The head of state appoints EMB members in many countries. In Canada, Latvia and Mexico, the legislature is responsible for appointment, while the court is responsible for appointment in Costa Rica. The division of EMB appointment powers between the executive and legislature (and judiciary) provides checks and balances in appointment procedures and enhances the appointment process. If one branch of government (especially the executive) has the sole right to appoint EMB members, there is a danger that such appointees, even if they are men and women of integrity, may be perceived by the public, and especially the opposition parties, as pawns of the appointing authority.
Even if the power to appoint EMB members is divided between the executive and the legislature, this arrangement will be fettered if the same party dominates both branches, or if the executive effectively controls the legislature. In this case, the requirement of a two-thirds majority in the legislature to approve EMB appointments could be a useful remedy, because it may give minority parties a veto power; this voting rule is used in Mexico, Nigeria, Uruguay and Yemen.
The extent to which the head of state makes his or her own choice, chooses after consultation or follows the decision of others varies. In Pakistan, the head of state chooses all members, while in Guyana and Saint Lucia the head of state appoints all members but chooses only some of them. The unilateral appointment of EMB members, especially by the executive branch, has been criticized by many analysts, who argue that it could encourage the appointment of government and ruling party sympathizers rather than impartial arbiters.
Some form of consultation in appointing members of the EMB is more common. Involving the legislature, including opposition parties, in the confirmation process can help provide some degree of multiparty support for the appointments. Parliamentary factions and groups are consulted in Ukraine, and in Trinidad and Tobago appointments are made based on the advice of the prime minister following consultation with the opposition leader.
Whether the final choice is made by the head of state or the legislature, a nominating committee or less formal grouping of individuals is used for part of the process in some cases. In Guatemala, the nominating committee is composed of university rectors and deans of law and a representative of the bar association. In Bhutan, a short list is jointly proposed by the prime minister, the chief justice, the speaker, the chairperson of the National Council and the leader of the opposition party. In Papua New Guinea, the Electoral Commission Appointments Committee is made up of the prime minister, the leader of the opposition, the chair of the Parliamentary Committee on Appointments and the chair of the Public Service Commission. In Vanuatu, the president appoints based on the advice of the Judicial Service Commission. In Malaysia, the president appoints after consulting the conference of rules (comprised of the heads of each Malay state). In the Philippines, the president appoints with the consent of the Commission on Appointments. In Zambia, the president uses a selection committee comprising members of the Supreme and Constitutional Courts, the Civil Service Commission, the Judicial Service Commission, a representative of church bodies and the ombudsman. In South Africa, candidates are nominated by a panel made up of the president of the Constitutional Court, a representative of the Human Rights Commission, a representative of the Commission on Gender Equality and the public prosecutor. In South Sudan, the selection process must include consultation with women and civil society groups. In Zambia, the shortlist is advertised to all for public scrutiny.
In many cases the nominating committee decides who to appoint, but in some cases a committee presents a list of names that includes more names than there are places to be filled, and another body makes the final choice from within that group. In Indonesia and South Africa, the legislature chooses from the names proposed by the panel. In Brazil, the president selects two from a list of six provided by the Supreme Federal Court. In Lithuania, the minister of justice and the bar association each provide a shortlist and the members are selected by drawing lots.
Another way to share the role of appointing EMB members is to let specified bodies select a certain percentage of members instead of appointing all members in the same way. For instance in South Korea, three of nine are appointed by the president, another three are elected by the National Assembly and the final third is nominated by the chief justice of the Supreme Court. In Lithuania, some members are nominated by the minister of justice and the bar association. In Latvia, the Supreme Court elects one member of the EMB and in Botswana the Judicial Service Commission chooses five of the seven members from a list of recommendations from the all-party conference. Key government departments each designate a member of the EMB in Portugal.
In some cases, individuals are EMB members because they hold another position, such as auditor general (Tonga), head of the Department of Statistics (Germany) or chief judge of the Maori Land Court (New Zealand prior to 2010).
