Judicial Independence and the Current Controversy

Dr Laura Cahillane

Controversy erupted this week when Mr Justice Peter Kelly was reported to have told a group of business leaders that judicial independence was being demolished “brick by brick” by the Government, apparently mentioning the Government’s handling of judges’ pay and pensions and the proposed reforms to the court structure. Minister for Justice, Alan Shatter then dismissed the comments, denying that the Government was interfering with the independence of the judiciary and later suggesting that perhaps Judge Kelly did not intend to convey this meaning by his comments. He also commented: “At a time when we are still fighting to restore our economic sovereignty and bring about sustainable economic recovery, we all have a duty when speaking to ensure that what we say has no unintended consequences and does not undermine international business confidence in the State.”

However, we were left in no doubt as to the intentions of Judge Kelly’s comments when the Association of Judges of Ireland (a representative body established in November 2011 in the context of the judicial pay referendum), of which Justice Peter Kelly is President, issued a statement in support of the comments. The statement claimed that “all structures, both formal and informal, which existed for communication between these two branches of government have ceased.” It pointed out that judges had not been consulted in relation to pension arrangements, the personal insolvency proposal or any of the current reform proposals, noting for example, that the abolition of the Seanad would mean that judges could be removed from office by a simple a majority resolution in the Dáil while at present a resolution of both Houses is required.

Justice Adrian Hardiman, of the Supreme Court, also supported the Association and Judge Kelly, noting that the latter speaks for the judges and is in a position to do so. Micheál Martin then decided to weigh in, commenting the country was on the verge of a full-scale constitutional crisis: “This evening we are witnessing an unprecedented breakdown in the relationship between the Irish judiciary and the Irish Government.” While the comments were perhaps made in the usual spirit of political hyperbole, we have to question whether the independence of the judiciary has truly been threatened.

The Development of the Concept

The independence of the judiciary is a fundamental principle in our Constitution. It was born out of the power struggle between Parliament and Crown in the UK. Before the 1600’s, judges held their offices at the pleasure of the monarch and so could be easily dismissed at the whim of a monarch who did not like a particular decision. Parliament later legislated to limit Royal interference in the judiciary, not particularly to provide for judicial independence, but rather, as part of their actions to curb Royal power. Thus security of tenure for judges was established and the concept of an independent judiciary was developed.

Our Constitution protects the idea, providing in Article 35.2 that “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”. That Article provides further protection in that (superior court) judges cannot be removed unless a joint resolution of the Dáil and the Seanad is passed and Article 35.5 had prevented any reduction in a judge’s salary, before this was amended in the November 2011 referendum.

The independence of the judiciary is also linked to the Separation of Powers doctrine, whereby each of the three organs of government, the legislature, executive, and judiciary are all supposed to be independent in the exercise of their respective functions and should constitute a check on the power of the others. Of course, Ireland’s model is not a true separation of powers, in that it cannot be said that our parliament and government are independent of each other. The doctrine has always been strongest in its recognition of the independence of the judiciary.

What Does Independence of the Judiciary Involve?

The traditional reason for the concept was to prevent interference in the administration of justice; to ensure that judges could not be forced or induced to make particular decisions. But what does the concept encompass today? Chief Justice Denham, during a speech to the Australian Institute of Judicial Administration in July 2000, addressed this question. She pointed out that:

“[I]t is the people who are sovereign and guardians of the Constitution.  Judicial independence exists for the benefit of the people … The concept of judicial independence has two aspects.  On the one hand is the independence of the third branch of government – the judiciary. I shall call this institutional independence. On the other hand each judge is independent.  I shall call this individual independence. … The concept of the independence of the judge exists so that he or she may fulfil his or her duties freely.  The concept exists to guard the impartiality of the judge, to protect the judge from interference e.g. from the executive by way of removal or reduction of salary.  Both the institutional judiciary and the individual judiciary are independent. …The independence of the judiciary is for the benefit of the community, not the judges.  It is a duty not a privilege for a judge.”

Thus, it is clear that the concept of judicial independence is primarily concerned with ensuring a fair and impartial administration of justice. As Justice Denham emphasised, the independence of the judiciary is a right of the people and of a person and a duty of the judiciary and a judge. Denham also aptly commented: “It is fundamental to democracy and the rule of law that the judiciary be strong, to withstand pressure from any quarter.  Yet the judiciary should be of their times and take account of the changing society within which judges hold office, while retaining the core principle of independence.”

Has this Independence been threatened?

Taking these comments into consideration, it might be a stretch to argue that a failure to consult the judiciary on proposed court reforms etc would constitute an interference with the independence of the judiciary. Master of the High Court, Edmund Honohan has expressed a similar view today, pointing out that there is no obligation on the minister to consult with the judges. RTE reports Honohan as commenting: “There’s no question at all that the judicial independence and integrity is under challenge in any way … Now all of this brouhaha seems to be about some sort of sense of entitlement that judges are entitled to be consulted when the minister or the Government proposes new legislation of one sort or another. Sorry, but that’s just not correct.”

Whether or not it is felt that the actions of the Minister have constituted a threat to the independence of judges, there are potential serious consequences to this controversy in that it could adversly affect confidence in the adminsitration of justice. A public disagreement between two organs of government is never beneficial to public confidence particularly when one has been accused of interfering with the other. Thus it is of the utmost importance that, rather than fuelling the fire with further comments, both sides attempt to resolve the situation as soon as possible.

An Appropriate Resolution?

One of the complaints from the judges was that a proposal to establish an independent commission for judges was dismissed by the Government. For a number of years now, successive governments have promised legislation to establish a judicial council, comprising members of the judiciary and lay persons, which would have the power to discipline and appoint judges and could be a means of communication with the executive. Mr Justice Frank Clark has recently set out “tentative ideas” on the possible establishment of a similar type of body. Perhaps the most appropriate way forward, in the context of this controversy and in light of the proposed reforms, would be to take action finally to establish such a body.

Dr Laura Cahillane

 

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