Sir, - Prof David Gwynn Morgan (Opinion, April 19th) identifies the inadequacy of the ad hoc way the Sheedy affair has been solved, contradicting the claim by the Minister for Justice, John O Donoghue, that the "system of checks and balances [between the executive and the judiciary] worked extremely well in this particular instance". In fact, a standoff was resolved by peer pressure and the courage and forthrightness of the Chief Justice.
The Tanaiste, among others, has suggested some sort of self-regulating mechanism within the judiciary whereby, perhaps, heads of the court divisions and the Chief Justice would discipline their own members. This carries its own difficulties. Could we, for instance, count on the consistency and fairness shown in this case by the Chief Justice without accusations of invidiousness? Such a system could compromise the autonomy of judges, as often the source of an independent application of the law as it is a hindrance. Uniformity in applying the law is desirable in one way but it can also be argued that the independence of judges as individuals, along with their independence as a body, is important in allowing human factors to enter into the process. Many of Hugh O' Flaherty's own judgements underline that fact.
But judges and the operation of the law do need monitoring. My experience as a journalist (and non-practising barrister) over many years, trying to get the courts, in David Gwynn Morgan's words, "to justify their subtle professional arrangements to a lay public" have mostly met with precisely the argument that my audience "would not be prepared to pay enough attention to follow them adequately". I would argue that this is a cop-out. At this stage of democratic accountability both the law and the media must do better.
The Sheedy affair highlights the independence of the judiciary in the context of individuals charged before the courts, but the principle is at least equally important as a direct check and balance in relation to elected representatives - not only in looking at the constitutionality of legislation, but in investigating wrongdoing through tribunals. The Oireachtas has not yet found a satisfactory way to investigate itself; its attempt to sort out the Brendan Smith debacle was hit-and-miss, if not actually a shambles. In the UK an independent commissioner investigates parliamentary wrongdoing, and the judiciary is overseen by the (political) Lord Chancellor, a solution not open to us and indeed currently questioned in Britain.
Bluntly, the separation of powers requires that the Oireachtas monitors the judiciary and vice versa. The mechanism of tribunals relies on the independence of the judiciary and on cumbersome and costly legal procedures to carry out the latter function, but Oireachtas committees and the haphazard way their members are picked, limited resources and lack of expertise are not the way to carry out the former (despite Hugh O'Flaherty's willingness to submit himself to them). The relevant committee in this case recognised its own inadequacy by referring the matter straight back to the Oireachtas. Nor does it seem right or practical to allow any form of purely peer arrangement by which the judiciary monitors itself.
The solution could lie in the development of the idea of a judicial ethics body, apparently being suggested to the Minister for Justice by Judge Denham's working group. This would have its own statutory powers and resources and consist of ex-officio members of the Dail and Seanad, members of the legal profession, including retired judges, and members appointed for a fixed term, who could not be removed except by resolution of the body itself. - Yours, etc.,
John O'Donoghue, Rathmichael, Co Dublin.