Judges need to toughen up and accept scrutiny over deference

The media should not bow down to the judiciary but instead hold the lawyerly class to account

Published 27/11/2016 | 02:30

CASE SENSITIVE: The Four Courts building in Dublin and, inset, Chief Justice Susan Denham, who lauded her colleagues in a ‘gushing’ speech last weekend. Dan O’Brien wonders if judicial egos have become unusually fragile and asks if the deference of society and the media towards the judiciary has made judges believe they are above criticism
CASE SENSITIVE: The Four Courts building in Dublin and, inset, Chief Justice Susan Denham, who lauded her colleagues in a ‘gushing’ speech last weekend. Dan O’Brien wonders if judicial egos have become unusually fragile and asks if the deference of society and the media towards the judiciary has made judges believe they are above criticism
Chief Justice Susan Denham

'I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws." This is the oath set out in Article 34 of Bunreacht na hEireann which all newly appointed judges must take.

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These were the words of the present chief justice, Susan Denham, to her fellow judges last weekend: "In our democracy, the three great pillars of State - the Legislature, the Executive and the Judiciary - derive their powers from the People. It is a fundamental principle that each of the great organs of State owes respect to the other."

Before discussing why the chief justice is wrong about the branches of government "owing respect" to each other, consider yet another judicial comment, this one made by the president of the circuit court last Thursday. Mr Justice Raymond Groarke declared during a case he was hearing that he was "not going to obey legislative strictures". The judge said he would not obey the law because too few judges had been appointed to deal with the volume of cases before the courts, exactly the matter that has led to a spat between the judiciary and the Government, or, more precisely, one member of the Government.

For any judge to say he will not apply the law is a serious matter. Mr Justice Groarke should not have used that form of words. But it is essential that members of one branch of government call out other branches when they believe they are erring. That is their duty to the people and the Constitution. They have no obligation of respect to each other, as Chief Justice Denham claimed.

Not only is no such duty of respect set down in the Constitution, but the very notion runs contrary to the purpose of the separation of powers and how it has worked in democracies over the centuries since the concept was invented.

The breaking down of the enormous power of the State into three broad groups - making law, executing law and apply law - was among the most important political innovations ever made. It recognises that because the power of State is so great, allowing one person or body to exercise it all would be a recipe for absolutism and despotism. The real "fundamental principle" behind the concept is that the organs of State act to check and balance each other.

While it is always preferable that individuals show personal respect for people they have any involvement with - professionally or otherwise - the branches of government, and those who people them, must earn respect, both from the people they serve and from each other. They are not 'owed' it, as if it were some inalienable right. Rather than an expectation of respect, it is far more important that a healthy tension exists between the branches of government, because if that doesn't exist it is all too easy for excessive cosiness to develop.

In official Ireland there is an unnecessary degree of discomfort when agents of the State clash. This was to be seen recently when the Comptroller and Auditor General came to the conclusion that Nama had sold a part of its portfolio for less than it was worth. Nama is aggressively contesting the finding. There have been claims that the clash amounts to a crisis. It is no such thing. On the contrary, it shows that the system of checks and balances is working, and that there is not excessive cosiness across the system in relation to the working out of the banking fiasco.

The discomfort that official Ireland feels when one branch of government openly checks and balances another is most noticeable in relation to the judiciary. At the merest hint of discord, great angst breaks out in both Leinster House and the Four Courts. Politicians make grave-sounding comments about under-mining the integrity of the judiciary, as if the slightest criticism of that branch of government could be detrimental to the functioning of the rule of law.

This sort of deference is curious, and is not to be found in other countries in which I have lived in. But it is a deference that judges appear to need, if not crave. Consider the rest of Ms Justice Denham's speech to her judicial colleagues last weekend at the National Judges Conference.

She lauded her colleagues for their "energy and commitment" and "deep compassion". She said they had "navigated the needs of society, the expectations of victims, and the frailty of the human condition with great prowess". She congratulated them on their "enormous willingness to change and to undertake more work with less resources", and went on to observe: "The judges of Ireland are undertaking a key role - patriotically - as they maintain the Rule of Law, and the democratic nature of our State."

As she concluded her talk, the chief justice turned to the important matter of the independence of the judiciary as a branch of government operating without interference from the others. Citing two international reports on judicial independence, which ranked Ireland close to the top in Europe and the world respectively, the chief justice stated: "We see that the standing of the Judiciary of Ireland is recognised internationally for what it is - excellent."

No doubt the conference attendees nodded along in vigorous approval. But there is a serious question as to why Ms Justice Denham felt it necessary to speak so gushingly to her colleagues (I cannot think of any other professional grouping in society - from accountants to vintners - which would not find such heavily larded talk of this kind by one of their leaders to be, to say the least, over the top).

Are judicial egos unusually fragile? Has the deference of society and the media towards the judiciary made judges believe that they are above criticism? Last Wednesday, the head of Bar Council penned an opinion article that would point in that direction.

Although the Bar Council - the barristers' representative body - doesn't speak for the judiciary, as almost all judges are former barristers its utterances would not normally be unreflective of their views. Senior Counsel Paul McGarry's article in the Irish Times was extraordinary not only for its muddled thinking, but for its almost paranoid view on any criticism or challenge to the judiciary.

He began by drawing an utterly spurious parallel between the reaction in Britain to a high court decision related to Brexit, which resulted in judges being branded as "enemies of the people" by a national newspaper, and recent comment on Irish judges, the most serious of which was Transport Minister Shane Ross's inaccurate (and withdrawn) statement that judges had been delaying a new judicial appointments process and a somewhat more accurate claim that they led "charmed lives".

McGarry went on to state that there had been "unjustified denigration of the judiciary in some corners of the media" without giving a single example. He failed to provide the sort of evidence to back that claim because there is no such evidence. The truth is that the media is excessively deferential to the judiciary, much like the rest of Irish society (and if you need evidence of that, just read a little of the US media's robust coverage of American judges). That a newspaper agreed to publish such an incoherent and self-regarding article could be construed, in and of itself, of a sign of media deference to the lawyerly class.

McGarry concluded with a dark warning that Ireland's "democracy and independent judiciary… should not be taken for granted", as if the often ham-fisted and lonely efforts of Mr Ross pose a threat to one of the oldest, continuously functioning democracies in the world. The independence of the judiciary in Ireland is not under threat. As outside observers recognise, there are few countries in the world where it is matched. Judges and lawyers should toughen up and realise that criticism is part of public and political life.

As a branch of government, the judiciary should get more critical scrutiny, not less. The deference once shown to many of the bastions of power in Irish society has been abandoned in recent decades. That should happen with the judiciary, too. Less deference towards judges would be good for everyone, judges included.

@danobrien20

Sunday Independent

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