Monday 26 September 2016

Where is the zeal now for reforming a deeply political judicial appointments process?

Published 24/12/2015 | 02:30

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Zealous about reform, they swept into office with promises of a new way of doing business. And indeed a number of the Coalition's targets were met, one of which was cuts to judicial pay and pensions.

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But the Fine Gael-Labour administration indicated its intention to go further. Root-and-branch changes to the opaque system by which judges are appointed were indicated, and there was general support for such a reform. Questions are asked repeatedly about the process by which lawyers are elevated to the bench.

To date, the answers remain unsatisfactory.

Judicial independence is a matter of enormous concern - a hallmark of any modern and evolved democracy. It signals to the outside world that the rule of law is taken seriously. Anything which can be interpreted as a signal that our judges are less-than-completely independent undermines their credibility. And Ireland's by extension.

After all, a country is judged by the fairness of its courts. Take Ibrahim Halawa, whose case has just been adjourned for the 11th time in Egypt. The 20-year-old man, with dual Irish and Egyptian nationalities, was detained during a pro-Islamist protest in Cairo and has spent more than two years in an Egyptian jail without trial. What does that indicate about how Egypt's judicial system operates?

Before any international investor considers making a financial commitment in Ireland, questions asked include: Is the rule of law paramount? Are judges independent? Are the courts free from interference?

If the answers are yes, it's a satisfactory country in which to conduct business.

The Constitution places emphasis on judicial independence, and fortunately our judges have managed to remain above the political fray. But the way they are appointed does our judiciary a disservice.

Quite simply, the selection process lacks transparency. Politicians know it does not meet best standards. But the reforming zeal of 2011 has melted away and the Government is in wind-down mode, without achieving the commitment to judicial reform in its Agreed Programme For Government.

The Cabinet continues to choose from a list supplied by the Judicial Appointments Advisory Board, a body established almost 20 years ago. However, ministers can legally ignore the board's recommendations. Furthermore, the names under consideration are not made public. This gives rise to concerns that a candidate's political connections can be a factor in appointments and that patronage may play a part.

It is not unusual for judges to have held political office, have run for political office, or have family and marriage links with those in political office. Clearly, most set aside any political affiliations once they join the bench, and administer justice impartially.

But the situation is far from ideal, and proposed remedies have not been acted upon. Justice Minister Frances Fitzgerald is on the record saying, as recently as two months ago, that the review and reform of this area "is of critical importance to the functioning of our system of justice". But how vital can the Government truly regard it in the face of ongoing delays?

Earlier this year, she said she would be publishing draft legislation to reform the appointments system in 2015. But the Dáil has risen. Another year has passed. The Department of Justice now says "it is anticipated that it will be published in 2016". That's another way of admitting the current administration won't have time to enact legislation with the General Election weeks away.

Almost two years ago, Chief Justice Susan Denham called for an end to political interference in appointing judges.

She said there should be a merit-based system enshrined in law, and described the current arrangements as "demonstrably deficient" - yet still they continue in place.

In a submission to the Department on behalf of the Judicial Appointments Review Committee, which she chairs, Chief Justice Denham urged that all judicial appointments should involve "comprehensive scrutiny by an independent body, composed of members of the highest standing and respect".

The committee recommended revisions to the Judicial Appointments Advisory Board so that only three candidates would be shortlisted for consideration by the Government when a post fell vacant.

It also wants to be able to rank candidates, and the freedom to mark particular people as "outstanding".

Even politicians agree the appointments should be taken out of their profession's hands. Periodically, TDs raise the matter in the Dáil.

During Alan Shatter's term as Justice Minister, he announced a consultation period for reviewing how judges were appointed. "I would like to encourage debate on elements of reform that should be considered in the public interest," he said.

That period ended in January 2014. So, two years to consider recommendations and enshrine the best proposals in draft legislation have drifted by. What was that about the public interest?

Even further back, in March 2012, heckling erupted in the Dáil when Independent TD Michael Healy-Rae remarked on 12 new judicial appointments: seven to the Circuit Court and five to the District Court. "Amazingly, they all have one common denominator," he said. "They all have strong associations with the Fine Gael party."

There is no suggestion of those judges failing to do their jobs with diligence and integrity. But the current appointments process does them a grave wrong.

Two months ago, in a Dáil reply to Independent TD Tommy Broughan, Frances Fitzgerald spoke of "the need to ensure and protect the principle of judicial independence".

Stirring words. They'd be even more impressive if they were backed by action.

Irish Independent

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