Everyone at Constitution Project @ UCC was deeply saddened to learn of the sudden death of Mr Justice Adrian Hardiman, judge of the Supreme Court of Ireland. Mr Justice Hardiman was a highly accomplished jurist who left a significant mark on the Irish legal landscape, and whose passing will leave a similarly significant void. He handed down judgments in dozens of crucial cases that will shape Irish law for many years to come; the following is just a brief selection of notable constitutional decisions.
Hardiman J was appointed directly to the Supreme Court from the bar in 2000, and it was not long before he made his presence felt. It is arguable that even among multiple majority judgments, his were the defining ones in the well-known cases of Sinnott v Minister for Education  2 I.R. 545 and TD v Minister for Education  4 I.R. 259. Both cases concerned claims made by children with special needs who had been denied effective educational services. The common theme was that decisions that impact upon the allocation of public resources are a matter for the executive, and the judiciary should not interfere in this process. In TD, he wrote (at p.358):
“It would of course be possible by constitutional amendment or by the adoption of an entirely new constitution, to vest the courts with powers and responsibilities in social, economic and other areas which are presently the preserve of the other organs of government. This, perhaps, would give immediate satisfaction to those who thought the courts more likely to adopt their views of the merits of certain social or economic questions than the legislature or executive. But it would vest responsibility in these areas in a body without special qualifications to discharge it which, if its views fell into disfavour, would not easily be replaced by another more congenial. It would also render technical and legalistic discussions which should properly be conducted in quite a different manner. And if courts extend their powers to questions which are essentially political they will soon either fossilise developments on such issues or lose that basis in formal and technical logic and consistency which is an essential hallmark of legal, though not necessarily of political, discourse.”
These decisions were the subject of a large volume of academic commentary – and, it must be said, no small amount of criticism from those that felt that they left vulnerable children with no effective remedy for a breach of their constitutional right to education. Unusually for a sitting Supreme Court judge, Hardiman J responded to some of this criticism in a paper at the Magill Summer School in 2004, remarking that “uncontrolled power in the hands of a judge is no more acceptable that uncontrolled power in any other hands” (“The Role of the Supreme Court in our Democracy” in Mulholland (Ed.), Political Choice and Democratic Freedom in Ireland, MacGill Summer School, 2004, p.44). Hardiman J’s openness in engaging in extra-judicial debate about the merits or demerits of various decisions was to manifest itself on numerous occasions in the years that followed; this blog featured a response to a paper he delivered at a conference in DCU in 2014 in which he took issue with the European Court of Human Rights decision in O’Keeffe v Ireland. (The exchange is slated for publication later this year as a pair of papers in a forthcoming collection – see here.)
Hardiman J was a fluent Irish speaker and he applied his linguistic knowledge on the bench, giving judgments in most of the key Irish language cases since his appointment to the Supreme Court. In 2001 his majority judgment (along with Mrs Justice McGuinness) in Ó Beoláin v Fahy  2 I.R. 279 served as a watershed moment in the recognition of language rights in constitutional discourse in Ireland. Although the constitutional status of the Irish language had long been recognised, it was only following Hardiman J’s intervention that the courts began to consider the true legal implications of the legal status afforded to the Irish language and Irish speakers. This judicial decision has often been cited as the impetus the State needed to take the rights of Irish speakers seriously and led directly to the introduction of the Official Languages Act, 2003 and the granting of Official EU status to the Irish language in 2007. Hardiman J’s attitudes towards the State’s obligations towards the Irish language were best summed up by his dissenting judgment in Ó Maiciín v Ireland  I.E.S.C. 12, a case which concerned the right to Irish speaking juries, where he held:
“The answer to [the Irish language] question does not depend on the private opinion of the Judges asked to decide it about the desirability or the feasibility of the widespread use of the Irish language for official purposes. It depends, rather, on the interpretation of the Constitution and the laws of Ireland which the judges, like the legislature, the executive, and the citizens, must take as they find them. If a government no longer wishes to be bound by the words of the Constitution as it is, that government is in a uniquely strong position to promote a change in those words. But, until then, the government must abide by the terms of the Constitution, just as it expects the ordinary citizen to obey the law. The Constitution is binding law, which binds the Government and the Legislature as much as the humblest citizen.”
Perhaps his most striking legacy came in the area of criminal justice and due process case law, where Hardiman J was a staunch defender of the rights of the accused. In CC v Ireland  4 I.R. 1, the Supreme Court struck down the law on statutory rape on the basis that it did not allow for the defence of reasonable mistake as to age. Hardiman J stated (at p.44) that he could not “regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual”. In DPP v Davis  1 I.R. 146 at p. 151, Hardiman J, delivering the judgment of the Court of Criminal Appeal, described the publication of photographs of an unconvicted prisoner wearing shackles as “a depiction of him in a position of humiliation and indignity … the dignity of the individual, and the perception that he is a participant in judicial proceedings with specific rights, and on a footing of equality with other participants, is inconsistent with his appearing there chained, or otherwise manifestly restrained.”
Having delivered judgments of this nature in the past, it was perhaps unsurprising that he dissented from the Supreme Court’s decision in DPP v JC  I.E.S.C. 31 to overturn the rule in DPP v Kenny  2 I.R. 110 under which unconstitutionally obtained evidence was automatically excluded from criminal trials. In what unfortunately proved to be one of his final major contributions to the work of the Supreme Court, he wrote a stinging dissent, describing Kenny as “one of the monuments of Irish constitutional jurisprudence” and stating that he was “gravely apprehensive” that the majority decision “is a major step in the disengagement of this Court from the rights-oriented jurisprudence of our predecessors”. He warned of the dangers of encouraging lax standards or even police misconduct:
“I protest, in particular, against the distinction, created by this part of the decision, between the ordinary citizen and the members of the privileged and legally empowered group whom I have designated the force publique. If the ordinary citizen were provided with a defence of “I didn’t mean it” or “I didn’t know it was against the law”, then many parts of the law would become completely unenforceable. I believe that the application of this rule to the force publique has the effect of exalting that group and conferring a status of virtual, practical, unaccountability upon it. I deeply regret that this is being done.
… If the Constitution and the rights it guarantees to citizens are to be taken seriously and are to be more than a shibboleth, mere words on a page, it must follow that no official, no matter how high or how important the office which he holds in the State, may breach the terms of the Constitution, and impose on or suspend the constitutional rights of another citizen.”
Critics of Hardiman J’s judgments will point out the contrast between his strident defence of rights about which he felt strongly (in the areas of due process and language) with his unwillingness to grant remedies for the breach of a socio-economic right (the right to education), which did not fit so comfortably with his view of the judicial role. But no one can question that he has left a substantial legacy; he was, perhaps, the dominant voice on the Irish Supreme Court over the last 15 years.
A dheis Dé go raibh a anam.