entering judicial service.

5.18. Theoretically, the President of the Republic, who is charged by the Constitution to be the "guarantor of the independence of judicial authority", select the judges. He is to be assisted by the high council of the judiciary. In practice, they are chosen either by the Counseil Superieur de la Magistrature (high council of the judiciary) in the case of Cour d'appel and Cour de Cassation or by the Minister of Justice who may consult or receive advice from the High Council in case of the lower courts.

The High Council consists of the President of the Republic (as President) Minister of Justice (as Vice-President) and nine persons with legal back ground chosen by the President for a once renewable term of four years partly on the recommendation of the Cour de Cassation and Counceil d' Etat as follows: One from the latter, three from the former, three from other courts and two selected for their general legal knowledge and competence. In any event, selecting authorities have little choice, considerably less than in England and invariably less of course, than in the United States.1 The emerging position is summed up as under:

"members of the Counseil (D'Etat) still lack that status of irremovability which is the treasured privilege of the French judiciary. In practice, however it is unthinkable that a member should be dismissed or otherwise disciplined by reason of political considerations. Indeed, the government of the day had to accept, with such grace as it could muster decisions as troublesome as Trebes (C.E. 4 March, 1949, where the entire career structure of a Ministry was pronounced invalid), Barel (C.E. 28 May, 1954, discussed in Chapter 9, post) and Canal (C.E. 19 October, 1962, discussed in Chapter 3, ante).

Although this last case did prompt some important reforms in the institution of the Counsel d'Etate as a whole, any action against the individual members would, of course, have been quite unthinkable."

1. Ibid., p. 32.

5.19. "Promotion depends entirely upon seniority of service, subject to certain limits of age. This principle is regarded by members of the Counseil (d' Etat) as the essential guarantee of their independence."1

1. Brown and Garner French Administrative Law, 54-55, (3rd Edn., 1983).

5.20. Justices of peace are appointed by the President on the selection made by the Ministry of Justice from amongst the lawyers of at least two years' standing who qualify at the examination held by the Ministry.

Vertical promotions are governed generally by the rule of seniority.1

2. H.R. Dubey The Judicial System of India and Some Foreign Countries, pp. 534-535.

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