Judges aren't rotten, the appointment system is
Published 09/08/2015 | 02:30
there was a shock hook against the head in the Supreme Court 10 days ago. Normally, official Ireland might have expected the beaks on the bench to close ranks. On July 31 they confounded convention.
The five-member court made a 4-1 finding against a member of the inner circle. They rapped one of their own mates on the knuckles.
Admittedly, Judge John Cooke has retired. But the Supreme Court's findings will not have made pleasant reading for his lordship.
John Cooke was a shareholder in giant conglomerate CRH when he was sitting in judgment over a serious case being taken against the elite Irish company by a tiny rival, Goode Concrete, for alleged uncompetitive practices.
Cooke made three rulings in favour of CRH -and against Goode - between 2010 and 2012.
His bosses on the bench have now decided that there was a reasonable apprehension of objective bias because of his CRH holding.
Cooke told the court in November 2010 that he had "a very small number" of CRH shares "somewhere in my pension fund". Two years later, it emerged that he held CRH shares to the value of €135,000. He insisted that he was unaware that further shares had been bought for him by his advisers in late 2010.
The Supreme Court has set aside Cooke's decisions in the Goode case. Chief Justice Susan Denham was emphatic that judges should not "generally" hear cases if they held shares in companies involved in the litigation. It would be different if the shares were held in a pension scheme or a unit fund over which they had no control. In Cooke's case, he held the shares directly.
Cooke must have a red face this weekend. Other judicial colleagues may be reflecting nervously on whether they have ever been compromised in their judgments by their personal financial interests.
How many other judges are conflicted in their work by their assets and liabilities? Are many silently in hock to the banks after being burned in property transactions?
Fortunately for their lordships, we will never be sure. Judges do not have to make a declaration of personal interests. They are expected to recuse themselves from cases if they feel they are conflicted by any material debts, assets or other obligations.
Judges are not subject to the same regime as politicians. In today's supposedly open and transparent world, all politicians must rightly make a clear declaration of all interests above a certain value. They must reveal external earnings, gifts, sources of income, property, shares or any asset that could influence their behaviour as advocates or executives in the public interest. Other public servants are obliged to go through similar hoops.
Not judges. As citizens they are suddenly above reproach the moment they don the big wig. Ordinary solicitors or barristers miraculously morph into people whose honour is beyond question.
Some of them have even been politicians in a previous life. Others have been close to ministers or even to taoisigh. No doubt they have been subjected to rigorous processes to ensure that their integrity is unimpeachable, their record beyond question? No point in having accident-prone types on the bench. Ahem.
The bad news is that the judiciary (particularly at District Court level), can be very ordinary human beings. One politically nominated judge, Heather Perrin, has been jailed in recent years. Worse still is that none of them are subject to interview. Worst of all is that every single judge is the beneficiary of an act of political patronage. The selection system is rotten.
That does not mean that the judges themselves are rotten, just that the chance of a political insider charging through the system is even greater than a party foot soldier securing a job as a postman or a local garda. The pattern of promotions from recent appointments is disturbing.
Two weeks ago, the government made several new appointments. It promoted Iseult O'Malley to the Supreme Court and Richard Humphreys to the High Court. Neither went through an interview. Humphreys was a barrister, a Labour Party Councillor until recently and was a special adviser to an earlier coalition government. Iseult O'Malley was lifted into the High Court only three years ago by the same coalition. She is the grand-daughter of Kevin O'Higgins, a Free State minister, and a sister of Finbarr O'Malley, another former Labour Party adviser. It would be unfair to cast aspersions on the undoubted abilities of both appointees, but it is fair to question whether either would have been given such preferment under Fianna Fail. Iseult is, very appropriately, replacing one-time Fianna Fail Dail candidate, Fianna Fail adviser and Fianna Fail Attorney-General John Murray.
Four years ago, under the present Fine Gael government, Mayo solicitor Patrick Durcan was appointed to the District Court. Durcan had served in various capacities for Fine Gael, not least as a four-time running mate of the current Taoiseach and a senator under Garret FitzGerald. Two years ago, barrister Colm MacEochaidh was appointed to the High Court. The same man had run for Fine Gael in the 2002 General Election in Dublin South East.
The examples of such political appointments are legion - under all administrations. A fig leaf called the Judicial Appointments Advisory Board - known as JAABs - masks the decisions. It receives applications and passes a selected list of at least seven names to the minister for justice. He or she recommends a name to the Government. Absurdly, ministers can ignore the list if no names please them. They can simply parachute in someone more politically palatable. The Cabinet then recommends to the President, who announces the favoured winner.
Sadly, the JAABs (now derided as "Jaabs for the boys" down in the Law Library) consists of three political nominees, plus the politically-appointed Attorney-General and the politically-appointed Presidents of the Supreme, High, Circuit and District Courts. Add the nominees of the Bar Council and the Law Society and you have a web of comfortable insiders who are hardly likely to rock the designs of the Department of Justice.
The current coalition is making up for lost ground. After Fianna Fail had their way for 14 years, Fine Gael and Labour have treated vacancies on the bench as the spoils of war.
Eighteen months ago, the judges themselves lashed out at their own indefensible appointments system. "It is increasingly clear" stated a damning report from the committee chaired by Chief Justice Susan Denham, "that the relative success of the administration of justice in Ireland has been achieved in spite of, rather than because of the appointment system". The report pointedly declared that political allegiance should have no bearing on appointments to judicial office.
The Chief Justice's words have fallen on deaf ears. The politicians have responded with delaying devices like a public consultation process, designed to ensure that no decisions to dilute their powers of patronage are made before the General Election.
Meanwhile, their friends will be further favoured; judges will need nothing but basic legal qualifications; they will not be interviewed for their jobs; they will not be compelled to make a declaration of interests; they will remain self-regulated.
It is easier to topple a government than to fire a judge. It only takes a simple majority vote in the Dail to bring down a government but it needs a vote of both Houses to remove a judge.
The first is not unknown, the second has never happened.