A good and kindly man devoted to public duty

Liam Hamilton's judicial career spanned just over 25 years from October 1974 until January 2000, a record bettered in recent …

Liam Hamilton's judicial career spanned just over 25 years from October 1974 until January 2000, a record bettered in recent years only by two of the greatest judges this State has produced, Seamus Henchy and the late Brian Walsh.

As he would have been the first to admit, Liam Hamilton could not be regarded as belonging to the first rank of great judges. He lacked the vision of a Walsh or the elegant writing style of a Henchy. But he was a good judge who tried to be fair to all parties and usually succeeded in that task. He had a fine judicial manner, was unfailingly courteous in court and was quick to master fact and detail.

In many ways he was too nice to be a judge, since he hated having to criticise others: calling a spade a spade was not his forte.

Liam Hamilton was appointed a judge of the High Court in October 1974 and also served as a judge of the Special Criminal Court during this difficult period.

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Perhaps he first came to widespread public attention with his judgment in the Murphys' married women's tax case in October 1979. He found that the system of aggregating the incomes of married couples provided for in the Income Tax Act, 1967, was discriminatory and unconstitutional.

This system effectively constituted a tax on marriage (since single persons living together paid less tax) and discouraged married women from working outside the home.

Hamilton was subsequently upheld by the Supreme Court, but his judgment is more persuasive than the judgment delivered on appeal. This was radical by the standards of the day and was unpopular with the political establishment.

But Hamilton's ground-breaking judgment in Murphy paved the way for the modern generation of women who wish to work outside the home, and it is no accident that the participation of married women in the workforce has shot up over the last two decades.

Legal historians may ponder whether Hamilton was affected, consciously or unconsciously, by the political response to this judgment, since he rarely blazed a judicial trail thereafter.

Instead, as President of the High Court from 1985 to 1994 and (even more particularly) as Chief Justice from 1994 to 2000, he went along with an evolving judicial tendency of result-oriented jurisprudence. This somewhat tarnished the glittering reputation which the Supreme Court had justly earned for its work during the 1960s and 1970s.

Characteristic, perhaps, of this tendency was his judgment in Croke v Smith in 1996. The Supreme Court (reversing the High Court) upheld the constitutionality of key sections of the Mental Treatment Act, 1945, despite the absence of appropriate safeguards in the legislation. These would have provided for an independent review of the detention by an independent tribunal.

One unfortunate side-effect of this trend was that the quality and consistency of Supreme Court judgments during this period tended to be uneven.

There were three other defining moments in Hamilton's judicial career. The first was a series of abortion information cases. His first judgment in the Well Woman case in 1986 was a sort of judgment of Solomon which attempted to provide something for both the plaintiffs and defendants.

But Hamilton's decision that Article 40.3.3 (the pro-life amendment) precluded the dissemination of information on the provision of abortion services in England is at least defensible, even though many considered this judgment gave insufficient weight to the rights of free speech.

THE second was the O'Flaherty affair. As chief justice he was required by the Government to carry out an investigation into the conduct of his great friend and judicial colleague, Hugh O'Flaherty. Whatever the rights and wrongs of this affair, Hamilton did not flinch from that unpleasant task.

It was inevitable that judicial relations would be soured after the report, and the O'Flaherty affair weighed heavily with Hamilton afterwards.

Finally, history will probably best remember him for the beef tribunal report. Although Hamilton was a fair-minded and relatively effective chairman of the tribunal, the report itself is considered to be disappointing.

Here Hamilton's acute judicial politeness and his dislike of controversy told against him. His unwillingness to make decisive findings and the disjointed narrative of the report compare unfavourably with Judge McCracken's masterly report on an equally delicate subject some three years later.

But Hamilton's dedication to public duty cannot be gainsaid. Immediately after his retirement as chief justice in January, he was asked to carry out an investigation into the Dublin and Monaghan bombings. He was close to concluding his work when grave illness compelled his resignation.

One hundred years ago the greatest judge the common law world has ever produced, Oliver Wendell Holmes, had this to say on the death of a colleague:

"We pass from the Abysss I know not whence into the Abyss I know not whither and, as each of us in his turn leaves the light, some one who loved him utters a cry and then the great silence prevails once more.

"The Churches wisely have prepared us for those supreme events which are common to all liturgies which deal with the universal in universal terms. There is no such service at our command. Neither have we the funeral march and the fire of guns by which the army commits its dead soldiers to the grave.

"We are here - a few men in a room, unhelped, simply stopping for a moment to look the greatest of all facts in the face, to honour the dead, and then like soldiers to go back to the front and fight until we follow our brother."

Liam Hamilton, who worked hard until the last, would have admired those sentiments. The legal community will pause and stop to honour the abiding memory of a good and kindly man before returning to the front and fighting until each of us follows him in turn.

Gerard Hogan is a lecturer in law at Trinity College Dublin