Saturday 24 August 2019

Appointing judges used to be hands-on affair for Taoiseach

The rationale for having a journalistic privilege is based on the fact that a free press cannot thrive without being able to assure contacts that their identities will not be disclosed (Stock photo)
The rationale for having a journalistic privilege is based on the fact that a free press cannot thrive without being able to assure contacts that their identities will not be disclosed (Stock photo)

Hugh O'Flaherty

With all the recent commotion about the appointment of judges, it is worth reflecting on a time when governments took decisions without the advice or help of various boards.

Mr Justice Brian Walsh recounted in an interview which he gave to the authors of a book, 'Judging the World', in 1988 that when the Taoiseach, Seán Lemass, offered him the appointment to the Supreme Court in 1961, he said he would just like to mention one thing - he would never again refer to it - but he would like the Supreme Court to become more like the United States Supreme Court.

Judge Walsh said: "So I pointed out to him there were certain differences. But that was his general idea ... he said much the same thing to the new Chief Justice, Cearbhall Ó Dálaigh. Obviously it was (his) wish that the court would be more active in its interpretative role.

"I am not saying that influenced me in any particular way, because I think the horse was chosen for the course. He probably felt he was talking to somebody who had much the same views. I was certainly very much influenced by the American experience. I had studied it to a very considerable extent and kept myself familiar with it all through my career."

Here is the head of government with a very hands-on approach in the appointment of two of our most outstanding judges. And, of course, the court in due course did extend its interpretative role to a great extent. Incidentally, it shows that while we think of Lemass as being essentially interested in economic development, he also wanted to see the Constitution developed.

And, as TK Whitaker has related, on their historic journey to Stormont to meet with Captain Terence O'Neill, 42 years ago this month, the conversation turned on constitutional, not economic, matters.

This vignette also illustrates the respect that each branch of the State must have for the others. This "respect" is not of the forelock-tipping variety but recognition that each branch, legislative, executive and judicial, has it particular sphere of influence.

Journalistic right to protect one's source

Gerry Adams made an interesting comment to some journalists recently when he pointed out that they sought the right not to disclose their sources so should he not have a similar dispensation in his work in furthering the peace process.

The rationale for having a journalistic privilege is based on the fact that a free press cannot thrive without being able to assure contacts that their identities will not be disclosed.

In a case involving RTÉ journalist Kevin O'Kelly in 1972, the matter of journalistic privilege came before the Court of Appeal. Mr O'Kelly had recorded an interview for radio with one Seán Mac Stíofáin, who admitted being a member of the IRA. Mac Stíofáin was duly prosecuted and Mr O'Kelly was called as a witness for the prosecution. While he identified the tape, he was reluctant to name Mac Stíofáin as the man he had interviewed, claiming that it would be breach of confidence for him to do so. He was found in contempt of court by the special criminal court and sentenced to three months imprisonment. The appeal court removed the prison sentence and substituted with a fine, feeling that Mr O'Kelly was somewhat confused about his position.

The court was aware that journalists claim the right not to reveal confidences or to disclose sources of confidential information.

It is understandable, said the court, that newsmen may require informants to gather news. But the fact that a communication was made under terms of expressed confidence does not create a privilege against disclosure. "So far as the administration of justice is concerned, the public has the right to every man's evidence except for those persons protected by a constitutional or other established and recognised privilege", the court concluded. Since then, the European Court of Human Rights has moved to recognise the idea that there was such a thing as journalistic privilege. Whether it extends to not revealing witnesses to a murder is very doubtful.

Talking of privilege, the most extensive of all is that afforded to deputies and senators. In respect of any utterance they are not amenable to any court or other body other than the House itself.

While this is a strong protection, the Constitution also provides for standing orders and they are strong in forbidding anything in the nature of defamation, for example. While in the old days deputies were scrupulous enough in observing standing orders, of late there is tendency that they are observed more in the breach than the observance.

I recall back in the 1950s when someone referred to the "decrepit" 'Irish Times'.

The Ceann Comhairle ruled that while a deputy could disagree with a newspaper's political views, he should not comment adversely on its financial standing!

Irish Independent

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