Sir, - Recent correspondence from the retired Chief Justice, T. F. O'Higgins, provides a valuable insight into the administration of justice in Ireland. On March 17th, 1984, the late Mr Justice Brian Walsh received a telephone call enquiring about his availability to sit on the Supreme Court that day in connection with the extradition of Dominic McGlinchey. The judge confirmed his availability but indicated that he was opposed to the extradition. He was not contacted again in this regard. Mr O'Higgins has now confirmed that he was the telephone caller and says that Justice Walsh was not required as he had enlisted the services of Henchy J and Griffin J who had previously ordered McGlinchey's extradition.
The incident is significant when viewed in the context of that Supreme Court's attitude to extradition when it undoubtedly blurred the divisions between legislative and judicial functions. In McGlinchey the Court effectively overturned the judicial practice of the previous ten years and in the later Shannon case disposed of more historical precedents. Paddy McEntee, then chairman of the Bar Council, commented that the court "had been led into areas of policy-making and legislation" and had "substantially amended the Extradition Act" without reference to the Oireachtas.
In his recent correspondence the former Chief Justice suggests that the March 17th hearing was a formality and that "time was of the essence". However, the hearing was more than that because earlier that day the High Court had granted an injunction preventing McGlinchey's immediate extradition. In order to speed McGlinchey northwards, the Supreme Court held an unprecedented late night, bank-holiday sitting with some of the judges clad in their overcoats.
It follows that the composition of a court or the views of a single judge can have a significant bearing on the outcome of a case. In both the US and the UK there is an acceptance of the fact that the background and political views of judges can considerably influence their judgments. In Ireland the myth of "judicial neutrality" prevails despite the fact that judges are political appointees (and continue to be despite the establishment of the Judicial Appointments Board) and many of them had been closely involved with political parties. Michael Gallagher is right when he says that even if judges do not see themselves as "Fianna Fail (or Fine Gael) judges, with a mission to use their positions to continue their political activities, it might still be true that the values that led [them] to join one or other of the political parties in the first place will inform the decision they make." Gallagher, by way of example, notes that judges with a background in Fine Gael tended to be less sympathetic to the "political offence" defence in extradition proceedings than those whose background was in Fianna Fail.
Because of the secrecy surrounding the appointment of judges, little is known of the qualifications required for appointment apart from a specified period of legal practice. It would be interesting to know, for instance, if the Judicial Appointments Board has interviewed a single applicant before appointment. Surely in this era of transparency the citizen is entitled to know considerably more about the social, political and moral views of those who aspire to be judges and the qualities that they bring to the position. How else can we be sure that their decisions are based in law and not on politics, personal prejudices or populist appeal. As Juvenal asked, "sed quis custodiet ipsos custodes?" - Yours, etc.,
Larry Power
Wyndham Lawn, Ballincollig, Co Cork.