Labour Party leader Ivana Bacik has said former Chief Justice Frank Clarke’s decision to submit his resignation as a judge of the Dubai International Financial Centre Courts is “sensible and appropriate”.
Ms Bacik said her main concern was about Mr Clarke holding the position of a judge in courts she considered to be “a mechanism to support an oppressive regime” while also being president of the Law Reform Commission, a State body.
In a virtual ceremony last Tuesday, Mr Clarke and retired former Irish High Court president Peter Kelly were among four retired judges sworn in as judges of the DIFC courts before Sheikh Mohammed bin Rashid Al Maktoum, vice-president and prime minister of the UAE, ruler of Dubai and president of the DIFC.
News of the first Irish appointees to the DIFC courts was met with divided reaction from lawyers and judges here. Critics were concerned about Dubai’s poor human rights record and the perceived commercialisation of the judicial office. Supporters said the appointments were positive for the international perception of the Irish legal system and noted that the two former judges are private citizens.
In a tweet on Saturday, Ms Bacik, a qualified barrister, said there were “serious concerns and questions” about the appointments.
In a statement later on Saturday, Mr Clarke said when he was first approached about becoming President of the Law Reform Commission, he had informed the Government of the likelihood that he would be appointed to the DIFCC.
“I understood it to be the case that this did not give rise to any difficulty. Prior to my appointment as President of the Law Reform Commission, I had also publicly mentioned the possibility of my appointment to the DIFC Courts in a Sunday Business Post podcast,” the statement said. “Ireland and many Irish companies do significant business in and with Dubai and in that context it is important that there be an independent and trusted dispute resolution system available to those companies.”
The statement continued: “However, I am concerned that the current controversy could impact on the important work of the Law Reform Commission to which I am committed. In those circumstances, I can confirm that I have today submitted my resignation as a judge of the DIFC courts to the Chief Justice of that court.”
Mr Clarke has since clarified he had informed Attorney General Paul Gallagher, prior to being appointed as president of the LRC, about his likely appointment to the Dubai courts.
Mr Kelly did not reply to a request for comment.
Reacting to Mr Clarke’s statement, Ms Bacik said: “I think it is a sensible and appropriate decision in the circumstances and I commend Frank Clarke for taking it.”
The Dublin Bay South TD said she “fully endorsed” Bill Shipsey’s views about the appointments of the two retired Irish judges. In a Irish Times opinion article, Mr Shipsey said the appointments represented “a big coup” for Sheikh Al Maktoum, “but damages the excellent reputation of the two former Irish judges and thereby risks undermining the regard that our senior judiciary enjoys and deserves”.
He outlined the documented violation of fundamental human rights by the UAE government and noted a UK court’s judgments in cases involving Al Maktoum, including a decision the ruler of Dubai had arranged for the kidnapping and forcible return of two of his daughters, including one snatched from the streets of Cambridge. The most obvious question for the Irish former judges was “what were they thinking”, Mr Shipsey wrote.
Ms Bacik said: “As a feminist and a lawyer, I have huge concerns around anyone, whether in sports or law or any profession being apparently used to justify or legitimise a regime that is oppressive.”
While she accepted there are many Irish companies doing business with the UAE, “that is different from being part of a mechanism that is supportive of a repressive regime”, she said. “There is a deliberate strategy by that regime to use respected former judges as a way to legitimise it and that calls into question the judgment of any person who accepts an appointment that would lead to that.”
Senior counsel Cormac Ó Dúlacháin, a member of the Bar of Ireland whose areas of specialty include human rights, said: “There is a growing concern among barristers that if judges are seen to monetise their reputations on retirement in the private market, that will undermine public confidence in the judiciary’s impartiality.”
Impartiality, he said, “is not assessed solely on the basis of what private interests a serving judge has but it is equally impacted by post-retirement commercial relationships with solicitors, sheikhs or sultans.
“By flying into Dubai to administer western style justice, for a fee, to people and corporations in a 110 acre financial services zone, you are in effect endorsing Dubai’s a la carte approach to human rights – justice, as we know it, is available only when it suits and is not to be available universally.”
The DIFC courts were established to serve international institutions operating in Dubai and the UAE. They began operating in 2006 and, unlike other areas of Dubai, do not operate sharia law but are an independent English language common law judiciary based in the DIFC, with jurisdiction governing civil and commercial disputes nationally and worldwide. It is understood the position of a judge of the DIFC courts is a part time role and payment is on an hourly basis.
Mr Clarke retired as chief justice in October, but has since rejoined the Law Library, engaging mainly in mediation work. He is president of the Law Reform Commission, a part-time role commanding a €59,000 salary, and also chairs the Civil Legal Aid Review committee.
Mr Kelly retired as president of the High Court in June 2020. Both men were obliged to retire after turning 70.
