Judicial nominees should have to attend Oireachtas hearings

In a political system where confidence in elected representatives has ebbed considerably, judges are increasingly looked to and asked to play the role of the honest brokers in society. Largely, the judiciary continues to be perceived as an institutional strength in the country.

There are more judges than ever before and what they decide and, also, what they say is now the subject of extensive reporting and scrutiny. The judge's constitutional role and the doctrine of separation of powers, enshrined in the 1937 Bunreacht na hÉireann, has largely preserved their status and power.

However there are causes of concern. There have been judges sent to jail or threatened with impeachment. Others have resigned. There have been remarks from the bench that have caused outrage and dismay. There are judgments which cause puzzlement and concern.There has been disagreement with the government over remuneration, which in the context of a recession, has not neccesarily cast the judiciary in the best light.

The other side of the coin, of the status, independence and respect which the courts largely enjoy, is the resultant requirement and expectation for the highest standards. The judiciary now also work in the added context of European law and courts, which brings increasing complexity, demands and comparisons.

A recurring theme of the last decade has been the question of how judges are appointed.

There is dissatisfaction with the present system, which was once seen as a standard, and the Government has set in train a new round of consultation and reports on the subject. The chief justice, calling for reform, has said that political allegiance should have no bearing on appointments to judicial office.

There has always been some support for the system of election of judges. It is a system in use in a small number of states of the United States of America if not in the European Union at present. Attractive in principle, it would seem very ambitious and even foolish in present political conditions. Are we ready for ‘Vote for Paddy and I will jail all the criminals for life’?

Political support for candidates for judicial office is not necessarily a bad thing, however. Both roles are, in theory anyway, the servants of the people and the constitution. Politicians can be presumed to have some knowledge of the law and may, hopefully, be able to recognise a good jurist. They also have the resources of the public service to identify suitable candidates.

Political activism is also considered by many a civic duty and such applies to the current potential candidates for the judiciary. There are now minimum requirements of qualification and service which must be met by appointees. Also, as has been acknowledged in other spheres, the task of establishing a truly independent appointments body may be near impossible.

What causes the real difficulty, it is suggested, is a lack of transparency. Modern democracy requires an openness which was not formerly demanded. It is also a cornerstone of the rule of law itself that it is conducted in public. Media scrutiny of public life is a reality of the modern world

This requirement for transparency could be significantly addressed by adopting the Senate public hearings-type process used for approving federal judicial appointments in the United States; employing for example the Dáil Justice, Equality and Defence committee for the purpose.

That way, the citizens would know who is being nominated; what their political allegiance, if any, has been; what their general views are; what their qualifications and experience are and so on. In short, the citizens would know just who their judges are. The appointees would have the confidence on taking office of public endorsement.

There are encouraging signs that our Dáil committees have the capacity and ability for such a task, and expertise could be received at the outset from the US Senate Committee on the Judiciary.

Also worthy of further consideration, it is suggested, is whether the further stage in the US system, whereby the legislature votes on the approved nomination, should be employed. It would have the result of re-politicising the process.

There must be public confidence in judges and the courts. That confidence largely exists for now but it must be preserved and enhanced to meet the requirements of the times.

A role for the citizenry in the appointment of the judiciary, which recognises their vital interest in the process, can contribute significantly to this and could be achieved, to mutual benefit, by adopting Dáil committee approval hearings. Patrick Killian McMorrow is a barrister