Many may remember that the Judicial Service Commission (JSC) recommended the appointment of prominent lawyer Miles Fitzpatrick as an acting judge in the early 1970s. Mr Fitzpatrick then turned up at State House on the appointed day to be sworn in by the then President, Arthur Chung. The President failed to appear, in his own house. The swearing-in was aborted and Mr Fitzpatrick was never appointed. The Independence Constitution and its 1980 substitute provided that the President “may appoint” judges who were recommended by the JSC.
In 2001 the authority of the JSC was strengthened, and the discretion of the President was removed, by the substitution of “shall” for “may.” Article 128(1) now provides that judges other than the chancellor and chief justice are appointed by the President “who shall act in accordance with the advice of the Judicial Service Commission.”