Row over appointments is in itself a threat to judicial independence

The continuing terse exchanges between politicians and the judiciary raise legitimate concerns about an important aspect of Irish democracy.

The idea of the separation of powers may sound dry and academic but in the times we live in it is an extremely important defence against political forces that may be inclined to trample over people’s rights.

Recent examples of this have been seen in the United States, where individual judges have stood up to President Donald Trump in relation to his ill-thought-out immigration proposals.

Irish barrister, political scientist and judicial appointments expert Jennifer Carroll MacNeill says that such types of clashes cannot be ruled out in this jurisdiction, given the political volatility that is evident across the Western world.

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Should the Oireachtas, sometime in the future, and reflecting popular will, decide that all members of a particular group should have their rights infringed, then individuals seeking to protect their rights will look to the independence of the judiciary.

When that independence disappears, as Carroll MacNeill puts it, “then you can forget ongoing constitutional democracy”.

Mutual respect

The idea of the separation of powers is that the executive, legislature and judiciary exercise mutual respect and jealously guard their own, and each others’, designated roles.

The comments of Mr Justice Peter Kelly, the President of the High Court, on Friday, first reported by The Irish Times over the weekend, infringe that idea, because he has made direct and negative comment about the Government's decision to prioritise the passing of the Judicial Appointments Commission Bill through the Oireachtas.

The judge, appointed to his current position by the Government in December 2015, said the commission proposal was “ill conceived” and “ill advised” and was being processed with “undue haste”.

While he has every right to comment on laws, or flaws in the law, that affect litigants that come before him in court, the more general matter of what laws the Government chooses to introduce, and in what sequence, is not part of the judiciary’s business.

Yet the judiciary has been campaigning strongly against the Government’s decision to introduce a new judicial appointments regime.

In May, in a speech distributed to the media, Mr Justice Patrick McCarthy said the Government’s plan for changing how judges are appointed will do “long-term harm” to the administration of justice. The Government’s plans, he said, were “wrong in principle”.

The appointment of judges is a job for Government and the system that is put in place for that purpose is a matter for the Government and the Oireachtas. It is not a matter for the judiciary, though they have an obvious interest and should obviously be consulted.

Infringement

It is easy to see how politicians could view the lobbying and public interventions by the judiciary as an infringement of the separation of powers rule. That in itself is not a healthy development for our society.

Likewise it behoves party leaders, such as Micheál Martin of Fianna Fáil, and Ministers such as Shane Ross, to remain respectful when discussing matters pertaining to the judiciary or individual judges.

Carroll MacNeill says the fraying of relations between the judiciary and Government is particularly threatening to judges, because they need the politicians to respect and protect their independence.

In her view the row we are now seeing between the Government and the judiciary is bad for judicial independence at a time when there is a heightened responsibility to protect our institutions given the political volatility that is abroad.

There is little that can be said to be good about the current row, save that it is very clear, as matters stand, that the involvement of politicians in selecting our judiciary has not created a culture among them of deference to Government.

Another point that might be made is that the appointment of Mr Justice Kelly as President of the High Court came despite his having no party affiliations and in the past having had clashes with the Government.

His appointment was made because he was an excellent candidate for an important job.