Fragments 2006-10-26

A vacancy has arisen on the Supreme Court with the retirement of Brian McCracken, who was, of course, the most successful of the tribunal chairpersons when he headed the inquiry into the Dunnes Stories payments to Charles Haughey and Michael Lowry. He had been promoted from the High Court to the Supreme Court. A few others on the Supreme Court also got promotion: Catherine McGuinness, Susan Denham and Nicholas Kearns, for instance. Catherine McGuinness, incidentally, is also due to retire soon.

While judicial experience is an obvious asset on the Supreme Court, there must be (or should be?) concern about the practice of "promoting" judicial figures. The concern arises from an anxiety that, for instance, judges of the High Court may feel their promotional prospects may be compromised if they fail to deliver judgements that are facilitatory of the government of the day.

I can think of one judicial promotion that was blocked by a government that felt a judge had been inadequately facilitatory. That involved Brian Walsh, who had come on to the Supreme Court in 1962 and was the intellectual powerhouse of the court headed by Cearbhall Ó Dálaigh, when the Supreme Court was more innovative (if that is a compliment!) than otherwise in its history. When Cearbhall Ó Dálaigh resigned as chief justice to become Ireland's first judge of the European Court of Justice, Brian Walsh was overlooked in favour of a judge who had very little judicial experience, W O'B FitzGerald, who died shortly afterwards. Then Brian Walsh was overlooked again when Tom O'Higgins (the former Fine Gael TD and minister) was appointed chief justice by the Fine Gael-led government very shortly after he had gone on to the High Court bench.

As it happens, Tom O'Higgins was an outstanding chief justice, but the reason he and, before him, W O'B FitzGerald, were appointed was because Jack Lynch had it "in" for Brian Walsh, whom he regarded as too liberal, and so too did Liam Cosgrave.

Appointments to the Supreme Court are of huge significance but are treated by the political establishment and the media as routine. The Supreme Court decides what the constitution means, which means it decides on issues of fundamental significance, involving rights, balance of responsibilities, entitlements and the like.

The present Supreme Court has both swung to the right, largely under the influence of Adrian Hardiman, and veered all over the place on, for instance, the "A" case, where it ordered the arrest and imprisonment of a person who had been convicted for an offence that the court itself had found not to exist, much to the relief of the government that appointed most of them.

The forthcoming two appointments to the court are likely to be made before the next election. More than likely, it will be one Fianna Fáil appointee and one Progressive Democrat appointee (the politicisation of the judicial appointments is now as intense as even in the darkest days before the establishment of the Judicial Appointments Commission).

The Fianna Fáil nominee could be Conor Maguire (pictured, right), whose father was once chief justice – but it wouldn't be because of that he would be appointed. Aside from his obvious qualifications, he has also been the senior counsel who represented Bertie Ahern at the Planning Tribunal and probably was the lawyer who gave Bertie advice during the latter's recent difficulties.

The Progressive Democrat nominee could well be Gerry Hogan (pictured, left), the senior counsel, who, with great skill, dug the government out of the hole in the "A" case. Gerry Hogan is one of the joint authors of the authoritative works on the Irish constitution (along with Trinity academic Gerry Whyte) and the likelihood is that when the next edition of that authoritative work appears, the Supreme Court will be excoriated for the decision that Gerry Hogan urged upon them!

Either or both these appointments would be well chosen, all the more so since they would be appointed straight from the Law Library and not "promoted" from the High Court. But is it good enough that such crucial appointments are made in secrecy by the Taoiseach and Tánaiste (albeit formally approved by the cabinet), with no scrutiny of their qualifications (which in these instances would not be an issue) but, more importantly, no scrutiny of what they might do with the judicial power once they have it?


The next Attorney General

Rory Brady is unlikely to want to remain as Attorney General even if Fianna Fáil is returned to office after the next election. He hated the profile and criticism he got over the "C" and "A" cases last summer and anyway would want to resume his successful commercial practice at the Bar. If Conor Maguire does not get elevated to the Supreme Court (see story on previous page), he could well be the next Attorney General if Bertie Ahern is Taoiseach. Alternatively, the next Attorney General might be a TD, that is if Hugh Mohan SC is elected to the Dáil for Cavan-Monaghan.

Hugh Mohan is the recently-retired chairman of the Bar Council and has expressed interest in contesting the Cavan-Monaghan constituency for Fianna Fáil. But the chances of Fianna Fáil taking two of the four seats there (the fifth seat is held by the Ceann Comhairle, Rory O'Hanlon, and he is re-elected to the next Dáil without a contest for the seat) is remote. Fine Gael is sure of one seat (Seymour Crawford), Sinn Féin is assured of one seat (Caoimhghín Ó Caoláin), Fianna Fáil has one certain seat (Brendan Smith), which would leave Hugh Mohan challenging Independent Paudge Connolly for the fourth seat. With controversy still raging over the Monaghan Hospital issue, it is likely Paudge will hold on, which makes prospects for Hugh Mohan bleak.

But if Hugh Mohan did make it, he probably would become Attorney General. Indeed, he might get the job anyway.

Meanwhile, were Fine Gael to be the lead party in the next government, chances are that former TD George Birmingham would be Attorney General. Alternatively, there's Frank Callanan, biographer of Parnell and Tim Healy and currently writing on the politics of WB Yeats. It is said Colm Allen is also keen to become Attorney General. He is helping Fine Gael to raise money for its election campaign and he recently has sought to increase his modest profile. In so far as he is known publicly, it is probably as counsel for Tom and Mick Bailey at the planning tribunal, where he was a comic turn at times but hardly successful in deflecting the tribunal wrath from the Bailey brothers.


On this day: 23 October 4004BC - The creation of the world

The world was created by God 6010 years ago on 23 October 4004 BC. This was discovered by the Protestant Archbishop of Dublin and later Armagh, James Ussher, in 1650 and his work is cited by many contemporary Creationists as the "gospel truth". Usher's work is known as Annales veteris testamenti, a prima mundi origine deducti (Annals of the Old Testament, deduced from the first origins of the world). He "discovered" that the first day of creation began at nightfall preceding Sunday 23 October 4004 BC in the proleptic Julian calendar, near the autumnal equinox.

This is based on, the free online encyclopaedia