Friday 9 December 2016

Cabinet has absolute obligation to be fair and accurate about judiciary

Jennifer Carroll MacNeill

Published 15/11/2016 | 02:30

We have seen from events abroad that this is not an era for any more careless language. We as observers, writers or citizens have a duty to be fair and accurate about the judiciary. Photo: Getty Images/iStockphoto
We have seen from events abroad that this is not an era for any more careless language. We as observers, writers or citizens have a duty to be fair and accurate about the judiciary. Photo: Getty Images/iStockphoto

What is the root of Shane Ross's difficulty with the judiciary?

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Put aside that the legislation he is developing will fix parts of the judicial selection system that are not broken and neglect those that are. Put aside that his own 2013 proposal on judicial selection took all of the worst elements of the heavily politicised US model and attempted to introduce them to the Irish constitution.

Put aside a single case in which a conflict of interest was signalled by a judge about shares bought by his pension fund.

Put aside that this case was directly followed by a Supreme Court judgment saying even this accident constituted bias and the judgment must be set aside. Put aside that conflicts of interest can emerge during a case as well as before a case. Put aside that judges who owe money are at greater risk of compromise than those who own shares, bonds or a plot of farmland.

Put aside his misleading reference on radio yesterday to New Zealand "considering" such a register is inaccurate - the Bill was withdrawn in 2014. And put aside he was incorrect about not being able to remove a judge in Ireland, that it is provided for in the Constitution.

Forgive all that. Instead, look at his language.

"The judiciary have had a charmed life ever since the foundation of this state in this country."

"... part of a bill to reform the whole way the judiciary behaves."

"They (the judiciary) might forget their (constitutional) oath."

"They have a blank cheque to declare nothing."

"Protected citadel."

This is the language of a sitting Irish Cabinet Minister. There is uproar in the UK over the confrontational tone adopted to the judiciary following the High Court judgment that said the British parliament must have a say on the repeal of laws it enacted to join the European Community.

The Irish judiciary scores in the top 10 most independent judiciaries globally every year in the World Economic Forum's global assessment.

It has withstood enormous threats through the early days of this state and the security threats during the dark days of terrorist violence. They cannot speak out for themselves but we are dependent on them to keep doing their jobs.

We have seen from events abroad that this is not an era for any more careless language. We as observers, writers or citizens have a duty to be fair and accurate about the judiciary.

The Cabinet has an absolute obligation.

Let us make a more modest proposal. A formal register of interests might well assist judges and court presidents in assigning cases and enhancing the way this most globally independent judiciary already manage their business. But it should not be publicly available beyond an application by the parties to a given case.

There is a security concern, especially in relation to criminal trials. The interests held by publicly elected persons must be available because their actions directly affect every citizen - judges' actions only directly impact the parties to a case.

And before it's suggested, let's rule out including a declaration of how a judge voted, their views on social issues or who they dated.

Barrister Jennifer Carroll MacNeill is author of The Politics of Judicial Selection in Ireland.

Irish Independent

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