Friday 24 October 2014

Political favouritism is no way to appoint top judges

The time has come to remove the power of judicial appointment from governments

Shane Ross

Published 16/02/2014 | 02:30

ADVOCATES OF CHANGE: Left, Professor David Gwynn Morgan. Right, retired judge Michael Patwell. Photos: Donal Doherty and Patrick Hogan/Provision
ADVOCATES OF CHANGE: Left, Professor David Gwynn Morgan. Right, retired judge Michael Patwell. Photos: Donal Doherty and Patrick Hogan/Provision

THIS weekend public confidence in the gardai hangs in the balance. The politically appointed chiefs at the top of the force are under scrutiny. Critics thunder that our addiction to political patronage dictates that top gardai are joined at the hip to the Government.

If top-level promotions in the gardai are too political the position of judges is worse. While only top gardai are appointed by the Government, all judges are chosen by party politicians. The potential for political favouritism is unlimited. Unhappily, that potential has been fulfilled in the Four Courts. In spades.

The judges themselves admit it. Two years ago the president of the Association of Judges, Peter Kelly, spilled the beans when he stated: "We all know . . . that people who would be excellent judicial appointments are passed over in favour of people who are not so well qualified."

Retired judge Michael Patwell told Charlie Bird of RTE that the use of political influence to secure judicial jobs was "common".

Just two weeks ago, it emerged that the judiciary itself had been embarrassed by decades of political favouritism. It made a submission to the Government, asserting: "As a matter of principle, political allegiance should have no bearing on appointments to judicial office. Early acceptance of this principle is essential to a transformation of the appointment process."

Ouch. Such outbreaks of honesty from judges have been sporadic; but do not expect politicians to give up their power of political patronage at the urging of the wigs.

Any rural TD will tell you that the appearance at their clinics of solicitors seeking a new life as a judge in the District Court is not uncommon. In return, TDs make the necessary representations. Subsequently, judges of an identifiable political colour emerge.

That has always been the way in Ireland. In 1995, after a political row over a judicial appointment, a fig leaf was inserted between the judiciary and the politicians.

The Fine Gael/Labour coalition created the Judicial Appointments Advisory Board (Jaabs). Within weeks it was unmasked as a confidence trick. The old system of political parties in power slotting their own favourites onto the bench continued to flourish, notwithstanding the presence of Jaabs.

Jaabs selects candidates for the judges' jobs when vacancies arise. It passes a list of names on to the minister. He or she recommends to the Government, who in turn submit to the President.

The reality of Jaabs is a sick joke. Or what legal academic Prof David Gwynn Morgan called "a good example of pulling the wool over the public's eyes".

Jaabs has a free hand to advertise vacancies, to interview and recommend candidates. It advertises and recommends. In nearly 10 years it has never bothered to hold a single interview.

It is dead right. It knows only too well that the Government can look at the Jaabs list and choose anyone from it. Worse still, it can ignore the list and simply parachute another favourite into the post. Jaabs is a joke.

Jaabs is stuffed with political nominees and legal bigwigs. It has three members appointed by the minister. The rest consists of legal insiders, including the Attorney General, the presidents of the Supreme, High, Circuit and District Courts, plus a single nominee from the Bar Council and the Law Society. Not a boat rocker in sight.

Jaabs makes a list of candidates. The Government still appoints exactly who it pleases. Jaabs has never once come into conflict with the Government. It is irrelevant.

So how can we take the power of appointing judges away from the Government?

On Friday I will introduce a bill in the Dail to do just that. Jaabs will be abolished. A Judicial Council will be established, drawn from a broad spectrum of society, but will exclude all judges or other legal insiders.

Hopefully, it will include independent legal academics, outsiders and ordinary citizens. Its composition can be decided later – by law – after the principles of the bill have been conceded and written into the constitution.

The Judicial Council will nominate suitable names to a constitutionally established Oireachtas committee with an opposition majority. The Government will not be able to appoint its favourites .

The Oireachtas committee will send its nominees directly to the President. The Government will be bypassed. There will be no more cabinet horse-trading. No government will ever again be able to force its favourites on to the bench.

Defenders of the rotten current system insist that the quality of judges has not suffered from its gaping defects and vulnerability to rampant abuse. They protest that there is no evidence of judges verdicts being influenced by their political background.

Perhaps they are right, but such claims cannot be proved or disproved. What we need to do is to reform the system before there is a catastrophe. Ditto the gardai. Independence is the key.

During their long term in office, Fianna Fail stuffed the judiciary with their favourites. Today the Fine Gael/Labour Coalition is frantically trying to catch up. It is a fair bet that Judge Colm MacEochaidh, an unsuccessful Fine Gael candidate for the Dail, would never have reached the High Court under Fianna Fail.

Similarly Mayo's Patrick Durcan, a former FG senator and running mate of Enda Kenny, would not have had a prayer of his recent promotion to the District Court under his political opponents.

No one says that MacEochaidh and Durcan are anything less than excellent and thoroughly worthy of their positions – that's not in dispute – but neither is it the point. The present system effectively blocks equally good people of opposition party leanings. It is perverse.

Hopefully my bill this week will force our 'reformist' Government to acknowledge this embedded politicisation of the justice system; but expect them to respond with another legislative fudge.

So far their murmurings suggest they will never surrender their right to pick judges to an independent body. Judges' jobs will remain the spoils of political war.

Shane Ross is the Independent TD for Dublin South

Sunday Independent

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