Hamilton report leaves no room for fudge

The Government statement accompanying Mr Justice Hamilton's devastating report on the Philip Sheedy affair had all the cold implacability…

The Government statement accompanying Mr Justice Hamilton's devastating report on the Philip Sheedy affair had all the cold implacability of a loaded revolver. There was no getting around it; no room for fudge or prevarication.

Letters had been sent to the Supreme and High Court judges, Mr Hugh O'Flaherty and Mr Cyril Kelly, indicating the "serious view" the Government took of the report and informing them that the Minister for Justice will report to the Dail next Tuesday.

In addition, the Government would consider "whether there were issues that may need to be considered by officials". The Minister will report to the Dail on that matter too.

The implications were clear: heads were about to roll and if the parties concerned refused to go in a dignified fashion, then they could be impeached or sacked by the Oireachtas.

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Given the circumstances of the case, the severity of the implied punishment might seem excessive. But the evidence appeared clear: there had been improper interference in the process of justice at the highest level and action had to be taken if public confidence in the judicial system was to be sustained.

The lack of any structures to deal with accountability with in the judicial system itself guaranteed a bludgeon-like approach.

The only sanction provided for under the Constitution is contained in Article 35.4.1 which states: "A judge of the High Court or the Supreme Court shall not be removed from office save for stated misbehaviour or incapacity and then only on a resolution of both Houses of the Oireachtas."

In his report on the matter, the Chief Justice emphasised he had no power to make any recommendations arising out of the facts of the case and therefore would not do so.

But his conclusions were clear: Mr Justice Kelly had not conducted the case "in a manner befitting a judge" and he had "compromised the administration of justice."

Mr Justice O'Flaherty's intervention was "inappropriate and unwise"; it had left his motives and action open to misinterpretation and was damaging to the administration of justice.

The only chink of light in the stygian gloom of the report was an observation by Mr Justice Hamilton that his Supreme Court colleague had been motivated by "a spirit of humanitarian interest".

Mr Justice O'Flaherty latched on to the phrase and appealed to the Oireachtas Committee on Justice, Law Reform and Women's Rights for an opportunity to "fully explain his position" in the light of material contained in the report by the Chief Justice.

The Supreme Court judge made the appeal "in an attempt to dispel as far as possible the doubt and suspicion which have accumulated around the Sheedy case in the interests of the community, justice and in my own interest".

Was there the whiff of a future legal challenge there? The Oireachtas Committee was taking no chances. It had been used as a mechanism by the Government to get the report into the public domain and it was not going to exceed its brief. It referred both the report and Mr O'Flaherty's request back to the Oireachtas.

At the Department of Justice, legal advice was being sought as to whether the Dail should entertain Mr O'Flaherty's request and, if so, what forum might be used. It was a tricky situation and would take careful handling.

The separation of powers under the Constitution has meant that the Oireachtas keeps its nose out of judicial business. But on two occasions in the past impeachment proceedings were threatened against judges. On both occasions they resigned before those motions came to fruition.

This controversy underlines the need for modern accountability procedures within the judiciary. And the Dail is the only body that can provide for the establishment of those structures by way of legislation.

But to do so there would have to be a change in the Constitution.

The Government plans to hold a referendum which would give formal recognition to local government on June 11th. There is no reason why the public should not be asked to sanction change in relation to judicial accountability at the same time.

Penalties for improper behaviour by members of the judiciary should be graded, as in any other walk of life. The extremes of sacking or exoneration carry the seeds of injustice.

Even if reform of the system eventually results in the judiciary policing itself, that would be a considerable advance on the present position. Mr Justice Hamilton's inability to make recommendations to the Government on foot of his damning conclusions is proof enough of that.

Last November the Chief Justice and the Department of Justice received a report from the Courts Commission which recommended the establishment of a judicial body to deal with judicial ethics. Nothing has happened, other than that there are plans to publish the document at some time in the future.

Looked at from this point in time, that proposal looks like part of a much more complex solution.

Within Leinster House, and particularly within Fine Gael, there is talk of root-and-branch reform. In particular, there is some support for the introduction of the United States model for appointing judges, whereby nominees would be examined by an Oireachtas Committee, in open forum, before being appointed.

As things stand, judges are chosen from a panel behind closed Cabinet doors after being nominated by the presidents of the various courts and by other interests. It is an improvement on the old, purely politically-motivated system, but the law still demands confidentiality regarding the names of the candidates.

It is a ludicrous situation in a system that should be transparent. The level of political canvassing engaged in by members of the legal profession in pursuit of judicial careers and State briefs is nothing short of astounding. Further reforms are required. And there is now an opportunity to do something about it.

The Chief Justice's report and the depositions of the various interests make it clear that strenuous efforts were made to stifle questions about the Sheedy case at birth. Officials from the Chief State Solicitor's office who posed hard questions were warned off on the basis that they were tangling with a Supreme Court judge.

The fact that they persevered and were supported by the Office of the Director Of Public Prosecutions in seeking to overturn the decision to release Sheedy was a vindication of the system.

Mr Hamilton's uncompromising conclusions come like a breath of fresh and invigorating air when compared with his findings in the Beef Tribunal.

It is now up to the Government to play its part in this sorry saga. As Mr O'Donoghue made clear, this case has implications for Government officials, as well as for members of the judiciary. Justice must be seen to be done.