This week I will introduce the Judicial Appointments Commission Bill in the Dáil. It seeks to modernise the process for nominating judges and gives effect to a commitment in the programme for government. It is part of a broader process of modernisation and change that has taken place right across government and the Oireachtas in recent years.
The introduction of this Bill should not be interpreted as an explicit or implicit criticism of the judiciary, who have served this State with distinction and integrity since we achieved our independence.
I am conscious that I will be introducing this Bill in a very challenging context. I am greatly disturbed by the tenor and content of some of the recent public discourse about the judiciary, one of the three branches of Government under our Constitution.
Two things were abundantly clear to me from my engagements as Minister for Foreign Affairs and Trade over the last three years.
First, from a global perspective, Ireland is a strong and stable democracy in a world where, sadly, dictatorship, the abuse of human rights, serious corruption, violent conflict and instability are more prevalent than many realise.
Secondly, Ireland is a country which is recognised as having strong and independent courts with a clear separation of powers where the rule of law is paramount. That is a vital aspect of our offering to investors who wish to set up businesses in Ireland. They need to know they can rely on our courts to fairly and professionally administer the rule of law. And the high level of foreign direct investment in Ireland is proof that investors, who undertake their own independent analyses, have great faith in our courts.
Moreover, many academic analyses have shown again and again what I know as a practising lawyer for many years to be true: we have a tradition of a very independent and well-regarded judiciary.
There has been some attempt to introduce an uncertainty in the public mind about that point in recent times, whether inadvertently or intentionally – and I take issue with that.
The Constitution gives the democratically elected Government the power to nominate judges, a normal feature of common law jurisdictions. Those politicians who make the nominations are accountable to the people for their decisions. Since our independence, successive governments have nominated judges, and those judges have again and again found against the government of the day in their judgments when the law demands it. They have vigorously maintained their independence and, in the superior courts in particular, judgments have often been highly critical of governments of all political complexions.
Throughout my political career, this reality has been acknowledged by responsible politicians and commentators. However, the trend towards populism and political expediency has eroded some of that well-established ethical and responsible approach in recent times.
The fact that the judiciary cannot and should not engage in public debate on matters of political controversy has been exploited by some populists with scant regard for the implications or consequences. Those who embrace populism have been joined by those who have sought to undermine the institutions of this State since its foundation – and by those who simply should know better – in casting aside constitutional provisions that don’t suit their immediate political needs.
I am extremely concerned by this trend. It has become clear to me that some are seeking to place the judiciary in the dock. It is unclear what the charges are. And it is unclear what the evidence against them is.
The legislation that the Government is introducing this week is wrongly seen by some as righting a wrong rather than modernising an aspect of Government administration.
Similarly, a disturbing populist trend has emerged in some Oireachtas committees in recent times. Where due process and fair procedure were once rigorously observed, instead we have some politicians vying to outdo each other in their aggression with an eye to the news headlines.
The value of the rule of law in Ireland – which I emphasised constantly in my meetings as foreign minister – is being eroded and this is a very negative development.
For many decades during my lifetime our democratic institutions were under threat from IRA terrorists. Indeed, today dissident republicans remain the biggest threat to our national security. However, the populists who seek to undermine the legitimacy of the institutions of our State also pose a serious threat to our democracy, albeit a more subtle threat.
Democracies are fragile. It used to be said that students of history were aware that democracy cannot be taken for granted – but one doesn’t have to be an historian in today’s world to realise that we cannot be complacent and assume our State can withstand the modern penchant for undermining our Constitution, eroding the separation of powers and jettisoning of the rules of due process for short term political ends.
In his final speech to the Dáil, outgoing taoiseach Enda Kenny reflected on the need to overcome people’s disillusionment with politics. He called for politicians to treat one another with a greater degree of respect in arguing the merits of issues or measures. I would add to that the need to be bound by the provisions of our Constitution, unless the people exercise their sovereign right to change them, and that those of us in positions of responsibility must act responsibly, including the debate due to begin this week on the Judicial Appointments Commission Bill.
Charlie Flanagan is Minister for Justice & Equality