THE UNEDIFYING SPECTACLE of judges, ministers and court officials sniping at each other in public has brought the concept of judicial independence to the fore in recent days. Article 35.2 of the Constitution states that, “All judges shall be independent in the exercise of their judicial function and subject only to this Constitution and the law”.
While for the most part, this idea has been uncontroversial since the foundation of the State, a combination of economic crisis, a change of government and a confrontational new Minister for Justice has raised tensions between the judicial and executive branches of government.
An important element of judicial independence is the protection of judges pay contained in Article 35.5, which stated, prior to the referendum in 2011, that “The remuneration of a judge shall not be reduced during his continuance in office”. The reason behind this provision was explained by Justice Kingsmill-Moore in the O’Byrne case as being “… to safeguard the independence of the Judiciary from pressure or interference by the Executive …”.
However, in light of the cuts to pay levels across the public service necessitated by the economic crisis and the refusal of all members of the judiciary to accept a scheme of voluntary pay cuts, the Government undertook an amendment to Article 35.5. This permitted judges salaries be reduced proportionately to the reductions in the salaries of others paid out of the public purse, where legislation was passed stating that this was in the public interest. The amendment was passed with just short of an 80 per cent Yes vote.
While the current spat is primarily attributable to judges concerns about how future pay cuts may be implemented in light of the referendum, there would also appear to be a underlying concern about the issue of the appointment of judges. This was highlighted last year by former District Court Judge Michael Patwell, told Charlie Bird on RTE radio that he had used political connections to assist him in obtaining his position on the District Court.
Regarding the approach of the current government, he stated, “You look at every judicial appointment since the current coalition went in, and you mark down behind them their political leanings, affiliations, connections — they’re [mostly] Fine Gael or Labour, so it hasn’t really changed”.
Currently, judicial appointments are overseen by the Judicial Appointments Advisory Board (JAAB), which was established by law in 1995. Prior to this, the Government of the day had complete discretion as to who it advised the President to appoint to the courts. The JAAB is comprised of the Chief Justice, the Presidents of the High, Circuit and District Courts, the Attorney General, nominees from the Bar Council and Law society, and up to three persons nominated by the Minister for Justice.
It oversees the advertisement of judicial vacancies and assesses the application forms submitted by those interested in the position. Having sifted through the applications, the JAAB submits a list of names to the Minister for Justice, of persons it regards as suitably qualified and having the necessary character and temperament for the position in question. The Government makes the final decision regarding who is appointed.
While undoubtedly an improvement on the previous system, there are significant flaws with the JAAB. The process only applies to applications for the ‘ordinary judges’ of each of the four levels of the courts. As such, the JAAB does not advise on the appointment of a new Chief Justice, or the Presidents of any of the lower courts. The procedure only applies when an individual becomes a judge for the first time – not when a judge from one level of the courts is being ‘elevated’ to a higher court.
Significantly, the Government is not compelled to follow the advice of the JAAB. It must “firstly consider” those persons on the JAAB list, but has discretion to make an appointment outside the list. Finally, while the JAAB produces annual statistics about the gender, professional background and geographical location of judicial applicants, it does not undertake a wider examination of their socio-economic or educational background.
It could be argued that a more transparent system, whereby judicial applications were interviewed in public, could help dispel concerns about political influence on the process. The questioning of prospective Supreme Court and Appeals Court judges in the US by the Senate Judiciary Committee is by now a well known spectacle. However, while undoubtedly it does bring to the fore issues of concern regarding judicial nominees, it has contributed to a polarisation within the US courts according to judicial, or in reality, political philosophy.
Recently in a speech in Griffith College, Justice Frank Clarke of our Supreme Court suggested a constitutionally mandated Judicial Commission, with a membership drawn from different strands of public life, including some appointed directly by the President. This body could be given the responsibility for choosing judges to fill vacant judicial positions, but also on issues like the terms and conditions of judges (including pay) and a possible disciplinary function.
Undoubtedly, these suggestions are radical and would require constitutional amendment. Nevertheless, if the Government wishes to demonstrate its support for a truly independent judiciary, it must be prepared to undertake radical reform. This proposal, tentative though it may be, could have the effect of both addressing the current difficulties, but also strengthening public confidence in the independence of the judiciary by fully separating the Government from the process.
Roderic O’Gorman is a lecturer in Dublin City University where he teaches Constitutional Law, EU Law and Business Law. He is also the Chairperson of the Green Party and is a local representative in Dublin West.
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