Why is a court in Dubai making headlines in Ireland?
Former Irish chief justice Frank Clarke and former High Court president Peter Kelly, who are both retired, were appointed just over a week ago as judges of the Court of Appeal of the Dubai International Financial Centre (DIFC) courts. By last Tuesday, both had resigned without having heard a single case.
That was fast! What happened?
Both men were sworn in on Tuesday, July 27th as judges of the DIFC courts in a virtual ceremony before Sheikh Mohammed bin Rashid Al Maktoum, who is president of the DIFC, ruler of Dubai and vice-president and prime minister of the United Arab Emirates (UAE). The UAE government has a documented record of violations of fundamental human rights. Mr Clarke and Mr Kelly were the first Irish appointees to the DIFC courts, which are specialist commercial courts operating an English-language common law jurisdiction in contrast to Sharia law in the rest of Dubai, and the appointments caused considerable concern in legal circles in Ireland. Labour Party leader Ivana Bacik echoed concerns about a “deliberate strategy” by an oppressive regime to use respectable former judges as a way to legitimise it. She was particularly concerned about Mr Clarke being on the DIFC courts when he is also president of the Law Reform Commission, a statutory body. Other lawyers and judges took a different view, saying the retired judges are private citizens and their appointments would enhance the reputation of the Irish legal system in international financial and legal circles.
What did the two retired judges say?
Nothing publicly in the first few days but it is expected they would have been aware of media articles concerning the appointments, including an opinion piece by former senior counsel Bill Shipsey, published in The Irish Times on July 29th. Mr Shipsey outlined the UAE’s poor human rights record and said he considered the appointments of Mr Clarke and Mr Kelly, along with an English QC and a retired New Zealand judge, to the DIFC courts to be a “big coup” for Sheikh Al Maktoum and the DIFC courts, but something which “damages the excellent reputation of the two former Irish judges and risks undermining the regard the Irish senior judiciary enjoys and deserves”. Ms Bacik tweeted that she agreed with Mr Shipsey.
Sounds like pressure was mounting?
Apparently so. Mr Clarke, in a statement last Saturday, said he had submitted his resignation as a judge of the DIFC courts due to concern about the impact of the controversy on the Law Reform Commission. On Tuesday, Mr Kelly issued a one-line statement saying he had decided to resign “since, as a private citizen, I do not want to disrupt my future time in retirement”. Ms Bacik welcomed the resignations as “sensible and appropriate”.
So a week isn’t just a long time in politics?
The episode has left many in the legal world bemused. By far the most common response over the week-long controversy was, as Mr Shipsey put it to both former judges in his article: “What were you thinking?”
What happens now?
The controversy has intensified concerns in legal circles about a perceived monetisation of the judicial office and some legal sources, including serving and retired judges, say they would like to see a wider discussion about this. Many also believe it is time to look again at the compulsory retirement age of 70 for judges, noting Mr Clarke and Mr Kelly were reluctant retirees. It remains to be seen if any of these issues will be pursued by politicians and/or the Judicial Council.