Law is one part of a set of processes, social, political, economic and cultural, which shape and direct the development of society. Like all other mechanisms the law seeks to govern human behaviour. The Irish law system belongs to common law systems established in England by the Norman’s. This type of law responded to actual rather than anticipated problems. In contrast the law in the civil system is contained in comprehensive codes which are enacted by legislators and which attempt to provide for every legal contingency. Case law or ‘la jurisprudence’ has lesser significance and lacks the quality of enjoying in the force of law.
Sources of law include Common law, Legislation, Constitution, E.C law, Custom, Canon and international. The courts currently in operation are the District, Circuit, High, Special Criminal, Court of Criminal appeal and the Supreme Court. In the Constitution Articles 34 to37which are headed ‘The Courts’ provide a broad outline regarding the structure of the court system and in terms of legal validity whatever structures exist must conform to the basic framework established by the Constitution. Article 34.1states that ‘justice shall be administered in courts established by law by Judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as prescribed by the law, shall be administered in public’. This signifies that the Irish Constitution has adopted the principle that the administration of justice must be assigned to a separate arm of government, in accordance with the doctrine of the separation of powers which was central to the American and French revolutions of the eighteenth century. The significant feature of Articles 34 to 36 of the Constitution is that they refer specifically to the High Court and Supreme Court. By mentioning these it has shown that these courts have special status. These courts are the highest courts in the land with the Supreme Court being the court of final appeal.
Up until 1961 the courts in operation were ‘transitory’ courts under Article 58 of the Constitution. After the stateKillian versus Minister for Finance1954 IR207the courtsestablishment and Constitutionact 1961 was passed to regularize the position and ‘establish’ the court system envisaged by Article 34.1. This system remains in existence today and is where Judges operate under.
Under the Constitution the judicial function is the third organ of government and consists of the interpretation of the Constitution and the law and its application by rule or discretion to disputes which arise between the State and the individual, and between individual and another individual. Justice is to be administered in courts, established by statute law, by judges appointed in the manner prescribed in the Constitution (Article. 34)
The President appoints judges of the ordinary courts. A judge cannot be a member of the Oireachtas, or hold any other position of emolument (Article. 35) and on appointment makes a constitutional declaration to ‘duly and faithfully and to the best of his knowledge and power execute the office without fear or favour, affection or ill-will towards any man, and that he will uphold the Constitution and the laws.’ Should this declaration not be made within ten days of entering office, a judge is considered to have vacated that office (Article. 34).
The appointment of a judge on the advice of the Government is not one of presidential discretion, but is a function which, in conformity with Article 13.9, is to be performed ‘only on the advice of the Government’. The appointment of a judge, as Finlay P. said in The State (Walshe) V. Murphy is an act ‘requiring the President’s intervention for its effectiveness in law, (but) in fact (it is) the decision and act of the Executive’. This means that any attempt to change the system of appointment by ordinary legislation – by, e.g., requiring the consent of both Houses of the Oireachtas – would probably be unconstitutional in as much as it trenched on a constitutional right of the Executive.
In The State (Killian) V. Minister for Justice, the Supreme Court accepted that the judges whose appointment was envisaged by this section were judges of the courts contemplated by Article. 34, i.e., courts which in 1937 were yet to be established.
When these were eventually set up in 1961, by the Courts (Established and Constitution) Act of that year, the courts established by the Courts of Justice Act, 1924, and continued in their jurisdictions by the transitory provisions of Article 58., were extinguished. The judges of the old courts, however, were maintained in the equivalent ‘new’ judicial offices, by virtue of the special ‘new’ judicial offices, by virtue of the special provisions of sub-sections 5, 17 and 29 of the Courts (Supplement Provisions) Act 1961. As these were technically fresh appointments, fresh declarations under Article 34.5 had to be made.
Under the ‘Courts and Court Officers Act, 1995’, it states that a body of people, who identify and inform the government of the suitability of the people who are to be appointed to a judicial office. This body is known as the Judicial Appointments Advisory Board.
The Chief Justice, who is chairperson of the board
The President of the Circuit Court
A practicing barrister, who is nominated by the Chairperson of the Board and of the Council of the Bar of Ireland
A Practicing solicitor, who is nominated by the President of the Law Society of Ireland
Also no more than 3 people appointed by the Minister who are engaged in, or have knowledge or experience of commerce, finance, administration or have experience as consumers of the services provided by the courts that the Minister considers appropriate
A person appointed to be a member of the Board who are a barrister or a solicitor and who are appointed by the Minister, are only allowed to be a member of the Board for not more than 3 years but they are eligible for re-appointment to the Board. The Board can act notwithstanding a vacancy an its membership.
A person who wishes to be considered for appointment to judicial office shall so inform the Board in writing and shall provide the Board with such information as it may require to enable it to consider the suitability of that person for the judicial office, including information in relation to education, professional qualifications, experience and character.
The Board shall where a judicial office stands vacant, or a vacancy in a judicial office arise, submit to the Minister the name of each person who wishes to be considered for appointment and shall recommend to the Minister at least seven people for the appointment to that judicial office.
In advising the President in relation to the appointment of a person to a judicial office, the government shall firstly consider for appointment those people whose names have been recommended to the Minister.
A notice of an appointment to judicial office shall be published in the ‘Iris Oifiguil’ and the notice shall include a statement that the name of the person was recommended by the Board to the Minister.
‘Law and Politics’ Shaping the Future
While law and Politics are not supposed to mix, political allengiegence and beliefs of
Judges play a significant role in their appointment. The system of judicial appointment
was described as “a Judicial appointment does not ‘just happen’. It is in a very real sense
the finest and the most desirable appointment that the Government can make. It is a
In the past, and maybe even today Judges sought to win favour of the Government by in
‘State cases’ or by getting to know members of Government personally. While there was certainly a political element to judicial appointment for many years, it must be stated tough that they must have met the qualification standards and they were required to remain independent in their decisions.
The system had come in for some criticism and since 1995 new arrangements have been in place which established a more transparent process for judicial appointments. This was established under the Courts and Court Officers Act 1995. An example of how this changed the system of appointments is seen in Section 16 of the Act. This provides that Judges must agree to undertake to any course of training or education required.
It is clear that the system of appointments is getting better. It is probably true to say that members of the Judiciary remain largely from the middle classes. However as society becomes more developed and liberalised, future and present generations through the ever increasing role of the Media will not tolerate a closed system of appointments by the Government
The “Separation of Powers”
Within the Irish Law system both the 1922 and 1937 Constitutions details the powers of government as of three distinct types, LEGISLATIVE, EXECUTIVE and JUDICIAL, but neither of the Constitutions actually prescribes a “separation of power”. As O Dalaigh stated, that “the Constitution of Ireland is found on the doctrine of a tripartite division of the powers of government”, where limitations are put in place of the power of the Legislature and the Executive. Lavery J said of the old article 2 in O’Byrne v Minister for Finance, “the separation of powers” was “imperfect” so far as the decision-making and law-making powers were concerned and “definite” only in the respect of the legal power, though Walsh J said in Murphy v Dublin Corporation that the division of powers “does not give paramount in all circumstances to any one of the organs exercising the powers of government over the other”; and the Supreme Court recognized in Abbey Films Ltd. V Attorney General that “the framers of the Constitution did not adopt a rigid separation between legislative, executive and judicial powers”.
Johnston J also agreed that the separation of power in Ireland was “imperfect” and even went a step further by stating that in “no system of which I have any knowledge has it been found to be possible to confine the legislative, the executive and the judicial power each in what I may call its own water-tight compartment; and, if such a thing were to be attempted, the result, I fear, would be so much the worse for the compartment.”
The courts have searched to identify the limits of judicial power with a view to avoid judicial breach on the legislative functions of the government. Very predictably, the legislate process itself has been recognized as being beyond the capacity of judicial review, other than in accordance with article 26- Wireless Dealers’ Association v fair Trade Commission. The bench cannot interfere in the process of alter the Constitution. The courts, however, have discovered that some of the legislation is open to interpretation and thus rules were put in place so as to stop the courts from adding or deleting from express statutory provisions so as to achieve objectives which appear pleasing to the courts or which are notably different from those formerly intended by the legislature.
The Aristotelian distinction between commutative and Distributive justice, at least mark out the dividing line between the judicial and legislative spheres of operation, i.e. between the relationships which arise in dealings between individuals and the relationship which arises between the individual and those in authority in a political community when goods held in common for the benefit of the entire community fall to be distributed and allocated.
Apart from the power of the superior courts to reconsider acts of the Oireachtas on constitutional principle; the courts may also- review subordinate legislation on criteria of vires both substantive and procedural. In addition, law-making functions are in practice often exercised by organs-such as Ministers- whose activity is mainly executive, in making regulations and orders of general application, though of course under the authority of the Oireachtas: and again, though no specific notice is taken of the fact in the Constitution, the commencement of legislation is for practical purposes exclusively in the hands of the executive.
Some cases have affirmed certain borders between executive and judicial functions in relation to the trail of offences. In Director of Public Prosecutions v O Suilleabhain Carroll J cited Attorney General (McDonnell) v Higgins in support of the proposal that a judge is not entitled to prefer charges. At the other hand of this legal process, the protective effect of Article 6 on the executive power to decide on the duration of imprisonment or detention has also been considered by the courts on a number of occasions. In the case Director of Public Prosecution v Tiernan it was for the executive to decide to serve, and, accordingly, the courts could not take that period into account in imposing sentence in a rape case. A recent series of cases has focused attention on the constitutionality of the power given to the executive, pursuant to 2(2) of the Trial of Lunatics Act 1883, to settle on the duration of detention of an accused person who had been found guilty but insane. Doubts about the constitutionality of this agreement arose because of the verdict in The State (O) v O’Brien in which a majority of the Supreme Court ruled that the power to decide the duration of imprisonment of a young person convicted of murder-originally conferred on the Crown pursuant to s 103 of the Children’s Act 1908- was a judicial power which now vested in the courts rather than in the Executive.
The search for the dividing line between judicial and executive functions has been pursued in relation to matters other than those ancillaries to the trial of offences. In a series of cases dealing with the process of revising the Constitution, the courts have ruled that they have no jurisdiction to grant injunctions preventing the executive from holding a referendum without having previously fully explained its effect or from spending public money and campaigning exclusively in favour of a proposed constitutional amendment. However, if the procedures embraced by the government for alter the Constitution were not those predetermined in the Constitution itself, no doubt the courts could arbitrate. The conduct of foreign affairs is another area that is primarily assigned to the executive and not a matter for the courts. According to Fitzgerald J, Article 6 “established beyond question the separation of the executive, legislative and judicial powers of Government… Consequently… the courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”
Article 28.2 exercises by or on the authority of the Government the executive power; the Government however is subject to the Dail, being dependent on its support and so on part of the legislature. Both the Government in the strict constitutional sense, and all of its members, and every part of the administration over which government powers in the wider sense are diffused, are subject to the intervention of the courts, except for the Government itself, the whole executive machinery can be dismantled or re-arranged or deprived of functions by enactment of the legislature.
The separation of powers, as has been said, is imperfect- even on the face of the Constitution- and if such a principle exists, it must be understood to be modified, and in its practice not similar with the rigid consistency with which in some other jurisdiction a “separation of powers” is maintained. The most conspicuous example of one arm of government exercising a supervisory control over another is present in the jurisdiction of the High and Supreme Courts to invalidate legislation on constitutional criteria; this function is not known in France, for example, the home of the “separation of powers” doctrine, as to permit the ordinary courts to strike down acts of the legislature would appear to be an violation on the field of the latter.
The judicial power, though entrenched more carefully than the others, and in more detail, must administer a law, which, except for the parts derived from the Constitution, can be changed by legislature-even if such change is deliberately planned to nullify the effect of a particular judgement of a court.
The organisations of court business, and the task of judges, are matters, which, as a matter of fact at this moment, the courts themselves control: but the legislature could transfer much of this to itself or to an executive authority if it wished. On the other hand, some courts exercise some traditional functions- e.g. in the licensing of premises for the sale of alcohol or for the amusement- which are more naturally classified as executive than judicial.
Judicial Independence/Vis–vis the state:
Judicial Independence from the state is established in article 35.3, which states: no judge shall be eligible to be a member of the Oireachtas or to hold any other office or position of emolment. When a superior judge is appointed he is effectively appointed for life. A judge’s salary cannot be reduced which is guaranteed and they can only be removed from office for misbehavior. Judges must act ‘without fear or favour affection or ill-will’. There has also been an implicit convention pre-dating the 1937 constitution and indeed the establishment of the state in 1922, that judges do not generally become involved in any matter of public controversy. An example of this is the Sheedy case. Philip Sheedy was charged on three offences, which resulted in the death of Anne Ryan, after being sentenced to a four-year prison sentence. In this case Mr. Justice O”Flaherty became involved, which resulted in this sentence being suspended. An intervention by the Director of Public prosecutions resulted in an order of certiorari quashing the order for the sentence to be suspended. Although Mr. Justice O”Flaherty became involved in the spirit of “humanitarian interest” it was found unnecessary and damaging to the administration of justice. He had the case re-listed after a judge of equal jurisdiction made a final order. His personal involvement resulted in the prison sentence imposed on Mr. Sheedy being suspended. The other judge involved Mr. Cyril Kelly was critised for his handling of the case. In the end Mr. Justice O”Flaherty had to resign from his position.
The state must also remain independent from the Judiciary. An example of how the court remain independent, is the Byrne versus Ireland case in the Supreme Court which removed the states immunity from being sued. This paved the way for many more similar cases to be tried. The state can now be sued like any other body or company. Recent examples of this include the Army deafness claims. In this case one successful case paved the way for others, and the Government ended up paying large sums of money to the claimants. As a result they set up their own tribunal where they limited the amount of compensation that could be paid in each individual case.
Article 35.5 of the Constitution provides: the remuneration of a Judge should not be reduced during his countaince in office. This is important, as so members of the Judiciary do not feel “obliged” to the Government as continued remuneration depended on them. In the past the Judiciary might have felt that they should make decisions that would not offend those in authority. That however has changed and can be seen in cases such as the Hepatitis C scandal and Army deafness claims. There was also a case in October of this year where Mr. Justice Peter Kelly threatened to hold three Government Ministers in contempt of court if they did not provide a suitable place of detention for a seriously disturbed seventeen year old girl according to the standards set down by him. This led to a conflict between the Government and the High Court. Cases like these show that judges no longer feel ‘obliged’ to the government.
Article 35.2 states: All Judges shall be independent in the exercise of their judicial function and subject only to the Constitution and the law. In the “O’Brien V Minister of Finance” the widow of Mr. Justice John O’Brien claimed that subjecting a Judge’s conflict with Article 35.5 must be read with article 35.2. However the court held that to require a Judge to pay income tax like all other citizens could not be described as an attack on Judicial Independence.
In a case a Judge may be required to be excused from the adjudicating on a matter where they have expressed a view on an issue in question. A Fundamental principal of natural justice or fair procedure is expressed by the phrase nemo judex in-causa soa, that a person may not be a judge in their own cause or in a matter in which they have an interest, whether financial or otherwise. All sides to ensure a fair procedure must have an opportunity to prepare their case and be treated in an even-handed manner. Thus in the Dublin Weel Woman Centre Versus Ireland, the Supreme Court held that the High Court Judge Carroll, ought not adjudicate in a case concerning access to information on abortion n as she had previously as Chairwoman of the second omission on the status of women, written a letter to the Taoiseach expressing the support of the commission for right to access to abortion counseling and information services speaking for the Supreme Court, Denham J pointed out that there had been no suggestion that this letter would have resulted in any actual bias on the part of Carroll J in adjudicating the points of law at issue in the case; rather a Judge should offer to rescue himself or herself where there was even an appearance of bias.This test of appearance of bias rather then actual bias is consistent with the constitutional declaration in article 34.5.1 “to execute the judicial office without fear or favour, affection or ill-will”. This decision in Dublin Well-woman indicates the high standards of impartiality thus required. Judicial Independence in court also means that the Judge cannot be influenced by the state. This is seen where the court might force the Constitution to be amended. The Judge must be allowed to go against the state if he/she feels the state is wrong. In the Attorney General Versus X, the high court granted the Attorney General an injunction prohibiting the fourteen-year-old girl from leaving the state to have an abortion. It appeared that in the constitution, abortion was allowed in limited circumstances, to which the Supreme Court agreed, because the right to life of the mother was at risk. In response to the X case three proposed amendments to article 40.3.3 were put to a referendum in late l992. Two of these were passed, but after eight years no legislation on abortion was brought in. Mr. Justice Niall McCarthy lambasted the Government when he described this failure as “no longer unfortunate, it is inexcusable”. This i a prime example of how Judges are independent from the state in court. Until recently it was unthinkable for a judge to give a comment about a case in which he had been involved. The view is that Judges made decisions but any implications were not matters for them as the Judiciary should stand aloof. In l992 public comments of O’Hanlon J on proposed changes in Irish law on abortion, resulted in his resigning from the position as President of the Law Reform Commission. Although it did not lead to removal of him as a judge it shows what can happen if they become embroiled publicly in cases on which they hold strong views.
The Court system is very detailed and precise in that it doesn’t seem to have any loopholes. However it should have been set up by the Constitution instead of leaving it until the Courts Act in 1961. There is also a clear guideline on how Judges should be appointed which sets a very high standard of qualifications for the appointment of a Judge. However it is clear that the vacant positions are only available to a select few. There are some faults in our system such as the Minister having the power to introduce Legislation after they have been passed. This can be seen in the Attorney General versus X case mentioned previously. I believe the separation of powers is also imperfect, as all departments are interdependent. However I believe this can be a good thing that the powers i.e. legislature, executive and the judicial, are not separated as we the people, benefit from it with Justice.