The High Court should not intervene in the Government's nomination of former Supreme Court judge Mr Hugh O'Flaherty as vice-president of the European Investment Bank, the President of the High Court, Mr Justice Morris, has decided.
The judge rejected the claim of college lecturer Mr Denis Riordan, of Clonconane, Redgate, Limerick, that the procedure adopted to nominate Mr O'Flaherty represented a failure on the part of the Government to hold all citizens equal before the law. Mr Riordan asked Mr Justice Morris for a stay on his decision but the judge said he did not consider it an appropriate case in which to grant a stay.
He also refused an application by the State that Mr Riordan pay the costs of the State's legal team. "One would need to have been living on the moon not to know that the entire nation has been interested in this case," he said. He believed it was not appropriate to grant costs to the State.
Mr Riordan had brought his application by way of judicial review and sought a declaration that the method of selecting Mr O'Flaherty was unjust and repugnant to Article 40 of the Constitution.
Mr Justice Morris, in a reserved judgment, said he was satisfied the Government made an executive decision when it nominated Mr O'Flaherty and he did not accept Mr Riordan's submission that this was a mere administrative procedure.
Mr Justice Morris decided the duties imposed by Article 40, which provided for equality of treatment, did not extend to obliging the Government to inform the public every time it proposed to appoint anyone to any position, since to do so would create "a virtually unworkable situation for the Government". The consequences of such an interpretation would lead to such absurd situations as the Taoiseach, prior to making his nominations to the Seanad, having to inform the public he proposed to do so and then having to consider applications for the position.
"It would impose such heavy restrictions on the operation of Article 28(2) (which provides that the executive power of the State shall be exercised by the Government) that it would make the day-to-day business of Government virtually impossible," Mr Justice Morris said.
He said the court could exercise a jurisdiction in relation to Mr Riordan's complaint only if satisfied that the exercise of this function brought about an actual or threatened invasion of his constitutional rights.
Mr Riordan had argued, said the judge, that Article 40 of the Constitution required that in all instances where a selection was being made by the Government to fill a post, any post, there was an obligation on it to inform the public so as to enable them to apply for the post.
In the judge's view, Article 40(1) could not be read so as to impose such an obligation on the Government. Mr Justice Morris said he did not accept Mr Riordan's interpretation of his rights under Article 40.
The judge found there was no actual or threatened invasion of Mr Riordan's constitutional rights and was satisfied the court had no function to intervene in relation to the nomination.
The judge said Mr Riordan had sought to argue about the suitability of Mr O'Flaherty for the post and had suggested the motives for nominating him were improper.
Submissions on these points might have been relevant if Mr Riordan had obtained leave to seek judicial review on those grounds, said Mr Justice Morris. However, he did not. Accordingly, these matters were of no relevance to the grounds on which he did get leave.
The judge said that at a preliminary hearing of Mr Riordan's application before Mr Justice Kelly, Mr Riordan had accepted the Government had nominated Mr O'Flaherty but had sought to go back on that acceptance before him (Mr Justice Morris).
Mr Riordan sought to make a case that it was the Minister for Finance, Mr McCreevy, and not the Government which had made the nomination.
Mr Justice Morris said such an argument was not permissible because Mr Riordan got leave to seek judicial review on the basis of accepting that it had been the Government which nominated Mr O'Flaherty.