AH, Baile Átha Cliath.
In most colleges and universities, the different Schools of Law present the idea of the law as an impartial entity, wrapped together by the Executive, Legislature and the Constitution. The constitution lays down the procedures by which the other two should function, as well as the limitations of their power. The judiciary is taught to students to be the ‘balancing’ power in this triumvirate with the role of safeguarding the constitution. On paper, it all looks fine. The three pillars of our society balance each other and check each other. But is that really the case and in a system where judges are appointed by the Executive, can it ever be the case?
Before running for Fine Gael in the recent General Election, Jennifer Carrol MacNeill released an interesting book; The politics of judicial selection in Ireland. In this study, the author breaks down the link between political interests, influence and how these impact the judicial selection process. Given that the author is a member of the Blueshirts, the conclusions might startle the reader, but then again, the establishment parties are filled with well-educated individuals who have made careers from writing about injustice while facilitating the same injustices.
This brings us neatly to the subject of the article. The selection of judges. This article was partly triggered by the appointment of the former Attorney General, Seamus Woulfe, to the Supreme Court. A solicitor who worked in the former Justice Minister Flanagan’s firm has also been appointed to the Circuit Criminal Court. The Taoiseach at the time defended the appointment of Seamus Woulfe, stating that the JAAB (Judicial Appointments Advisory Board) made the ‘recommendation’ and the Cabinet then agreed the appointment. Since then we have learnt that other superior court judges put their names forward and those names were not corresponded to Cabinet members.
Below, a brief examination of how the process really works will be outlined. What power does the JAAB possess in the nomination and selection process and who appoints judges in Ireland?
A bit of background
Before the partition of Ireland, the tradition of “first right of refusal” was a custom that saw senior law officers be given the option to become either the Lord Chancellor of Ireland (Supreme Justice) or be given a place in the House of Lords. Professor Casey comments that “This uniformity of practice in the pre-independence period may have given rise to the view that a law officer had a claim to the first – or any – judicial vacancy that arose during his tenure of office”.
Post-partition leaders inherited this practice, while denying its existence in principle. Every Attorney General who served under Eamon De Valera ended up on the judicial bench. Professor Bartholomew, who interviewed all living Taoisigh also drew this conclusion: There was an unwritten rule that an Attorney General is entitled to a judicial appointment. You might check with an AG if he wants to be appointed before making the appointment, now, or in another five years or at all. Another precedent in the system is that the Chair of the Bar Council is made a High Court Judge.
The AG was entitled to be a judge, it was his privilege as he was in and out of politics”.
The relevance of this is that it was all doable while governments were formed by one party and Fianna Fáil was able to keep appointing and re-appointing their AG’s to the bench without any oversight, supervision, impartiality or balance. The judiciary was stacked with political appointees. In 1994, the Fianna Fail – Labour coalition had a disagreement on two matters. Firstly, on the filling of a Supreme Court position and secondly, on the filling of the President of the High Court position. The Taoiseach chose to appoint the Attorney General, Harry Whelehan who was a Fianna Fail man. The Labour Party raised opposition to this nomination because their own man didn’t get the job. It had nothing to do with judicial transparency or impartiality though, and everything to do with nepotism.
New legislation and JAAB
The net result of this political crisis was the formulation of two bills, one in 1994 and another in 1995, of which the latter transformed into legislation. The legislation created JAAB, which would be composed of senior legal representatives, representatives chosen by the Taoiseach and the Attorney General. JAAB would then act to provide ‘suggestions’ for consideration to the Minister for Justice, if one such suggestion was the Attorney General then the Attorney General would be excluded from the consideration process. The recommendations of JAAB however, are just recommendations and the Minister for Justice can appoint anybody that fits the statutory criteria.
The author concludes that chapter by stating that ‘institutional change in Ireland, at least on this occasion, was introduced in a hurried and urgent way as a solution to a political crisis that threatened to end the life of the government unless a resolution was reached.” You could take this sentence and apply it to so many of the abysmal actions taken since 1995 by various governments, but the fact that the judicial system is so tightly bound to the executive in Ireland, should be of concern to everybody. In fact, if one sat down and did a close study of all the judges currently sitting, one would find links to the establishment parties sprinkled around everywhere. The current Chief Justice is the former election agent for Fine Gael TD George Birmingham and a speech writer for Garrett Fitzgerald!
Impartiality or not?
If a significant amount of the sitting judges come from a specific political background and environment, then can they truly be considered impartial and engaged in the ‘separation of powers’?
A lecturer once commented in a class that the “lines often blur” between the three. How much of a blur is permissible in the eyes of social democrats? In Ireland, it would seem, a very large blur is permissible. Political appointments in Ireland are the norm and the judiciary is full of judges who reproduce a narrow world view. A view that supports the connection of free market capitalism and narrow views of democracy. A view that was articulated in a recent High Court ruling that barred SEOs. One rationale of the ruling was that these orders which set wages and conditions would conflict with ‘free competition’ within the European internal market. Binding statutory orders from the state, fought for by workers, impacted ‘free competition’ and this was a negative thing. Another ruling from the Supreme Court, which clearly indicates on whose side the judiciary’s bread is buttered, was the controversial promissory notes challenge. The most important element of this case is that the Supreme Court identified the financial crisis and the bailing out features that the government were taking as ‘correct’, thereby crudely demonstrating the biases ingrained within the judiciary. If the judiciary believe in free market capitalism, then their rulings have and will continue to reflect that.
In the field of criminal law, special attention must be given about the Special Criminal Court. This court was created to prosecute potentially revolutionary elements in the Southern jurisdiction during the outbreak of WWII. The Court is filled with politically groomed candidates and this was demonstrated in an interview with somebody who was convicted, where the question was asked as to how political these courts are, the answer illuminated a lot:
DOC: Consider the judges who sit in the court — they are handpicked. Some of them are former anti-republican activists, and all of them share that world-view, and of course, it could never be any other way… the history of the Special Criminal Court confirms that overt political bias. Any evidence of republican or socialist sympathies, for example possession of certain books or newspapers, are always taken as supporting evidence of what they regard as criminal activity.
Another way of exploring the question of impartiality of justices is to ask where they come from, what forms their views and what they believe in. Or easily enough, what Party are they or were they in? Are these not all pertinent and essential questions to ask? I would suggest that it’s neither true nor accurate to suggest we have an “independent” judiciary and when Fine Gael, Fianna Fail, Labour or Green Party TD’s trot out this line about the separation of powers and independence, they are merely restating that the status quo is favourable to them.
Perhaps another Blueshirt can ironically write a PhD about the subject.
Alternative models of justice
Before this essay is concluded, two examples of alternative ways of dealing and distributing justice will be highlighted. The first one is one that is significantly more familiar: The Dáil Courts. You might be familiar with the famous court scene in Ken Loach’s film The Wind That Shakes the Barley, where a court is being presided over by a Cumann na mBan member and a landlord is punished for charging an old woman extortionate rent. This is not as far from the truth of the matter as you might imagine. The very British pomp of justice was taken out, and the very real revolutionary vigour was inserted into these short-lived courts. First beginning as arbitration courts, they then developed into the court system of the newly proclaimed Republic and considered all matters along certain geographic boundaries. One key distinction besides an aesthetic one, was that judges were elected from a panel that was determined by all of the revolutionary forces (Trades Council, Sinn Fein Club, Cumann na mBan, Irish Volunteers). It is rumoured that some of these courts had female judges too, standing in stark contrast to the Free State courts which took until 1964 to appoint a woman to a judicial position.
These courts were short lived, but were in my view, a radical departure from the elitist British judicial system, a system that the newly born Free State introduced very quickly.
The second alternative that is worth exploring and considering and that is much more contemporary is the justice model in Rojava. The justice system is focused on reconciliation and at the lowest levels, localized ‘Peace and Consensus Committees’ resolve issues. For more serious crimes, a different jurisdiction is required. In parallel to this general committee is also a women’s commission that deals specifically with gendered crimes including domestic violence, forced marriage and plural marriage. Importantly, the overarching ‘Justice Parliaments’ that overlook the various courts in each ‘canton’ (administrative unit) provide the executive state with only three representatives out of twenty-one and the state has a minimal if non-existent role in the appointment of justices. Their entire approach to arrest, criminal behaviour and rehabilitation is different, but the purpose of this example is to prove that the quality of justice can be increased, as can the impartiality.
Alternatives do exist, we have to be courageous enough to fight for them.
Even in the leading textbook on constitutional law, Kelly and the Irish Constitution it is de facto accepted that the judiciary is not independent, merely the intention is to make sure the judicial process is independent.
This is a bizarrely misleading way to talk about the legal process. The process of appointment to the judiciary is as relevant as the judicial process itself, a fact that lecturers and legal thinkers all over the country seem to completely disregard.
In the many Schools of Law, dotted in the institutions around the country, it is taught that the law is as impartial as can be and serves the interests of the people. The case of the law of Ireland and the close relationship between the judiciary and their political patrons suggests that the Law is in fact anything but impartial. Those who uphold and interpret it are representative of the all the biases and prejudices of one class of people in Irish society. They are those who can network among the hegemonic political entities without upsetting them, they are legal families, groomed from an early age, who possess pre-disposed views towards ‘radical’ people.
A legal system that is built in this manner is not built to be impartial, but to maintain elitist structures, reproduce culture and closely guard its chambers. The Courts, it must be concluded, are as interwoven into the fabric of class structures as everything else and cannot be reformed away.
These are the questions every revolutionary in Ireland should be asking themselves. Even a victory through social democratic structures and the seizure of parliament would find the victors of such a struggle blockaded by consecutive rulings and conservative judges. We must re-imagine the judicial system, as an organ that serves the needs and interests of the people and that is directly linked to the people, rather than as an elitist, overpaid, untouchable college of cardinals, strutting about as if it’s 1866 with wigs on and all.
We can imagine a much more balanced constitutional order that guarantees health, housing, education and strips away much of the unnecessary pomp.
Where judges are held to much more account and democracy is woven into the matrix of the judiciary system.
Lets start imagining it comrades!