Supreme Court: enormous power, no accountability

Last Tuesday the Gvernment nominated one Supreme Court judge, four High Court judges and six other judges for appointment by the President. The appointments are a mere formality as the President has no discretion in the matter, irrespective of her opinion of the wisdom or appropriateness of these appointments (if she has any such opinions).


Judges occupy positions of considerable power in the state. They adjudicate between parties in civil disputes including family law matters, they convict or acquit persons charged with offences in the District, Circuit and Special Criminal Courts. In these courts and in the Central Criminal Courts they impose penalties, often long terms of imprisonments. In all these courts and in the Supreme Court judges interpret the law and in both the High Court and Supreme Court judges decide whether laws are in conformity with the Constitution.

So all these appointments are of considerable significance, and yet the procedure of appointment is the most casual and unaccountable, although great claims were made nine years ago about a transformation in the procedure for judicial appointments.

The Courts and Courts Officers Act 1995 was a joke from the outset. It provided for a Judicial Appointments Board, comprised of the presidents of the various courts, the Attorney General, a barrister, a solicitor and three persons appointed by the Minister for Justice.

The board is required under the Act to inform the Minister of the names of each person who applies for a judicial appointment, along with seven recommendations for each judicial job. And even then the Government is merely required to consider these seven recommendations and, if it wants to have someone else appointed, it can go ahead and do so.

The procedure is a farce and, if anything, judicial appointments have been even more political than they were before, certainly more political than previously, since the present Fianna Fáil-Progressive Democrat Government came to office. Several former members of the Progressive Democrats or persons formerly associated with that party have won judicial preferment, as have several people formerly aligned with Fianna Fáil. Many of the appointments have been very good ones, as are several now underway, but some have been truly awful and, in one instance, quite bizarre.

But there is a more important consideration and it concerns, primarily, appointments to the Supreme Court. Such appointments are by far the most important for, ultimately, it is the Supreme Court that determines all important issues of law and, in effect, it is this court that often makes the law, although the fiction prevails that courts don't make laws, they merely interpret them.

Persons appointed to the Supreme Court exercise, in conjunction with their colleagues on the court, enormous powers.

As an illustration of this, consider what that court has decided in the past several years: that abortion is legally permissible in Ireland in spite of the 1983 Constitutional amendment; that discussion in cabinet is protected by the Constitution from disclosure; that parents of Irish citizen children may be deported from Ireland except in exceptional circumstances (this in clear contradiction of a previous decision of the court, although the judges in the majority in the recent case claimed it was in conformity with the previous judgment); that in determining the scale of damages in libel cases, a jury need pay no heed to considerations of press freedom; that committees of the Oireachtas may not carry out investigations that could come to findings of fact that might be injurious to citizens; that where the Supreme Court itself is clearly wrong on matters of fact it will refuse to correct itself when the mistake is brought to its attention.

Citizens and their elected public representatives clearly have an interest in who is appointed to the Supreme Court and how they might exercise the vast powers available to them. But there is no mechanism whereby persons nominated to positions of such importance are scrutinised by public representatives before they are conferred with such powers.

The Constitution merely provides that judicial appointments are made by the President on the advice of the government. But the Constitution also provides that the Government is answerable to the Dáil, and there is no valid reason why it should not be answerable to the Dáil on the issue of such significant appointments and answerable before such appointments are finalised. Unlike most other government decisions, appointments to the High and Supreme Court cannot be undone (except in exceptional circumstances) after the President has gone through the formalities.

Nicholas Kearns, a judge of the High Court, is about to be appointed to the Supreme Court. In terms of ability, experience as a judge, expertise in the law, character, personality and temperament he is an excellent appointment. But is assurance on these scores enough? Are we not entitled to have his judicial track record examined in advance of his appointment? Incidentally, he has been an exceptional judge and in terms of reasoning, fairness and capacity, there is no doubt about his suitability for promotion. But his appointment is likely to sway the Supreme Court further in a rightwards direction and a decision that achieves this deserves to be examined and approved (or disapproved) by the Dáil in advance of completion.

The Supreme Court has moved steadily to the right in recent years from its more progressive incarnation in the era of Brian Walsh, Seamus Henchy, Frank Griffin and others. This was especially marked during the reign as chief justice of Ronan Keane. John Murray, the new chief justice, may moderate this but he is but one of eight and the appointment of Nicholas Kearns, whatever the excellence of his intelligence, capacity and character, may swing it back in a direction amenable to the Progressive Democrats who may be even more on the fringes of electoral approval come the next election.

It isn't good enough that decisions of such enormity are made in secret and without accountability.