A comprehensive new study adds to the debate over how the judiciary can be improved, but also shows how high standards are, writes Ronan Keane.
'A fair and public hearing by a competent, independent and impartial tribunal established by law." That is the exacting standard required by the European Convention on Human Rights and Fundamental Freedoms for the trial of every case, criminal or civil. A new report published by the Irish Council for Civil Liberties under the title Justice Matters: Independence, Accountability and the Irish Judiciary, seeks to reach conclusions as to how well or badly Ireland meets that standard and indeed other international yardsticks for the performance of courts.
The author, Tanya Ward, has produced a report which is comprehensive, well researched and reasonably balanced. It also confirmed the impression I was left with after 25 years as a barrister and a similar period as a judge that we are fortunate in the standards maintained by our courts.
It is, of course, not sufficient to have written legal guarantees, as we do, of the independence of the judiciary, their security of tenure and remuneration. Independence, competence and impartiality also depend on the calibre of the men and women who are appointed to judicial office. Her research again confirms that we have, on the whole, been well served by the quality of our judges. I would, no doubt, be expected to say that but I think it is a view which the overwhelming majority of Irish people share.
At the outset, the author discusses the separation of powers in the Irish context. That doctrine, under which each of the three arms of government, parliament, the executive and the courts, is prohibited from trespassing on the others, is, of course, an essential feature of most democratic societies and is clearly recognised by our Constitution.
However, the author claims that, despite this doctrine, in recent decades the executive has been slowly "chipping away" at the judiciary's role in criminal matters. But some of the examples she gives of this suggested process are unconvincing, for example "long periods of detention for arrested persons".
If we leave out of account the power of internment (on the statute book since 1939, but hardly likely to be invoked today), the longest such period is seven days and it might have been helpful if she had indicated how this compares with similar powers in other jurisdictions. In the United Kingdom, for example, there is power to detain for 28 days and the government is contemplating an extension. Moreover, it should have been pointed out that in recent times major protections of rights - including access to family members and legal advice - have been introduced for arrested persons in detention by both the legislature and decisions of the courts.
Nor does the granting of power to issue a search warrant to a chief superintendent amount to a serious invasion of judicial power. Although it is no doubt desirable that it be subjected to judicial control, as to some extent it is, such a power is essentially ministerial rather than judicial in nature.
The author is, of course, correct in pointing out that there are now a vast number of tribunals and other bodies, such as the Labour Court and the Equality Tribunal, which make decisions affecting people's rights over a huge area. Such a development is, however, expressly authorised by the Constitution, and provided such bodies are not entrusted with the administration of justice, the courts have no power to prevent their creation by the legislature.
What Irish courts have done to an increasing extent over the past four decades is to ensure as far as possible, by the use of the judicial review jurisdiction, that such bodies respect the rights of those affected by their decisions to fair procedures. It is surprising that this also finds no mention in the report.
The manner in which judges are appointed is naturally given detailed treatment. There has always been a tradition of appointing judges because of their political affiliations, but this tendency has been less marked since the 1970s. I have no doubt, moreover, that although indefensible in principle, the tradition did not result in the appointment of unfair or incompetent judges. That having been said, the establishment in 1995 of an independent Judicial Appointments Advisory Board (JAAB) empowered to recommend candidates for judicial office to the government was, as the author recognises, a welcome development.
It is the fact, however, that the Constitution provides that such appointments are to be made by the President on the advice of the government, and the framers of the legislation had to ensure that it conformed to this requirement.
The alternative - an amendment to the Constitution - would have been cumbersome and uncertain and it must in any event be doubtful whether such a change was justified: the preservation of the ultimate responsibility of the government for judicial appointments at least means that the appointing body is accountable to the people through the Oireachtas for those appointments.
However, the author, correctly in my view, identifies at least one serious flaw in the present system. The obligation on the JAAB to recommend at least seven candidates for each vacancy (rather than, say, three) is quite unnecessary and can only facilitate governments in making appointments on a political basis.
No system can, however, exclude the possibility of judicial misconduct sufficiently serious to require some form of sanction, although not necessarily the extreme step of removal from the bench. In 2000, the Committee on Judicial Conduct and Ethics recommended that a judicial council representing all the members of the judiciary be established to deal with judicial conduct and ethics, judicial studies and the working conditions of judges.
The committee made detailed proposals as to how instances of judicial misconduct should be dealt with and, while I admit an interest as the chairman of the committee which presented the report, I entirely agree with the author's view that legislation providing for the establishment of a judicial council should be introduced as a matter of urgency.
I have not left myself space to deal in detail with the author's concern that the predominantly male and middle-class Irish judiciary is seriously unrepresentative of society as a whole. I would confine myself to the obvious point that, while there is undoubtedly substance in that view, these limitations are simply aspects of far wider social problems, to which today must be added the presence in our midst of large ethnic minorities. I have serious doubts as to whether requiring the JAAB to take into account "diversity, racial and gender issues" is likely to have any real impact in this area.
This report, although not without its shortcomings, is a valuable contribution to the debate as to how our judicial system can be modernised and improved. I hope I am not being unduly complacent in saying that it is also a welcome reminder of the outstanding contribution the judicial arm of government has made since 1922 to a fair and ordered Irish society.
Ronan Keane is a former chief justice