Cabal taking decisions on judges not acceptable

In The next few weeks a cabal within the Government will decide on appointments to the most powerful institution in the land, the Supreme Court. The Chief Justice, Liam Hamilton, is about to retire, along with three other judges of that court, Donal Barrington, Henry Barron and Kevin Lynch (the latter has already retired). Never before, since the Supreme Court was established in 1924, has a government had to decide on the appointment of half the membership of the court in one single decision.

Never before, since 1924, has a government had the power to influence the complexion of the court as it now has. The rest of us should be paying some attention to what it is doing.

The first point that arises is whether the manner in which the decision is likely to be taken is itself constitutional. Under Article 35 of the Constitution, the President appoints judges in all courts, including the Supreme Court. This is a mere constitutional fiction, however, because under another Article of the Constitution, Article 13.9, the President may exercise this power only on the advice of the government.

It is, therefore, the function of the government to decide who should be appointed to the Supreme Court (as well as to the other courts), and under yet another Article of the Constitution, in taking decisions on this and on any matter, "the government shall meet and act as a collective authority" (Article 28.4.2).

Now, it seems that this Government, and indeed several of its predecessors, have been in serious breach of this constitutional requirement in reaching many decisions. The most obvious recent such decision concerns the Budget.

It is generally acknowledged that the crucial decisions taken on the unfortunate Budget introduced by Charlie McCreevy last December were taken by just three members of the Government - Bertie Ahern, Mary Harney and Charlie McCreevy. The rest of the Government were informed of the Budget's contents only on the morning of its introduction, and by then they could not have changed a comma, let alone some of its more crucial provisions.

Yes, of course, the Cabinet may then have given its formal approval to the Budget, but could such a perfunctory involvement on the part of the 12 other members have accorded with the constitutional requirement that "the government shall meet and act as a collective authority"?

The Supreme Court recently found that so onerous was the requirement of the government to "meet and act as a collective authority" that nothing concerning its deliberations should be made public, lest that function be undermined in any way (the cabinet confidentiality case of 1993).

So back to the cabal that is likely to make the most important decision ever taken concerning the Supreme Court in 76 years, the composition of half of the court. If precedent is followed, just the Taoiseach, the Tanaiste, the Minister for Justice and, maybe, the Attorney General, will decide on the nominations. Of course, their decision will be rubber-stamped by the Government as a whole when the time comes, but would that meet the constitutional obligation to "meet and act as a collective authority"?

There is no explicit constitutional provision requiring the Government to have its nominations to the Supreme Court approved by Dail Eireann. But there is a constitutional requirement for the Government to be responsible generally to the Dail (Article 28.4.1) and it seems odd that, in relation to perhaps the most important decision that this Government will take on anything, there should not be specific accountability.

Is it good enough that responsibility should be handed out in a manner so casual as happens on senior judicial appointments and that no public inquiry is made into the suitability or significance of particular appointments?

The Supreme Court recently has taken decisions that many of us would wish to question. Just take two: one on freedom of the press (the De Rossa case) and the other on blasphemy. The decision on press freedom ran counter to decisions of superior courts in the United States, the UK, Australia, Canada and New Zealand. In the De Rossa case, the Supreme Court, while initially acknowledging that what was at issue was the balancing of two constitutional rights - the right to one's good name and the right to freedom of the press - went on to deliver a majority judgment that entirely ignored the latter right.

In the blasphemy case the Supreme Court effectively held that there was no such thing any more as blasphemy, although the Constitution explicitly permits the curtailment of freedom of publication on grounds of blasphemy (Article 40.6.1).

The judges who delivered these decisions cannot be made accountable for them, and there is no way of making them accountable while protecting the independence of the judiciary. But surely, before we give fellow citizens the enormous powers exercised by judges of the Supreme court, we should have some examination of what they are likely to do with such powers, based on their previous judicial decisions (in the case of promotions from inferior courts) and/or on an examination of their juris-prudential views. They do this in America and it works all right. Why can we not do it here?

Postscript: Conor Cruise O'Brien replied to my column of last week, where I pointed out that, in the course of patronising the singer Andrea Corr, he had chanced his arm on a story concerning her literary hero, Dostoevsky. Having calculated that she was mature enough to take the shock of a revelation concerning her hero, he told her that Dostoevsky had not been just an ordinary anti-Semite, but had been a "trusted adviser" in the implementation by a state official of anti-Jewish policies. Dostoevsky was anti-Semitic, but he could not have been a "close adviser" to anybody in the implementation of this policy because by the time it was inaugurated he was dead. O'Brien's defence was that Dostoevsky would have supported this policy had he been alive. He stood over the "substance" of what he wrote. One of Dr O'Brien's ideological soul-mates, Rudyard Kipling, wrote in the poem How the Camel Got its Hump:

The cure for this ill is not to sit still,

Or frowst with a book by the fire;

But to take a large hoe and a shovel also,

And dig till you gently expire.