Tuesday 28 January 2020

Why should our judges be exempt from criticism?

There are some good arguments for not criticising judges, but they are not good enough, writes Eilis O'Hanlon

Justice Maire Whelan newly appointed to the Court of Appeal.
Justice Maire Whelan newly appointed to the Court of Appeal.

Eilis O'Hanlon

Last Monday, Leo Varadkar was criticised for mentioning Love Actually on his first visit to Downing Street as Taoiseach. "Demeaning his office," moaned the killjoys.

Last Tuesday, the Fine Gael leader was more legitimately pulled up for unveiling a line-up of junior ministers so emphatically male that it makes DC Comics' Justice League look like a delegation from the National Women's Council.

Last Wednesday, he was under fire again over the lack of 24-hour cardiac services in Waterford following the death of a young father-to-be. Thursday saw Varadkar lose his first vote in the Dail.

Supreme Court Judge Frank Clarke.
Supreme Court Judge Frank Clarke.

This is a normal week's work for a professional politician, whose mistakes are open to intense scrutiny from experts and the ill-informed alike. Join the club. That's what it's like in the real world.

Only one group of workers is officially immune from criticism. That is judges - and there was another sharp reminder of it last week after Varadkar and Fianna Fail leader Micheal Martin clashed over former Attorney-General Maire Whelan's appointment to the Court of Appeal.

The Taoiseach pointed out that previous Fianna Fail governments had also made senior judicial appointments.

Chief Justice Susan Denham SC.
Chief Justice Susan Denham SC.

"Maire Whelan is no Frank Clarke," Martin retorted witheringly. "Maire Whelan is no Adrian Hardiman."

Those words did not go down well in judicial circles. A number of legal eagles anonymously expressed their displeasure to the Irish Times, slamming the naming of specific judges on the floor of the Dail as "a big breach of protocol", adding, "the house shouldn't be discussing judges in this way". Another declared: "It's a dangerous road".

Chief Justice Susan Denham's remarks last Wednesday about the need to respect the separation of powers between the legislature and executive were seen as a rebuke to politicians trying to drag judges into political rows. Which was odd, in one sense, because couldn't the appointment of Maire Whelan be interpreted as a sign that the "checks and balances" which Denham extolled were not working?

As Attorney-General, Whelan was at the Cabinet meeting at which her own nomination to the Court of Appeal was put forward. Not much separation of powers there, some might argue.

The late Supreme Court Judge Adrian Hardiman.
The late Supreme Court Judge Adrian Hardiman.

Rightly? Well, that's a matter of opinion. But there's no doubt that this row would not have arisen if members of the Dail had risen one by one to praise Whelan's Solomon-like wisdom. It was only because Martin disparaged her comparative merits as a judge that there was consternation.

But are the anonymous complainants right for all that? One of the principal arguments for protecting judges from the criticism of politicians is that those same judges are uniquely able to overturn political decisions. If politicians are able to apply pressure to them, judicial independence may be a risk.

There's certainly something in that, though the opposite then ought to hold true as well, namely that they should be scrupulous about not criticising politicians individually, for fear that their much-praised independence of mind starts to look suspect.

Whispering words of disapproval to the Irish Times hardly spells rigorous detachment.

Another frequently heard argument is that judges should not be criticised because they cannot fight back. That argument is also weakened, though, by the fact that they do fight back, fiercely at times. This week saw an example. Maire Whelan could not directly slap down the leader of the Opposition, but the legal system did weigh in. Anonymous or otherwise, rebukes were delivered.

The same goes for the argument that the smooth functioning of the judiciary depends on treating its workings as above reproach. Certain judges may be popularly pilloried for the leniency of their sentences, but, once politicians join the chorus, it can undermine public confidence.

On the other hand, judges have extensive powers. Power demands oversight. That's meant to come through self-correction, by appeals to higher courts. However, that's not always proved sufficient to offset public disquiet.

At root, it comes down to whether we accept that legal decisions are non-political, untainted by prejudice, based purely on the facts. Politicians make law. Judges interpret it.

A moment's thought shows that things are rarely so simple. Judges make decisions based on their own points of view as much as anyone else does. Their decisions do not come from nowhere. Nor is the line between making and interpreting legislation so clearly defined. Judges have been called "occasional legislators" for that reason. Increasingly, there's a grey area in which judges are seen to intrude on the political sphere.

Criticism of them on that score can be excessive, but so can the response. There was an attempt some years ago to prosecute Peter Hain, the UK's former Northern Ireland secretary, for saying in his memoirs that one particular British judge was "off his rocker". Around the world, journalists have faced prosecution for similar comments.

Such prosecutions have tended to fail where the defendant is able to show that he acted in good faith, in defence of the public interest, rather than to undermine trust in the judiciary as a whole. Nonetheless, the threat of jail cannot help having a chilling effect on the willingness of critics to hold the judiciary to account.

The deeper question is whether a democratic society is better served by allowing free and open speech on all matters of public interest, or whether it is treating judges differently which ultimately guarantees those freedoms.

The judiciary, not surprisingly, tends to the latter view; though there's something suspiciously Orwellian about suggesting that free speech is best defended by curtailing it.

Moreover, the same points could also be forwarded to argue that other public officials, politicians included, should not be unduly criticised either, and few would go along with that. Shielding judges from criticism goes against every modern instinct that those who make decisions which impact on people's lives should be answerable for the reasons behind them.

Politicians should certainly be free to criticise judges, because they represent the people. Criticism from them is part of the democratic process. Dail privilege is a recognition that sometimes they must be allowed to articulate what the rest of us are barred from saying. Doing so encourages education, debate, reform.

Unlike judges, they can also be held accountable through the ballot box. If we don't like what they say, we can vote them out. If we don't like a particular judge's rulings, tough. Judges can't be fired.

Surely the least they can expect in return for security from that ultimate sanction is a few slaps on the wrist when they get things wrong?

The only time that judges are reined in by the judiciary is when there's a public outcry. Without democratic protest, nothing would ever change.

There is some evidence that countries where there is greater criticism of judges are those where judicial decisions are regarded as more overtly political. Opinion in middle Ireland has tended to give judges the benefit of the doubt in that respect, though there have been court cases in recent years which attracted accusations of political bias.

What's beyond doubt is that Ireland has always taken the question seriously. The Courts of Justice Bill in 1923 was debated for eight months because deputies were so determined that judges would be free of political interference. The loudest attacks on the judiciary subsequently came from subversives seeking to undermine confidence in the new State for malign ends.

The argument that criticism of judges should not go so far as to threaten national security had merit in those specific circumstances, but that was then. The pendulum now has swung from restriction to persuasion. Respect needs to be earned rather than demanded as a civic duty - through greater transparency; by justifying decisions.

When politicians urge restrictions on free speech, by controlling social media, for example, it's generally recognised that they're doing so for their own interests. There's no reason to suppose judges would be any more altruistic.

We all want an independent, impartial judiciary, but, as a US court ruling put it, protecting judges from criticism "would probably engender resentment, suspicion, and contempt much more than it would enhance respect".

Freedom of expression, as enshrined in international law, is too precious to throw away to spare judges' feelings.

Sunday Independent

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