Politicians still want a say in judicial process
The links between politicians and judges are still seen as being too close, writes Carol Coulter, Legal Affairs Correspondent
The Constitution is clear. It provides for the administration of justice in public, by judges appointed by the President who are independent in the exercise of their judicial functions. They cannot be members of the Oireachtas or hold any other office.
It appears, therefore, that the judiciary and the Government operate in different worlds. But in reality the distinction is not that stark.
First of all, while the President appoints judges, they are nominated for office by the Government of the day, and their appointment by the President is no more than a rubber stamp of a Government, and therefore a political, decision.
For most of the history of the State these appointments were blatantly political, with sympathisers of the political party in government at the time dominating judicial appointments during that party's term of office.
Various excuses were advanced - there were always some exceptions; the appointees were at the least competent, and sometimes excellent, judges; and the origins of their appointment were not evident once they reached the bench.
An attempt to put clear blue water between the political system and the judiciary was made by the introduction of the Judicial Appointments Advisory Board in the Courts and Court Officers Act of 1995.
This board consists of the Chief Justice, the Presidents of the District, Circuit and High Courts, the Attorney General, representatives of the Law Society and the Bar Council and three lay members. Its task is to seek and assess applications for judicial office, and recommend the names of those qualified to the Government.
But the number of names it recommends is very large - up to 10, and the minister for justice can vary this number. The Government also can depart from this list, though it must have good reason for doing so.
The fact that the list of potentially suitable candidates is so great means that the political elements in judicial appointments have been left intact. One senior counsel who did not want to be named said, "you'd have to be a complete dodo not to get on that list."
This has led to a feeling in the legal profession that a political affiliation is of assistance to those barristers, and, now, solicitors, seeking to pursue a judicial career. Ambitious young barristers usually lose little time in offering assistance in fund-raising or campaigning to the party of their choice.
This is most frequently either Fianna Fáil or Fine Gael, but both the Progressive Democrtats and the Labour Party are also well represented in the Law Library.
This can lead to a political, rather than a judicial career. Welcoming the British Prime Minister, Mr Blair, to the King's Inns in 1998, the late chief justice, Mr Liam Hamilton, pointed out that, while it was a non-political institution, it had produced five out of the nine Taoisigh in the history of the State.
It has also produced a fair crop of government ministers, including some former ministers still practising at the bar.
Politically affiliated lawyers inevitably come to know TDs and ministers. Personal links are established. Social contact is common. If they apply to the JAAB for judicial appointment and are qualified they are likely to get on the short-list. Their names will then be familiar to any political colleagues who may be in government. Such familiarity will be of assistance when it comes to choosing one or two names from a short-list that can run to 10.
This political influence on judicial appointments could easily be minimised by reducing the number on the list to two or three, and asking the JAAB to put them in order of choice. The government should then be asked to justify departing from this.
Members of the judiciary, once appointed, well understand that they must be independent in the exercise of their judicial functions. That is why such shock waves ran through the legal system when the details of the Sheedy affair came to light.
But certain politicians and the general public seem not to understand fully the nature of this independence. Constituents like Ms Anne Naughton, whose request ultimately led to the resignation of Mr Molloy yesterday, clearly felt that a call from a Government minister to a member of the judiciary would benefit her cause.
She is not alone. On RTÉ television on Tuesday night, Senator John Dardis said he routinely forwarded such communications to the Department of Justice. Requests for information on cases, for reductions in fines or sentences, or for straightforward intervention with a judge are undoubtedly common.
A Department of Justice source said that hundreds of letters, both from individuals and forwarded by public representatives, were received each month by the Department relating to a wide range of court-related matters.
This is evident from the fact that in his statement yesterday the Minister for Justice pointed out that his response to Ms Naughton was in effect a standard letter, when he wrote "in accordance with standard practice".
"It appears that the issues raised relate to an ongoing court case. You will appreciate that, as the courts are, subject to the Constitution and the law, independent in the exercise of their judicial functions, it would be inappropriate for me to comment on the matter."
While politicians, or anyone else, cannot interfere in an ongoing trial, there has been some scope for influencing the eventual outcome of a case.
For example, until 1995 it was routine for the minister for justice of the day to reduce court-imposed fines on the basis of a petition permitted under the 1951 Criminal Justice Act.
This was successfully challenged in the High Court in 1995 by a district justice, Mr Patrick Brennan, who objected to the use of the petition system by the then Minister, Ms Máire Geoghegan Quinn. They were running at over 5,000 a year, and the High Court judge commented that a power intended to be used in the most exceptional circumstances had become routine. It has now been discontinued, but it undoubtedly left a legacy of expectation.
Discretion was also exercised by the Department of Justice, and now is by the Prisons Service, over where - and under what conditions - prisoners, once committed, serve their sentences. An approach was made to Mr Ahern on behalf of Philip Sheedy in this regard. However, a spokesman for the Prisons Service said that representations would be a slow and tedious way of achieving a transfer, for example, as prisoners have direct access to the prison governor or his assistant.
So in reality very little can be done by a politician, even a Government minister, for a person charged with, or convicted of, a crime. But members of the public clearly think differently. And, equally clearly, politicians have not done enough to disabuse them. Instead, they allow constituents to think they can move judicial mountains. Allowing this illusion to flourish cost Mr Molloy his job.