The system of judicial appointments needs to be depoliticised

The recent involvement of a politician in a sentencing hearing before a court raises questions about the relationship between politicians and the judiciary. Much of the discussion to date has focused on the role of the politician concerned and the implications for his career. However, in my view, such incidents raise a wider issue of principle. My purpose is to address that issue. I make no comment about the actual case which led to this incident, which is still before the courts.

It is a common occurrence for a witness to be called at a sentencing hearing to give character evidence for an accused person or to testify about that person’s circumstances. Often the defendant’s lawyer will call some respected member of the community whose evidence is thought likely to carry weight with the judge.

Why should a politician not fill such a role? A politician should have an insight into the problems and conditions of his or her constituents which few others could match, and be ideally suited to give such evidence. Twenty years ago, politicians doing so would scarcely have raised an eyebrow. Listening to interviews at the weekend it seems there is sometimes little real understanding of why such interventions are now considered unacceptable.

The fundamental reason why politicians should not have such a role is that, in Ireland, politicians and political appointees still play the key role in the appointment and promotion of judges. Despite the introduction more than 20 years ago of the Judicial Appointments Advisory Board, judicial appointments are still required under the Constitution to be made by the Government. In practice, it seems likely the decisive influence lies with an even smaller group consisting of the Minister for Justice, the Attorney General, the Taoiseach and the Tánaiste. The board is required to nominate at least seven suitable names for each vacancy, in no particular order of merit. In normal times, it would be an unusually unpopular government which could not find at least one of its own supporters in any randomly selected group of seven senior lawyers. Even then, the government is not bound to appoint one of the seven persons recommended but may go outside that list, provided it discloses it has done so. In reality, the Judicial Appointments Advisory Board system seems only to exclude totally unsuitable candidates but still leaves it possible for the government to take political considerations into account when making appointments from those on the list.

Unfair influence

One can see, therefore, why a politician giving character evidence in a case places a very unfair pressure on a judge. The same politician whose evidence is given today may tomorrow have to decide on or may have influence over a judicial appointment for which that same judge may be considered. The trial judge must, however, weigh the politician’s evidence with no regard to any personal considerations. Even though there is no evidence that any judge has ever acted in such a case from personal motives, some members of the public may not believe this. Justice is done, but is not necessarily seen by all to have been done. The judicial system is the loser in this process.

What is needed to resolve this problem is not the short-term fix of removing offending politicians from office, or even the introduction of a code of ethics for politicians – useful though it might be – but rather a long-term solution which would depoliticise the system of judicial appointments once and for all.

To do this effectively might require an amendment to the Constitution, but it is an amendment which an effective campaign might persuade the public to support.

The judges themselves have proposed the depoliticisation of judicial appointments in their submission to the former minister for justice. Their proposal seems so far to have met with silence from the political establishment.

Judge selection

It is surely time the Government and members of the legislature accepted and acted on the submissions of the judges and others who seek a system of judicial appointment based only on merit. They must agree to break the system which permits politicised appointment of judges once and for all. James Hamilton is former director of public prosecutions and former permanent head of the Attorney General’s Office