Judicial Independence and Appointment Mechanism of Judges in Ireland

INTRODUCTION

In order to be impartial a judge must be independent; personally independent,

            that is free of personal pressures and institutionally independent, that is free of

             Pressure from the state….[1] 

The above statement credited to Lord Phillips epitomizes the notion of the principle of judicial independence, which has gained recognition in democratic societies. The principle underlines the notion that judges should be immune from bias and prejudice in the dispensation of justice.[2] Hence, the independence of the judiciary is one of the hallmarks of Irish constitutionalism.[3]. However, the efficacy of the principle is influenced by certain factors. The most obvious of these factors is the appointment mechanism of Judges in the Irish judiciary.[4] It goes without saying that the appointment system of judges play a dominant role in ensuring an independent judiciary that is free to attend to its functions without any interference from third parties. [5]Moreover, the competence of Judges is hinged on the appointment procedures since individuals with the requisite professional proficiency are [ideally] appointed.

To that end, this essay will specifically focus on (i) the constitutional basis for the independence of the Judiciary and (ii) examine the extent to which the appointment system impact on the independence of judges. My discussion on the issues will focus on the state of the law in Ireland.

 

THE CONSTITUTIONAL AND LEGAL FRAMEWORK FOR JUDICIAL INDEPENDENCE

Meaning of Judicial Independence

Considering its constitutional and historical relevance, it would be forgiven, to assume that the principle of judicial independence is of a precise meaning. On the contrary, it is a nebulous concept. Consequently, different writers ascribe varying meanings to this idea of the independence of the judiciary.[6] Nevertheless, it is apposite to rely on a working definition for the purpose of this essay. Thus, an authoritative approach is to conceptualize the principle of the Independence of the Judiciary, in two parallel limbs, as connoting personal independence and institutional independence.[7] By the same token, Chief Justice Denham pointed out that:

….The concept of judicial independence has two aspects. On the one hand is the independence of the third branch of government – the judiciary. I shall call this institutional independence. On the other hand each judge is independent.  I shall call this individual independence….[8] 

Thus, the above distinction will inform my exposition of the meaning of the principle of judicial independence.

 

Personal Independence

Personal independence relates to the independence of the Court in its adjudicatory role.[9] This does not, in any way, avails judges the carte blanche when deciding cases[10], rather it requires judges to dispense justice impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.[11] It is this notion of judicial independence that is ascribed the phrase party detachment[12] or the idea that   judges in performing their adjudicatory function should not be related to parties involve in the case and expectedly not to be prejudicial to their cause.[13] This idea, on the premise of the rule of law, is deemed important for two reasons.[14] First, when judges are detached and reserves no interest in any issue brought before them it affords the parties, irrespective of class distinctions, to be treated equally before the law. Consequently, parties will be amenable to the jurisdiction of the Court. Admittedly, while this requirement may hold true with respect to obvious violations like bribery and close kinship ties between judges and litigant, its scope remains unclear where  the idiosyncrasies of judges influences the outcome of a case.[15] Second, where either party involved in a case is another branch of government (executive or legislature), judges are expected to be insulated politically from the case. This requirement stems from the notion that the judiciary, the entity that completes the trinity, should maintain a neutral stance in issues involving the government and private entities.[16] However, this requirement is criticized to the extent that the more insulated the judiciary is from other branches of government the more it lend itself to intruding into their affairs.[17]

The personal independence of judges must be safeguarded if the tenets of the rule of law are to be adhere to. Thus, the tenure and remuneration of judges, immunity from civil liability for loss caused in the performance of judicial duties should be reinforced.[18]

Institutional independence

The notion of institutional independence is hinged on the principle of separation of powers.[19] This idea is usually attributed to the French jurist Montesquieu who gave the idea of the doctrine of separation of powers as that between the legislature, the executive and the judiciary; each performing its law-making, execution of law and adjudicatory function(s) respectively without interference from other branch (es) of government but should be a check on the excesses of the other.[20] From the postulation of Montesquieu, the perception is clear that the principle of separation of powers is premised on two structures: checks and balances and the distribution of powers amongst three [equal] institutions of government. Thus, in light of the spirit and letter of the principle of separation of powers, the judiciary as an institution of government should be independent of the legislature likewise the executive in the discharge of its assigned roles. Accordingly, Lord Bingham rightly observed that:

…Any mention of judicial independence must eventually prompt the question    independent of   what? The most obvious answer is, of course, independent of government… but they should also be independent of the legislature…[21]       

Thus, it is not unconventional for the judiciary to make decisions that censure the activities of the executive and legislature. For instance, it may declare an act by the executive to be ultra-vires.[22] In the same way, it may declare any legislative enactments to be unconstitutional and of no effect.[23] However, the institutional autonomy of the judiciary in the above roles may be threatened in a legal system that encourages the vulnerability of the judiciary to the apparent interference of the other branches of government, especially when the determination of the appointment, remuneration and tenure of judicial officers is vested in the latter. Thus, it is not unusual that provisions, in the constitution or, in its absence, in legal instruments and administrative rules guarantee the institutional independence of the judiciary.[24]

 

Judicial Independence: The Irish Constitutional Experience

The imperative of an independent judiciary have been espoused by various international legal instruments.[25] Accordingly, the UN Basic Principles on the Independence of the Judiciary provides that:

The Independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.[26]         

In line with the above requirement, the Irish constitution provides for a clear cut separation of governmental powers amongst its organs. Article 6 states that all powers of government, legislative, executive and judicial are exercisable only by or on the authority of the organs of State established by this Constitution.[27] Although, the article makes a distinction of responsibilities amongst the tripartite organs: the legislature, executive and judiciary, the three are deemed equal.[28] Furthermore, in recognition of the institutional autonomy of the judicial organ, Article 35 guarantees an independent judiciary in the discharge of its adjudicatory functions and precludes judges from membership of the legislative house and also from gainful employment. [29] In addition, Article 34.1 vests in the judiciary the exclusive jurisdiction to preside over judicial matters, save where the constitution provides otherwise.[30] Finally, the constitution prescribes an oath for the appointed judges which affirmed their commitment to be act impartially in the dispensation of justice.[31]

However, the independence of the judiciary may not be total after all in Ireland. For instance, the Oireachtas may pass a motion to remove a judge from office on the ground of a stated misbehavior and incapacity[32] and may also reduce their remuneration.[33]

The foregoing presents the constitutional status of the principle of judicial independence in Ireland. However, it would be apposite to consider the extent to which the court has affirmed its independence.  Thus, in Doherty v Government of Ireland & Anor[34], three attempts were made to conduct a by-election to elect a representative to fill a vacant seat in a constituency in Ireland. Attempts were frustrated by the government, due to fear of defeat at the poll, through its leverage of the party whip system. The government argued that the court has no right to adjudicate the case due to the simple fact that a judgment in favour of the plaintiff would result in the court telling the government what to do, thus putting it above the executive branch whereas the two branches were established to be equal by the constitution. The Court dismissed the argument and held that where the right of individuals is infringed by any branch of government, it is obliged to intervene.

Evidently, the Doherty’s case captures the importance of an independent judiciary as a protector of law, Constitution and individual right.[35]

THE APPOINTMENT SYSTEM OF JUDGES IN THE IRISH LEGAL SYSTEM: THE CRUX OF THE MATTER

It has been stated in the introductory remark that the mechanism for appointing judges is essential in establishing and maintaining an independent Judiciary. In fact, it is a major component of an independent judiciary.[36] Therefore, an attempt will be made in this section to consider the system of judicial appointment and the extent to which its impact on the independence of the judiciary in Ireland.

 

Judicial Appointment: Pre-Enactment of the Courts and Court Officers Act (CCOA) (1995)

The Irish Constitution, spell out, the process of appointing judges into various Court[37] in Ireland. Accordingly, Article 35.1 provides that:

The judges of the Supreme Court, the Court of Appeal, the High Court and all other Courts established in pursuance of Article 34 hereof shall be appointed by the President.[38]

From the above provision, the President is vested with the power of appointment but that power is not absolute. When read in conjunction with Article 13.9, the Presidential power in this regard shall be exercisable and performable only on the advice of the Government.[39] Hence, in practice, it is the executive that ultimately appoints judges in Ireland.[40] Initially, this was the position of law which was depicted by abuse of executive powers whereby political supporters were appointed as judges.[41]

However, matters came to a head in 1994 when the Whelehan’s scandal rocked the judicial appointment procedures in Ireland. It was reported that the Taoiseach’s appointed the Attorney General (Whelehan) to the vacant post of President of the High Court despite a political controversy over the delay by the Attorney General’s office in bringing proceedings against a priest accused of sexual offences.[42] The appointment resulted in Whelehan’s resignation (after presiding for 6days at the High Court) and subsequently the eventual defeat of the Fianna Fail-Labour coalition.[43]

In light of the foregoing, the Courts and Court Officers Acts (hereinafter “the Act 1995”) was enacted and the Judicial Appointments Advisory Board (hereinafter “the Board”) birthed in order to reform the mechanism of judicial appointment.[44]

 

The Judicial Appointments Advisory Board.[45]

Primarily, the Board was established in order to identify and inform the government of the suitability of at least seven persons (in no order of preference) for appointment to judicial office(s).[46]   The Board consists of : (a) the Chief Justice (The Chairperson of the Board), (b) the President of the Court of Appeal,[47] High Court, Circuit Courts and District Courts, (c) Attorney General, (d) a practicing barrister who is nominated by the Chairperson for the time being of the Council of the Bar of Ireland, (d) a practicing solicitor who is nominated by the President for the time being of the Law Society of Ireland and (e) not more than three persons appointed by the Minister for Justice and Equality , which are persons engaged in or having knowledge or experience of commerce, finance, administration, or persons who have experience as consumers of the service provided by the Courts that the Minister considers appropriate.[48]

To be eligible for appointment, the prospective judge is expected to be a qualified barrister or solicitor and must display a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned.[49] Also, he must be generally and particularly suitable in terms of character and temperament.[50] Furthermore, he must agree to the requirement of s.19 (this section refers  to courses of training or education, or both, as may be required by the Chief Justice or President of the Court to which that person is appointed).[51]

However, it is noteworthy that under the Act the government exercise absolute discretion in the eventual selection of judges as it is not bound by the recommendation of the Board.[52] Nonetheless, the Act advices the government to select applicants recommended by the board and publishes a notice in the Iris Oifigiuil, stating that the appointment was made pursuant to the Board’s recommendation.[53] It should be pointed out that the provisions of s.16 will be inoperative where the candidate is at the relevant time a judge or where the vacancy is that of the Chief Justice or President of any Court.[54]

While the extant judicial appointment procedure is viewed to supersede the rather informal process pursued by successive governments who were seen to appoint, almost invariably, their own supporters to judicial office,[55] the question remains whether the reform is not a smokescreen to disguise the dominant role of the executive in the appointment of judges in Ireland.[56] To put it differently, has the reform actually maintained an independent judiciary via the appointment system?

A major criticism, which directly affects the independence of the judiciary, is the perceived interference of the executive and the absence of transparency in the appointment process.[57] While the participatory role of the executive in the appointment of judges is desirable, such role should be clearly demarcated. Accordingly, the European Network of Councils for the Judiciary declared that:

…If the Government or the Head of State plays a role in the ultimate appointment of  members of the judiciary, the involvement of a Minister or the Head of State does not in itself contend against the principles of independence, fairness, openness and transparency if their role in the appointment is clearly defined and their decision-making processes clearly documented, and the involvement of the Government or the Head of State does not impact upon those principles if they give recognition to decisions taken in the context of an independent selection process…[58]      

In Ireland, it appears that the government is not bound to defer to the decisions of the independent Board and may nominate candidates without the concurrence of the board.[59]  The far-reaching implication of this act is the eventual confirmation by the President, of such candidates which is solely dependent on the advice given by the executive.[60] Besides, it has been opined that the involvement of the executive in judicial appointment exposes the procedure to partisanship.[61] Now, while political participation does not exempt an applicant from judicial roles, (due to the interrelatedness between politics and law) [62]it is submitted that it should not be a factor. Rather, the professional proficiency and general suitability of applicants should constitute the sole criteria for judicial appointment.[63] In the case of Ireland, narration abounds of propensities by the executive in appointing judges across political line.[64] A recent example was the controversial appointment of the former Attorney General Maire Whelan as a judge of the Irish Court of Appeal.[65] It was on record that the appointment was not made pursuant to the recommendation of the Board.[66] In fact, three applicants who expressed interest for the office were not considered.[67] This position is further strengthened because the appointment procedure does not mandate the government to give reasons for recommending an applicant to the president for appointment or elevation as judge.[68]Finally, the criteria for judicial appointment are devoid of objective yardsticks.[69] Thus, requirements like character and competence create avenues for wider interpretations without addressing the specificity of the qualities expected of applicant for judicial roles.[70]To sum up the Irish judicial appointment experience, the procedure is not transparently meritocratic.[71]

 

  1. CONCLUSION

It is not in doubt that judicial independence is rooted in the Irish constitution. However, the extent of the effectiveness of the principle is influenced by the appointment mechanism of judges. The research results have shown that the system of judicial appointment in Ireland does not provide adequate safeguard for judicial independence. A major area of concern is the unfettered role of the executive and apparent lack of transparency in the system. In spite of the formation of the Judicial Appointments Advisory Board, as an independent body, executive incursions still persists. It is suggested that the constitutional provisions that grants the government the appointing power should be reviewed. Better still, the law should ensure the actual independence of the Board by enunciating the role of the government in the process. It is believed that the suggestion given above will aligned the appointment system in Ireland to international best practices.

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