Judges are easy target of populism, warns Chief Justice designate

Social media has completely altered public affairs, Bar Council conference hears

Mr Justice Donal O’Donnell  says the maintenance of constitutional values requires the support of the population. File photograph:  Collins Courts

Mr Justice Donal O’Donnell says the maintenance of constitutional values requires the support of the population. File photograph: Collins Courts

 

Judges are an easy target of populism, which increasingly casts the judiciary in the role of elites, because they “cannot and do not answer back”, the Chief Justice designate, has said.

Mr Justice Donal O’Donnell said it was a mistake to think that Ireland was not vulnerable to the forces behind the international assault on western liberal values.

In an address to a Bar Council conference in which he referred to attacks by the former US president Donald Trump on judges’ decisions, Mr Justice O’Donnell said the maintenance of constitutional values required the support of the population.

“Social media has completely altered public affairs and social discourse, if that is not too gentle a word,” he said.

Elections, basic to democracy, were now being fought online, he said, but the stock in trade of social media was “snap, instantaneous judgments, the more controversial and attention-grabbing the better”.

There are sometimes venomous assaults on opponents and a “generalised hostility to groups identified as elites”.

“One of the driving forces of populism is the identification of a so-called elite remote from day-to-day life who nevertheless make decisions for the bulk of society.

“Judges are increasingly cast in this role, together with politicians, and there is an increasing tendency to blur the distinction between them and to subject courts and judges to increasingly reductive and simplistic and personalised commentary.

“In the case of the judiciary they are a particularly easy target because they cannot and do not answer back.”

The maintenance of constitutional values involved not just lawyers and the law courts but also the population, he said.

“It is important, therefore, that we do everything to enhance the engagement and support for the legal system by the public.”

Right-wing authoritarianism

The Supreme Court judge who is scheduled to replace the current Chief Justice Frank Clarke later this year, said it was a mistake to feel complacent about Ireland because it had not seen a rise in right-wing authoritarianism.

The forces that are driving change were global and, therefore, were capable of being felt in Ireland as much as elsewhere, even if they emerged in a different way, he said.

“There is a mistaken perception that Ireland is not vulnerable to the forces now being felt across the globe, because the most visible challenges to the rule of law and to human rights have involved nativist politics, ultra-nationalism, right-wing authoritarianism, that do not seem to have achieved much traction in Ireland to date.”

The forces that had given rise to an assault on western liberal values were not primarily ideological in nature, and did not fit easily into the old traditional distinction of left-right or liberal-conservative, he said.

The shift in economies from manufacturing to finance is global, as is the impact of technology that has enhanced these developments.

“The flattening of incomes in traditional jobs occurring alongside the showering of extraordinary rewards on others for developments that may appear to have no obvious social value, and perhaps sometimes be socially harmful, is a consequence of developments in technology that can apply and be felt here as much as anywhere else.”

Mr Justice O’Donnell quoted from a speech delivered in Central Park, New York, by US judge Learned Hand, during the second World War, in which the US judge said the protection of liberty depended on a belief in the importance of the system being “embedded in the hearts of the men and women who it serves”.

“That message is as relevant today as it was then,” he said.

Judicial appointments

In relation to support for the administration of justice in this State, Mr Justice O’Donnell referred to the importance of respect for the system of how judges were appointed, as well as to the issue of legal costs.

“If private citizens do not feel they can go to court and have the only dispute that matters to them determined by an impartial judge, or if by contrast they feel they have to settle a case which they would much prefer to dispute, because the cost of the hearing is prohibitive, then it is difficult to maintain respect for what we rather grandly call the rule of law.”

The conference, on Human Rights at Home and Abroad, which is being conducted remotely, continues on Thursday afternoon, and can be accessed on the Bar Council’s website.

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