Tuesday 23 January 2018

Bid to limit politicians' judicial role has been ineffective

Dearbhail McDonald Legal Editor

PRIOR to 1995, judges were directly selected by the government. But when an Albert Reynolds-led government tried to appoint former Attorney General Harry Whelehan as President of the High Court, it caused uproar in the Labour Party, Fianna Fail's junior coalition partners.

The consternation led all of the Labour ministers to resign from Reynolds's government, leading to its collapse in November 1994.

It also led to the birth, in 1995, of the Judicial Appointments Advisory Board (JAAB), established by the incoming rainbow coalition.

The aim of the JAAB, championed by Labour, was to depoliticise judicial appointments by recommending to the government seven names for each judicial vacancy.

The JAAB, chaired by the Chief Justice, is top heavy with lawyers and judges and consists of the Attorney General as well as the Presidents of the Supreme, High, Circuit and District Courts.

Barristers

It also includes nominees from the Bar Council and Law Society -- the representative bodies for barristers and solicitors -- as well as a representative from the Courts Service.

In addition, there are three lay members of the JAAB who are nominated by the Justice Minister.

The job of the JAAB is to seek out and assess applications for judicial office and make recommendations to the Government.

But in reality, its role is severely limited, confined to nominating a list of seven candidates that the Government may, but is not legally obliged to, choose from.

One of its chief weaknesses is the fact that the JAAB must make seven recommendations for each vacancy.

As the Government typically makes two or three judicial nominations at a time, this means it has a long list to choose from.

The length of the lists means that the Government has as much, if not more, discretion in selecting judges than it had prior to the establishment of the JAAB.

There are other limitations, too.

The JAAB does not interview or headhunt candidates and it cannot rank them either.

It has no role in the selection of the Chief Justice or the Presidents of the High Court, Circuit Court or District Court.

It has no role in the promotion of judges already serving on a lower court to a higher court.

Those seeking judicial appointment are not allowed to canvass, but others are not banned from doing so on their behalf.

The decision at all times rests with the Government.

As a result, political control of judicial appointments has been firmly retained despite the illusion that the creation the JAAB would depoliticise the process.

Last year, the JAAB met to consider one appointment to the Supreme Court, one to the High Court and one appointment to the Circuit Court.

Since coming into operation the JAAB has held nine meetings to consider Supreme Court recommendations and has met on 21 occasions to consider High Court applications.

According to its annual report, the JAAB has held 17 meetings to discuss Circuit Court appointments and has held 27 meetings to assess applications for the District Court.

Irish Independent

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