Not for the first time in recent political history the appointment of a senior judge has caused political controversy. This is regrettable, not only as it risks undermining faith and confidence in our judicial system, but because it never needed to happen. We have been here before but once again we learn little from past mistakes.
One of the hallmarks of a healthy and functioning democracy is an independent and effective judiciary. Courts controlled by a regime never stand up to it. We see in history how judges such as Freisler in Nazi Germany and Vyshinsky in Stalin’s Russia, did the bidding of the totalitarian regimes who put them there.
Thus the absolute independence and separation of the judiciary from the executive is a core democratic principle. Without doubt we have an independent Judiciary. There are many examples of Irish courts hauling Irish governments over the coals because they infringed citizens’ rights. Blocking the ratification of the Single European Act in 1986 and telling the government to put it to the people, is just one example.
This happens despite, not because, of the judicial appointments process. The way governments nominate judges is almost shrouded in mystery. People do not know the criteria or basis on which individuals are nominated.
But how do we reconcile the essential separation with the constitutional reality that judges are appointed by the President “only on the advice of the Government”?
Some countries dispense with the appointment process entirely by having elected judges. Even the most populist of populists wouldn’t advocate that approach here, but more about Shane Ross later.
We could hold referendum to remove the constitutional provisions that judges are appointed by the President on the nomination of the Government, but what do we put in its place?
But why hold a referendum when we can achieve the same objective – a judicial appointments system free from political patronage – by taking a slightly less restrictive approach?
In 1995, the then Justice Minister, Nora Owen made what was represented as an attempt to reform judicial appointments system. Her legislative reform established the Judicial Appointments Board (JAB). Any lawyer, with the relevant qualifications, could apply to JAB for a vacant position on the bench.
However, JAB’s only function was to collect the names and pass them along. The government had created an ornate post box. More amazingly, it not only pre-loaded the board with its own nominees, but it also put in law that if the person it wanted to appoint hadn’t applied for a vacancy, JAB could contact them and invite them to apply.
The greatest con job since the invention of the three-card-trick.
Fast forward to the last government’s efforts, included those of Shane Ross, who recently took me to task here for not backing his attempt.
He is partly right. I didn’t back the reforms he suggested as I had grave doubts about them. I still do. I continue to struggle to grasp the benefit of an appointments board whose primary membership qualification is having no understanding whatsoever of the courts or the judicial system.
Having a lay input is important, but can we not at least ensure it is an informed input? So, while I didn’t back the Ross reform, I did back reform.
I strongly supported the legislation published in 2016 by my good friend, Jim O’Callaghan. It would have ended any possible hint of political patronage while keeping the process consistent with the Constitution.
The 12-person judicial appointments commission he proposed would recommend and rank (in order of preference) three qualified persons for appointment to each vacant judicial post. It would send these three names to Government, but the government would have the final say on who, from this shortlist to nominate.
It could pick the first or second, or third person on the list. If the Government decided not to nominate any of them, it would have to explain why it did this via a reasoned explanation published on the government website.
Regrettably, the government of which Mr Ross was a small moving part chose to ignore Jim’s proposal and opted to squander its time with internal wrangling.
Not that this impacts much on Mr Ross’s retelling of the tale. Like the editor of the Shinbone Star in John Ford’s The Man Who Shot Liberty Valance Mr Ross believes that “when the legend becomes fact, you print the legend”.
Meanwhile, back in the real world, it is not too late to do the right thing. Everyone accepts there is a problem. There is a very workable solution sitting on the table with Jim O’Callaghan’s draft legislation. All that seems to be missing is the political will from on high.