Judicial appointments and the law
Sir, – Whatever the constitutional propriety of senior serving judges attempting to influence the passage of a proposed Bill through the Oireachtas, the Association of Judges of Ireland’s press release of June 26th is a matter of pronounced disquiet. Frank Schnittger’s letter (June 26th) rightly points to the hypocrisy of senior judiciary standing on their judicial prerogatives to scold publicly politicians for their comments in the Whelan controversy, and, in the next breath, interfering in the legislative process.
Moreover, the separation of powers is a settled constitutional principle, repeatedly affirmed in case law, and the intervention of the Association of Judges of Ireland is a clear breach of this principle by a body that should know better.
Were the proposed Bill enacted and subsequently challenged in the courts, it is not clear how members of the association could sit impartially on the case after their representative body has publicly exposed their bias against the law.
How many judges will be available to hear such a challenge after those tainted by this ill-judged public intervention have been obliged to recuse themselves? – Yours, etc,
J VIVIAN COOKE,
Sir, – The idea that judges are appointed based on cronyism is ill-judged, offensive and erroneous.
The Dáil is considering the Judicial Appointments Commission Bill this week before it comes to Seanad Éireann. I support the provision for the appointment of lay members to the Judicial Appointments Commission. However, I will strongly oppose and vote against any attempt to statutorily preclude the chief justice of the day from chairing that body. – Yours, etc,
Senator VICTOR BOYHAN,
Sir, – Decades ago, as the happy band of High Court reporters dusted down their typewriters in readiness for the next day’s exertions, they would chat about the various personalities encountered during the day.
There was always a vignette or two: the judge with the scintillating judgment; the pompous senior counsel; the junior frazzled by a rude opponent; the cases won when the plaintiff’s cause seemed lost; the allocation of cases by the High Court president.
So, after some years, we believed we could make reasonable assessments of Four Courts judges and practitioners, and their performance. If a barrister was turned into a judge, we would opine that he (and it was usually he) would make a fine, or awful, bench member.
Except, that my colleagues and myself were sometimes wrong, very wrong. Even after years of observation and listening to the legal mood music, and knowing the characters and their abilities, we could flounder when deciding who would make a good judge.
Which is why I believe the Government is visiting on us dreadful legislation in allowing Shane Ross to corral it into having a lay majority on the Judicial Appointments Commission Bill. Non-legal people can have good antennae on ability, character and personality. They certainly should not hold sway in such vital decision making. – Yours, etc,
Sir, – The judicial class and their legal buddies in the political class protest too much at the notion that a lay majority commission would be unqualified to select judges and could undermine judicial independence.
We utilise lay people in the judicial process at present. They are called juries, and yet judges have no issue with lay people being dragged off the street to find defendants guilty or innocent, despite having absolutely no legal training, knowledge or experience whatsoever. No threat to judicial independence there.
There is a warped definition of judicial independence in this country that believes that judges are so independent that they are also independent from common sense and the real world. The political class too readily swallows this warped definition hook, line and sinker.
Supreme Court judge Theodore Kingsmill Moore, in the 1959 case of O’Byrne v Minister for Finance, stated that judicial independence “was for the protection of the people, not for the interests of the judges”. – Yours, etc,
Sir, – The new proposals for appointing judges are lacking a crucial dimension: there is no provision for training to be a judge.
It is assumed that experience and ability as a practising lawyer provide the necessary qualifications. At Supreme Court level, clearly an in-depth knowledge of the law and Constitution is vital. In criminal courts, a knowledge of sociology, psychology and sentencing are important; however, this knowledge is not necessarily acquired in the practice of law.
Completing successfully a training course for being a judge should be a prerequisite for appointment. – Yours, etc,