News Shane Ross

Sunday 25 September 2016

It's JAABs for the boys - canvassing is 'mandatory'

Shane Ross

Published 10/01/2016 | 02:30

Guilty as charged: Whatever way it's dressed up, the evidence of political favouritism in the appointment of judges is overwhelming
Guilty as charged: Whatever way it's dressed up, the evidence of political favouritism in the appointment of judges is overwhelming

Imagine you are a tired solicitor. You are struggling in a rural practice, barely making ends meet. You are facing the prospect of closure as your local town sinks into decline. Your future is bleak.

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Fear not. Help is at hand. Maybe you did not see the job vacancy in the paper on Friday. Gainful employment beckons. You do not need anything beyond your legal qualification. The job is not too taxing. It pays over two grand a week. The hours are short. You do not have any home work. You cannot be sacked. You will get a pension. Yes, if you can you believe it, you qualify to be a judge?

Are you a supporter of Fine Gael or Labour? You are on the inside track, heading for the District Court.

Alternatively, imagine you are you a high-flying barrister. Maybe even a senior counsel at the peak of a glittering career, you want to take your vast legal knowledge to the bench. You would be doing the State some service. You cut out the advertisement for a vacancy in the High Court. You have a sense of public service and like the idea of sitting on the other side of the courtroom fence - despite a loss of income.

Are you a supporter of Fianna Fail? You are? Tear it up.

In last Friday's papers it was silently confirmed that reform of the judiciary is dead. All that guff about the need to change the way we appoint our judges was buried. The current Government will leave office with the same rotten system that it inherited, intact and untouched.

The charade continues. The advertisement perpetuates the myth of independent selection of judges. The reality is that they are chosen by ministers. There is a long rigmarole surrounding the selection, but the result is always the same. Political favourites, pals of politicians, land on the bench.

The ad is curious. It declares that all application forms "in relation to this advertisement" must be received before 4pm on January 28, 2016. Two paragraphs later it states that "it is open to eligible applicants to submit applications for all judicial vacancies at any time".

God forgive me, I cannot unravel this contradiction. Suddenly the vacancies need to be filled in a big hurry. Perish the wicked thought that might occur to a more cynical reader. Could the deadline have anything to do with the General Election?

Politicians like promoting their pals to the judiciary. If applications arrive on January 28, the General Election falls, as expected, around February 26 and a new government takes office in mid-March, there will be plenty of time to pay off a few favours before this lot leaves office. The process of appointing a judge can be completed in a short time if deemed necessary. A month would be ample.

We have a quaint tradition in this country of governments leaving office drowning in a swamp of patronage. The last Fianna Fail government did it shamelessly. Fine Gael and Labour are equally unscrupulous. Judicial appointments are the spoils of war. Governments may be facing the exit but regularly put their puppets in key positions as they close the door.

Governments become staunch converts to our method of appointing judges the moment they achieve office. They all clasp the fig leaf known as the Judicial Appointments Advisory Board (JAAB) to their bosoms, after lashing it while in Opposition.

While governments defend JAAB, it is derisorily known as 'JAABs for the Boys' in the Four Courts - a phrase that reflects the black humour of the Bar Library.

So who are the individuals on the JAAB recommending suitable judges to the government? As insiders choosing a candidate for the top job, only the College of Cardinals in conclave would compete with them. At the top of the tree sits the chief justice. Parachuted in at the bottom are three nominees of the justice minister of the day. In the middle sits Attorney General Maire Whelan, a Labour party nominee to the post, and the presidents of the Court of Appeal, the High, Circuit and District Courts, all themselves political nominees. And just in case the establishment is not properly represented, the 11-person JAAB is completed by a nominee of the stuffy, old Law Society and the chair of the Bar Council. Meetings do not sound like a barrel of laughs. Honourable as all these beaks and barristers may be, their reputations and integrity are being exploited by politicians to provide legitimacy to a flawed process.

And just in case their lordships and their politically well-connected colleagues serve up a few unexpected names to the government, our political patrons need not worry. They can either look for other names or bypass the JAAB's chosen ones and pick their own favourite.

The JAAB camouflage is a laughable layer of obfuscation. Even Peter Kelly, currently president of the High Court, appeared to recognise the problem when he described appointments to the Supreme Court as "purely political" and added that "we all know … that people who would be excellent judicial appointments are passed over in favour of people who are not so well-qualified".

Yet Friday's advertisement is a ridiculous piece of posturing and pretence. At the bottom of the ad are the immortal words "canvassing is prohibited".

The word "prohibited" should be substituted by the word "mandatory".

I have been regaled by TDs from all parties with hilarious stories of how solicitors from their constituencies have clogged up the queues for their clinics in search of a seat on the District Court. The hopefuls believe it is their due after giving free legal advice to their local TD or helping them out of a hole. Sadly, far too often, they are successful.

Last week I asked the Courts Service for an application form. They obliged. The most challenging part of the form is that applicants need to send in 14 photographs of themselves!

They also need a tax clearance certificate, various details of their legal career, and two referees. I vaguely toyed with the idea of filling it in, putting the names of Enda Kenny and Joan Burton down as my referees, believing that would ensure my appointment.

Altogether, the application forms for all the court jurisdictions are undemanding.

There is a potential hurdle, at the bottom of the notice: "Applicants may, at the discretion of the board, be required for interview."

Happily for the applicants, in its 20 years of ignominious existence the JAAB has never found it necessary to meet a single candidate face to face. Fourteen photographs and a few self-serving paragraphs will do.

What is the point of holding interviews when the process is cosmetic?

The evidence of political favouritism in the appointment of judges is overwhelming. It is a practice that has deeply undermined the authority of the judiciary who themselves dislike the board.

In the Dail, the political appointment of a judge to a tribunal inevitably provokes gossip, followed by a quick query about his or her political pedigree. Cynicism about judges runs deep. It will remain as long as judges are not appointed exclusively on their merits.

Incredibly, 20 years after the creation of JAAB it survives. Sometimes the result of this procedural farce is a quality of judge that reflects the method of selection.

What other country would indulge a judiciary that was often picked by its cronies, given jobs for life and could not be sacked? Whether you are a down- and-out solicitor or a high- flying barrister, you should make sure that you do a bit of pro bono work for Fine Gael or Labour before the General Election.

There will be a few wigs to be handed out in the coming weeks. If you expect to land a place on the bench solely on merit, emigrate.

Sunday Independent

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